10.6092/issn.2531-6133/14860
This article aims to trace the recent changes in the case law of the European Court of Human Rights, pertaining to the legitimate aim test, which has so far not been appropriately considered in existing jurisprudence. It first shows that the legitimate aim test is not just a paper tiger, and has a bigger bite than it has been given credit for, especially for the last ten years. Furthermore, despite its “procedural turn”, the Court has recently been more inclined to take the legitimate aim disputes to a factual level by questioning the governments’ assertions of legitimate aims with regard to not only their legal justificatory capacities but also as to their factual accuracy. However, this shift towards a stricter, more sceptical approach is only observable against certain member states. This finding aligns with recent scholarship on the Court’s differentiated approach towards Member States, often called “the variable geometry”.
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2531-6133
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Necdet Umut Orcan
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Articles & Essays
2022-05-13
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2022-04-12
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Necdet Umut Orcan
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Legitimate Aims, Illegitimate Aims and the E.Ct.H.R.: Changing Attitudes and Selective Strictness
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7
llVOLUME 7                                   llISSUE 1                        ARTICLES & ESSAYS



                          UNIVERSITY OF BOLOGNA LAW REVIEW
                          https://doi.org/10.6092/issn.2531‐6133/14860

             Received: 25 Aug. 2021 | Accepted: 4 Oct. 2021 | Published: 13 May 2022

                                                  A
Legitimate Aims, Illegitimate Aims and the E.Ct.H.R.: Changing
              Attitudes and Selective Strictness

                                      NECDET UMUT ORCAN
Necdet Umut Orcan, LL.M. in Public Law at the Marmara University (Turkey), is Ph.D. candidate
in Public Law at the Galatasaray University - Institute of Social Sciences (Turkey) and Research
assistant at the Marmara University, Law School - Department of Human Rights(Turkey). He is
also Visiting Scholar at the University of Wisconsin-Madison - Global Legal Studies Center(U.S.A.).
The author would like to thank Osman Doğru for many insightful discussions which helped shape
the idea behind this paper, and for his feedback throughout the writing process. The author is also
grateful to Esra Demir-Gürsel and Tolga Şirin for their valuable comments on earlier drafts of this
article. All errors remain of the author.

 @ umut.orcan@marmara.edu.tr
  ID
       0000-0002-9161-1928


                                             ABSTRACT

This article aims to trace the recent changes in the case law of the European Court of Human
Rights, pertaining to the legitimate aim test, which has so far not been appropriately considered
in existing jurisprudence. It first shows that the legitimate aim test is not just a paper tiger, and
has a bigger bite than it has been given credit for, especially for the last ten years. Furthermore,
despite its “procedural turn”, the Court has recently been more inclined to take the legitimate
aim disputes to a factual level by questioning the governments’ assertions of legitimate aims with
regard to not only their legal justificatory capacities but also as to their factual accuracy.
However, this shift towards a stricter, more sceptical approach is only observable against certain
member states. This finding aligns with recent scholarship on the Court’s differentiated
approach towards Member States, often called “the variable geometry”.


                                            KEYWORDS
  Legitimate Aims; European Court of Human Rights; European Convention on Human Rights; Bad Faith
                                  Jurisprudence; Selective Strictness


                                         EDITORIAL NOTE
 The Bluebook rules (21st ed., 2020) require the avoidance of a final bibliography or list of cases.
 May the reader note that - given the peculiar expressivity of Annex I - he will find a list of cases
           at the end of the article. For further details, please refer to the footnote 68.




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                        LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


                                                TABLE OF CONTENTS



Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 8
1. Legitimate Aim Violations: Numbers, Forms and Changes . . . . . . . . . . . . . . . . . .                        12
         1.1. The Numbers: Is the L.A.T. Really a Paper Tiger? . . . . . . . . . . . . . . . . . .                  13
         1.2. Different Types of Legitimate Aim Violations . . . . . . . . . . . . . . . . . . . .                  17
            1.2.1. Type A Violations: No Aim Invoked by National Authorities . . . . . . . . .                      17
            1.2.2. Type B Violations: No Justification of Measure through Pursued Aim . . . .                       19
            1.2.3. Type C Violations: No Actual Pursuit of Invoked Aims . . . . . . . . . . . .                     21
                     1.2.3.1. Cases Where The Ulterior Purpose Was Not Identified (Type C.1
                                 Violations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              22
                     1.2.3.2. Cases Where an Ulterior Purpose Was Identified (Type C.2
                                 Violations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              24
         1.3. The Changing Mien of the Legitimate Aim Violations Over Time . . . . . . . . .                        28
2. A Selective Strictness? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              30
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                34
Annex 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               36




        INTRODUCTION

The institution and the case law of the European Court of Human Rights [hereinafter
E.Ct.H.R.] has undergone numerous significant changes over the years. These changes
were often made in response to criticisms and emerging problems and they have
attracted considerable academic attention.1
1
    See generally, JAMES A. SWEENEY, THE EUROPEAN COURT OF HUMAN RIGHTS IN THE POST-COLD WAR ERA:
    UNIVERSALITY IN TRANSITION (2013). ED BATES, THE EVOLUTION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
    (2011). JONAS CHRISTOFFERSEN & MIKAEL RASK MADSEN, THE EUROPEAN COURT OF HUMAN RIGHTS BETWEEN LAW AND
    POLITICS (2011). ; Laurence R. Helfer, Redesigning the European Court of Human Rights: Embeddedness as a Deep
    Structural Principle of the Human Rights Regime, 19 EUR. J. INT’L. L. 125 (2008). John Hedigan, The European Court
    of Human Rights: Yesterday, Today and Tomorrow, 12 GER. L. J. 1716 (2011). Kanstantsin Dzehtsiarou, European
    Consensus and the Evolutive Interpretation of the European Convention on Human Rights, 12 GER. L. J. 1730 (2011)
    ; Noreen O’meara, Reforming the ECtHR: The Impacts of Protocols 15 and 16 to the ECHR, ICOURTS WORKING PAPER
    SERIES NO:31 (2015); Evaluation Group, Report of the Evaluation Group to the Committee of Ministers on the European
    Court of Human Rights at 39 (2001); Steven Greer, What’s Wrong with the European Convention on Human Rights?,
    30 HUM. RTS Q. 680 (2008). Lord Woolf, Review of the Working Methods of the European Court of Human Rights 67-
    70 (2005); Marie-Aude Beernaert, Protocol 14 and new Strasbourg Procedures: Towards Greater Efficiency? And at
    What Price?, 5 HUM. RTS L. REV. 544, 545 (2004). Eur. Consult. Ass., Implementation of judgments of the European
    Court of Human Rights, Doc. No. 2075, at 7 (2015). See also Helen Keller & Cedric Marti, Reconceptualizing
    Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments 26(4) EUR. J.
    INT. LAW 830 (2015); George Stafford, The Implementation of Judgments of the European Court of Human Rights:
    Worse Than You Think – Part II: The Hole in the Roof, EJIL:Talk! (2019); L.ucy Moxham, Implementation of ECHR
    judgments – have we reached a crisis point?, UK Human Rights Blog (2017); Robert Harmsen, The Reform of the
    Convention System: Institutional Restructuring and the (Geo-)Politics of Human Rights in THE EUROPEAN COURT OF
    HUMAN RIGHTS BETWEEN LAW AND POLITICS 119 (Jonas Christoffersen & Mikael Rask Madsen eds., 2011) ; Lize
    R. Glas, From Interlaken to Copenhagen: What Has Become of the Proposals Aiming to Reform the Functioning of the
    European Court of Human Rights 20 HUM. RTS L. REV. 121, 128 (2020) ; L.R. Glas, “Unilateral Declarations and
    the European Court of Human Rights” 25(5) MAAST. J. EUR. Comp. L. 629 (2018).


                                                           8
2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 7:1


Among these changes, arguably the biggest, is the Court’s recent shift towards a more
deferent stance in favour of domestic authorities. This shift came after some Member
States’, led by the U.K.,2 voiced growing criticism towards the Court with regard to its
alleged “intrusive” and “expansionist” approach that disregards its subsidiary function.3
As a response to these criticisms,4 the Court’s case law has undergone a
well-documented change, which is often called the “procedural turn” of the E.Ct.H.R. .5
In brief, this “procedural turn” marks the Court’s transition from a court that is mostly
concerned with the substance of the arguments and their justificatory capacities for the
limitation in question, towards a court that primarily focuses on the quality of the
national decision-making process leading up to that limitation, without giving decisive
importance to the outcome of the decision made.6 This new deferent approach provides
more substantive freedom to national decision-makers, provided that they make an
assessment “in conformity with the criteria laid down in the Court’s case law.”7 That
being so, there is growing doubt in the literature whether all Member States enjoy this
recent freedom. There are both qualitative and quantitative studies showing that after
the “procedural turn”, the Court has started to apply different standards for different



2
  For an elaborate analysis on the criticisms of the European Court of Human Rights in the United Kingdom, see
  Roger Masterman, The United Kingdom: From Strasbourg Surrogacy towards a British Bill of Rights? in CRITICISM OF
  THE EUROPEAN COURT OF HUMAN RIGHTS : SHIFTING THE CONVENTION SYSTEM : COUNTER-DYNAMICS AT THE NATIONAL
  AND EU LEVEL 447 (Patricia Popelier et al. eds., 2016).
3
  See SARAH LAMBRECHT, Assessing the Existence of Criticism of the European Court of Human Rights, in Popelier et al.,
  supra note 2, at 511.
4
  Some authors find this change to be more linked to the case overload rather than criticism. Oddný M.
  Arnardóttir, Rethinking the Two Margins of Appreciation, 12 EUR. CONST. L. REV. 27, 51 (2016).
5
  See generally, JANNEKE GERARDS & EVA BREMS , PROCEDURAL REVIEW IN EUROPEAN FUNDAMENTAL RIGHTS CASES
  (2017); PATRICIA POPELIER ET AL., The Court as Regulatory Watchdog: The Procedural Approach in the Case-law of
  the European Court of Human Rights in THE ROLE OF CONSTITUTIONAL COURTS IN MULTILEVEL GOVERNANCE (Patricia
  Popelier et al. eds., 2012); Oddný Mjöll Arnardóttir, The ‘Procedural Turn’ under the European Convention on
  Human Rights and Presumptions of Convention Compliance, 15 INT’L J. CONST. L. 9 (2017); BAşAK ÇALI, Towards a
  Responsible Domestic Courts Doctrine? The European Court of Human Rights and the Variable Standard of Judicial
  Review of Domestic Court Judgments in SHIFTING CENTRES OF GRAVITY IN HUMAN RIGHTS PROTECTION (Oddny Mjö
  Arnardóttir & Antooine Buyse eds., 2016); Eva Brems & Laurens Lavrysen, Procedural Justice in Human Rights
  Adjudication: The European Court of Human Rights, 35 HUM. RTS. Q. 176 (2013); Patricia Popelier & Catherine
  Van De Heyning, Procedural Rationality: Giving Teeth to the Proportionality Analysis, 9 EUR. CONST. L. REV. 230
  (2013); Robert Spano, The Future of the European Court of Human Rights - Subsidiarity, Process-based Review and
  the Rule of Law, 18 HUM. RTS. L. REV. 473 (2018). Leonie M. Huijbers, The European Court of Human Rights’
  Procedural Approach in the Age of Subsidiarity, 6 CAMB. INT‘L L.J. 177 (2017); Patricia Popelier & Catherine Van
  De Heyning, Subsidiarity Post-Brighton: Procedural Rationality as Answer?, 30 LEIDEN J. INT‘L L. 5 (2017); Robert
  Spano, Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity, 14 HUM. RTS. L. R. 487
  (2014).
6
  See JANNEKE GERARDS, Procedural Review by the ECtHR: A Typology in GERARDS & BREMS, supra note 5, at 128.
7
  A search for this phrase and its counterpart in French “dans le respect des critères établis par la
  jurisprudence de la Cour” in HUDOC database returns a total of ninety-three judgments, all decided after
  2012.




