When is a State’s ‘Hidden Agenda’ Proven? The Role of the Merabishvili’s Three-Legged Evidentiary Test in the Article 18 Strasbourg Case Law

The increasingly litigated Article 18 echr aims at unmasking the ‘hidden agenda’ pursued by states that proclaim to be restricting human rights for legitimate reasons, but in fact do so for an ‘ulterior purpose’. These complaints generate complex evidentiary challenges. This article investigates the evidentiary regime of Article 18 since the delivery of the Grand Chamber Merabishvili v Georgia judgment in 2017. It shows that this regime is composed of a three-legged evidentiary test requiring: (1) that the Article 18 complaint is a fundamental aspect of the case, (2) the identification of an ‘ulterior purpose’, and (3) the predominance of this purpose in the state’s overall motivation. The article argues that this three-stage test is sui generis, despite borrowing elements from evidentiary regimes, both from other Convention provisions and externally, and that it lacks clarity and coherency: facilitating a higher standard of proof for the provision, which largely burdens applicants.