January 31, 2017
The Strasbourg Observers are launching the annual poll for best and worst European Court of Human Rights judgment, 2016 edition!
This year, the pre-selection of nominees was particularly challenging. A diverse batch of 28 (!) judgments received nominations from our blogging team at the Human Rights Centre of Ghent University. Ultimately, our internal voting process led to the ten below nominees, across both categories.
It is now up to you, our readers, to elect the winner (best judgment) and loser (worst judgment) of 2016! The results will be announced next month.
Attentive readers will note that quite a large number of our nominees address asylum and migration issues. This not only reflects the ‘reality’ of today’s political and judicial scene in Europe. It also signals, in the category of best judgment, that we are impressed by how the European Court of Human Rights has remained, in the nominated cases, an independent stronghold against the populist tide that threatens to sweep migrants, asylum seekers and refugees away from Europe.
To refresh your memory on the nominated judgments – or introduce you to them – we have included brief summaries below the polls (please click ‘Continue reading’).
[the order of judgments in both polls is automatically randomized on each page visit]
BEST JUDGMENT (alphabetical)
The case concerned the lengthy duration of an asylum procedure and the quality of the assessment of the applicant’s personal situation. The Court found violations of articles 3 and 8 ECHR.
From our blog post: “This is the first time that the Court finds that an asylum seeker’s prolonged precarious and uncertain situation, due to an unjustified lack of action by the government as regards his asylum request, constitutes a violation of … Article 8 ECHR.”
The case concerned family reunification, requested by a naturalized citizen. The Court found a violation of article 14 in conjunction with article 8 ECHR.
From our blog post: “the ruling in Biao must be seen as a big step – all the more as critics have proclaimed that the Court might not yet have developed a satisfactory approach to cases of indirect discrimination.”
The case concerned the reasonable accommodation of a student with a disability. The Court found a violation of article 14 in conjunction with article 2 of Protocol 1 ECHR.
From our blog post: “the ECtHR states that the denial of reasonable accommodations is a form of discrimination under article 14 ECHR. As far as we can ascertain, this is a statement that had never been expressed so clearly by the Strasbourg Court.”
The case concerned the arrest and detention of a human rights activist. The Court found violations of articles 5 and 18 ECHR.
From the EHRAC website: “This is the European Court’s first judgment to address the serious and ongoing situation of human rights defenders in Azerbaijan, many of whom remain behind bars … The strong statements made by the Court … on the restrictions that Azerbaijani human rights defenders continue to face … will set an important precedent”.
The case concerned the expulsion of a seriously ill person. The Court found violations of articles 3 and 8 ECHR.
From our blog post: “the Grand Chamber has memorably reshaped its Article 3 case law on the expulsion of seriously ill migrants. In a unanimous judgment, the Court leaves behind the restrictive application of the high Article 3 threshold set in N v. the United Kingdom and pushes for a more rigorous assessment of the risk of ill-treatment in these cases.”
WORST JUDGMENT (reverse alphabetical)
The case concerned revocation of the applicant’s citizenship and his resulting statelessness. The Court found no violation of article 8 ECHR.
From our blog post: “It does not seem an exaggeration to say that the recent judgment in Ramadan v. Malta suggests that citizenship revocation is not generally problematic under the European Convention on Human Rights.”
The case concerned the standing of the applicants’ representatives in circumstances in which the applicants themselves had disappeared. The Court declared the complaint inadmissible.
From our blog post: “The Court did not explain why it examines the case on the basis of the criteria in Lambert [v. France] and not the ones in [Centre of Legal Resources on behalf of Vincent Campeanu v. Romania], even though the representative argued that she had standing according to the Campeanu-criteria. In sum, this case is a missed opportunity for the Court to fine-tune its case-law in Campeanu and Lambert and to render protection for the applicants.”
Karapetyan and Others v. Armenia
The case concerned the freedom of expression of civil servants. The Court found no violation of article 10 ECHR.
From our blog post: “The Court’s view on the need for a ‘politically neutral body of civil servants’ in its Karapetyan and Others v. Armenia judgment is worrying. It risks demoting senior civil servants to mere lackeys of the executive, impeding them from playing a potentially vital role in defending democracy and the rule of law.”
The case concerned the standing of the representative of a victim of human trafficking. The Court declared the complaint inadmissible.
From our blog post: “The G.J. v. Spain Decision … shows many of the problems victims of human trafficking encounter to access justice. It is, sadly, one of those cases where formalities swallow justice”.
The case concerned the influence of the applicant’s socio-economic circumstances on her freedom to choose a residence. The Court found no violation of article 2 of Protocol 4 ECHR.
From our blog post: “the Court in the Garib case missed the opportunity to emphasize that at the core of any human rights based approach to addressing socio-economic problems should be a concern to find solutions that respect and empower rather than restrict the agency of persons suffering from socio-economic disadvantage.”
I don’t think the poll should include a judgment which has not yet become final as it is currently pending before the Grand Chamber (Garib v. the Netherlands)!
