January 11, 2018
We, from Strasbourg Observers, would like to wish you all the best for 2018. Following our yearly tradition, the start of the new year is a good opportunity to invite you, our readers, to retrospectively assess the ECtHR’s work of the past year. For this purpose, we are hereby launching our poll for the best and worst ECtHR judgment of 2017.
As always, it took some internal discussion to come up with a selection of five judgments in each category. In which cases did the ECtHR live up to its role as the Conscience of Europe? In which areas did it fail to do so and should it do a better job in 2018? Or do you rather like or dislike a judgment for the greater or lesser quality of legal reasoning employed? As any list is imperfect, we encourage discussion by allowing you to put forward other judgments of which we may have failed to realise how good or bad they really were.
It is now up to you, our readers, to elect the winner (best judgment) and loser (worst judgment) of 2017! The results will be announced next month.
To refresh your memory on the nominated judgments – or to introduce you to them – we have included brief summaries below the polls.
[the order of judgments in both polls is automatically randomised on each page visit]
BEST JUDGMENT (alphabetical order)
Bărbulescu v. Romania (Grand Chamber)
Overturning the Chamber judgment and reaffirming the right to privacy in the context of the workplace; the Grand Chamber found a violation due to the monitoring of an employee’s email account.
From our blog post: “By overturning last year’s judgment of the Fourth Section, the ECtHR gave relief to many who dreaded that the latter judgment had waived privacy in the workplace.[…] Compared to last year’s judgment, a more consistent reasoning and extensive assessment of facts and legislation was carried out by the Grand Chamber. Factual elements which were overlooked, despite their relevance to the balancing, were now given particular attention.”
Bayev v. Russia (Third Section)
In this judgment, the Court found that the Russian so-called gay propaganda law violated Article 10 alone and in combination with Article 14 ECHR.
From our blog post: “The Court not only condemns the homophobic nature of the Russian legislation, it also calls for the inclusiveness of LGB persons within society. Indeed, it not only refuses to take into account that the majority of Russians have a negative opinion on homosexuality; it even denounces the importance of this viewpoint. After all, in par. 82 the Court finds that, to the extent that minors who witnessed the applicants’ campaign were exposed to the ideas of diversity, equality and tolerance, the adoption of these views could only be conducive to social cohesion.”
Carvalho Pinto de Sousa Morais v. Portugal (Fourth Section)
In this judgment, the Court found a violation of Article 14 in combination with Article 8 in a case in which the domestic courts had reduced the compensation awarded to a 50-year-old woman who could not have sexual relations after a failed operation based on age and gender stereotypes.
From our blog post: “Carvalho Pinto is […] a laudable non-discrimination judgment. It unveils gender bias in judicial reasoning by naming the gender stereotypes, by describing their workings in the concrete case and by assessing their influence on the judicial decision. The judgment represents a key step in the Court’s anti-stereotyping case law and reinvigorates Article 14 jurisprudence.”
Hamidović v. Bosnia and Herzegovina (Fourth Section)
In this case, the Court found a violation of Articles 9 and 14 on account of the punishment of a witness for wearing an Islamic skullcap in the courtroom.
From our blog post: “Yet the importance of the Hamidovic judgment transcends the courtroom environment. Upon reading the press release, my first – admittedly cynical – reaction was: ‘so Muslims have rights after all’. And indeed, the Court has to date rejected ALL article 9 accommodation claims of Muslims in states where Islam is a minority religion. After Ahmet Arslan a.o., Hamidovic is only the second successful claim for accommodation of Islamic religious practice.”
N.D. and N.T. v. Spain (Third Section)
Against the background of the humanitarian crisis at the gates of Fortress Europe – arguably contemporary Europe’s most serious human rights issue – the Court issued this judgment in which it ruled that push-back operations at the Spanish border violated the right to an effective remedy and the prohibition of collective expulsions
From our blog post: “From an International point of view, the Court consolidates and even unifies its case-law on the regime of push-backs both at sea and at territorial borders, surrounding it with some key guarantees. In doing so, it contributes to the emergence of an autonomous concept of expulsion, at least regarding Art. 4 Protocol 4 ECHR. From the domestic point of view, this was a much-awaited Judgement in Spain. Such a clear and unanimous judgment casts serious doubts about the constitutionality of push-backs and the 2015 reform of the Immigration Act 4/2000.”
Runners-up are the cases of Chowdury v. Greece (see blog post here) and A.P., Garçon and Nicot v. France (see blog post here) in which the Court found violations of the Convention based on the exploitation of undocumented migrant workers and the requirement of compulsory sterilizing surgery and treatment as condition for legal gender recognition respectively.
WORST JUDGMENT (alphabetical order)
Burmych and others v. Ukraine (Grand Chamber)
In this judgment, the Grand Chamber struck a case off the list that concerned a situation of mass non-execution by Ukraine of both its own national judgments as well as the Court’s pilot judgment in the case of Yuriu Nikolayevich Ivanov v. Ukraine – considering these questions to rather fall within the responsibility of the Committee of Ministers
From our blog post: “[S]tates’ willingness to cooperate is crucial to the success of a pilot […].With the Burmych judgment, the importance of state cooperation has become painfully clear and the Court has chosen which interests prevail when states are reluctant to do their part in protecting the Convention’s rights. […]Under the guise of judicial efficiency, applicants are absorbed into the bigger picture and with that, their individual interests are apparently washed away.”
