Poll: Best and Worst ECtHR Judgment of 2019

Dear readers,

As the Grand Chamber made clear in the (in)famous Lautsi case, “the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation”. Exercising our discretion in this respect, we hereby decide to perpetuate our tradition of celebrating the start of the New Year with the launch of our annual poll for the best and worst ECtHR judgment of the preceding year.

Where did the Strasbourg Court in 2019 seize the opportunity to truly act as a beacon of hope to victims of human rights violations across Europe? Conversely, where did the Court fail to provide robust human rights protection? We would like to warmly encourage you, our readers, to participate in answering these questions in the 2019 edition of our vote.

Out of the 2,000+ judgments delivered by the ECtHR in the course of 2019, the internal voting process we organized within our Human Rights Centre 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 also 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 (reverse alphabetical order)

Volodina v. Russia (Third Section)

In this case, the Court used a gender-sensitive approach to hold that the authorities’ response to incidents of domestic violence violated Article 3, alone and in conjunction with Article 14. In addition, it rendered a ‘quasi-pilot’ judgment under Article 46, ordering Russia to take general measures to address its large-scale structural problem regarding domestic violence.

From our blog post: “Working with the information before it, the Court found that there was […] a prima facie indication that domestic violence disproportionately affects Russian women. The domestic authorities had not taken policy measures aimed at substantive gender equality, had been reluctant to acknowledge how serious and widespread the problem is and its link to gender discrimination, and had tolerated ‘a climate which was conducive to domestic violence’.”

Szurovecz v. Hungary (Fourth Section)

The case concerned the refusal to grant a journalist access to an asylum-seeker reception centre. In this case, the Court reaffirmed the importance of first-hand observation for press freedom. Providing robust protection for the latter, the Court found a violation of Article 10.

From our blog post: “it is hoped that the Court’s reasoning in Szurovecz can be used as a shield, and help bring an end to the threats, intimidation, arrest, prosecution, denial of permits, rejection of interview requests, seizure of equipment and deportation, as the methods used by governments in Europe to obstruct media coverage of refugees.”

Kavala v. Turkey (Second Section)

In this case, the Court provided robust protection to human rights defenders in Turkey. The Court found a violation of Article 18 in conjunction with Article 5 § 1, on account of the extended detention of the applicant with the ulterior purpose of reducing him to silence. Unfortunately, despite the ECtHR ruling in his favour, Osman Kavala has not yet been released from prison.

From our blog post: “Perhaps, […] the most fundamental problem […] relates to Turkey’s present lack of an independent judiciary. In its assessment under Article 18, the Court rightly remarked that the restriction in question affected not merely Kavala alone, or human rights defenders and NGO activists more widely, but the very essence of democracy as a means of organising society and thus the ulterior purpose attained significant gravity.”

Catt v. the United Kingdom (First Section)

This case concerns the retention of the data of a peaceful campaigner in a police database. The Court stepped in to curb the overbroad application of these kinds of discretionary policing powers. Because of the lack of effective safeguards to have this data removed once its continued retention became disproportionate, the Court found a violation of Article 8.

From our blog post: “Accordingly, in this context, the Court did point to the doubtful effectiveness of a number of those safeguards, being the data subjects’ right to access and right to object to the processing. The absence of effective safeguards was of particular concern as personal data revealing political opinions – ‘sensitive data’  – attracts a heightened level of protection. In fact, it must – as the Court noted – have had a ‘chilling effect’ on the applicant’s right to engage in peaceful protest under Article 11 of the Convention, which also contains special protection for trade unions, whose events Mr Catt attended.”

Beghal v. the United Kingdom (First Section)

This case concerns the exercise of ‘suspicionless’ stop and search powers at the border under the UK’s Schedule 7 to the Terrorism Act 2000. The Court emphasized the need to provide protection against abuse, finding a violation of Article 8 on account of the inadequacy of legal safeguards surrounding the exercise of these kinds of powers.

From our blog post: “Despite having earlier stated that the lack of a requirement of reasonable suspicion did not mean that Schedule 7 failed the test of lawfulness, the lack of such a requirement ultimately proved significant in that it made it difficult for the examining officer’s decision to use Schedule 7 to be subject to meaningful judicial scrutiny. With respect to independent oversight, the ECtHR observed that while the oversight provided by the Independent Reviewer should not be discounted, the level of oversight was at a programmatic rather than individual level, meaning that the Reviewer was not in a position to assess the lawfulness of a particular exercise of Schedule 7.”