Don’t you think it is curious that only cases in which the Court has found no violation or declared the application inadmissible are selected as ‘worst judgments’, and that, at the same time, only cases where violations have been found are selected as ‘best judgments’?
This selection suggest that, in the eyes of this blog’s team, ‘a violation’ stands a better chance to be ‘best’ than ‘no violation’ or ‘inadmissable’, simply by the outcome of the Court’s judgments. I highly value the independence of the Court which means it stands above the parties and will not have a bias towards either the applicant or the defending State.
This selection of cases is thus remarkable if you value the Court’s independence. It may very well be that you find the judicial reasoning in these particular cases worse than in others. But from an academic perspective, I think this poll gives rise to a presumption of bias within the blog’s team. I would not want to accuse you in any way, but the presumption itself to me is somewhat regretful.
Thank you by the way for this blog!
Here, we will periodically update the votes for other judgments/decisions:
G.J. v. Spain: 2 votes
Vardanyan and Nanushyan v. Armenia: 1 vote
Karaahmed v. Bulgaria: 1 vote
Červenka v. the Czech Republic: 1 vote
Magyar Helsinki Bizottság v. Hungary: 1 vote
Avotiņš v. Latvia: 1 vote
Osmanoğlu and Kocabaş v. Switzerland: 1 vote
Bulgarian Helsinki Committee v. Bulgaria: 14 votes
Paposhvili v. Belgium: 2 votes
Bărbulescu v. Romania: 1 vote
Dubská and Krejzová v. the Czech Republic: 1 vote
V.M. and Others v. Belgium: 1 vote
Akif Zihni v. Turkey: 1 vote
Sarihan v. Turkey: 1 vote
Khlaifia and others v. Italy: 1 vote
Salihu v. Sweden: 1 vote
Bátěk v. the Czech Republic: 1 vote
(votes for other judgments/decisions are only included here insofar as the judgment/decision was delivered in 2016)
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[…] of 2016. For an overview of the shortlist of candidates, including a motivation for selecting them, see our previous blog post published on the occasion of the opening of the […]
I’m depressed that Karelin v Russia did not make it into the 2016 selection. Though it is a “win” for the plaintiff, I believe its overreach and potential policy consequences far outweigh any advantages of the ruling.
First, there seems no dispute that Mr. Karelin is indeed guilty of the offense he is charged, and no one has tried to claim his offense should not be one due to human rights considerations. Thus, in concreto any substantive harm to him was insignificant, yet the court chose to (as it often does with Russia) find excuses to break from its in concreto principles to make an abstract whack.
Though the ECHR has been taking pokes at Russia’s Administrative Offence system (for example Kasparov v. Russia) for some time now, it is usually in conjunction with other violations (usually one concerning the right to protest). Admittedly I don’t read all that many of them but this would seem to be the first one where no substantive human rights concerns are present and the case was pushed anyway.
It is not hard to understand that the Administrative Offences are designed to be abbreviated and cheap procedures for less serious (not socially dangerous) offenses. For this reason it is practically impossible to provide the same level of “niceties” as that of a criminal trial. In exchange, the penalties themselves are capped, The Court has previously claimed to understand this (in Kasparov v Russia), before then effectively demanding the same niceties (in this case, the services of a full time prosecutor) as a criminal trial.
It is not explained how the absence of a prosecutor concretely dented Mr. Karelin’s (lawyer) chances. The court concedes in Paragraph 69 that there is not even an allegation of impartially. It just asserts in 72 the lack of a prosecuting party had an effect on the operation of the presumption of innocence. In this case, in the end, a cop and 1-2 witnesses were called. It is not clear how the hypothetical presence of a full time prosecutor will cause the witnesses to not be called or make the proceedings otherwise more favorable to Mr. Karelin.
Anyway, the ruling is made. Though the text concerns the need for a full time prosecutor it is basically to raise the administrative proceedings into criminal ones, an attack on the institution as a whole.
In addition to effectively overriding the national legislature’s perogatives in deciding the interbalances of cost, efficiency and protection (a significant potential infringement of democratic rights) in handling offences, as well as rolling over another family of law based on own prejudices, ultimately if the directives are taken seriously the endpoint will be to make the administrative offence proceedings as protected, and thus as costly as criminal proceedings.
At that point, the State’s incentive to keeping the administrative offence/criminal divide will be gone. The current 15-day limit is perhaps the best liability limiter for the brave dissenter in Russia. I would suspect even in the West, many people would trade administrative proceedings for a 15-day cap and no criminal record.
The court might always find you guilty, but at least you are almost always limited to 15 days. When the divide is gone, he will be faced with the threat of mutlti-year sanctions.
In Mr. Karelin’s specific case, I wonder how interested he personally would be for trading criminal-level protections and proceedings with criminal level penalties,which would be exactable in a system without administrative offences.
A very bad ruling and I’m surprised it didn’t make it on the list.