Dissenting opinion of Judge Dedov in Bayev v. Russia (Third Section)
While technically not a judgment, the homophobic dissenting opinion of Judge Dedov in the case of Bayev and Others v. Russia, concerning Russia’s so-called gay propaganda law, was sufficiently shocking for us to nominate it for the category of worst judgment nonetheless.
From our blog post: “Read as a whole, Dedov’s dissent is blatantly homophobic in nature. It is particularly outrageous how he attempts to link homosexuality and paedophilia . […]Anybody concerned about human rights cannot accept such statements from a judge at the European Court of Human Rights.”
Garib v. the Netherlands (Grand Chamber)
In this case, the Grand Chamber confirmed that the the refusal to grant a housing permit to a single mother living on social welfare on account of legislation imposing minimum income requirements to reside in a number of hotspot areas in Rotterdam did not violate her freedom to choose her residence.
From our blog post: “The Grand Chamber thus misses the opportunity to develop important standards in terms of discrimination on the grounds of poverty or ‘social origin’ and its intersection with other grounds such as race and gender; a question particularly compelling in the present case, since the applicant was a single mother living on social welfare. Beyond the question of discrimination, it is striking that the Court fails to interrogate whether targeting socio-economically deprived persons is at all problematic under the right to choose one’s residence.”
Khamtokhu and Askenchik v. Russia (Grand Chamber)
In this case, the Grand Chamber of the Court accepted the discrimination of men between the ages of 18 and 65 – as opposed to women, juveniles and the elderly – as they were the only ones who could be sentenced to life imprisonment. Interestingly, the case of Alexandru Enache, which also concerned difference in treatment on the ground of sex in the penal context (see blog post here), almost made it to the shortlist of nominations as well.
From our blog post: “This outcome is particularly problematic given that the judgment is rife with gender stereotypes, and that it therefore legitimizes views of women – such as the one expressed by Judge Sajó in his concurring opinion – as victims or as characterized by the “specificities of the female brain”, as well as imagining our diverse gender as a homogenous mass of mothers and vulnerable individuals.”
Ndidi v. the United Kingdom (First Section)
In this case, the Court did not find a violation in a case concerning the expulsion of settled migrants. The case testifies to the seemingly ever decreasing protection granted to migrants’ Article 8 rights against the background of increasing populist pressure on the Court.
From our blog post: “The question rises to what extent it is reasonable to treat a resident with migration status worse than a national if there never was an actual choice to migrate to begin with. In case migration is something that was decided for you, instead of by you, to what extent should we rely on such an ephemeral construct as personal responsibility?”
Runners-up are the already-mentioned Alexandru Enache judgment as well as the case of Babiarz v. Poland (see blog post here), in which the Court allowed marital captivity under the ECHR.
I think Catal vs Turkey and
Koksal vs Turkey are the worst two judgements.
Of course the worsts judgement of 2007:
First Köksal vs Turkey
Second Çatal vs Turkey!
Please think about the consequences of these judgements in Turkey!
I am very disappointed to learn that the Strasbourg Observers considered Babiarz and Enache as honorable mentions for the worst decisions by the Court. To me, they were two of the best decisions of 2017. Men and women are equal but different. It would be just as sexist to imply that there is only one sex (the male sex) by not giving women a special place in the law when it comes to procreation. The fact that procreation for man only involves ejacution does mean the law should stop protecting the fact that procreation for a women involves ovulation, coplulation, conception/ menstruation, implantation, lactation, gestation, parturition, and lactation. (I wrote lactation twice because it’s a two-step process, and it starts way at the beginning of the procreative process.) Judges must also acknowledge biological fact. It would not be conducive to achieving gender equality by trying to eliminate the differences between men and women. Since men can’t breastfeed, we should make bottle-feeding just as important and give men the same rights? I don’t think so. It would be an excuse to not give women the same allowances (extra time and calories) for breastfeeding. And let’s face it, okay? The father could just be anybody. Paternity tests were available after the ratification of the Convention. We are living in the 21st century, not in some Victorian novel. Babiarz affirms that marriage does not necessarily have to be a childrearing institution. It would have only been a problem for the applicant if he had been forced to acknowledge his wife’s child as his and the parental responsibilities were imposed on him, but that was not the case. I think it’s about time we acknowledge a man cannot have his cake and eat it too. The Babiarz decision AFFRIMS the right to marry. No one put a gun to the applicant’s head and forced him to marry his wife, from whom he desired a divorce. I am sick of the law always protecting men. It need to give the same protection to women or allow us to put a restrain on men’s selfish desires. A man can marry whomever he wants, but he can contest paternity whilst a woman may be forced to Share custody rights with the father. Meanwhile, forced marriages among women are still a big problem in the world. A judge should always ask, what is the point of the law? The right to marry should be interpreted as a bulwark against forced marriages (almost always affecting women) and freedom from seeking approval to marry from the state or church. It has nothing to do with divorce like in the Babiarz case. One can just as easily interpret the his problem as a problem of bigamy. It is not the Convention’s problem that Poland (or any other convention member) doesn’t allow bigamy or polygamy. It if did, the applicant would not have needed to bring forth a case before the Court
[…] with a shortlist of candidates for the awards of best and worst ECtHR judgments of 2017 (see our previous blog post). In the meantime, you, our readers have voted in massive numbers. It is our pleasure to announce […]