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                       LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


states and the new deferent approach is mostly limited to Western European
consolidated democracies.8               Notably, Çalı argued that the Court has developed a
differentiated approach between Member States through the new “bad faith
jurisprudence”, that is, the increasing number of violations decided under Article 18 of
the European Convention on Human Rights [hereinafter E.C.H.R. or Convention].9 Çalı’s
strong and later quantitatively supported10 position comes to an end with the following
note: “The current patchwork of cases discussed here so far shows a piecemeal
case-by-case approach that is in need of a more principled defense of distinguishing
between good and bad faith attitudes towards the Convention by the Court.”11
           This article aims to contribute to this very end. It does so by looking beyond the
official bad faith jurisprudence, that is the Article 18 case law, which attracted
considerable academic attraction recently. Instead, this paper focuses on its closely
connected and grossly ignored little sister, the legitimate aim test [hereinafter L.A.T.]. It
argues that, despite what is often suggested, the Court’s legitimate aim inquiry has never
been a toothless test. In fact, the Court has found more than a hundred violations when
applying this test. Moreover, about two thirds of all legitimate aim violations were
decided in the last ten years, which indicates a greater scrutiny on the Court’s part in
recent years. Indeed, while the recent “procedural turn” of the Court essentially means
less substantive judicial scrutiny, the L.A.T. has undergone a shift towards a more
evidence-based in concreto assessment. That is to say, the grounds that the Court relied
on when finding a breach of the legitimate aim condition are gradually changing from an
in abstracto assessment of the invoked aims’ justificatory capacity towards an in concreto
examination based on the factual circumstances surrounding the case.
           Also, it further finds that this increased judicial scrutiny of legitimate aims is
noticeably selective, since it is only directed on certain Member States. While for each
region the ratios of legitimate aim violations to all violations were similar before 2010,
there are significant differences between Northern and Western States, and Southern
and Eastern States after 2010. In fact, for Eastern European States, this ratio is now about
ten times higher than Northern and Western European States. More importantly, after
2010, the legitimate aim frequency (“legitimate aim violations/all violations” decided
against all Member States of the region) decreased significantly for Northern and
8
   Başak Çalı, Coping with Crisis: Whither the Variable Geometry in the Jurisprudence of the European Court of Human
   Rights, 35, WISC. INT’L. L. J. 237 (2018). Øyvind Stiansen & Eric Voeten, Backlash and Judicial Restraint: Evidence
   from the European Court of Human Rights, 64 INT’L. STUD. Q. 770 (2020). Mikael Rask Madsen, Rebalancing
   European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?, 9 J. INT’L.
   DISP. SETTLEMENT 199, 219 (2018).
 9
   Çalı, supra note 8, at 270.
10
   Stiansen & Voeten, supra note 8; Madsen, supra note 8.
11
   Çalı, supra note 8, 274.


                                                         10
2022]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:1


Western European States; but it increased significantly for Southern and Eastern
European States. These findings -which are elaborated below- show that the increasing
intensity of scrutiny in terms of the L.A.T. is not directed against all states, and it rather
seems concentrated on certain Southern and Eastern European States.
             This Work is the product of an extensive study on the Court’s case law, with a
particular focus on its practice within the legitimate aim inquiry. In the scope of this study,
the violations found by the Court owing to the breach of the legitimate aim condition
[hereinafter legitimate aim violations or L.A. violations] decided until November 2020 have
been noted, categorized and evaluated. In addition to that, the cases where the Court
raised doubts on the legitimacy of the invoked aims or raised particular concerns on the
legitimate aim question were noted and referred to where necessary, as can be seen below.
The numbers given in Parts 1 and 2 can be verified by consulting Annex I, which presents
the full list of the legitimate aim violations found under this study.
             Examining recent changes in the Court’s jurisprudence through the L.A.T. has
two major benefits that make this study a contribution to the existing literature. First, it,
in fact, eliminates the problem of small sample sizes. Some studies, both qualitative and
quantitative,12 suffer from inferring wide-reaching results from a small number of cases.
On the other hand, there are thousands of cases where the Court conducted a legitimate
aim analysis and more than a hundred of violations resulting from a breach of the
legitimate aim requirement.                Second, since the legitimate aim question is closely
connected to the bad faith analysis, examining that question covers both novelties in the
case law, namely the increased judicial deference and the emergence of the new Article
18 case law. As opposed to that, most existing literature is bound to cover only the
former or the latter.
             To that end, Part 1 discusses the importance of the L.A.T. and especially violations
found under it. Section 1.1 is dedicated to the numbers and presents the total number
of legitimate aim violations found under this study, their dispersion over time and over
substantive articles. That section demonstrates that the L.A.T. has much more teeth than
it has been given credit for and there are enough legitimate aim violations to work on for
the following analyses. Then Section 1.2 introduces three different types of legitimate aim
violations and shows that different types of violations indicate different levels of strictness
on the Court’s part, while Section 1.3 shows that the dispersion of these types of legitimate
aim violations over time suggests an increasing judicial strictness in the 2010s. The final
Part 2 shows that this increased judicial strictness is only directed against some Member

12
     Both Çalı and Madsen admit that this might be seen as a deficit in their works, see Id. at 275; Madsen, supra
     note 8, at 218.


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                      LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


States. It shows that the Court in fact adopts a “variable geometry”, but the article takes
it one step further: it also shows that for those states that are deemed to be disrespectful
towards the Convention values, the Court’s selective strictness goes beyond Article 18 cases
and extends to the legitimate aim analysis as well. Conclusion summarizes the findings of
the study.




      1. LEGITIMATE AIM VIOLATIONS: NUMBERS, FORMS AND CHANGES

The Convention does not contain a uniform mechanism of restrictions for all rights
guaranteed under it. Some articles explicitly stipulate that any interference with the
corresponding right should pursue a legitimate aim, and some do not. While not every
article in the Convention explicitly stipulates that condition, as the Court stated
repeatedly, “any interference with the enjoyment of a right or freedom recognized by
the Convention must pursue a legitimate aim”.13                        Accordingly, the Court regularly
examines the aim(s) of the interferences with Convention rights as to whether those
aims are legitimate in the sense of the Convention, notwithstanding whether the
underlying article explicitly stipulated that condition or not. Thus, the L.A.T. has a vast
scope of application.
           That being so, there is only a small number of studies specifically focused on this
test.14   There are some comprehensive studies on accommodation clauses, but often with
only a brief part dedicated to the L.A.T. .15 There are also studies that specifically focus on
certain legitimate aims individually, but without dwelling on the L.A.T. itself.16




13
   Broniowski v. Poland, 2004-V Eur. Ct. H.R. 1, 58.
14
   To my knowledge, two brief studies by Richard Gordon and Peter Kempees and a relatively longer article by
   Wojciech Sadurski. See Richard Gordon, Legitimate Aim: A Dimly Lit Road, 7 EUR. HUM. RTS. L. REV. 428 (2002).
   PePeter Kempees,“Legitimate Aims” in the Case-Law of the European Court of Human Rights, in PROTECTING HUMAN
   RIGHTS: THE EUROPEAN PERSPECTIVE: STUDIES IN MEMORY OF ROLV RYSSDAL 659 (2000). Wojciech Sadurski, Is There
   Public Reason in Strasbourg?, Legal Studies Research Paper No: 14/46 (2015). I wish to express my gratitude
   towards Mr. Gordon for taking his time to share his work with me when I had problems getting to it.
15
   See JUKKA VILJANEN, THE EUROPEAN COURT OF HUMAN RIGHTS AS A DEVELOPER OF THE GENERAL DOCTRINES OF HUMAN
   RIGHTS LAW: A STUDY OF THE LIMITATIONS CLAUSES OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (2003). Loukēs
   G. Loukaidēs, Restrictions or Limitations on the Rights Guaranteed by the European Convention on Human Rights, 4
   FINN. Y. B. INT’L. L. 334 (1993).
16
   See, for example, Marta Szuniewicz, The State’s Security as a Legitimate Aim of Limitation of Foreigners’ Human
   Rights - Are There Any Boundaries?, 12 US-CHINA L. REV. 76 (2015). Roberto Perrone, Public Morals and the
   European Convention on Human Rights, 47 ISR. L. REV. 361 (2014).


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2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:1


General commentaries on the E.C.H.R. refer to this test, but again often to a very limited
degree.17 This scarcity of research, I believe, is mostly due to the widespread belief that
the legitimate aim inquiry is remarkably easy to satisfy and does not cause significant
problems for the states.18 The Court itself pointed out that its practice is “quite succinct
when it verifies the existence of a legitimate aim”.19
          I beg to -somewhat- differ, especially when considering the last ten-fifteen years.
While it is evidently true that the Court still does not dwell on the L.A.T. as much as the
other inquiries, I argue that the test has always been more relevant than it has been given
credit for, and recently, much more so. This assertion, I believe, holds true even against the
recent “procedural turn”20 of the Court, and maybe even stronger with that turn. Indeed,
the current President of the Court Judge Spano recently suggested that the recent trend in
the Court’s case law towards a more process-based review might raise the question “whether
the Court should engage in a methodological shift towards a more strict, evidentiary-based
assessment of invoked legitimate aims.”21 This seems like an interesting take when one
thinks of the nature of the procedural turn, but -at least against some states- it actually
holds true, as what follows will show.



     1.1. THE NUMBERS: IS THE L.A.T. REALLY A PAPER TIGER?

As mentioned, scholarship seems to accept that the L.A.T. is rather abstract and often easy
to satisfy.22 When arguing for its ineffectiveness, there seems to be an almost universal
ground: the scarcity of violations found under this regime.23 This is certainly not without
merit. Found breaches of the legitimate aim condition are significantly lower than the
breaches found of the other two conditions of the so-called threefold test.


17
   See generally DAVID J. HARRIS ET AL., LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (3d ed. 2014).
   PIETER VAN DIJK ET AL., THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (5th ed. 2018).
   WILLIAM A. SCHABAS, THE EUROPEAN CONVENTION ON HUMAN RIGHTS: A COMMENTARY (2d ed. 2017). CHRISTOPH
   GRABENWARTER, EUROPEAN CONVENTION ON HUMAN RIGHTS: COMMENTARY (2014). PHILIP LEACH, TAKING A CASE TO
   THE EUROPEAN COURT OF HUMAN RIGHTS (4th ed. 2017). BERNADETTE RAINEY ET AL., JACOBS, WHITE AND OVEY: THE
   EUROPEAN CONVENTION ON HUMAN RIGHTS (8th ed., 2017).
18
   All the commentaries mentioned in fn. 17 commonly suggest that the Court gets satisfied easily when
   conducting the L.A.T. .
19
   Y.Y. v. Turkey , App. No. 14793/08, 461, 481(June 10, 2015), https://hudoc.echr.coe.int/eng#%22itemid%22:
   [%22001-153134%22].
20
   Arnardóttir, supra note 5.
21
   Spano, supra note 5, at 61.
22
   All numbers given in this section are valid as of 05.11.2020. Judgments delivered after that date are not
   included. The reader is kindly invited to verify all data provided under this study by resorting to Annex I.
23
   Another, but less common ground is the broad wording of the legitimate aims and the Court’s flexible
   handling of them. But it is ultimately the Court that gives meaning to these terms and thus the broad
   wording of the legitimate aims can be overcome by the interpretation of the Court.


