January 18, 2016
Following an annual and cherished tradition, we are hereby launching our poll for the best and worst ECtHR judgment of 2015!
As usual, preselecting a limited number of contenders was both fun and hard. There is always room for debate. Always other judgments that deserve a shot at the title. Other judgments to cheer at. And other judgments to boo (somewhat). But we hope you find your champ among our contenders. If not, you can always support an underdog by selecting ‘Other’.
The winners and losers will be announced in about a month.
To refresh your memory on the nominated judgments – or introduce you to them – we have included brief summaries below the polls (click ‘Continue reading’, immediately below the polls).
[the order of judgments in both polls is automatically randomised on each page visit]
SUMMARIES OF JUDGMENTS
BEST JUDGMENT (reverse alphabetical)
The Chamber in Y.Y. v. Turkey ruled that the Turkish authorities’ refusal to authorize the applicant’s gender reassignment surgery, on the ground that he was not permanently unable to procreate, breached Article 8 ECHR. The judgment is nominated for best judgment of 2015, because it questions the relevance of an inability to procreate to gender reassignment surgery; and because it firmly affirms that respect for physical integrity precludes any obligation for transgender individuals to undergo treatment aimed at permanent sterilization. For more, see our post.
The Chamber in Oliari and Others v. Italy established a positive obligation under Article 8 ECHR to ensure legal recognition of same-sex couples’ relationships, in the absence of same-sex marriage. The judgment is nominated for best judgment of 2015, because it constitutes a significant step towards full and equal legal recognition of the rights of same-sex couples within the Council of Europe region (even if the judgment is disappointing in relation to Articles 12 and 14). For more, see our post.
The Grand Chamber ruled that a lawyer’s conviction for defamation of two investigative judges had breached Article 10 ECHR. The judgment is nominated for best judgment of 2015, because it clarifies the role and responsibilities of lawyers in relation to society, their clients and the administration of justice; and because it amplifies the right of lawyers to draw the public’s attention to potential shortcomings in the justice system. For more, see our post.
The Chamber in Khlaifia v. Italy ruled that the detention of Tunisian migrants in degrading conditions on Lampedusa breached Articles 3, 5 and 13 ECHR and that their collective expulsion breached Article 4 of Protocol No. 4. The judgment is nominated for best judgment of 2015, because the Court, ruling against the backdrop of the current “refugee crisis” and without underestimating the challenges faced by states in situations of exceptional immigration, remains highly protective of the rights of refugees and asylum seekers under the ECHR. For more, see Sarah Craig’s post on RefNotes and Jaya Ramji-Nogales’s contribution on ASIL Insights.
The Grand Chamber ruled that slaps inflicted on a juvenile and an adult in police custody breached Article 3 ECHR. The judgment is nominated for best judgment of 2015, because it firmly upholds the absolute nature of article 3 ECHR; and because it convincingly combines arguments based on control, vulnerability, superiority-inferiority and human dignity to protect persons in police custody from ill-treatment. For more, see our posts, here and here.
WORST JUDGMENT (alphabetical)
The Chamber in A.S. v. Switzerland ruled that the expulsion, from Switzerland to Italy, of a Syrian asylum seeker of Kurdish origin diagnosed with severe post-traumatic stress disorder, would not breach Articles 3 and 8 ECHR. The judgment is nominated for worst judgment of 2015, because it represents a line of reasoning in need of revision (the exceptionally high Article 3 threshold established in N. v. the United Kingdom; see criticism here and here); and because it fails to adopt a clear stance on whether or not the applicant enjoyed “family life” with his two sisters under Article 8. For more, see our post.
The Chamber in Ebrahimian v. France ruled that the non-renewal of the applicant’s contract in a public hospital, given her refusal to take off her headscarf, did not breach Article 9 ECHR. The judgment is nominated for worst judgment of 2015, because it continues a line of case law in which the Court accepts abstract principles and speculations as a basis for headscarf bans, rather than restricting the justifiability of such bans to situations in which there is evidence of concrete risks for neutrality or the rights of others. The judgment moreover seems to constitute a step backwards from Eweida and Others v. the United Kingdom. For more, see our post.
