Strasbourg Observers

Poll: Best and Worst ECtHR Judgment and Best Separate Opinion of 2021

February 16, 2022

Best judgment

(In alphabetical order)

A.M. and Others v. Russia

In this case, a trans woman saw her parental rights restricted and her contact with her children revoked on grounds of her gender identity. The national courts, in the proceedings initiated by A.M.’s ex-wife, found that A.M.’s gender transition would ‘create long-term psycho-traumatic circumstances for the children and produce negative effects on their mental health and psychological development’. The ECtHR found that the domestic courts had not sufficiently demonstrated the risk her gender transition posed for her children, and that authorities should only fully deprive a parent from contact with their children in the most extreme situations. The Court accordingly found a violation of Art. 8 ECHR (the right to private life). Furthermore, the applicant’s gender identity had been the decisive factor in the loss of her parental rights and contact restriction, which led the Court to finding a violation of Arts. 14 (prohibition of discrimination) and 8 ECHR.

From our blog post: “The judgment significantly strengthens the protection of trans parents under the ECHR. Whereas a decade ago, the Court did not find a violation of the Convention in the comparable case of P.V. v. Spain, it now requires domestic authorities to restrain from limiting the contact between a trans parent and their children without a thorough and individualised analysis of the family situation and the best interests of the children concerned. Indeed, as Laurens Lavrysen noted in his analysis of the judgment in P.V. v. Spain, in 2010 the Court did not question the domestic courts’ appraisal of the questionable expert opinion and had simply accepted that contact restrictions were in the best interests of the child. Lavrysen therefore urged the Court to ‘dig deeper’, and to rule out the risk that conclusions were reached based on bias and prejudice. In the judgment at hand, the Court did exactly that. It is reflective of the attention the Court has shown in recent cases for the harms that trans persons suffer when States interfere with their private and family life (see for instance the recent case of X. and Y. v. Romania.”

Behar and Gutman & Budinova and Chaprazov v. Bulgaria

In this case, the applicants were Jewish (Ms. Behar, Ms. Gutman) and Roma people (Ms. Budinova, Mr. Chaprazov). They took V. Siderov, founding leader of the far-right nationalist Ataka party, to court over his extreme propaganda against their communities, arguing that this constituted harassment and incitement to discrimination against them as members of their attacked communities. This case marks the first time the Court found violations in cases of general anti-minority speech and articulated criteria to assess if speech is sufficiently prejudicial to affect a community’s sense of identity/ its members’ self-worth. In accordance with those criteria, the Court found that the domestic courts failed to protect the applicants’ ‘private life’ from ethnic discrimination, leading to a finding of a violation of Articles 8 and 14 of the Convention.

From our blog post: “The domestic courts had had a duty to balance the applicants’ rights to redress for such statements against the speaker’s freedom of expression (§100; §89). However, they had downplayed the statements’ capacity to stigmatise Jews/ Roma as a group and arouse hatred against them. Not properly weighing the significance of this effect on the applicants, the domestic courts ascribed considerable weight to freedom of expression. Failing in the requisite balancing exercise, they did not respond adequately to ethnic discrimination in breach of their positive obligation to secure respect for the applicants’ ‘private life’. (§104-6; §93-5)”

Tunikova and others v. Russia

This case concerns four women who suffered domestic violence at the hands of their partners. The national authorities failed to perform adequate investigations into those events, and the proceedings instigated by the applicants were all cut short at the domestic level. This meant the State had failed in its duty to protect women against domestic violence and to investigate the ill-treatment they had suffered. The Court consequently found a violation of Art. 3 ECHR (prohibition of ill-treatment), under its substantive and procedural limb. The fact that domestic violence disproportionately affects women in Russia, and the lack of consolidated legislation to combat it – or of any other actions from the authorities against this structural problem – led the Court to finding a violation of Art. 14 j. 3 as well. The Court also provided very detailed guidance under Art. 46 on how to implement protection against domestic violence.