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                      LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


That being so, the number of violations found under the L.A. assessment is often
undersold, and the number has been on the rise recently.
           A detailed review of the case law reveals -at least- 111 judgments in which the
Court held a clear violation of the legitimate aim requirement under a substantive article
(for the full list, see Annex I).24 This number is much higher than it has ever been
suggested. For example, Van Dijk et al. refer to four violations.25 Harris, O’Boyle and
Warbrick cite only one.26 Jacobs, White and Ovey merely mention a couple of cases
where the Court doubted the legitimacy of the invoked aim.27 Schabas, cites four.28
Grabenwarten refers to none when examining Articles 8 to 11, and only cites a limited
number under Article 14.29 Even a study that is specifically dedicated to arguing against
the lenient approach of the Court concerning the L.A.T. only cites cases in which the
Court “expressed some mild doubts”, without mentioning any of the violations under
that regime.30 Admittedly, none of those studies claims to offer a complete number.31
Again, admittedly, 111 is not a particularly impressive number, given that the Court had
found more than 15.000 violations in approximately sixty years. But it should not be
forgotten that since the Court’s case law is now mostly comprised of “repetitive” cases,
distinctive judgments are destined (emphasis added) to be in relatively small numbers.
           What follows are three charts and accompanying data that show the dispersion
of the legitimate aim violations across time and over substantive articles.32 Chart I below
illustrates the legitimate aim violations by year.33




24
   Sometimes the Court raised its “doubts” under the L.A.T. or found the justifiability of the interference by
   the invoked aim “questionable”. Similarly, and predominantly in cases concerning Article 14, the Court
   sometimes found a lack of “objective and reasonable justification” without specific reference to the aim or
   purpose of the distinction. These are legitimate aim “problems” rather than violations, and for that reason
   they are not included in this number.
25
   See Van Dijk et al. , supra note 17, at 314-15.
26
   See Harris et al. , supra note 17, at 510.
27
   See Rainey et al. , supra note 17, at 347-48.
28
   See Schabas , supra note 17, at 405, 436 and 513. There is no separate chapter for limitation clauses in that
   study, thus it is possible that the number I give is lower than the actual.
29
   See Grabenwarter , supra note 17, at 350-51.
30
   See Sadurski, supra note 14, at 3.
31
   Neither do I, actually. But I am convinced that I cover most of them.
32
   Since citing each and every case comprising the data on the following charts would hamper the main text,
   the reader is kindly asked to verify those numbers by resorting to Annex I. All numbers are valid as of
   November 2020.
33
   Article 18 violations are included. If a case included a legitimate aim violation in a substantive article as well
   as an Article 18 violation, it is counted as one.


                                                         14
2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                [Vol. 7:1




As can be seen, before 2000, the Court found violations under the legitimate aim regime
only in four different years and found only one violation in each of those years. Of all
legitimate aim violations, about 85% (106 of 125) were decided in the last twenty years;
more than 77% (ninety-seven of 125) were decided in the last fifteen years; and about 65%
(eighty-one of 125) were decided in the last ten.
             One can argue that this data may be misleading since the total number of
judgments delivered by the Court each year differs significantly and that the number is
significantly higher than before the 2000s. To answer this possible objection, it is thus
necessary to resort to Chart II below, which clearly illustrates that, after around 2010,
there is a gradual increase in the proportion of legitimate aim violations to all
violations.34




As can be seen, there has been a noticeable increase in the proportion of legitimate aim
violations to all violations after around 2016. Furthermore, Chart III below shows the

34
     Only Chamber and Grand Chamber judgments are taken into account for both data. All numbers are obtained
     from the HUDOC database.


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                      LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


number of L.A. violations for each substantive article35 including a comparison between
violations decided before and after 2010.




Chart II confirms that the large majority of all L.A. violations had been decided after
2010. The second insight is that after 2010, the Court found L.A. violations in respect to
three new articles, namely Arts. 10, 12 and Art. 2 of Protocol No. 1. In fact, arguably, the
Court now found a violation in respect to all articles of which an L.A. violation is
possible.36 The increase of the L.A. violations in respect to Arts. 5 and 10 also stands out.
This is also meaningful, because the violations under these articles often include much
more evidence-based discussion on the substance of the case and require a more in
concreto assessment on the part of the Court, especially compared to L.A. violations
decided under Article 14, which are mostly outcomes of an in abstracto assessment and
value-based rejection of the aims invoked by the Government to justify the differential
treatment in question.37 Note that, accordingly, Article 14 is the only article as to which
the legitimate aim violations decided under is decreased in the last ten years.
           Thus, the number of legitimate aim violations is much higher than it has been
suggested, and both the number of violations and the ratio of the L.A. violations to all

35
   Article 18 violations found in connection with a substantive right are excluded if there was no
   separate legitimate aim violation found under the corresponding article. The grand total here is
   112 due to the case of Mozer v. Moldova and Russia, App. No. 11138/10 (Feb. 23, 2016),
   https://hudoc.echr.coe.int/fre#%22itemid%22:[%22002-10885%22] (last visited Jan. 4, 2022), where the
   Court found legitimate aim violations both under Articles 8 and 9.
36
   It can be argued that the prohibition of torture in Article 3 is not open to L.A. violations. While it is possible
   to make a conceptual and theoretical discussion on this point (in which I would align with the doubters), in
   a case law standpoint, I kindly invite the doubters to see Ciorap v. Moldova, App. No. 12066/02, Paras. 83
   and 89, (June 19, 2007), http://hudoc.echr.coe.int/fre?i=001-161263 (on substantive limb, last visited Jan.
   4, 2022) and Oleksiy Mykhaylovych Zakharkin v. Ukraine, App. No. 1727/04, Para. 74 (June 24, 2010),
   http://hudoc.echr.coe.int/eng?i=001-99626 (on procedural limb, last visited Jan. 4, 2022).
37
   See, e.g., Emel Boyraz v. Turkey, App. No. 61960/08, Para. 56 (Dec. 2, 2014), http://hudoc.echr.coe.int/eng?i=001-
   148678 (last visited Jan. 4, 2022); Kurić and others v. Slovenia, 2012-IV Eur. Ct. H.R. 1, 69; Thlimmenos v.
   Greece, 2000-IV Eur. Ct. H.R., 263, 279.


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violations are growing gradually. But not all legitimate aim violations are the same, as the
next section will show.



     1.2. DIFFERENT TYPES OF LEGITIMATE AIM VIOLATIONS

While there is a considerable number of L.A. violations, not all violations tell the same
story. Some of them indicate a stricter approach on the Court’s part, and some do not.
Some involve a direct confrontation with governments on the aims pursued by the
interference, some are merely official declarations of the obvious. Thus, it is necessary to
make a distinction between the different types of legitimate aim violations.
          An in-depth examination reveals that the legitimate aim violations can be
categorized under three groups:38 (1) violations where the national authorities did not
invoke a legitimate aim (Type A); (2) violations where invoked aims were unable to
justify the measure, while there is no doubt on the Court’s part that the invoked aims
were in fact pursued (Type B); (3) violations where the government did not actually
pursue the invoked aim (Type C).
          What follows is the introduction of each category and explanation of what they
reveal about the Court’s approach to the legitimate aim question.



     1.2.1. TYPE A VIOLATIONS: NO AIM INVOKED BY NATIONAL AUTHORITIES

The first type of L.A. violations mainly result from a lack of justification by the
government,39 the domestic courts,40 or sometimes both.41                       When the domestic
decision-makers or the government in question do not raise any argument as regards to
the aim pursued by the interference in question, the Court usually “declares” this failure
and finds a violation of the legitimate aim requirement. Needless to say, this is the least
controversial type of L.A. violations. When the governments do not claim any aim
whatsoever, the task of the Court becomes significantly easier and such judgments are
significantly less likely to create controversy since they involve no substantive
assessment on the part of the Court.

38
   Categorisation of each L.A. violation can be found in Annex I.
39
   See e.g., Bochev v.         Bulgaria, App.        No.     73481/01, Para.      97 (Nov.      13, 2008),
   http://hudoc.echr.coe.int/eng?i=001-89608 (last visited Jan. 4, 2022).
40
   See Mihal v. Slovakia, App. No. 22006/07, Para. 55 (July 5, 2011), http://hudoc.echr.coe.int/eng?i=001-
   105513. Pla and Puncernau v. Andorra, 2004-VIII Eur. Ct. H.R. 215, 237-38.
41
   See Kostadin Mihaylov v.            Bulgaria, App.      No.       17868/07, Para 42 (June 27, 2008),
   http://hudoc.echr.coe.int/eng?i=001-85609; Yanakiev v. Bulgaria, App. No. 40476/98, Eur. Ct. H.R.
   para. 72 (2006), http://hudoc.echr.coe.int/eng?i=001-76682.


                                                   17
                     LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


Because of the lack of a substantive assessment, it seems prima facie that these violations
cannot tell anything about the strictness of the approach of the Court. But this is not
quite true. This is because in some cases, old and new, the Court substituted the
governments’ lack of explanation on the legitimate aim question and found one or
several legitimate aims for the interference proprio motu, letting the governments pass
the L.A.T. without themselves submitting any legitimate aim claim. For example, in
Young, James and Webster v. the United Kingdom, the Government expressly stated that if
the Court finds an interference with a convention right, they would not seek to justify
that interference, but the Court found a legitimate aim on their behalf anyway.42 In the
same vein, in Ciubotaru, the government did not refer to any legitimate aim, but the
Court found one for them.43 Another example is Kimlya and Others v. Russia, where the
Government “omitted” to indicate any legitimate aim, the Court was “prepared to
assume that the interference complained of pursued a legitimate aim, namely that of the
protection of public order”.44 Then, in Surikov v. Ukraine, the Court found not one, but
four different legitimate aims on behalf of the Government, while the Government “have
not commented on the aims”,45 and finally in National Federation of Sportspersons’
Associations and Unions (FNASS) and others v. France, the Court added a new aim to the ones
already invoked by the government.46 Note that in some of these cases, applicants did
not raise an objection in terms of the aims for the interference,47 which can justify the
Court’s helping hand to the governments. But in some others, despite that the applicants
did raise an objection to the legitimate aims, the Court did not hesitate to fill that gap on
behalf of the respondent state.48
          The practice of substituting governments on the legitimate aims when they were
silent on the question, therefore, complicates things, because in more than forty
legitimate aim violations,49 the Court found a violation because the government in

42
   See Young, James and Webster v. the United Kingdom, App. Nos. 7601//76 & 7806/77, Para. 60 (Aug. 13,
   1981), http://hudoc.echr.coe.int/eng?i=001-57608. Judge Evrigenis dissented to this justification made on
   behalf of the Government, see (Evrigenis, J, Concurring Opinion).
43
   See Ciubotaru v. Moldova, App. No. 27138/04, Para. 55 (Apr. 27, 2010), http://hudoc.echr.coe.int/eng?i=001-
   98446.
44
   Kimlya and Others v. Russia, 2009-IV Eur. Ct. H.R. 319, 350-51.
45
   Surikov v. Ukraine, App. No. 42788/06, Para. 82 (Jan. 26, 2017), http://hudoc.echr.coe.int/eng?i=001-170462.
46
   National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France, App. Nos.
   48151/11 & 77769/13, Para. 166 (Jan. 18, 2018), http://hudoc.echr.coe.int/eng?i=001-180442.
47
   See, for example, Sindicatul “Păstorul cel Bun” v. Romania, 2013-V Eur. Ct. H.R. 1, 56; Fratanoló v.
   Hungary, App. No. 29459/10, Para. 14 (Nov. 3, 2011), http://hudoc.echr.coe.int/eng?i=001-107307; Berrehab
   v. the Netherlands, App No. 10730/84, 1988 Y.B. Eur. Conv. on H.R. Para. 25 (Eur. Court on H.R.)
   http://hudoc.echr.coe.int/eng?i=001-57438.
48
   See, for example, Frodl v.         Austria, App.        No.      20201/04, Para.     28 (Apr.      8, 2010),
   http://hudoc.echr.coe.int/eng?i=001-98132; Young, James and Webster v. the United Kingdom, App.
   Nos. 7601//76 & 7806/77, Para. 60 (Aug. 13, 1981), http://hudoc.echr.coe.int/eng?i=001-57608.
49
   See Annex I.