WORST JUDGMENT (reverse alphabetical order)

Zhdanov and Others v. Russia (Third Section)

In this judgment, the Court found a violation of Article 6 §1 and of Article 11, alone and in conjunction with Article 14 in a case concerning the refusal to register two LGBT rights organisations because they were considered extremist organisations due to the allegedly immoral character of their activities. The judgment is nominated because of the controversial decision to declare the application by LGBT activist Alekseyev inadmissible as an abuse of the right of application because of offensive statements he made about the Court and its judges on social media.

From our blog post: “As the challenged behavior in Gross [v. Switzerland] directly impacted the conduct of the proceedings, the sanction of declaring the case inadmissible at least stands in logical connection to it. In the present case, however, there simply does not seem to be such logical connection between behaviour and sanction. In any event, the fact that the applicant engaged in online ranting does not make him any less a victim of a human rights violation. If human rights are there for everyone, including for the criminals and the terrorists, as populists often decry, then they should be there for the ranters as well. The Court should recall that its function is to protect the human rights of its applicants, not to police their manners.”

Yeshtla v. the Netherlands (Third Section)

In what is technically an inadmissibility decision, the Court accepted that housing benefits can be instrumentalized as a tool to discourage irregular residence. The applicant’s housing benefits were withdrawn and she was ordered to return those already paid because she was cohabiting with her son who was irregularly present on Dutch territory.

From our blog post: “In its decision on the case under review, the ECtHR missed a chance to offer important clarifications on the links between housing policies (and more broadly of legal measures concerning social assistance benefits) and the right to respect of family life. By too hastily dismissing the case as inadmissible, the ECtHR failed to consider the crucial question of the impact of economic and social policies aimed at discouraging irregular residence on this right, as well as that of their possibly discriminatory effects on vulnerable individuals.”

Ilias and Ahmed v. Hungary (Grand Chamber)

In this case, the Court held that the holding of asylum-seekers in the ‘transit zone’ between Hungary and Serbia did not qualify as a deprivation of liberty under Article 5, as the applicants were still able to leave for Serbia. This was despite the fact that the Hungarian authorities had failed to adequately assess under Article 3 whether the applicants would not run the risk of chain refoulement upon their return to Serbia.

From our blog post: “the majority’s reasoning under Article 5 appears to endorse a situation where people are just pushed out of the border without some formal procedures with elementary guarantees. Read as a whole the Grand Chamber judgment in Ilias and Ahmed v Hungary is inconsistent: it contains two findings that are difficult to square together. The Court concluded that since the applicants would not be exposed to a direct risk in Serbia, they were not detained in Hungary. At the same time, Hungary violated Article 3 of the Convention since it did not conduct a proper assessment of the risks that the applicants could face if they were to return to Serbia.”

Gürbüz and Bayar v. Turkey (Second Section)

The case concerns the conviction of the owner and editor of a newspaper for having published statements by PKK-leader Abdullah Öcalan. Despite the fact that the domestic court had not adduced sufficient reasons justifying the conviction, the Court did not find a violation of Article 10. Contrary to its currently predominant procedural review practice, it continued to substantively assess the merits of the case to the detriment of the applicant, moto proprio categorizing the applicants’ statements under an extensive and controversial interpretation of the notion of “public provocation to commit a terrorist offence”.

From our blog post: “The essence is that the Court showed insufficient attention to the role of journalism and media reporting by automatically considering that the dissemination of a statement coming from a terrorist group cannot serve as a pretext and is by itself to give ‘a forum’ to a terrorist organisation. This approach completely undercuts the Jersild [v. Denmark] principle that seeks to protects media interviewers, as also in the Jersild case the interviewed Greenjackets manifestly incited to hatred and violence, but the ECtHR in that landmark judgment rightly found that the intention of the journalist was not to incite to hatred or violence, but to report on an important issue of public interest.”

Abdyusheva and Others v. Russia (Third Section)

This case concerns the authorities’ denial to provide the applicants with access to methadone and buprenorphine for treating their opioid dependence syndrome. Despite the fact that opioid replacement therapy is more successful than merely abstinence-based programs – resulting in less pain, longer abstinence from opioids and longer lives for patients – the Court did not find a violation of Article 8.

From our blog post: “As is frequent, the outcome of this case largely rested on the margin of appreciation argument. However, this margin should be inferred from more reliable criteria that the ones mentioned in this judgment. That technical, scientific or more broadly factual issues influence the legal outcome should not automatically open the door to a broad margin. Not only are technical issues often intertwined with social, political and legal considerations, but they may be important per se. […]The Court should develop a better way to assess scientific facts so that its judgments can build on a strong factual basis. Indeed, a judgment based on misrepresented facts can only lead to unpersuasive results. As our societies come to rely increasingly on highly technical tools and approaches, mastering the process of scientific assessment is ever more crucial.”