January 29, 2019
At the start of the New Year, we traditionally like to seize the moment and assess the past year of Strasbourg jurisprudence. For this purpose, we are hereby launching our poll for the best and worst ECtHR judgment of 2018. We would like to warmly encourage you, our readers, to participate in our annual vote.
Out of the 1,014 judgments delivered by the ECtHR in the course of 2018, our internal voting process resulted in a diverse selection of five judgments in each category. If you are, however, of the opinion that we missed out on an important case(s), you can also select other good or bad cases that we may have missed out using the “Other” option. You are welcome to share your reasons for voting via the comments section below.
The winners and losers will be announced in about a 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)
Aliyev v. Azerbaijan (Fifth Section)
In this case, the Court found a violation of inter alia Article 18, because it found it established that the State had arrested the applicant as retaliation for being a human rights defender. The Court took into account the bigger picture of the decline of the rule of law in Azerbaijan, prescribing general measures requiring the State to address the systemic issues underlying the facts of the case.
From our blog post: “I would not like to undermine the importance of the Court. Often, it can be the last beacon of hope for those who have no effective remedies within their home state. At the same time, neither the Committee of Ministers nor the Court itself have sufficient tools to make sure that serious political changes happen within the member states. The question remains – should the Court request something that is almost impossible to enforce?”
Big Brother Watch and Others v. the United Kingdom (First Section)
In this judgment, the Court found two UK data collection regimes to violate Article 8, at the same time upholding information sharing arrangements between the so-called “Five Eyes” countries.
From our blog post: “While the long-awaited Big Brother Watch and Others v. UK judgment, which joined three actions, signifies another victory for civil liberties and privacy advocating non-profit organisations and activists – no less than 16 being the applicants in this case – some serious matters of concern remain.”
Butkevich v. Russia (Third Section)
In this case, the Court found a violation of inter alia Article 10 on account of the arrest, prosecution and conviction of a journalist during an anti-globalisation protest in Russia.
From our blog post: “The judgment in Butkevich v. Russia offers important support to journalists covering demonstrations and police actions, especially after the disappointing outcome in the case of Pentikäinen v. Finland. […] In this case, the European Court’s emphasis is on the fact that the gathering of information is an essential preparatory step in journalism, solidly protected as a part of press freedom, and on the fact that media fulfil an important task in a democratic society when providing information on the authorities’ handling of public demonstrations.”
In these judgments, delivered on the same day, the Court found violations of inter alia Article 3 on account of the acquiescence of the Romanian and Lithuanian governments to the existence of CIA secret detention sites within their jurisdiction.
From our blog post: “by drawing on publicly available reports from governmental sources, international bodies and the media to find out the facts of the cases, the ECtHR confirmed what it had already established in Al Nashiri v. Poland, Abu Zubaydah v. Poland as well as El-Masri v. the former Yugoslav Republic of Macedonia: European Governments cannot turn a blind eye to CIA activities contravening the ECHR within their jurisdictions if information proving ill-treatment circulates in the public domain.”
Magyar Jeti Zrt v. Hungary (Fourth Section)
In this case, the Court found that Hungary had violated Article 10 by the imposition of objective liability for posting a hyperlink leading to defamatory content.
From our blog post: “In spite of this criticism, the judgment is undoubtedly a massive improvement compared to before. It finally offers legal certainty and guidance for journalists, who until now had no criteria to base themselves on when deciding whether or not to hyperlink to possibly controversial content. Moreover, it grants them a strong default level of protection, enabling them to carry out their job without fearing baseless convictions of defamation, while still allowing liability in those exceptional cases where journalists truly act in bad faith.”
WORST JUDGMENT (alphabetical order)
Beuze v. Belgium (Grand Chamber)
In this case, the Court found a violation of Articles 6 § 1 and § 3 (c) of the Convention on account of a restriction on the right of early access to a lawyer in criminal proceedings. However, in doing so, the Court restrictively interpreted the Salduz judgment, thus lowering the protection offered in this area.
From our blog post: “The Concurring judges very convincingly argued that the majority ruling in Beuze v. Belgium leads to a regression of the level of protection under Article 6(3)(c) of the Convention which neither finds support in previous case law, nor is sufficiently justified on other grounds. […] the ruling in Beuze clearly tilts the balance in favour of the contracting states and the swiftness of criminal investigations, at the cost of individual protection.”
Delecolle v. France (Fifth Section)
This case concerned the refusal to allow an elderly man placed under guardianship to marry a long-time friend, under the pretext that he was not able to understand the financial implications of that decision. According to the Court, this did not amount to a violation of Article 12.
From our blog post: “The Court held that the right to marry and found a family under Article 12 benefited only those possessing full legal capacity. It did not engage with the justifications advanced for depriving the applicant of his capacity to marry, focusing instead on the quality of the national procedures. Worryingly, the Court endorsed reasoning that was impregnated with prejudice against and paternalism towards the elderly and the disabled.”
Mohamed Hasan v. Norway (Fifth Section)
The case concerned the removal of the applicant’s parental authority over her two daughters and the authorisation of their adoption by the Norwegian authorities. The decisions were motivated by the fact that the mother was not considered capable to protect her daughters against their abusive father. The Court did not find a violation of Article 8.
From our blog post: “Dramatically lacking is an answer to the question whether Norway has taken all necessary measures to protect the children and the mother from domestic abuse, whilst preserving contact between them and whether less restrictive means were available to protect the interests of the children. […] Finding paternalistic arguments of perceived stability and hypothetical safety ‘particularly weighty reasons’ that justify such an intrusive measure, constitutes a dangerous precedent indeed, as it completely denies a child the love of her biological mother and of the other sibling.”
Murtazaliyeva v. Russia (Grand Chamber)
In this case, the Court did not find a violation of Article 6 § 1 and § 3 (d) on account of the failure of the domestic criminal courts to call witnesses on the defence’s behalf. The judgment places a high burden on the defendant to justify the necessity of hearing a witness. Moreover, the Court has held that a failure of the domestic courts to provide “sufficient reasons” to refuse a “sufficiently reasoned and relevant” request in this sense does not automatically violate the Convention.
From our blog post: “Seven years after Al-Khawaja and Tahery, the Grand Chamber judgment in Murtazaliyeva unfortunately exemplifies yet another step of what Judge Pinto de Albuquerque now describes as ‘the corrosive expansion of the overall fairness test’. Under the guise of scrutinizing the overall fairness of the proceedings, the Court hereby risks depriving the rights of the defence, which are explicitly spelled out in Article 6 § 3 ECHR, of their very essence.”
Sinkova v. Ukraine (Fourth Section)
This case concerns the conviction of a protestor to a suspended three year prison sentence for frying eggs over the eternal flame of the unknown soldier at a war memorial. According to the Court, this did not amount to a violation of Article 10, as the applicant was not convicted for expressing her views but “only” on account of frying eggs over the memorial flame.
From our blog post: “this idea of completely stripping the performance of all meaning and context does not seem consistent with the Court’s case law. […] We share the concern expressed in the dissent that the judgment in Sinkova v. Ukraine holds a “real risk of eroding the right of individuals to voice their opinions and protest through peaceful, albeit controversial, means.”