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2022]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 7:1


question failed to invoke a legitimate aim. It is hard to infer whether in those cases the
Court saw no proper legitimate aim to substitute the governments with, or it simply
adopted a stricter approach against them. It gets all the more complicated when one
thinks of the wording it used in some of those legitimate aim violations. For example, in
one case against Russia, after noting that the Government did not invoke any legitimate
aim for the interference, the Court stated that it is “not prepared to substitute the
Government on that account”.50 One may tend to infer from this that the criterion here
is the “Court’s preparedness”, but in the absence of further elaboration of this in the
jurisprudence, it is still not clear what renders the Court “prepared” as to filling a gap
left by the governments.
          Interestingly, the Courts’ practice of substituting governments for their lack of
explanation on the legitimate aim question was contested by one of the “substituted”
governments as well. In the Grand Chamber case Sindicatul “Păstorul cel Bun” v. Romania,
the Romanian government objected to the new aim of “preventing disorder” added by
the Chamber. They claimed that the Chamber’s proprio motu reference to public order
was immaterial to the case and the sole aim of the refusal to register the applicant trade
union was the one that was originally claimed, which was protecting the rights of the
Romanian Orthodox Church.51 Interestingly enough, the Grand Chamber agreed with the
Romanian Government, seeing no reason to take the aim of preventing disorder into
account.52



     1.2.2. TYPE B VIOLATIONS: NO JUSTIFICATION OF MEASURE THROUGH
     PURSUED AIM

This group of L.A. violations comprises cases in which the respondent government
attempted to offer a justification for the interference in question, but the Court rejected
that justification. In cases falling under this category, the Court found the problem at the
invoked aim itself, without doubting on whether it was in fact pursued by the
government. In such cases, the Court found that the invoked aims were incapable of
justifying the measure, either because they were not legitimate in the sense of the right




50
   Bezymyannaya v. Russia, App. No. 21851/03, Para. 33 (Dec. 22, 2009), http://hudoc.echr.coe.int/eng?i=001-
   96486 (emphasis added).
51
   See Sindicatul “Păstorul cel Bun” v. Romania, 2013-V Eur. Ct. H.R. 1, 56, para.102.
52
   Id. para. 158.


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                     LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


in question53 or the interference in question was evidently incapable of promoting the
invoked legitimate interests.54
          In Nolan and K. v. Russia, for instance, the applicant was excluded from Russia
because his religious activities were found to be “of a destructive nature and posed a
threat to the security of the Russian Federation” and thereby there was a threat to the
national security that “resulted from the applicant’s [religious] activities”.55 The Court
found a violation since the only aim invoked by the Government throughout all of the
proceedings was the protection of national security, which was not, unlike Articles 8, 10
and 11, a legitimate aim prescribed under Article 9.56 Likewise, in Karajanov v. the Former
Yugoslav Republic of Macedonia, where the applicant complained about the public
disclosure of the Lustration Commissions’s decision convicting him for collaborating
with the former regime’s security service before it became final, the Court found that the
aims of “ensuring public access to documents in the applicants file and public scrutiny of
the Commission’s decision-making” were not capable of being “subsumed under any of
the aims listed in Article 8 § 2 of the Convention”.57 As can be noticed, in these two cases
the problem was that the invoked aims were not legitimate in the sense of the right in
question.
          In another case, Maširević v. Serbia, an appeal lodged by the applicant, who was
himself a lawyer by profession, was dismissed by the Serbian Supreme Court on the
grounds that according to the law in force, the appeals could only be lodged through the
help of a lawyer. The Court noted that the strict interpretation of that law created a
situation that the applicant, who can lodge appeals on behalf of others as a lawyer, could
not lodge one for himself. It held that despite what the government had claimed, the
dismissal of the appeal therefore “did not serve the aims of legal certainty or the proper
administration of justice”.58           Moreover, in X and Y v. Croatia, the Court found the
institution of the domestic court proceedings with a view to divesting the applicant of

53
   See, for instance, Nolan and K. v. Russia, App. No. 2512/04, Eur. Ct. H.R. para. 73 (2009),
   http://hudoc.echr.coe.int/eng?i=001-91302, where the Russian Government attempted to justify an
   interference with the right to freedom of religion in reference to the protection of national security, which
   is not one of the exhaustively listed legitimate aims in the second paragraph of Article 9.
54
   The situation where an interference is evidently incapable of promoting a legitimate interest closely
   resembles the “suitability” problem under the proportionality assessment. However, there are several
   examples in the case law where the Court saw it as a problem of legitimacy in regard to invoked aims. See,
   for example, Karajanov v. the Former Yugoslav Republic of Macedonia App. No. 2229/15 ¶ 75 (April 6, 2017)
   https://hudoc.echr.coe.int/eng?i=001-172563.
55
   Nolan and K. v. Russia, App. No. 2512/04, Eur. Ct. H.R. para. 73 (2009), http://hudoc.echr.coe.int/eng?i=001-
   91302.
56
   Id.
57
   Karajanov v. the Former Yugoslav Republic of Macedonia App. No. 2229/15 ¶ 75 (April 6, 2017).
   https://hudoc.echr.coe.int/eng?i=001-172563.
58
   Maširević V. Serbia, 51 Eur. CT. H.R. (ser. B) at 51 (2014)http://hudoc.echr.coe.int/eng?i=001-140775.


                                                      20
2022]                               UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:1


legal capacity did not satisfy the L.A.T, because it had never been shown that the
applicant was a threat to the rights and interests of anyone, including hers.59 In these
two, the problem was that while the invoked aims were legitimate in general, the
interferences in question were not capable of serving them, thereby they were not
justifiable by those aims.
             Just as the Type A violations, Type B violations are rarely controversial as they
usually do not involve a direct confrontation with governments on the factual matrix
based on factual evidence, but rather a rejection of the invoked aims’ capability of
justifying the measure in question.



       1.2.3. TYPE C VIOLATIONS: NO ACTUAL PURSUIT OF INVOKED AIMS

These violations are different from the ones explained in the previous two sections in the
way that in cases categorized here the Court directly challenged the governments’
legitimate aim claim on a factual matrix, and found that the aim invoked by the
government was not the actual aim pursued by them. In some of these Type C cases, the
Court restrained itself to simply holding that the invoked aim was not the actual aim of
the interference, without indicating what were the actual aims pursued (Type C.1). In
others, it held not only that the invoked aim was not actually pursued, but that there was
another aim pursued by the interference and identified what other “ulterior” aim was
(Type C.2).
             The Type C violations are generally more prone to controversy. This is because,
as will be discussed further below, in these cases the Court often carries out an actual fact-
check by either a) drawing significantly different conclusions from certain evidence than
what national decision-makers drew from them, insomuch as to indicate an arbitrariness
and/or an ulterior purpose on the latter’s part; or by b) engaging with new (direct and/or
circumstantial) evidence which had not been referred by national decision-makers which
indicate that another aim (“bad faith” or “ulterior purpose”) than invoked was pursued.




59
     See X and Y v. Croatia, 113-116 Eur. CT. H.R. (ser. B) at 113-116 (2011), https://hudoc.echr.coe.int/eng?i=001-
     107303.


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                       LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


      1.2.3.1. CASES WHERE THE ULTERIOR PURPOSE WAS NOT IDENTIFIED (TYPE
C.1 VIOLATIONS)
             In these cases, the Court held that the aims invoked by the governments were not
actually pursued, but it did not identify whether an ulterior purpose was pursued by the
interference.
             In Baka v.      Hungary, a former E.C.H.R. judge and former President of the
Hungarian Supreme Court complained about his dismissal from the latter position
allegedly as a result of the criticisms he expressed publicly against the constitutional and
legislative reforms made in Hungary.60                 The Government attempted to explain the
termination of the applicant’s mandate with reference to the legitimate aim of
“maintaining the authority and impartiality of the judiciary”, arguing that the
applicant’s election for the office was of “governmental nature” and the new method of
election after applicant’s dismissal would increase the independence of the judiciary.
The government denied the alleged link between the applicant’s earlier criticisms
against the government and his dismissal. The Grand Chamber considered it necessary
to “recall the sequence of events”. It first noted that the proposal for his dismissal was
submitted to the Parliament and adopted by it “within a strikingly short time” after his
public criticisms. The Court also made reference to the articles published in Hungarian
and foreign press and some Council of Europe documents, all indicating a causal link that
exists between the criticisms and the dismissal. After establishing this prima facie causal
link, the Grand Chamber held that the burden of proof shifted to the government, which,
in turn, was unable to convince the Court that the reforms in question were of such
fundamental nature to justify the premature termination of the applicant’s mandate.
Thereby identifying the link between the applicant’s exercise of freedom of expression
and his dismissal from the post as the President of the Supreme Court of Hungary, the
Grand Chamber found that the premature termination of the applicant’s mandate
defeated the very purpose of maintaining the independence of the judiciary, rather than
serving it. It thus held that the interference did not pursue a legitimate aim.61 In that
case, the Grand Chamber did not put the actual purpose of the dismissal into words, but
by an evidence-based assessment, it debunked the claims of the government in regard to
the actual aim of the dismissal.
             Likewise, In Tkachevy v. Russia, the applicants claimed that their (centrally
located) flat in Moscow was expropriated with no public interest and it was used
contrary to the project’s declared goals.                   The Court first noted that the Moscow

60
     See Baka v. Hungary, App No. 20261/12 ¶ 123 (June, 23 2016) https://hudoc.echr.coe.int/eng?i=001-163113.
61
     Id.


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2022]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                [Vol. 7:1


Government justified the expropriation with the public interest of safety with reference
to a report delivered by a public agency which found that the building in question was
unsafe to live in.62 Then the Court went onto an in concreto assessment of the facts. It
first noted that the survey report in question was prepared only after an expropriation
decision was already taken.63 Also, the drafters of the report admitted that someone
from the Moscow Government had asked them to classify the flat as unsafe.64
Furthermore, after the reconstruction, the applicants were not allowed to reoccupy the
flat (as it would be fit if the authorities’ only concern was the safety of the building). In
fact, it was sold to a third party (Tverskaya Finance). Moreover, while the Government
stated that the building is now an office space, the Court, by resorting to a self-conducted
internet-search on the website owned by Tverskaya Finance, found that it had become
residential premises, which were commercialized by being prestigious and centrally
located.65    Adding all these considerations together, the Court held that whilst the
interest of protecting the safety of the applicants “is in itself legitimate, in the
circumstances of the present case, there is a number of inconsistencies that do not
permit the conclusion that that interest was held genuinely”.66
          Many more examples underline this point.67 As can be seen, in the above cases
the Court did not find the governments’ legitimate aim assertions genuine and questioned
whether they actually pursued those aims. But while it found that the invoked aims were
not actually pursued, it did not explicitly state that there was another ulterior purpose or
a bad faith on the part of the government when interfering. The cases where it did so will
be examined below.