Kudrevičius and Others v. Lithuania
The Grand Chamber ruled that protesters’ Article 11 ECHR rights had not been breached by their arrest, detention and conviction for having organised unauthorised road blocks. The judgment is nominated for worst judgment of 2015, perhaps not as much for its outcome as for its reasoning. In its first freedom of peaceful assembly judgment, the Grand Chamber missed the opportunity to set strong, protective standards. Instead, it actually decreased the protection traditionally offered by Article 11 ECHR, among others by extending the definition of “reprehensible acts” beyond acts of (incitement to) violence, hatred and discrimination. For more, see our post.
The Grand Chamber upheld Italy’s blanket ban on the donation of embryos for scientific research, ruling that it did not violate the Art. 8 ECHR rights of a woman who – after the death of her partner – wished to donate their embryos for scientific research. The judgment is nominated for worst judgment of 2015, because it too readily accepts the existence of a link between the purported legitimate aims and the blanket ban; because it fails to appreciate the importance of the applicant’s autonomy and self-determination; and because it does not scrutinise the legislative process sufficiently thoroughly. For more, see Rosalind English’s extensive summary on the UK Human Rights Blog and Matthew Saul’s analysis on the PluriCourts Blog.
The Grand Chamber ruled that a press photographer’s arrest for disobeying a police order to leave the scene of a demonstration that had turned into a riot, had not breached Article 10 ECHR. The judgment is nominated for worst judgment of 2015, because it fails to distinguish between a journalist fulfilling his public watchdog role and rioting protestors; and because it misses an opportunity to set clear and protective standards on the right of journalists to report on public demonstrations. The Grand Chamber instead limits its reasoning strictly to the particulars of the case at hand, refusing to provide any guidance for future cases. For more, see our post.
My proposal for the worst judgment in 2015 is Annen v. Germany. The Court found a violation of Article10 by a prohibition against a “pro-life”-activist to distribute leaflets in the vicinity of a clinic run by two doctors who also conducted abortions and an interdiction to name the doctors on a list of “abortion-doctors” on a website “babycaust.de”.
Much could be written about this judgment (which is not final yet), but I confine myself to three aspects:
1. First of all I find it striking that the Court doesn’t take into account the repercussions such anti-abortion campaigns may have on women seeking an abortion (in fact, the clinic was closed meanwhile). How can this be reconsiled with the Court’s approach in the polish abortion cases (R.R. v.Poland; P. and S. v. Poland, Tysiac v. Poland) where it was clearly set out that the Convention does protect a right to abortion if it is legal under national law. Therefore Germany is under a duty to provide women with effective access to abortions. Can the Court seriously make this right dependend from delicate distinctions (such as between abortions that are legal and abortions that just aren’t indictable)?
2. The judgment does not at all explain why it was necessary for the applicant to mention the full names of the doctors and to distribute his leaflets right in front of their clinic. Was this really important for his contribution to a public debate or was it rather aimed at harassing the women seeking access to the clinic? The Court argues that the effectiveness of the campaign was enhanced by this strategy. This seems to me a very dangerous line of reasoning – wouldn’t a campaign against the asylum policy be enhanced by demonstrating in front of asylum seekers’ shelters? PEGIDA for sure will be grateful for such an argument.
3. The judgment seems hard to reconsile with former decisions on applications brought by the same applicant concerning similar leaflets. The Court neglects to give a convincing reasoning why the facts underlying this application were so different that it was justified to distinguish this case from the former decisions.
I’m curious whether the German government will request a referral to the Grand Chamber. The chances of such a request shouldn’t be that bad.
Votes for ‘Other’ judgments (periodically updated):
Roman Zakharov v. Russia: 2 votes.
Cengiz and Others v. Turkey: 1 vote.
L.M. and Others v. Russia: 1 vote.
Parrillo v. Italy: 1 vote.
Pentikäinen v. Finland: 1 vote.
Perinçek v. Switzerland: 1 vote.
Pruteanu v. Romania: 1 vote.
Perinçek v. Switzerland: 3 votes.
Delfi AS v. Estonia: 2 votes.
Annen v. Germany: 1 vote.
Bouyid v. Belgium: 1 vote.
Gherghina v. Romania (adm.): 1 vote.
Khan v. Germany: 1 vote.
Oliari and Others v. Italy: 1 vote.
Vasiliauskas v. Lithuania: 1 vote.
[…] The results of our poll on best and worst ECtHR judgment of 2015 are in! We are excited to announce the results now that exactly a month has passed since the opening of the polls. […]