January 29, 2021
At Strasbourg Observers, we always like to seize the opportunity of the beginning of the new year to look back at the previous one. 2020 has been a strange year. Last year, many members from our scholarly community dropped their ordinary research activities to keep us, via Strasbourg Observers, up to do date on the human rights implications of the developing Covid-19 crisis. At the same time, despite the logistical challenges of running a court in times of pandemic, the Strasbourg Court has continued its activities and eventually still managed to deliver no less than 1,901 judgments and 37,289 decisions (see the Court’s Annual Report, in which President Spano rightly praises the ‘exceptional commitment’ shown by the Court’s staff to adapt to the circumstances). And we have continued to watch the Court!
Having tried our best to keep you up to date on last year’s Strasbourg jurisprudence, we would now like to invite you, our readers, to participate in our annual poll for best and worst ECtHR judgment. Where did the Court provide a welcome contribution to the development of the jurisprudence or to the safeguarding of human rights in Europe? Or perhaps rather, where did it fail to live up to our expectations in this regard?
After an internal voting process, we have made a shortlist 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 vote for other good or bad cases 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)
Baldassi and Others v. France (Fifth Section)
Those who are critical of the policies of the State of Israel often risk being targeted as purported anti-Semites, including via legal challenges. The applicants’ call for a boycott of goods from Israeli settlements resulted in their conviction by the French courts for incitement to hatred. The Strasbourg Court stepped in and found a violation of the right to freedom of expression, reaffirming that advocating for the improvement of human rights, including through calls for boycotts, merits a high degree of protection under Article 10.
From our blog post: “[In this case] Article 10 requires a raised level of protection of the right to freedom of expression. On the one hand, the actions and words for which the applicants were criticised concerned a subject of general interest, respect for public international law by the State of Israel and the human rights situation in the occupied Palestinian territories, and was part of a contemporary debate, in France as in the whole international community. On the other hand, these actions and words were a form of political and activist expression.”
Beizaras and Levickas v. Lithuania (Second Section)
In this case the Court demanded adequate protection against homophobic hate speech. After publishing a photograph of themselves kissing on Facebook, two young men were targeted with online threats and homophobic insults. The refusal of the Lithuanian authorities to launch an investigation for incitement to hatred and violence was found to be in violation of Article 14 (the prohibition of discrimination) in conjunction with Article 8 (the right to respect for private life), as well as of Article 13 (the right to an effective remedy).
From our blog post: “The Court once again stressed that arguments based on the preferences of an (intolerant) majority in a society are not sufficient and have not been sufficient for a long time already. The real challenge associated with this case is the provision of truly effective domestic remedies in cases of discrimination on the basis of sexual orientation.”
Ćwik v. Poland (First Section)
In this case, the Court for the first time had to rule on the admissibility of evidence obtained through ill-treatment by private persons. The applicant’s conviction had been partially based on a video recording of him being tortured by members of a drug cartel. Reaffirming the absolute character of the prohibition of torture, the Court found a violation of Article 6 (the right to a fair trial).
From our blog post: “In sum, the judgment in Ćwik has clarified an important point at the intersection of the law of evidence with the fundamental rejection of torture, itself an important feature of the rule of law. […] The reasoning of the Court in Ćwik is arguably more driven by legal values than by a narrow focus on settled rules and their immediate effect on the authorities. But with a value as strong as the prohibition of torture and inhuman or degrading treatment, this cannot be faulted.”
G.L. v. Italy (First Section)
The case concerned the refusal by the Italian authorities to grant specialized assistance in a school to a pupil with a disability, justified by reference to budgetary constraints. The Court found a violation of Article 14 (the prohibition of discrimination) in conjunction with Article 2 Protocol No. 1 (the right to education). The Court clarified in particular that authorities confronted with budgetary restrictions have to ensure that these do not have a more severe impact on disabled pupils than on non-disabled pupils.
From our blog post: “In conclusion, the judgment in G.L. v. Italy is promising. After the most recent judgment in Stoian v. Romania and the decision in Dupin v. France, the ECtHR gets back on track with its earlier line of reasoning, as followed in Çam and Enver Şahin. The Court reiterates some important general principles that were established by these judgments and further develops its case law in the area of educational equality of persons with disabilities. […] This is an important step to get back on track in providing substantive equality to all, including pupils with disabilities.”
Selahattin Demirtaş v. Turkey (No. 2) (Grand Chamber)
The applicant is a prominent Kurdish politician. The case concerns the lifting of his immunity as a member of parliament and his pre-trial detention for a period of more than two years on terrorist charges for political speeches. Apart from the fact that the Turkish authorities had failed to examine whether the speeches were protected by parliamentary non-liability, they had also interpreted and applied the notion of terrorism offences in such a broad way that there was no adequate protection against arbitrary interferences. On that basis the ECtHR found a violation of the applicant’s right to freedom of expression under Article 10. The applicant’s pre-trial detention was also incompatible with the very essence of his right under Article 3 of Protocol No. 1 to be elected and to sit in Parliament. The Court also found violations of Article 5 § 1 and § 3 because of lack of reasonable suspicion of the applicant having committed an offence and the lack of reasonableness of the pre-trial detention. Combined with Article 5 it also found a breach of Article 18 as the pre-trial detention pursued the ulterior motive of stifling pluralism and limiting freedom of political debate in Turkey. Finally the Court ordered the respondent State to take all necessary measures to secure the applicant’s immediate release.