62
   See Tkachevy v. Russia, App. No. 35430/05, Eur. Ct. H.R. para. 39 (2012),http://hudoc.echr.coe.int/eng?
   i=001-109060.
63
   Id. para. 40.
64
   Id. para. 41.
65
   Id. paras. 44-48.
66
   Id. para. 39.
67
   See, for example, Emin Huseynov v.              Azerbaijan, App.    No. 59135/09 | 87 (May 7, 2015),
   http://hudoc.echr.coe.int/eng?i=001-154540; Izmir Savaş Karşıtları Derneği and Others v. Turkey, Eur. Ct.
   H. R., 36-37, 2006; Nowicka v. Poland, Eur. Ct. H. R., 75-77, 2002.


                                                    23
                         LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


      1.2.3.2. CASES WHERE AN ULTERIOR PURPOSE WAS IDENTIFIED (TYPE C.2
VIOLATIONS)
             In at least twenty-four cases,68 when finding a legitimate aim violation under the
substantive article, the Court did not limit itself only to holding that the government in
question invoked an aim that they did not actually pursue. It took one step further and
held that the government actually pursued an aim other than the one that was invoked
by them. In these cases, therefore, the Court found some other agenda that was hidden
behind the interference in question.



68
     Since citing all these cases fully would seriously hamper the main text, please find full
     info for these cases in Annex I. Short citations of them are: See, e.g.                          Hakobyan and
     others v. Armenia, Eur. Ct. H. R., 123, 2012; Nemtsov v. Russia, Eur. Ct. H. R., 103,
     2014; Gafgaz Mammadov v.              Azerbaijan, App.       No.      60259/11 |108 (September 22, 2015),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Gafgaz%20Mammadov%20v.%20Azerbaijan%22],
     %22itemid%22:[%22001-157705%22]; Ibrahimov               and       others         v.                 Azerbaijan,
     App.          Nos.          69234/11,     69252/11 and 69335/11 | 127 (February 11,                         2016),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Ibrahimov%20and%20others%20v.%20Azerbaijan%22],
     %22itemid%22:[%22001-160430%22];              Huseynli        and       others       v.              Azerbaijan,
     App.          Nos.          67360/11,     67964/11 and 69379/11 | 147 (February 11,                         2016),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Huseynli%20and%20others%20v.%20Azerbaijan%22],%
     22itemid%22:[%22001-160429%22]; Ahad Mammadli v. Azerbaijan, App. Nos. 69456/11 and 48271/13 | 57
     (June 16, 2016), https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Ahad%20Mammadli%20v.%20Azerbai
     jan%22],%22itemid%22:[%22001-163613%22];             Hajibeyli     and       others     v.           Azerbaijan,
     App.         Nos.        5231/13, 8193/13, 8204/13, 8468/13, 14226/13, 14249/13, 17447/13,
     17569/13, 17575/13, 17626/13, 31201/13, 45211/13 and 51930/13 | 56 (June 30, 2016),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Hajibeyli%20and%20others%20v.%20Azerbaijan%22],%
     22itemid%22:[%22001-164198%22];          Huseynov and others v.                  Azerbaijan, App.            Nos.
     34262/14, 35948/14, 38276/14, 56232/14, 62138/14 and 63655/14 | 66 (November 24, 2016),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Huseynov%20and%20others%20v.%20Azerbaijan%22],
     %22itemid%22:[%22001-168865%22]; Jamil Hajiyev v. Azerbaijan, App. Nos. 42989/13 and 43027/13 | 68
     (February 16, 2017), https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Jamil%20Hajiyev%20v.%20Azerbai
     jan%22],%22itemid%22:[%22001-171488%22]; Bayramli v.                   Azerbaijan, App Nos.             72230/11
     and 43061/13 | 73 (February 16, 2017), https://hudoc.echr.coe.int/eng; Babak Hasanov
     v.       Azerbaijan, App.           Nos.       43137/13 and 43153/13 | 65 (February 16, 2017),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Babak%20Hasanov%20v.%20Azerbaijan%22],%22
     itemid%22:[%22001-171489%22]; Abbasli v. Azerbaijan, App. No. 5417/13 and 73309/14 | 66 (February 16,
     2017), https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Abbasli%20v.%20Azerbaijan%22],%22itemid%22:
     [%22001-171487%22];        Bayram Bayramov v.                 Azerbaijan, App.             Nos.         74609/10
     57737/11 67351/11 67977/11 69411/11 and 69421/11 | 74 ( February 16,                                        2017),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Bayram%20Bayramov%20v.%20Azerbaijan%22],%22
     itemid%22:[%22001-171484%22]; Babayev and Hasanov v. Azerbaijan, App. Nos. 60262/11 69437/11
     53662/13 | 89 (July 20, 2017), https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Babayev%20and%20Has
     anov%20v.%20Azerbaijan,%22],%22itemid%22:[%22001-175973%22];                            Tural           Hajibeyli
     v.           Azerbaijan,     App.           No.           69180/11 | 65 (September 28,                      2017),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Tural%20Hajibeyli%20v.%20Azerbaijan%22],%
     22itemid%22:[%22001-177124%22]; Bozano v. France, App. No. 9990/82 | 60 (December 2, 1987),
     https://hudoc.echr.coe.int/eng#%22fulltext%22:[%22Bozano%20v.%20France%22],%22itemid%22:[%22001-
     57447%22]; Campagnano v. Italy, Eur. Ct. H. R., 49, 2006; Ciorap v. Moldova, Eur. Ct. H. R., 89, 2007; Cebotari
     v. Moldova, Eur. Ct. H. R., 53 2007; Maltseva v. Russia, Eur. Ct. H. R., 36, 2008; Yerogova v. Russia, Eur. Ct. H.
     R., 36, 2008 Khodorkovskiy v. Russia, Eur. Ct. H. R., 142, 2011); Lutsenko v. Ukraine, Eur. Ct. H. R., 63, 2012;
     Catan and others v. Moldova and Russia, Eur. Ct. H. R., 144, 2012.


                                                           24
2022]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:1


Note that the ulterior purpose detected in these cases were found under substantive
articles of the Convention, and not under Article 18.69
          In a series of Article 5 violations decided against Azerbaijan between October
2015 and September 2017, in a case decided against Armenia in 2012 and in a case
decided against Russia in 2014, the Court detected clear “bad faith” when deciding that
the applicants of those cases were detained arbitrarily. The common phrase that the
Court used in all of them reads: “[The detention of the applicants] had pursued aims
unrelated to the formal ground relied on to justify the deprivation of liberty and implied
an element of bad faith”.70 The language itself puts these cases to the category of “bad
faith jurisprudence”, regardless of the fact that they include no violation decided under
Article 18.
          The Grand Chamber once stated in an Article 18 case that “although bad faith and
ulterior purpose are related notions, they are not necessarily equivalent in each case”.71
This is a confusing take, and the Court’s apparent interchangeable usage of these words in
the same case does certainly not help to clarify the separation either. But for the sake of
the argument, I accept this separation. Here are the “ulterior purposes”72 that the Court
detected in substantive articles:



      • Bozano v. France: The deprivation of liberty in question “amounted in fact to a
        disguised form of extradition designed to circumvent the negative ruling of [a
        domestic court]”.73

69
   In two of these twenty-four cases, Article 18 violations were found as well: See Cebotari v. Moldova, App. No.
   35615/06 Eur. Ct. H.R. (2007), http://hudoc.echr.coe.int/eng?i=001-83247 and Lutsenko v. Ukraine, App. No.
   6492/11, Eur. Ct. H.R. (2012), http://hudoc.echr.coe.int/eng?i=001-112013.
70
   Hakobyan and others v. Armenia, 123 Eur. CT. H.R. at 123 (2012) https://hudoc.echr.coe.int/eng?i=001-
   110263; Nemstov v. Russia, 103 Eur. CT H.R. at 103 (2014); Gafgaz Mammadov v. Azerbaijan,
   App. No. 60259/11, para.108 (Mar. 14, 2016) https://hudoc.echr.coe.int/eng?i=001-168439; Ibrahimov
   and others v. Azerbaijan, App. No. 69234/11, 69252/11, 69335/11, para. 127 (May 11, 2016)
   https://hudoc.echr.coe.int/eng?i=001-160430; Huseynli and others v. Azerbaijan, App. No. 67360/11,
   67964/11, 69379/11, para. 56 (Feb. 11, 2016) https://hudoc.echr.coe.int/eng?i=001-160429; Huseynov and
   others v. Azerbaijan, 66 Eur. CT H.R. at 66 (2012) https://hudoc.echr.coe.int/eng?i=001-166154; Jamil Hajiyev
   v. Azerbaijan, App. No. 9626/14, 9717/14, para. 68 (Apr. 22, 2021) https://hudoc.echr.coe.int/eng?i=001-
   212032; Bayramli v. Azerbaijan, App. Nos. 72230/11 and 43061/13, para. 73 (Feb 16, 2017); Babak Hasanov
   v. Azerbaijan, App. No. 6814/13, para. 65 (2013); Abbasli v. Azerbaijan, 66 Eur CT H.R. (ser. B) at 66 (2021);
   Bayram Bayramov v. Azerbaijan, App. No. 74609/10, para. 74 (2014); Babayev and Hasanov v. Azerbaijan,
   App. No. 60262/11, para. 89 (July 20, 2019); Tural Hajibeyli v. Azerbaijan, App. Nos. 6477/08 and 10414/08,
   para. 65 (july 19, 2018).
71
   Merabishvili v. Georgia, App No. 72508/13 ¶ 283 (November 28, 2017) https://hudoc.echr.coe.int/eng?i=001-
   178753.
72
   Cases where the Court did not use the term “bad faith” but found that there was another aim pursued than
   the one invoked by the government and identified what that aim was.
73
   Bozano v. France, App No. 9990/82, 60 Eur. Comm’n H.R. Dec. Rep. (1986) , https://hudoc.echr.coe.
   int/eng?i=001-57448.


                                                       25
                       LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


      • Campagnano v. Italy: The law that disenfranchises persons who have been declared
        bankrupt “has no purpose other than to belittle persons who have been declared
        bankrupt, reprimanding them simply for having been declared insolvent”.74

      • Ciorap v. Moldova: The force-feeding of the applicant was “not prompted by valid
        medical reasons but rather with the aim of forcing the applicant to stop his
        protest”.75

      • Cebotari v. Moldova: “The real aim of the criminal proceedings and of the applicant’s
        arrest and detention was to put pressure on him in a view to hindering [a company
        affiliated with the applicant] from pursuing its application before the Court”.76

      • Maltseva v. Russia & Yerogova v Russia: Reopening of proceedings after quashing a
        binding and enforceable final judgment “was not aimed at correcting a judicial error
        or a miscarriage of justice but rather was an abuse of procedure used merely for the
        purpose of obtaining a rehearing and fresh determination of the case”.77

      • Khodorkovskiy v. Russia: “The circumstances of the applicant show that, albeit
        formally, he was apprehended as a witness . . . the investigator’s real intent was to
        charge the applicant as a defendant and, thus, to change the venue of the eventual
        detention proceedings to a more convenient one”.78

      • Lutsenko v. Ukraine: The real purpose behind the applicant’s deprivation of liberty
        was “not to bring him before a competent legal authority within the same criminal
        case, but to ensure his availability for . . . a different set of criminal proceedings”.79

      • Catan and others v.          Moldova and Russia: The language policy adopted by the
        Moldavian Republic of Transnistria (which was effectively controlled by Russia), as
        it appears, “was intended to enforce the Russification of the language and culture
        of the Moldovan community living in Transnistria”.80




74
   Campagnano v. Italy, 2006-IV Eur. Ct. H.R. 197, 212.
75
   Ciorap v. Moldova, Eur. Ct. H. R., 89, 2007.
76
   Cebotari v. Moldova, Eur. Ct. H.R. at 11 (2007).
77
   Maltseva v. Russia, Eur. Ct. H.R. at 8 (2008); Yerogova v. Russia, Eur. Ct. H.R. at 8 (2008).
78
   Khodorkovskiy v. Russia, Eur. Ct. H.R. at 37 (2011).
79
   Lutsenko v. Ukraine, Eur. Ct. H.R. at 27 (2012).
80
   Catan and others v. Moldova and Russia, 2012-V Eur. Ct. H.R. at 52 (2012).


