March 29, 2022
In February, we presented you with the 2021 Strasbourg Observers Best & Worst Poll, in which we asked you to vote for your preferred candidates as shortlisted for the categories of Best Judgment of 2021, Worst Judgment of 2021, and Best Separate Opinion of 2021. We would like to thank each and every one of you who participated in this vote, and are happy to announce the results!
In the category of best judgment, the winner is… X and Y v. Romania!
1st place: X and Y v. Romania – 26.87% (115 votes)
2nd place: Xero Flor v. Poland & Reczkowicz v. Poland – 24.53% (105 votes)
3rd place: Behar and Gutman & Budinova and Chaprazov v. Bulgaria – 17.99% (77 votes)
In X and Y v. Romania, 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 presented the applicants with an “impossible dilemma” between their right to physical integrity (under Article 8) and their right to gender recognition (also under Article 8, as recognised in Goodwin). In forcing the applicants to make this impossible choice, the State had 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 Article 8 ECHR.
The result of this vote shows that, despite the rise of transphobic backlash in Europe, the human rights community appreciates the Court taking a stand for the human rights of trans persons, in particular with regards to bodily autonomy and gender recognition. Nevertheless, the results in this category were quite close, with a difference of only 11 votes between the first two judgments on the podium. This reveals our readership’s preoccupation with a broad spectrum of human rights issues, and shows how human rights are intrinsically entwined with so many aspects the world we live in, whether political or personal.
In the category of worst judgment, the winner (or, more aptly, loser) is…Turan v. Turkey and 426 other applications!
1st place: Turan v. Turkey and 426 other applications – 86.53% (1137 votes)
2nd place: Georgia v. Russia (II) – 4.03% (53 votes)
3rd place: Caamaño Valle v. Spain – 3.65% (48 votes)
Turan v. Turkey and 426 other applications was remarkable not because of the violations found in Turan v. Turkey, but because of how the Court 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?’
This result reveals our readership’s intense concern about the backsliding of the Turkish rule of law and the Court’s inability to address the sheer magnitude of the ensuing human rights violations. This category – and the winning case in particular – was, by far, the one that obtained the most votes, with the votes for Turan v. Turkey alone adding up to as many votes as all the other cases in this poll put together. The active engagement by Turkish academics with our Twitter feed showcases how human rights violations continue to be a fact of life, including for members of the academic community.
It may also be of relevance to note that this poll was posted, and the majority of the votes collected, before the start of the Russian war against Ukraine. While Turan v. Turkey won this category by a landslide, the fact that Georgia v. Russia (II) came in second speaks of our community’s ongoing preoccupation with the Court’s response to Russian acts of aggression, which has obviously been spotlighted in recent weeks.
In the category of best separate, opinion, the winner is… Judge Motoc in N. v. Romania (No. 2)!
1st place: Judge Motoc in N. v. Romania (No. 2) – 39.37% (150 votes)
2nd place: Judge Lemmens in Caamaño Valle v. Spain – 15.75% (60 votes)
3rd place: Judges Turković, Lemmens, Harutyunyan, Elósegui, Felici, Pavli and Yüksel in Kurt v. Austria – 12.34% (47 votes)
(The “Other” category obtained 14.44% of the votes (55 votes) in total, but none of the individual submissions in this category beat Judges Turković, Lemmens, Harutyunyan, Elósegui, Felici, Pavli and Yüksel in Kurt v. Austria.)
N v. Romania (no. 2) concerned proceedings in which domestic courts divested the applicant of his legal capacity and placed him under the full authority of a legal guardian, as well as 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 perform a separate examination of the admissibility and merits of the other complaints, 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 Article 14 in this case, drawing on scholars who have called it the ‘Cinderella’ provision of the Convention. Judge Motoc then added her own understanding of Article 14 as the ‘Hamlet’ article of the ECHR, before arguing 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). This result suggests that our readership places particular importance on the rights of mentally disabled persons, and agrees with Judge Motoc’s argument that the Court should be less circumspect in applying Article 14.