From the case (given that this concerns a case from the very end of 2021, we have not yet been able to publish a post about it): “The Court acknowledges that domestic violence is a complex phenomenon affecting, as it does, all social strata and occurring in a variety of forms, intensity and dynamics, frequently invisible to outsiders and hidden from authorities. To discharge their obligations under the Convention, the domestic authorities must accordingly develop a comprehensive and targeted response encompassing all areas of State action including legislation, public policy, programmes, and institutional frameworks and monitoring mechanisms.” (§152)

X and Y v. Romania

In this case, the applicants were two transgender men who were required to have undergone genital surgery before being able to obtain gender recognition, even though they did not wish to undergo such a procedure. The Court, reiterating its argument from A.P., Garçon et Nicot v. France, considered that this faced the applicants with an “impossible dilemma” between their right to physical integrity (under Art. 8) and their right to gender recognition (also under Art. 8, as recognised in Goodwin). In forcing the applicants to make this impossible choice, the State failed to adequately balance public interests against the applicants’ private interests. Furthermore, genital surgery as a mandatory requirement for gender recognition is becoming increasingly rare in Council of Europe Member States. Consequently, the Court found a violation under Art. 8 ECHR.

From our blog post: “By unanimously declaring that mandatory gender affirming surgery as a requirement for legal gender recognition violates art. 8 of the Convention, the Court significantly increases the protection and autonomy of trans persons in the CoE. It frees trans persons who do not want to undergo gender affirming surgery from the impossible choice between their physical integrity on the one hand, and the legal recognition of their gender identity (and the protection from everyday discrimination it entails) on the other hand. It also makes legal gender recognition available for trans persons who find themselves unable to undergo gender affirming surgery. Furthermore, it leads to increased protection for trans persons who do want to undergo gender affirming surgery, since it allows them to obtain legal gender recognition before they do so and consequently shortens the period in which an incongruence between their ID and their appearance potentially exposes them to discrimination and harassment. Last but not least, looking to the future, the Court’s use of the ‘impossible dilemma’ argument in this case opens up a promising line of legal reasoning that could be the key to the abolition of most, if not all, abusive requirements for gender recognition.”

Xero Flor and Reczkowicz v. Poland

Both of these cases concern the backsliding of the rule of law in Poland, in particular regarding the judiciary reform introduced by the Law and Justice Party. In both cases, the applicants argued that they had suffered a violation of the right to a “tribunal established by law”, due to the new – and irregular – procedures according to which judges are appointed to national tribunals. The Court found that the composition of the national tribunals presented manifest breaches of the domestic law, breaches in the procedure for electing judges which were of such gravity as to impair the legitimacy of the election process and undermine the very essence of the right; and finally, that no remedies were provided. Consequently, those tribunals lack the attributes of a “tribunal” which is “lawful” for the purposes of Article 6, and therefore results in a violation of the very essence of the right to a fair trial.

From our blog post on Xero Flor: “Xero Flor is the first ruling of an international [human rights] court that confirmed the illegality of the capture of the CT in Poland. The takeover of the Tribunal was the first step in the rule of law backsliding process initiated in November 2015, which transformed the Tribunal into a political enabler. The whole reform of the judiciary (discussed before the Luxembourg Court) was based on this new role of the CT – to secure and confirm the constitutionality of new amendments dealing with the judiciary in Poland. The fact that the most important international human rights court in Europe needed more than five years to deal with the “original sin” of the rule of law crisis in Poland, raised doubts about whether the Strasbourg Court can fulfill its role in the context of the rule of law backsliding. Fortunately, Xero Flor showed that Convention is a living instrument applicable also to a systemic undermining of rule of law principles.”

From our blog post on Reczkowicz: “There appears little hope for real change in the Polish government’s attitude towards the decisions coming from ECtHR and the EU. Poland is likely to do the bare minimum to receive the funding. Nonetheless, it is essential that the Council of Europe, the EU and the UN, keep putting pressure on the Polish government to make appropriate legislative changes to bring the judiciary in line with the rule of law and the values and principles at the core of the Council of Europe and the EU and the Polish Constitution. Void of such pressure, the Polish government is likely to continue its current track of rule of law violations with long lasting adverse effects on fundamental freedoms and human rights in Poland.”