                                                          26
2022]                               UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 7:1


As can be seen, these are clearer detections of hidden agendas under substantive articles.81
Thus, although most of them do not involve a violation under Article 18, they well-deserve
to be categorized as “bad faith jurisprudence”.
             Concluding this section, we have seen that the legitimate aim violations in the
Court’s case law can be classified under three groups based on the grounds that the Court
relied on when finding a breach of the legitimate aim condition. The first type of
violations (Type A) often involved no discussion on the legitimate aim question other
than the Court’s noting that the government did not invoke a legitimate aim claim for
the interference. In the second type of violations (Type B), the Court focused on the
claimed aim itself, on a rather abstract basis, rather than questioning the government’s
intentions. In the third type (Type C), the Court carried out a vigilant scrutiny on factual
grounds, discussing direct and circumstantial evidence, raising doubts when sequences
of events suggest an aim other than invoked and inferring results from incoherencies. In
some of them it even explicitly detected an ulterior purpose and identified what that
purpose was (Type C.2). Thus, different types of L.A. violations indicate different degrees
of judicial strictness. Next section discusses the changes in the dispersion of these types
over time and what it tells us.




81
     One can ask that if these are clear ulterior purposes, then why the Court had not decided a violation under
     Article 18? In two of them (See Ceboatri v. Moldova, ¶53; See Lutsenko v. Ukraine), it did. In most of the
     others, Article 18 was not brought up by the applicants. But for the ones that they did, the answer is neither
     short nor straightforward. In here, therefore, I will limit myself merely noting that I find Tsampi’s countre-
     pouvoirs approach highly convincing. According to that approach, the Court finds an Article 18 violation
     only if 1) the interference was made for the purpose of eroding (economic, social, political) counter-pouvoirs
     within that state; and 2) all institutional powers within that state are in failure to effectively counter that
     erosion. See Aikaterini Tsampi, The New Doctrine on Misuse of Power Under Article 18 ECHR: Is it About the System
     of Contre-Pouvoirs Within the State After all? 38 NETH. Q. HUM. RTS. 134 (2020).



                                                           27
                      LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


     1.3. THE CHANGING MIEN OF THE LEGITIMATE AIM VIOLATIONS OVER
     TIME

When one examines the L.A. violations decided before 2010, two points are clear even at
first glance: Most - around 75% - of them do not include a discussion on the facts of the
case based on the evidence in hand.                   They are either Type A violations where no
legitimate aim was invoked, or Type B cases involving an in abstracto discussion on
whether the invoked aim(s) could theoretically (emphasis added) be considered legitimate
for the right(s) in question.82             In other words, the overwhelming majority of the
legitimate aim violations decided before 2010 are either Type A or B violations.83
           After around 2010, there is an observable change. The E.Ct.H.R. recently seems
more and more inclined to challenge the governments’ genuineness on the legitimate aim
question. It appears to be more willing to take the dispute onto a factual matrix rather
than contemplating in an abstract, theoretical realm as it usually did before. When it sees
fit to take the dispute onto a factual matrix, it does so either by making its own individual
assessment of the same facts and thereby challenging the reasoning given by the national
decision-makers, or by resorting to other evidence and “telltale signs” signifying a deceit
or an ulterior aim (Type C violations).84
           The relative increase of Type C violations over Types A and B is not the only
indicator of this change. The increases in legitimate aim violations decided under Article
5 (two to twenty-two, before and after 2010) and Article 10 (zero to seven, before and
after 2010) themselves are important indicators,85 because the rights under Articles 5
and 10 require an in concreto assessment of the facts by their nature. Of course, the


82
   It should be noted that it is certainly true that there are cases decided before 2010 in which the Court
   questioned the legitimacy of the invoked aim on an evidentiary basis, and thus conducted an in concreto
   assessment, but these cases are in the clear minority. According to my findings, of thirty-seven L.A.
   violations decided before 2010, only nine cases include an L.A. assessment with some regard to the factual
   circumstances of the case: See İzmir Savaş Karşıtları Derneği and Others v. Turkey, Eur. Ct. H.R. at 5-6 (2006);
   Campagnano v. Italy, 2006-IV Eur. Ct. H.R. (2006);Tuleshov and others v. Russia, Eur. Ct. H.R. at 7-8 (2007);
   Zagorodnikov v. Russia, Eur. Ct. H.R. at 4-5 (2007); Ciorap v. Moldova, Eur. Ct. H.R. at 22-23 (2007); See
   Maltseva v. Russia, ¶ 34-36; See Yerogova v. Russia, ¶ 34-36; Khuzhin and others v. Russia, Eur. Ct. H.R. at
   24 (2008); Glor v. Switzerland, 2009-III Eur. Ct. H.R. 33, 57.
83
   Annex I shows my classification of all L.A. violations as Type A, B or C.
84
   It is impossible to cite the whole list, but to cite a few examples: See Khodorkovskiy v. Russia, Eur. Ct. H.R.
   at 37 (2011); Shimovolos v. Russia, Eur. Ct. H.R. at 12 (2011); Catan and others v. Moldova and Russia,
   2012-V Eur. Ct. H.R. at 52 (2012); Dimitrovi v. Bulgaria, App. No. 12655/09, ¶ 53-55 (March 3, 2015),
   http://hudoc.echr.coe.int/eng?i=001-152624; Baka v. Hungary, App. No. 20261/12, ¶ 148-49, 156-57 (June
   23, 2016),http://hudoc.echr.coe.int/eng?i=001-163113; Bayev and others v. Russia, App. Nos. 67667/09 and
   2 others, ¶ 65-83 (June 20, 2017), http://hudoc.echr.coe.int/eng?i=001-174422; Navalnyy v. Russia, App.
   Nos. 29580/12 and 4 others, ¶ 124-26 (November 15, 2018), http://hudoc.echr.coe.int/eng?i=001-187605.
   The reader is kindly invited to resort to Annex I for the full list.
85
   See Chart III above.


                                                        28
2022]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 7:1


growing number of Article 18 violations in the case law is another sign, proving that the
Court is recently much more active in the legitimate aim discussion.
           The changing mien of the L.A.T. in the 2010s gets much more interesting when
one thinks that much of that decade is commonly referred as the “Age of Subsidiarity”.86
The term refers to a new era for the Court in which it tends to limit itself to reviewing
whether the issue has been properly handled by the domestic decision-makers in
compliance with the principles already set out by the Court (process based review), rather
than carrying out an individual assessment of the issue itself (substance based review).87
The new deferent approach in favour of the national decision-makers should prima facie
mean an even less judicial scrutiny on the L.A.T., because one of the main reasons of the
relative lack of strictness of this test has always been the difficulty of fact-checking the
real intention of the governments,88 as it requires the Court to actively engage with
circumstantial evidence,89 indicators showing deceitfulness on the governments’ part90
and such. Thus, directly confronting the governments as to their real intentions hardly
seems fitting to this new era. President Spano, the proclaimer of the “Age of Subsidiarity”,
does not seem to agree with this. In an article presenting his take on the process based
review, he wrote:91
             Looking to the future, it is interesting to ponder whether the Court’s
             traditional approach of applying a very formal and rational
             relations-type analysis to a Government’s invoked legitimate aim,
             thereby leaving all the legwork of the necessity assessment to the test
             of proportionality, needs some reformulation:                        in other words,
             whether the Court should engage in a methodological shift towards a
             more strict, evidentiary-based assessment of invoked legitimate aims
             ...
There is no doubt that an evidence-based assessment would improve the strictness of the
L.A.T. . But as indicated above, it is hard to understand how it would fit in the general
trend of the process based review, which can be characterized by the Court’s deference
from engaging in an individual assessment of the evidence at hand and instead focusing
on the domestic decision-makers’ handling of the issue. Interestingly enough, whether it


86
   Spano, Universality or Diversality, supra note 5, at 491. Robert Spano, Universality or Diversity of Human Rights?
   Strasbourg in the Age of Subsidiarity, 14 HUM. RTS. L. REV. 487, 491 (2014).
87
   Id. at 480.
88
   See also Tsampi, supra note 81, at 140.
89
   See Tănase v. Moldova, 2010-III Eur. Ct. H.R. 361, 409; Tkachevy v. Russia, Eur. Ct. H.R (2012).
90
   See Makhmudov v. Russia, Eur. Ct. H.R. at 14 (2007).
91
   Spano, The Future of . . . , supra note 5, at 488 (fn. 61).


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                     LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


fits or not, we do observe “a methodological shift towards a more strict, evidentiary-based
assessment of invoked legitimate aims”,92 as shown above.
          However, the next section questions whether this confusing shift is directed
against all states or it is concentrated only on certain states.




      2. A SELECTIVE STRICTNESS?

Since the first L.A. violation in 1986,93 the Court found an L.A. violation in at least one
case against at least twenty-eight different Member States. As far as my study goes, the
states that breached the legitimate aim condition the most are Russia with twenty-five
violations and Azerbaijan with nineteen violations. Bulgaria was found in violation of
that condition in twelve cases. Poland and Turkey follow them by five violations each.
Hungary violated this requirement four times. Then come Armenia, Croatia, France, Italy,
Moldova, Romania, Slovakia and Ukraine, each with three violations. The United Kingdom,
the Netherlands and Germany have two violations each. Eleven Member States violated
the L.A. requirement once: Sweden, Cyprus, Greece, Austria, Malta, Georgia, Switzerland,
Slovenia, Serbia, Macedonia and Andorra.94
          Table I shows the number of L.A. violations decided against each member state, as
well as the regions they are in and the year the judgments were decided (divided as “prior
or after 2010”).95




92
   Id.
93
   See Bozano v.      France, App No.         9990/82, 59-60 Eur.   Comm’n H.R. Dec.   Rep.   (1986)
   https://hudoc.echr.coe.int/eng?i=001-57448.
94
   All numbers can be verified by resorting to Annex I.
95
   Violations decided in 2010 are in the “after 2010” group.


                                                    30
2022]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:1




                                                   L.A. Violations      L.A. Violations
     Region96             Member States97                                                     Total
                                                   (before 2010)        (after 2010)
                          Sweden                   1                                          1
     Northern Europe      The UK                   1                    1                     2
                          Total                    2                    1                     3
                          Austria                  1                                          1
                          France                   3                                          3
                          Germany                  1                    1                     2
     Western Europe
                          Switzerland              1                                          1
                          The Netherlands          2                                          2
                          Total                    8                    1                     9
                          Andorra                  1                                          1
                          Croatia                                       3                     3
                          Greece                   1                                          1
                          Italy                    1                    2                     3
     Southern Europe      Malta                    1                                          1
                          North Macedonia                               1                     1
                          Serbia                                        1                     1
                          Slovenia                                      1                     1
                          Total                    4                    8                     12
                          Armenia                                       3                     3
                          Azerbaijan                                    19                    19
                          Bulgaria                 4                    8                     12
                          Cyprus                   1                                          1
                          Georgia                  1                                          1
                          Hungary                  1                    3                     4
                          Moldova                  2                    1                     3
     Eastern Europe
                          Poland                   3                    2                     5
                          Romania                                       3                     3
                          Russia                   8                    17                    25
                          Slovakia                 1                    2                     3
                          Turkey                   2                    3                     5
                          Ukraine                                       3                     3
                          Total                    23                   64                    87
     Grand Total                                   37                   74                    111

           Table I: Dispersion of the L.A. violations over Time, Member States and Regions.