This case is nominated for the strong message it sends to Turkey to stop the oppression of the political opposition and to release all political prisoners. We’re publishing a blog post on this case next week.
WORST JUDGMENT (alphabetical order)
B.G. and Others v. France (Fifth Section)
At the time when Moria, Europe’s largest refugee camp, was burning, the Court found that the living circumstances in an official tent camp in France did not violate Article 3 (the prohibition of ill-treatment). As a result of the high threshold to be met – the situation was bad, but supposedly not “bad enough” – and the Court’s reticence to accept the probative value of key pieces of evidence, the Convention risks becoming a toothless instrument to address humanitarian crises in refugee camps.
From our blog post: “With the Court’s high normative threshold unlikely to change anytime soon, asylum seekers will stand little chance of prevailing with complaints about their living conditions until and unless the Court reverses course, and truly starts drawing on all the available evidence—direct and indirect. We can only hope for such a change of course, because [otherwise] it may take another disaster of Moria proportions before we see some straight talking from the Court about the living conditions in Europe’s camps.”
Dikaiou and Others v. Greece (First Section)
In this case, the Court had to rule on the separate detention of six female prisoners living with HIV/AIDS. Despite earlier jurisprudence which recognized the vulnerable status of people living with HIV/AIDS, the Court found that such segregated detention did not violate Article 14 (the prohibition of discrimination) taken together with Article 3 (the prohibition of ill-treatment).
From our blog post: “[The reasoning of the Court] does not cohere with previous jurisprudence with regard to the vulnerable status of people living with HIV/AIDS. Moreover, it treats capitulation to prejudice as a legitimate aim of prison administration, by accepting the alleviation of the stigma-based anxiety of ‘ordinary’ inmates as a justification for the segregation of prisoners living with HIV/AIDS. It further helps perpetuate stigmatisation through a language of ‘othering’ that is at odds with human dignity.”
Honner v. France (Fifth Section)
The case concerns a co-mother who was refused contact rights to her child, which had been born by her former female partner using assisted reproductive technologies as part of a joint family project. The Court found no violation of Article 8 (the right to respect for family life), in a judgment in which it allowed the reduction by the French authorities of the applicant to the status of a mere third party, thereby failing to provide adequate protection to LGBT parenthood.
From our blog post: “Honner’s risk of being (mis)used by conservative actors remains and expecting States to embark on extra-careful readings of judgments may be too much to ask for these days. On the contrary, asking the Court to approach sensitive cases with an increased awareness of the consequences of their judgments may be a more legitimate expectation. In concrete terms, this increased awareness may materialise in inter alia being far-sighted and approaching a case like Honner also in light of its potentially discriminatory implications […].”
Napotnik v. Romania (Fourth Section)
The applicant was a female diplomat whose diplomatic posting was immediately terminated and who was recalled to Bucharest when she announced she was pregnant. The Court found that Article 1 Protocol No. 12 (the right to equality) had not been violated, accepting that the measure had been necessary to ensure the continuity of diplomatic service, thereby legitimising pregnancy discrimination.
From our blog post: “Although the Court underscored in Napotnik v. Romania that the dismissal on the grounds of pregnancy or of maternity leave is prohibited in the light of regional and international human rights documents and the EU anti-discrimination law, dismissal is not the only type of pregnancy discrimination that women suffer at work. To achieve substantive gender equality in the workplace, it should be also guaranteed that the women suffer no detriment in terms and conditions of their employment as a result of taking maternity leave […].”
N.D. and N.T. v. Spain (Grand Chamber)
This case concerned push-back practices against migrants at the Moroccan-Spanish border fence surrounding the city of Melilla. The Grand Chamber hollowed out the prohibition of collective expulsions (Article 4 Protocol 4), and invented, on the spot, all sorts of new conditions for the applicability of this provision. The Court found that the push-backs in question did not constitute a collective expulsion, thereby legitimising push-back practices at the European border.
From our blog post: “With the N.D. and N.T. judgement, the Court condones a deplorable State practice of violent policing, fencing and push-backs of migrants at the EU borders. […] The Court has decided lightly that the hot returns by the Spanish authorities are not collective in nature, given the disputable assessment of the effective availability of legal entry alternatives. States less benevolent towards migrant’s rights might be given the impression that they are free to push asylum seekers back at the border without any procedural guarantee.”