Worst judgment

(In alphabetical order)

Caamaño Valle v. Spain

In this case, the ECtHR held that the disenfranchisement of a woman with a mental disability did not amount to a violation of her right to vote under Art. 3 of Protocol No. 1, nor did it amount to discrimination under the Convention. In its reasoning, the Court explicitly rejected the principles laid down in the Convention on the Rights of Persons with Disabilities. While the Court has had a somewhat conflicting relationship with disability rights for some time, it had never before explicitly rejected the CRPD and its provisions as a source of interpretation for the ECHR.

From our blog post: “While to someone not closely acquainted with disability rights, the current judgment may not seem immediately problematic, the ECtHR did embark upon a clear path regarding disability rights: the path away from the CRPD, which is a widely lauded Convention that has been ratified by 45 of the CoE’s 47 member states. In approaching the right to vote in a manner clearly contrary to the principles laid down in the CRPD and in not finding any issue with the difference in treatment based on disability, the Court has sketched a gloomy future for disability rights under the ECHR. The current judgment might have a dissuasive effect on people wishing to bring cases on disability rights before the Court, due to its departure from international human rights standards on disability. Nonetheless, Judge Lemmens’ compelling dissent may leave a spark of hope for advocates of disability rights.”

Estemirova v. Russia

In this judgment, the Court found that the authorities did not conduct an effective investigation into the abduction and murder of Natalia Estemirova, one of the most prominent human rights defenders in Chechnya. However, it held that the involvement of state agents was not proven ‘beyond reasonable doubt’ due to a lack of evidence, caused by the Government’s refusal to disclose the full case file on the domestic investigation, even after an explicit request by the Court to do so. Despite the fact that the blame for this lack of evidence lay squarely on the Government, the Court nevertheless failed to find a violation of Art. 2 under its substantive limb, limiting the finding of a violation to its procedural limb instead.

From our blog post: “With the present judgment, the Court has confirmed that a quickly established but inconclusive investigation combined with a refusal to cooperate and disclose vital information will allow a state to block the assessment of a substantive violation of the right to life. Even now, twelve years after Natalia Estemirova’s murder, those responsible have not been identified and she, her relatives, friends and colleagues have been denied the justice they sought from the Court. This is a disappointing and worrying outcome, as has already been voiced by several NGOs (EHRAC, Memorial, Human Rights Watch) and a missed opportunity for the Court to take a stance in favour of the protection of human rights defenders at risk not only in the North Caucasus, but across its jurisdiction.”

Georgia v. Russia (II)

Arising from the brief but devastating five-day conflict in August 2008, in its inter-state application, originally lodged on 11 August 2008, the Georgian Government complained of indiscriminate and disproportionate attacks against civilians and their property on the territory of Georgia by the Russian army and by South Ossetian forces placed under their control. The Court found that from 8 August 2008 Russian ground forces penetrated into Georgia by crossing through Abkhazia and South Ossetia before advancing into the neighbouring regions in undisputed Georgian territory. They were assisted by the Russian air force and the Black Sea fleet. Despite the fact that this active armed conflict took place entirely on Council of Europe territory, the Court ruled that this this case fell outside the jurisdiction of the Court.

From our blog post on the question of jurisdiction in respect of extra-territorial armed conflict: “We suggest that the consequences of this finding are seriously deleterious to the international system of human rights protections and will inevitably lead to unconscionable results. For example, cases of civilians killed by artillery shelling (see Isayeva v Russia) or aerial attacks (see Esmukhambetov and Others v Russia) within their own state (in situations of non-international armed conflict) can be taken to the Strasbourg Court. However, as a result of Georgia v Russia (II), the Court is likely to reject cases concerning people killed in a similar way in a location beyond a state’s borders in another Council of Europe state (in an international armed conflict). It would also seem that if state agents cross a border and detain a person, they are subject to the Convention, whereas they may not be considered to be acting within the state’s jurisdiction if, in a large-scale attack, they cause the person’s death.”