96
   The Regions section is largely based on the grouping made by the United Nations Statistics Division,
   https://unstats.un.org/unsd/methodology/m49/ (last accessed on 28.10.2020). The only difference is that
   while Armenia, Azerbaijan, Cyprus, Georgia and Turkey are classified as Western Asia on that data, they are
   included in Eastern Europe in this list since they are commonly considered Eastern European in the Council
   of Europe sphere.
97
   Only the states against which the Court found a L.A. violation at least once.


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                      LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


The most significant data Table I provides us are the following:

       • While the number of L.A. violations has dropped in Northern and Western Europe,
         it has increased in Southern and Eastern Europe. Especially in Eastern Europe, the
         increase is remarkable.98

       • After 2010, only two legitimate aim violations were decided against Northern and
         Western European States, while this number is eight for Southern and sixty-one for
         Eastern European States.

       • After 2010, eight new states were added to the L.A. violations list from Southern and
         Eastern Europe, while there is no new addition in Northern and Western Europe.

       • Most increases are against Azerbaijan (zero to nineteen) and against Russia (eight
         to seventeen).

These are interesting findings, especially the remarkable difference between Northern
and Western Europe, and Southern and Eastern Europe. However, a careful reader might
respond by indicating that the evident increase might simply be the result of the recent
increase of overall number of the Southern and Eastern European cases before Strasbourg.
In other words, the L.A. violation numbers may only be high because the total number of
judgments decided against those states are high. This is an important objection, and needs
to be addressed.
           In order to do so, Table II illustrates the proportion of L.A. violations to total
number of judgments delivered against all Member States of each region.

                             L.A. Violations/All Judgments             L.A. Violations/All Judgments
          Region
                                      (before 2010)                              (after 2010)
      Northern Europe                     0,0023                                    0,0017
      Western Europe                      0,0049                                    0,0012
     Southern Europe99              0,0011 (0,0021)*                          0,0054 (0,0052)*
       Eastern Europe                     0,0036                                    0,0135

           Table II: Ratio of L.A. violations/All judgments before and after 2010, by region.



98
   It is not to be forgotten that most Southern and Eastern European States are new members to the Court’s
   jurisdiction. But the effect of this should not be overestimated. Until 2002, which is the year that almost all
   Eastern European States (apart from Montenegro and Serbia, which in total have one violation against) were
   now covered by the Court’s jurisdiction, there were only a total of five legitimate aim violations decided by
   the Court anyway.
99
   The numeral deviation in respect to Southern Europe is most probably due to vast bulk of cases in the ’90s
   against Italy concerning the right to trial within reasonable time. When Italy is neglected in the calculation,
   the ratios are 0,0021 and 0,0052, before and after 2010 respectively.


                                                       32
 2022]                               UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol. 7:1


 Table II provides us with some important data as well. Accordingly,


         • Before 2010, the ratios were relatively close for all regions. After 2010, there were
            significant differences as Eastern European States were remarkably more likely to
            be found in violation of the L.A. condition.

         • Internal analyses of each region confirm that the Court is significantly stricter
            against Southern and especially Eastern European States after 2010. The ratio has
            dropped by about 28% for Northern European; and about 73% for Western
            European States after 2010. The same ratio increased by about 250% for Southern
            European100 and by 375% for Eastern European States.

         • Overall, after 2010, Eastern European Member States have been found in violation
            of the L.A. condition about eleven times more than Western European; eight times
            more than Northern European; and 2.5 times more than Southern European States.
            In addition to that, internally, the frequency of the L.A. violations against Eastern
            European States after 2010 has almost quadrupled in comparison to the same
            frequency before 2010.


 In sum, the overall ratio of legitimate aim violations has increased significantly in the last
 ten years. This increase suggests a stricter approach on the part of the Court. That being
 so, the increase in strictness is, as above data show, selective, i.e. it covers the jurisprudence
 against some states, and not the others.
              The L.A.T. case law under Article 5 confirms this point from a qualitative aspect.
 As already remarked, Article 5 case law, especially when it involves the question whether
 the detention at hand was arbitrary or not, by its nature, requires a substantive, in concreto
 assessment. Almost all, if not all legitimate aim violations found under Article 5, therefore,
 include an in concreto assessment and thereby indicate a stricter approach by the Court. In
 the Merabishvili case, the Court made a list of the cases showing that “a deprivation of
 liberty was chiefly meant for an ulterior purpose”.101 When one examines the Court’s
 list, an interesting fact stands out: except for one case, which was decided about thirty-
100
      When calibrated in accordance with fn 99.
101
      Merabishvili v. Georgia, App. No. 72508/13, ¶ 301 (November 18, 2017), http://hudoc.echr.coe.int/eng
      ?i=001-178753. While the wording suggests otherwise, this list was not a complete list of such cases up until
      then. It lacks the case of Giorgi Nikolaishvili v. Georgia, Eur. Ct. H.R. at 15 (2009), in which the Court found
      that the applicant’s arrest “served to acquire additional leverage over the unrelated criminal proceedings”
      and the case of Khodorkovskiy v. Russia, supra note 78, para. 142 where the Court found “albeit formally
      [the applicant] was apprehended as a witness . . . the investigator’s real intent was to charge the applicant
      as a defendant and, thus, to change the venue of the eventual detention proceedings to a more convenient
      one”.


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                       LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


 five years ago,102 all cases in the list were decided against four Eastern European States,
 namely Azerbaijan, Russia, Armenia and Ukraine.103
            These findings clearly show that while there is an observable change in the
 Court’s case law towards a stricter and in concreto judicial scrutiny in terms of the L.A.T.,
 this change is directed towards certain, mostly Eastern European States. Significantly,
 this finding corresponds to the general trend of weakening democracies in Southern and
 Eastern Europe, as reports indicate,104 as has been noted by the high-level officers of the
 Council of Europe,105 and as literature shows.106
            The findings of this article thus provide output supporting the argument that the
 Court indeed seems to adopt a more heterogeneous approach towards Member States. In
 that sense, it acknowledges its subsidiary position against Convention-respecting, mostly
 Northern and Western European States; and adopts a more intrusive, suspicious
 approach towards suffering democracies in Southern and Eastern Europe.107 And that
 approach against Eastern European States does not present itself only in the Article 18
 jurisprudence; it extends to the legitimate aim assessment as well.




       CONCLUSION

 This article argued several points. First, it aimed to show that the L.A.T. is not a dormant
 test as it has often been suggested, and as the figures show, it has more teeth than ever,
 in particular in recent times. In fact, within the scope of this study, 111 legitimate aim
 violation decisions were found in the body of case law. Moreover, about two thirds of all
 legitimate aim violations were decided in the last ten years.


102
    See Bozano v. France, App No. 9990/82, 59-60 Eur. Comm’n H.R. Dec. Rep. (1986),https://hudoc.echr
    .coe.int/eng?i=001-57448.
103
    Merabishvili v. Georgia, supra note 101, para. 301.
104
    See, Freedom House, Nations in Transit: Dropping the Democratic Facade, 2020, https://freedomhouse.
    org/sites/default/files/2020-04/05062020_FH_NIT2020_vfinal.pdf (last accessed on 28.10.2020), See also,
    European Intelligence Unit, Democracy Index 2019, https://www.eiu.com/topic/democracy-index (last
    accessed on 28.10.2020).
105
    Eur. Consult. Ass., Piotr A. Świtalski, Democracy on the Precipice, at 14 (2011-2012) https://rm.coe.int/
    CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168046eb9b.
106
    ATTILA ÁGH, DECLINING DEMOCRACY IN EAST-CENTRAL EUROPE: THE DIVIDE IN THE EU AND EMERGING HARD POPULISM
    (2019). Vedran Džihić, Grey Zones Between Democracy and Authoritarianism: Rethinking the Current State of
    Democracy in Eastern and South-Eastern Europe, in PROBLEMS OF REPRESENTATIVE DEMOCRACY IN EUROPE 21, 23-
    25 (Jan Marinus Wiersma, Ernst Stetter & Sebastian Schublach eds., 2014). Licia Cianetti et al., Rethinking
    “Democratic Backsliding” in Central and Eastern Europe - Looking Beyond Hungary and Poland, 34 EAST EUR. POL. 243
    (2018).
107
    Çalı, supra note 8, at 275.


                                                         34
 2022]                                UNIVERSITY OF BOLOGNA LAW REVIEW                  [Vol. 7:1


 Second, while the recent “procedural turn” of the Court essentially means less
 substantive judicial scrutiny, the L.A.T. has undergone a shift towards a more
 evidence-based in concreto assessment and the Court accordingly seems to apply a
 stricter judicial review under the L.A.T. . The grounds that the Court relied on when
 finding a breach of the legitimate aim condition are gradually changing from in abstracto
 assessments of the invoked aims’ justificatory capacities for the measure in question
 towards an in concreto examination based on the factual circumstances surrounding the
 case.       Thus, it now engages “in a methodological shift towards a more strict,
 evidentiary-based assessment of invoked legitimate aims”, as the current President of
 the Court once conceived.108 This shift means an increased intensity of judicial review
 under the legitimate aim inquiry.
             Third, this increased intensity is obviously selective.          While the ratio of
 legitimate aim violations to all violations for each region was similar before 2010, there
 are significant differences between Northern and Western States, and Southern and
 Eastern States after 2010. In fact, for Eastern European States, this ratio is about ten
 times higher than Northern and Western European States. More importantly, while the
 legitimate aim frequency (“legitimate aim violations/all violations” decided against all
 Member States of the region) decreased significantly for Northern and Western
 European States after 2010; it increased significantly for Southern and Eastern European
 States. These findings show that the increasing intensity of scrutiny in terms of the
 L.A.T. is not applied to all states, but seems rather concentrated on certain Southern and
 Eastern European States.
             Furthermore, These results fit perfectly with the recent scholarship arguing that
 the Court’s recent case law exhibits two distinct approaches against different states.
 Stiansen and Voeten found that, after 2010, the Court has become less inclined to find
 violations against the ‘consolidated democracies’ that were publicly critical of the Court,
 while the same cannot be said for the other publicly critical states that are not
 consolidated democracies.109                 Madsen showed that margin of appreciation requests
 coming from certain Western European States are more likely to be accepted by the
 Court compared to same requests coming from certain Eastern European States.110 Çalı
 argued that the Court now has a multi-faceted jurisprudence, allowing more
 interpretational room for right-respecting states while developing a bad faith
 jurisprudence for those states that are disrespectful towards the convention values. The
 domestic bodies in the former states, which are mostly the Western European founders,
108
    Spano, The Future of . . ., supra note 5, at fn. 61.
109
    See Stiansen & Voaten, supra note 8, at 780.
110
    See Madsen, supra note 8, at 219.


