@article{Finnerty, author = {Finnerty, Joseph}, title = {When is a State's 'Hidden Agenda' Proven? The Role of the Merabishvili's Three-Legged Evidentiary Test in the Article 18 Strasbourg Case Law}, series = {European Convention on Human Rights Law Review}, journal = {European Convention on Human Rights Law Review}, issn = {2666-3228}, doi = {10.1163/26663236-bja10077}, abstract = {The increasingly litigated Article 18 ECHR aims at unmasking the 'hidden agenda' pursued by states that proclaim to be restricting human rights for legitimate reasons, but in fact do so for an 'ulterior purpose'. These complaints generate complex evidentiary challenges. This article investigates the evidentiary regime of Article 18 since the delivery of the Grand Chamber Merabishvili v Georgia judgment in 2017. It shows that this regime is composed of a three-legged evidentiary test requiring: (1) that the Article 18 complaint is a fundamental aspect of the case, (2) the identification of an 'ulterior purpose', and (3) the predominance of this purpose in the state's overall motivation. The article argues that this three-stage test is sui generis, despite borrowing elements from evidentiary regimes, both from other Convention provisions and externally, and that it lacks clarity and coherency: facilitating a higher standard of proof for the provision, which largely burdens applicants.}, language = {en} } @article{FinnertyCalı, author = {Finnerty, Joseph and {\c{C}}al{\i}, Ba{\c{s}}ak}, title = {The Travaux Pr{\´e}paratoires and Progressive Treaty Interpretation: Article 18 of the European Convention on Human Rights}, series = {European Journal of International Law}, volume = {36}, journal = {European Journal of International Law}, number = {2}, publisher = {Oxford University Press (OUP)}, doi = {10.1093/ejil/chaf029}, pages = {475 -- 499}, abstract = {Article 18 of the European Convention on Human Rights (ECHR) has become a central provision employed by the European Court of Human Rights in response to authoritarian practices in Europe over the last decade. Notwithstanding its increased use, important disagreements persist regarding the interpretation of the provision. Analysing the provision's ordinary meaning, the convention's travaux pr{\´e}paratoires as a whole and the interpretation of the provision by majority and minority judges of the Court, this article identifies three competing normative models for specifying Article 18's purpose. Whilst the text is open for Article 18 to address all forms of abuse of power - authoritarian or democratic - the travaux suggest a purpose of detecting emerging authoritarian practices. The majority on the Court's bench, on the other hand, view Article 18 as a narrow tool to respond to predominant and pronounced authoritarian practices. These normative disagreements are also reflected in concurring and dissenting opinions annexed to Article 18 judgments, with some minority judges defending the narrow normative model and others advocating for a more progressive interpretation, not only on familiar grounds of evolutive interpretation but also because the convention's history calls for progressive interpretation of this particular provision. Our findings complicate the well-established presumption that progressive interpretation of the convention comes about by treating it as a 'living instrument' at the expense of the drafters' intent, highlighting the turn to 'progressive originalism' in the interpretation of Article 18 of the ECHR.}, language = {en} } @article{Finnerty, author = {Finnerty, Joseph}, title = {Confronting Authoritarian Practices through Procedural-Based Review: The Case of the Polish Rule of Law Crisis}, series = {The European Convention on Human Rights Law Review}, journal = {The European Convention on Human Rights Law Review}, publisher = {Brill | Nijhoff}, doi = {10.1163/26663236-bja10150}, pages = {1 -- 25}, abstract = {This article examines how the European Court of Human Rights (ECtHR or Court) has responded to authoritarian practices that seek to undermine judicial independence, particularly in the context of the Polish rule of law crisis. In contrast to the existing scholarly attention to and emphasis on the subjective right to judicial independence and ulterior purpose doctrines as response mechanisms to these particular authoritarian practices, this article finds that the principle of legality, understood as a 'procedural' as well as a 'substantive' notion under the European Convention on Human Rights, has done most of the heavy lifting in this context. The article argues that the procedural side of this bifurcated approach to legality may be conceptualised as a new form of procedural-based review in the Court's broader case law, coining the term 'procedural legality', and further notes the unexpected role for procedural-based review in the context of autocratisation.}, language = {en} } @article{Finnerty, author = {Finnerty, Joseph}, title = {How Should the European Court of Human Rights Remedy Violations of Article 18 ECHR? The Case for Remedial Realignment}, series = {European Convention on Human Rights Law Review}, volume = {5}, journal = {European Convention on Human Rights Law Review}, number = {3}, publisher = {Brill | Nijhoff}, doi = {10.1163/26663236-bja10100}, pages = {380 -- 399}, abstract = {This article assesses whether the European Court of Human Right's (Court) remedial reasoning in Article 18 European Convention on Human Rights (Convention) judgments coheres with the Court's merits-based reasoning finding a violation of this particular provision. Article 18 violations have come to highlight structural problems in state parties, most notably complicity from domestic judiciaries and/or state prosecutors in state efforts to restrict Convention rights for anti-democratic ulterior purposes. The article finds that this substantive feature of Article 18 violations does not generally extend to the Court's approach to formulating remedies and that the Article 18 violation judgments evidence the same remedial oversight generally present in the Court's broader case law. The article argues, however, that the Court's remedial approach in Article 18 violation judgments should be highly prescriptive and specific in respect of both individual and general measures on account of the reality that Article 18 serves both individual and constitutional justice and engages the positive dimension of subsidiarity.}, language = {en} }