From our blog post on conflict displacement: “The Court’s finding that the displacement of civilians under occupation violates their human rights is significant, as it is the first time that the initial causing of displacement in such a case (rather than only the prevention of return) has fallen within its temporal jurisdiction. As such, Georgia v. Russia (II) provides a welcome confirmation of the convergence between the Convention and GC IV on this norm, as well as opening an avenue for its enforcement and for eventual reparation for victims. However, the Court’s abrupt and regressive restriction of its territorial jurisdiction during hostilities – and between two Council of Europe States, at that – means that it not only missed the chance to contribute to developing the legal protection of civilians from displacement during hostilities in IACs, but also unjustifiably failed to address their situation, even in a context where it found that systematic expulsions took place only days later.”

Turan v. Turkey and 426 other applications

This case is remarkable not because of the violations found in Turan v. Turkey, but because of how it chose to handle the 426 other applications appended to this case. Resorting to judicial policy reasoning, the Court chose to dispose of all of these complaints. It did so openly and explicitly for reasons of pragmatism, particularly to avoid judicial overload. As argued by Judge Kuris, this can be seen as “a signal that a member State can escape responsibility for violating the Convention en masse, since the Court may be flooded with complaints against that State to such an extent that it becomes unable to cope with them and decides not to examine them. To be frank: if a regime decides to go rogue, it should do it in a big way. And if responsibility can be escaped by “doing it big”, why not give it a try?”

From our blog post: “Of course, there is a balance to be struck here: there is only so much ‘optimising’ of working methods before the Court inevitably curtails the parties’ rights. Arguably in this case, the proper balance was not struck, and as argued by Başak Çalı here, a chamber judgment, where the rights of hundreds of applicants is at stake, is not the proper place to be having this urgent conversation about the survival of the Court. But perhaps in the face of these repetitive cases the Court can no longer strike the right balance, and apart from the soft diplomacy that the Court can leverage at the Council of Europe, a judgment is one of the few places where its cries can be heard. The potential injustice that the Court has resorted to in this case shows, in effect, that it has run out of tools to properly adjudicate these repetitive cases, particularly in cases where the pilot judgment process is not applicable, or where, as in Burmych, the pilot judgment system has arguably failed. In the present case, the Court was left with little option but dispose of the complaints in the way it did.”

ZB v. France

This case concerns a boy who wore a T-shirt with a text je suis une bombe (literally ‘I am a bomb’) on the front and Jihad, né le 11 septembre (Jihad, born on 11 September) on the back. As it happens, the boy’s name is actually Jihad and he was born on 11 September 2009. The shirt was gifted to him for his birthday in 2012 by the applicant, who is the uncle of the boy. The uncle specifically asked his sister that the boy should wear the shirt in his preschool. The sister agreed, and they claimed that it was only intended as a joke. The applicant and his sister were charged with, and sentenced for, ‘apology for crimes of wilful attacks on life’. The ECtHR ruled that the national courts were best situated to determine the necessity of an interference against freedom of expression and to understand specific societal problems in a particular community and their contexts, that they had adequately balanced the interests involved, and that the sentence had not been disproportional. Consequently, it found no violation of Art. 10 ECHR (freedom of expression).

From our blog post: “This brings us to the potential repercussion of the case: the Court has failed to acknowledge the chilling effect that this ruling could cause to those who want to exercise the right to humour in France. In the recent case of Dickinson v. Turkey, the Court observed that criminal procedure could have a chilling effect on freedom of expression, particularly in light of the fact that the procedure lasted around three years and six months and also given the penalty imposed. In ZB, the penalty is less severe, but it is still a criminal sanction, and it could deter comedians, artists and laymen from making a satire about or relating to a recent terrorist attack. In fact, the Appeal Court of Nîmes made it clear that ‘la mort d’autrui ne saurait être sujet de plaisanterie’ (the death of others cannot be subject to jokes, para. 11).”

Best Separate Opinion

(In alphabetical order of the judgments)

Judge Lemmens in Caamaño Valle v. Spain

See our blog post here. This case is also nominated for worst Judgment.

