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

摘要

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 governmentmale fidetries to erode the social, political and economiccontre-pouvoirswithin a State and when the institutionalcontre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this erosion.