whether the action can be considered an arbitrary act.175 In this regard, the Court bases itself on the
fact that the actions of State authorities are protected by a presumption of legal conduct; hence an
irregular action by the State authorities must be proved in order to override the presumption of good
faith.176 (underlining added).
130. As can be observed in this paragraph of the Judgment, the ICourtHR cited several
precedents of the European Court in the footnote and, in my opinion, they warrant being
examined in greater depth. In order to understand these precedents, it should be recalled
that Article 18 of the European Convention on Human Rights indicates that “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.”
131. Regarding the possibility of applying Article 18 of the European Convention, the
Strasbourg Court has indicated that: (i) Article 18 of the Convention does not have an
autonomous role: (ii) that the said article can only be applied in conjunction with, or in
relation to, the articles of the Convention that establish subjective rights, and (iii) from the
wording of Article 18, it is understood that a violation of a right or freedom can occur only
when the said right is subject to a restriction permitted under the Convention.
132. In the Judgment that inspires this opinion, the ICourtHR cited the cases of Gusinskiy
v. Russia, Cebotari v. Moldova, and Lutsenko v. Ukraine. In this regard, it is worth
underscoring that, in the last two cases, the European Court of Human Rights declared the
violation of Article 18 of the Convention. Indeed, in the case of Cebotari v. Moldova it
indicated that:
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION AND OF ARTICLE 18 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5
48. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under
Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring
charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others
v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, pp. 29-30, § 53).
Neither is it necessary that the person detained should ultimately have been charged or brought
before a court. The object of detention for questioning is to further a criminal investigation by
confirming or dispelling suspicions which provide the grounds for detention (see Murray v. the United
Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). However, the requirement
In this regard, the European Court of Human Rights has taken into account the real purpose or grounds
that the State authorities had when exercising their functions, in order to determine whether there had been a
violation of the European Convention on Human Rights. For example, in the Case of Gusinskiy v. Russia, the
European Court considered that the restriction of the victim’s detention authorized by Article 5.1(c) of the
European Convention, was not only applied to make him appear before the competent judicial authority, because it
was considered that there were reasonable indications that he had committed an offense, but also in order to
oblige him to sell his company to the State. In the Case of Cebotari v. Moldova, it declared that Article 18 of the
European Convention had been violated because the Government had not been able to convince the Court that it
had a reasonable suspicion to consider that the applicant had committed a crime, and the said Court concluded
that the real purpose of the criminal proceeding and the detention of the applicant was to pressure him and thus
prevent his company “Oferta Plus” from pursuing its application before the Court. Lastly, in the Case of Lutsenko
v. Ukraine, the European Court determined that the applicant’s detention, authorized by Article 5.1(c), had been
executed not only in order to ensure his appearance before the competent judicial authority, because there were
reasonable indications that he had committed an offense, but also for other reasons related to the prosecution’s
attempt to file charges against the applicant for publicly contesting the accusations against him. Cf. European
Court of Human Rights, Case of Gusinskiy v. Russia, Judgement of 19 May 2004, paras. 71 to 78; Case of Cebotari
v. Moldova, Judgement of 13 February 2008, paras. 46 to 53, and Case of Lutsenko v. Ukraine, Judgement of 3
July 2012, paras. 100 to 110.
175
The ICourtHR has indicated that direct evidence, whether testimonial or documentary, is not the only
evidence that may legitimately be considered to provide grounds for the judgment. Circumstantial evidence,
indications and presumptions may also be used, provided that consistent conclusions concerning the facts can be
inferred from them”. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4,
para. 130.
176
37