Judge Lemmens disagreed with the majority findings of no violation of Article 3 of Protocol No. 1 or Article 14 and Article 1 Protocol No. 12. He argued that the Court’s case-law with regards to the disenfranchisement of people with mental disabilities needs to be updated, and provided a thorough analysis of why the Court’s acceptance of banning a mentally ill person from voting is deeply incompatible with State obligations under the Convention on the Rights of Persons with Disabilities.

Judge Pavli in J.C. and Others v. Belgium

See our blog post here.

Judge Pavli dissented with the majority in relation to the national courts’ dismissal of the applicant’s claim against the Holy See based on a theory of vicarious liability. He identified three key issues concerning the precise scope of the territorial tort exception: 1. The domestic courts’ conclusion regarding the iure imperii carve-out from the territorial tort exception to State immunity, 2. The domestic courts’ consideration of the alleged principal/agent relationship between the Holy See and the bishops, 3. The domestic courts’ conclusions regarding the “territorial” requirement of the territorial tort exception. He noted and heavily criticised an assertion by the Belgian courts that the territorial tort exception does not apply to acts iure imperii. On the basis that the domestic courts were ‘exceedingly summary’ and did not adequately consider the territorial tort exception, Judge Pavli would have found a violation of article 6(1). His thorough and logical legal reasoning based on public international law and State immunity as applied to the Holy See brought an indispensable international public law reasoning into this case.

Judges Turković, Lemmens, Harutyunyan, Elósegui, Felici, Pavli and Yüksel in Kurt v. Austria

See our blog post here.

The dissenting judges agreed with the majority on the newly-established safeguards for domestic violence, but disagreed with their application to the case at hand. They held that the risk assessment procedures in place were flawed in certain aspects and that the lethality risk assessment was inadequate in substance as ‘the authorities unjustifiably overemphasized certain factors and underemphasized others’ (para. 7). They disagreed with the majority’s view that there was no discernible risk to the children’s lives.

Judge Turković in M.H. and Others v. Croatia

See our blog post here.

In her Concurring Opinion, Judge Turković highlighted the importance of taking into consideration the best interests of the child and vulnerability of children in the migration context. More specifically, she argued that the scope of Article 4 Protocol No. 4 after N.D. and N.T. v Spain needs to be clarified as to whether the N.D. and N.T. exception should be interpreted and applied in a narrower or broader manner, whether a link with the principle of non-refoulement is required for a violation of Article 4 Protocol No. 4 and whether the test should apply equally to children.

Judge Motoc in N. v. Romania (No. 2)

This case concerned proceedings in which domestic courts divested the applicant of his legal capacity and placed him under the full authority of a legal guardian, and the manner in which the domestic authorities subsequently changed his legal guardian. The ECtHR found a violation of Article 8, as the decision on the change of legal guardian was deemed to not be based on relevant and sufficient reasons and thus was not proportionate to the legitimate aim pursued. The majority did not find it necessary to examine the admissibility and merits of the other complaints separately, including the claim of discrimination on the grounds of the applicant’s health under Article 14 in conjunction with Article 8. 

In her Partly Dissenting Opinion, Judge Motoc argued for a finding of violation of Article 14 read in conjunction with Article 8. She analysed the majority’s refusal to consider Art. 14 in this case, calling it the “Cinderella”/”Hamlet” article of the Convention, and argued why it is so important to be willing to consider the discrimination of mentally disabled persons. She emphasised that human rights are often forgotten in the area of mental health and that those who suffer with mental health issues are often subject to discrimination and other forms of marginalization, thus being particularly vulnerable to human rights violations (paras. 7-9).

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1 Comment

  • Novanglus says:

    It is striking how frequently the ‘good’ and ‘bad’ assessments here are not based on objective legal criteria, but rather answer the question ‘does this move human rights in a direction that we on the left like?’.

    Perhaps that is inevitable given the normative commitments of many human rights lawyers and scholars. But I can’t help but wonder whether we would strengthen human rights’ broad appeal if we were more self-critical.

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