|
Article 18 of the European Convention on Human Rights (ECHR) states: The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. This Article means that it is a violation of the ECHR for a state to restrict a listed human right for any reason other than the one formally given and allowed under the Convention; "there can be no inherent or implied limitations on the rights guaranteed. Each limitation must be express and have an explicit purpose".〔Clare Ovey and Robin White (4th ed 2006) ''Jacobs and White: The European Convention on Human Rights'' London: Oxford University Press.〕 According to Gomien, Article 18 can only be invoked with regards to one of the substantive rights guaranteed by the ECHR.〔Donna Gomien (3rd ed, 2005) ''Short guide to the European Convention on Human Rights'' Council of Europe Publishing at 77-78.〕 In terms of comparison to other human rights instruments, this Article is reasonably unique: there is no such provision in the Universal Declaration of Human Rights or in the International Covenant on Civil and Political Rights. There is, however, a similar provision in Article 30 of the American Convention on Human Rights: The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with the laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established. ==Application== Article 18 must always operate in tandem with another article of the ECHR, although that Article need not necessarily be violated, as explained by the Court in Gusinskiy v Russia:〔Gusinskiy v Russia (70276/01) () ECHR.〕 “Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention. There may, however, be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone.” Article 18 is designed to target ulterior motives for restricting human rights.〔Luke Clements, Nuala Mole and Alan Simmons (2nd ed, 1999) ''European Human Rights: Taking a Case Under the Convention'' London: Sweet & Maxwell at 222.〕 This article has most frequently been invoked by those claiming the state is attempting to restrict the individual's ability to participate in politics.〔Marina Ilminska, (''Case Watch: Politics, Justice and Article 18'' ). Retrieved 10 April 2014.〕 Article 18 is likely to be applicable in four situations:〔Pieter van Dijk, Fried van Hoof, Arjen van Rijn, and Leo Zwaak (eds) (4th ed, 2006) ''Theory and Practice of the European Convention on Human Rights'' Intersentia: Antwerp at 1095.〕 * Where an Article has a limitation clause which specifically qualifies the right. * Where Convention Articles expressly exclude certain areas or persons from the guarantee of protection. * General restrictions under certain Articles (for example, Articles 15, 16, and 17). This cannot apply to Articles which contain non-derogable rights.〔For an explanation of non-derogable rights, see (''The Resource Part II: Human Rights in Times of Emergencies'' ). United Nations. Retrieved 16 April 2014.〕 * It may also apply to inherent limitations that have been confirmed to exist in case law. The onus is on the applicant to show an abuse of power by the state, or a breach of the principle of good faith.〔Luke Clements, Nuala Mole and Alan Simmons (2nd ed, 1999) ''European Human Rights: Taking a Case Under the Convention'' London: Sweet & Maxwell at 222.〕 This is a heavy burden to establish as there is a presumption that power has not been misused, meaning that although over 200 cases on this Article have been heard, only four violations of Article 18 have ever been found by the European Court of Human Rights.〔Volodymyr Yavorsky, (''Political persecution in the context of European Court of Human Rights case law'' ). Ukrainian Helsinki Human Rights Union. Retrieved 4 May 2014.〕 This is exacerbated by the reluctance of the Court to rely on Article 18 rather than the other Article invoked in the case.〔Luke Clements, Nuala Mole and Alan Simmons (2nd ed, 1999) ''European Human Rights: Taking a Case Under the Convention'' London: Sweet & Maxwell at 222.〕 Beddard argues that Article 18 has also proved difficult to apply due to the Court's broad interpretation of the interests listed under the Convention,〔Ralph Beddard (3rd ed, 1993) ''Human Rights and Europe'' Cambridge University Press at 187-188.〕 and the application of the doctrine of the margin of appreciation.〔See (The Council of Europe ) explanation of the doctrine.〕 A finding that Article 18 has been violated does not directly lead to specific consequences, although like any other ECHR violation, Article 46 of the ECHR requires the State to take action to redress the individual's rights. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Article 18 of the European Convention on Human Rights」の詳細全文を読む スポンサード リンク
|