Reprehensible or Legitimate Aims? A Proposal for a New Approach to Article 18 echr in Light of its Predominance Test

What is it about?

The European Court of Human Rights (ECtHR, Court) finds a violation of Article 18 of the European Convention on Human Rights (echr) if the respondent authorities simultaneously pursued both a legitimate and hidden aim (plurality of aims), provided that the latter was the predominant one. The Court establishes this predominance by considering the ‘nature and degree of reprehensibility’ of the hidden aim. I argue that this reprehensibility criterion has not been applied in a consistent manner, resulting in unpredictability as to the true meaning behind it. The Court either interprets this as an assessment of contextual factors or as an impact assessment, and sometimes even applies it in the absence of a plurality of aims. This article points out the flaws in these different interpretations and formulates recommendations in order to determine where these interpretations would be most aptly applied under Article 18; the former under the predominance test, the latter as a new threshold criterion.

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