The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?

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Abstract

The case-law on Article 18 of the European Convention on Human Rights has been evolving recently in a dramatic fashion. This evolution, which shaped a new doctrine on the misuse of power, focuses on the criminalisation of dissent within a State where undemocratic tendencies arise. The purpose of this article is to highlight these undemocratic tendencies and demonstrate that Article 18 ECHR addresses the systemic deficiencies in the balance of powers within a State. A violation of Article 18 ECHR occurs when the executive branch of government male fide tries to erode the social, political and economic contre-pouvoirs within a State and when the institutional contre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this erosion.
Original languageEnglish
Pages (from-to)134-155
Number of pages22
JournalNetherlands Quarterly of Human Rights
Volume38
Issue number2
DOIs
Publication statusPublished - Jun-2020

Keywords

  • European Court of Human Rights
  • European Convention on Human Rights
  • Article 18
  • misuse of power
  • detournement de pouvoir
  • contre-pouvoirs
  • rule of law
  • democracy
  • bad faith
  • ulterior purpose
  • reasons of state
  • chilling effect
  • EUROPEAN COURT
  • HUMAN-RIGHTS

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