                                                           35
                        LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


 now enjoy a broader margin of appreciation and the Court limits itself to reviewing the
 procedural justice in their decision-making process.111 On the other hand, for the “bad
 faith interpreters”, which are mostly comprised of the semi-authoritarian Eastern
 European States’ domestic bodies who “flout the well-established Convention standards,
 not merely by error . . . but with suspect grounds of intentionality and lack of respect for
 the overall Convention acquis”,112 it formed a bad faith jurisprudence by developing a
 broader read of Article 18.113 My findings substantially concur with this argument and
 add that the Court’s differentiated judicial strictness against the latter states is not
 limited to the Article 18 case law, but extends to the legitimate aim inquiry as well. At
 one point of her study, Çalı states that the Court’s jurisprudence now “ranges from the
 quality-based deference approach, to standard case law interpretations, to findings of
 bad faith violations.”114 My study therefore proposes a minor tweak to that statement,
 because “standard case law interpretations” seem not that (emphasis added) standard
 recently, either.




         ANNEX 1


                                   First    Judgment                             Violation
           Case Name                                       Paragraph Article
                                 App. No    Date                                   Type
      Bozano v. France           9990/82    18.12.1986     59-60      5          C
      Darby v. Sweden            11581/85   23.10.1990     33-34      14(P1/1)   A
      Van Raalte v. the
                                 20060/92   21.02.1997     43-44      14(P1/1)   B
      Netherlands
      Larkos v. Cyprus           29515/95   18.02.1999     31         14(8)      B
      Thlimmenos          v.
                                 34369/97   6.04.2000 1.   47         14(9)      A
      Greece
      A.B. v.           the
                                 37328/97   29.01.2002     83         8          A
      Netherlands
      S.A. Dangeville v.
                                 36677/97   16.04.2002     57-58      P1/1       B
      France
      Nowicka v. Poland          30218/96   3.12.2002      75-77      8          A
      Sommerfeld          v.
                                 31871/96   8.07.2003      46 ; 93    14(8)      A
      Germany
      Broniowski v. Poland       31443/96   22.06.2004     158, 175   P1/1       A

111
    Çalı, supra note 8, at 256-63.
112
    Id. at 241.
113
    Id. at 263-69.
114
    Id. at 270.


                                                    36
2022]                       UNIVERSITY OF BOLOGNA LAW REVIEW                  [Vol. 7:1


 Pla and Puncernau v.
                          69498/01   13.07.2004   61           14(P1/1)   A
 Andorra
 Ünal Tekeli v. Turkey    29865/96   16.11.2004   68           14         B
 P.M. v. the United
                          6638/03    19.07.2005   28           14(P1/1)   B
 Kingdom
 İzmir           Savaş
 Karşıtları Derneği v.    46257/99   2.03.2006    37           11         B
 Turkey
 Campagnano v. Italy      77955/01   23.03.2006   49           P1/3       C
 Zarb Adami v. Malta      17209/02   20.06.2006   82           14(4)      A
 Zeman v. Austria         23960/02   29.06.2006   40           14(P1/1)   A
 Yanakiev v. Bulgaria     40476/98   10.08.2006   72           6          A
 Aon Conseil et
 Courtage S.A. and        70160/01   25.01.2007   46           P1/1       B
 another v. France
 Tuleshov and others
                          32718/02   24.05.2007   47           P1/1       A
 v. Russia
 Zagorodnikov        v.
                          66941/01   7.06.2007    26           6          B
 Russia
 Ciorap v. Moldova        12066/02   19.06.2007   89           3          C
 F.C.    Mretebi     v.
                          38736/04   31.07.2007   48           6          A
 Georgia
 Cebotari v. Moldova      35615/06   13.11.2007   53           5          C
 Luczak v. Poland         77782/01   27.11.2007   59           14(P1/1)   B
 Kostadin Mihaylov v.
                          17868/07   27.03.2008   42           6          A
 Bulgaria
 Maltseva v. Russia       76676/01   19.06.2008   36           6          C
 Yerogova v. Russia       77478/01   19.06.2008   36           6          C
 Bochev v. Bulgaria       73481/01   13.11.2008   97           8          A
 Alekseyenko         v.
                          74266/01   8.01.2009    88           8          A
 Russia
 Nolan and K. v.
                          2512/04    12.02.2009   73           9          B
 Russia
 Weller v. Hungary        44399/05   31.03.2009   35, 38       14(8)      A
 K.H. and others v.
                          32881/04   28.04.2009   53           8          B
 Slovakia
 Glor v. Switzerland      13444/04   30.04.2009   85           14(8)      B
 Tsonkovi v. Bulgaria     27213/04   2.07.2009    26           P1/1       B
 Bezymyannaya        v.
                          21851/03   22.12.2009   33           6          A
 Russia
 Jaremowicz v. Poland     24023/03   5.01.2010    60           12         B
 Oleksiy
 Mykhaylovych
                          1727/04    24.06.2010   74           3          A
 Zakharkin           v.
 Ukraine
 Georgieva         and
 Mukareva            v.   3413/05    2.09.2010    38           P1/1       B
 Bulgaria
                                            37
                 LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.


Maria Atanasiu and
                         30767/05   12.10.2010   184         6          A
others v. Romania
Boris Popov v. Russia    23284/04   28.10.2010   104         8          A
Putter v. Bulgaria       38780/02   2.12.2010    55          6          A
Maggio and others v.
                         46286/09   31.05.2011   48          6          C
Italy
Khodorkovskiy       v.
                         5829/04    31.05.2011   142         5          C
Russia
Shimovolos v. Russia     30194/09   21.06.2011   57          5          C
Mihal v. Slovakia        22006/07   5.07.2011    55          6          A
Stoycheva           v.
                         43590/04   19.07.2011   59          P1/1       A
Bulgaria
X and Y. v. Croatia      5193/09    3.11.2011    116         8          B
Kerimli and Alibeyli
                         18475/06   10.01.2012   41          P1/3       B
v. Azerbaijan
Tkachevy v. Russia       35430/05   14.02.2012   50          P1/1       C
Hakobyan and others
                         34320/04   10.04.2012   123         5          C
v. Armenia
Kuric and others v.
                         26828/06   26.06.2012   394         14(8)      B
Slovenia
Lutsenko v. Ukraine      6492/11    3.07.2012    65          5          C
Koch v. Germany          497/09     19.07.2012   67          8          A
Najafli v. Azerbaijan    2594/07    2.10.2012    69          10         A
Catan and others v.
Moldova and Russia       43370/04   2.10.2012    144         P1/2       C
[G.C.]
P. and S. v. Poland      57375/08   30.10.2012   133         8          A
Hode and Abdi v. the
                         22341/09   6.11.2012    53          14(8)      A
United Kingdom
Karabet and others v.
                         38906/07   17.01.2013   347         P1/1       A
Bulgaria
M.S. v. Croatia          36337/10   25.04.2013   106         8          A
Nataliya
Mikhaylenko         v.   49069/11   30.05.2013   40          6          B
Ukraine
Franek v. Slovakia       14090/10   11.02.2014   54          6          A
Masirevic v. Serbia      30671/08   11.02.2014   51          6          B
Velyo      Velev    v.
                         16032/07   27.05.2014   42          P1/2       B
Bulgaria
Krupko and others v.
                         26587/07   26.06.2014   40          5          B
Russia
Nemtsov v. Russia        1774/11    31.07.2014   103         5          C
Atudorei v. Romania      50131/08   16.09.2014   154         5          B
Emel Boyraz v.
                         61960/08   2.12.2014    56          14(8)      B
Turkey
Dimitrovi v. Bulgaria    12655/09   3.03.2015    53-55       P1/1       B
Emin Huseynov v.
                         59135/09   7.05.2015    86-87       5          B
Azerbaijan
                                           38
2022]                       UNIVERSITY OF BOLOGNA LAW REVIEW                [Vol. 7:1


 Chiragov and others
                          13216/05   16.06.2015   201           P1/1    A
 v. Armenia [G.C.]
 Oliari and others v.
                          31443/96   21.07.2015   185           8       B
 Italy
 Gafgaz Mammadov v.
                          60259/11   15.10.2015   108           5       C
 Azerbaijan
 Salamov v. Russia        5063/05    12.01.2016   47            P1/1    A
 Ibrahimov         and                            77, 81, 85,
                          69234/11   11.02.2016                 5       C
 others v. Azerbaijan                             127
 Huseynli and others
                          67360/11   11.02.2016   147           5       C
 v. Azerbaijan
 Mozer v. Moldova
                          11138/10   23.02.2016   194, 199      8;9     A
 and Russia
 Pajic v. Croatia         68453/13   23.02.2016   83            14(8)   A
 Domazyan            v.
                          22558/07   25.02.2016   43            6       A
 Armenia
 Ahad Mammadli v.
                          69456/11   16.06.2016   57            5       C
 Azerbaijan
 Baka v. Hungary
                          20261/12   23.06.2016   155-157       10      B
 [G.C.]
 Hajibeyli and others
                          5231/13    30.06.2016   56            5       C
 v. Azerbaijan
 Tomov and Nikolova
                          50506/09   21.07.2016   51            P1/1    B
 v. Bulgaria
 Chakalova-Ilieva v.
                          53071/08   6.10.2016    41            6       A
 Bulgaria
 Kasparov v. Russia       53659/07   11.10.2016   56            5       B
 Ermenyi v. Hungary       22254/14   22.11.2016   37            8       B
 Huseynov and others
                          34262/14   24.11.2016   66            5       C
 v. Azerbaijan
 Jamil Hajiyev v.
                          42989/13   16.02.2017   68            5       C
 Azerbaijan
 Bayramlı            v.
                          72230/11   16.02.2017   73            5       C
 Azerbaijan
 Babak Hasanov v.
                          43137/13   16.02.2017   65            5       C
 Azerbaijan
 Abbaslı v. Azerbaijan    5417/13    16.02.2017   66            5       C
 Bayram Bayramov v.
                          74609/10   16.02.2017   74            5       C
 Azerbaijan
 Karajanov           v.
                          2229/15    6.04.2017    75-76         8       B
 Macedonia
 Bayev and others v.
                          67667/09   20.06.2017   83            10      B
 Russia [G.C.]
 Babayev           and
 Hasanov             v.   60262/11   20.07.2017   89            5       C
 Azerbaijan
 Tural Hajibeyli v.
                          69180/11   28.09.2017   65            5       C
 Azerbaijan
                                            39
                  LEGITIMATE AIMS, ILLEGITIMATE AIMS AND THE E.CT.H.R.




Magyar        Ketfarku
Kutya       Part     v.   201/17     23.01.2018   40-46       10         B
Hungary
Aleksandr
Aleksandrov          v.   14431/06   27.03.2018   29          14(5)      A
Russia
Hülya Ebru Demirel
                          30733/08   19.06.2018   35          14(8)      B
v. Turkey
Aliyev v. Azerbaijan      68762/14   20.09.2018   184-187     8          B
Navalnyy v. Russia
                          29580/12   15.11.2018   126         11         B
[G.C.]
Resin v. Russia           9348/14    18.12.2018   41          8          A
Khadija İsmayilova v.
                          65286/13   10.01.2019   147         8          A
Azerbaijan
Navalnyy v. Russia
                          43734/14   9.04.2019    80-81       10         B
(no.2) [G.C.]
Kamoy           Radyo
Televizyon Yay. v.        19965/06   16.04.2019   50-51       P1/1       A
Turkey
Khodorkovskiy and
Lebedev v. Russia         11082/06   25.07.2013   596-597     8          A
(no.2)
Kövesi v. Romania         3594/19    5.05.2020    196-199     10         A
P.T. v. Moldova           1122/12    26.05.2020   29          8          A
OOO Flavus and
                          12568/15   23.06.2020   38, 44      10         B
others v. Russia
Yunusova           and
Yunusov              v.   68817/14   16.07.2020   152-157     8          B
Azerbaijan




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