February 12, 2015
With an impressive 1,000 votes cast, the time has come to announce the winners and losers of this year’s poll on the best and worst ECtHR judgment of 2014.
We will not let the audience linger in anxious anticipation, but will get straight down to the nitty-gritty. Here are the results:
Best Judgment – Top 3
- Matúz v. Hungary (47%).
- Tarakhel v. Switzerland (29%).
- Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania (15%).
Worst Judgment – Top 3
- S.A.S. v. France (40%).
- Senchishak v. Finland (36%).
- M.E. v. Sweden and Pentikäinen v. Finland (6%).
Festive congratulations to the winner, sincere commiserations to the loser.
A few – speculative – words follow on why the winner might have won, and why the loser might have lost.
Matúz v. Hungary arguably won, because it clearly confirms the ECtHR’s strong commitment to providing much needed protection to whistleblowers’ freedom of expression in times when this is – politically speaking – a far from obvious, and therefore quite courageous, judicial position to take.
S.A.S. v. France quite plausibly ‘won’ the vote for worst ECtHR judgment of 2014, because it – at least in our reading of the judgment – stops short of displaying similar judicial courage in the face of political considerations in another area of the Court’s case law. Although the S.A.S. judgment finally does away with some deeply problematic lines of reasoning in the Court’s freedom of religion case law, it immediately introduces a new one by so readily accepting the ‘living together’ argument. We have described this aspect of the judgment as constituting a “problematic precedent” not only for freedom of religion cases, but also for a wide range of other human rights cases. Ultimately, it appears (to me) quite plausible that the ‘living together’ argument succeeded, not because it was legally compelling, but because deferring to it was politically prudent.
A few footnotes on the poll are in order as well. Most importantly on the decisiveness of the victories. We have taken a snapshot of the votes at this particular moment in time, chosen because we have reached 1,000 votes. We are of course mindful that this obscures the fact that the voting pattern has been quite erratic this year. Several judgments have at some point or other held a firm lead, in both categories, and the winners today were not in the lead earlier, and may no longer be in the lead in the (near) future. In the category of best judgment, Al Nashiri v. Poland / Husayn (Abu Zubaydah) v. Poland initially held a strong lead, but it is not even in the top 3 now. It initially had to pass the baton to Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, which in its turn ultimately finished ‘merely’ on the third spot. Over the past few days, finally, Matúz v. Hungary overtook the next front runner, Tarakhel v. Switzerland, claiming the prize at this particular moment in time. Something similar happened in the category of worst judgment, where S.A.S. v. France took an early lead that was so substantial as to make it seem the inevitable ‘winner’ in this category. In an unexpected turn of events, however, Senchishak v. Finland took over, and seemed in its turn to be cruising to ‘victory’. But in the last few days, both judgments switched positions once more, leaving S.A.S. v. France with the questionable honour of ‘winning’ this category. On a related note, some judgments under the category “other” came awfully close to overtaking some of our preselected candidates, showing that there are numerous other judgments that could have made it to both lists. Particular mention goes out to Hämäläinen v. Finland and Christodoulou and Others v. Greece, both having received numerous votes in the category of worst judgment.
All this to say that, obviously, the poll has been subject to certain peaks in votes, most likely the result of voting ‘campaigns’. We consider this to not in any way deter from the usefulness of organising the poll. On the contrary, it demonstrates how the Strasbourg Observers blog in general – and some of its more ‘fun’ elements, like the poll, in particular – draw widespread attention, among scholars, lawyers, judges, civil society, and private individuals. If this in some way helps us do our part to lay another brick in the defensive wall against abuse of power by the State that human rights aim to build,* we gladly accept this societal role, right along our scholarly role in providing thoughtful – sometimes positive, other times critical – analyses of ECtHR judgments.
* The “defensive wall” metaphor is chosen for stylistic reasons only. It is not intended to convey the idea that human rights only require duties of non-interference from States. Obviously, human rights also impose positive duties on those States.