Strasbourg Observers

Poll: Best and Worst ECtHR Judgment and Best Separate Opinion of 2022

February 02, 2023

Dear readers,

The year 2022 has been tempestuous for the Council of Europe and the European Court of Human Rights. Most notably, of course, was the Russian invasion of Ukraine. The return of war on the European continent and the human suffering associated with it highlight the importance of defending human rights, democracy and the rule of law. Russia’s subsequent expulsion from the Council of Europe raises challenges that both the Court and the academic community around it will be dealing with for the foreseeable future. 

This upheaval – a dark period for Europe, as President O’Leary calls it in the Court’s annual report – took place in the midst of the aftershocks of a global pandemic and led to an energy crisis, all while the rule of law continues to backslide in a number of other CoE Member States. In those challenging circumstances, not to even mention the climate crisis, the Court continues to be an essential bulwark for the protection of human rights.

According to the Court’s annual report, it ruled on 39,570 applications throughout 2022,  4,168 of which gave rise to a judgment on the merits. The high number of new applications means the backlog of the Court has nevertheless increased: from 70,150 pending applications in late 2021 to around 74,650 by the end of 2022. In its report, the Court stresses the fact that, of the pending cases, 74% concern five countries: Turkey (20,100 applications), Russia (16,750); Ukraine (10,400); Romania (4,800); and Italy (3,500).

Here at Strasbourg Observers, we too have spent the year working hard to provide you with contributions on ECtHR cases that we and our authors judged to be particularly impactful, important or legally interesting. We are, as ever, extremely grateful to our contributing authors, to our readers, to the Court and to the scholarly community in general for making this dialogue on the Court’s case law possible. 

As is tradition, we like to encourage this dialogue through an annual ‘Best and Worst’ voting poll, in which we ask our readers to vote for the Best Judgment of the year, Worst Judgment of the year, and, since last year, Best Separate Opinion of the year. We have arrived at a shortlist after an internal nominating and voting process, and we now invite you to make your position known by voting for your number 1 candidate in each category. 

In which case did the Court have a particularly important impact on human rights and did it employ particularly clear and accurate legal reasoning? In which case, in contrast, did the Court’s reasoning leave something to be desired or was more far-reaching protection of human rights necessary? Lastly, which judges demonstrated compelling legal reasoning, detailed knowledge of the context of a case, or particular dedication to the cause of human rights? We look forward to you sharing your views on these topics!

In case you disagree with the results of our internal process, we have added a sixth option to each category: the ‘Other’ option. You can fill in this field with your suggestion and are welcome to share your reasons for this vote in the comments section below. In order to remind you – or make you aware – of the key aspects of the nominated judgments and opinions, we have included brief summaries of each judgment and opinion below the polls, as well as links to the relevant judgments and blog posts. 

The results will be announced in early March.

[The order of judgments in all polls is automatically randomised on each page visit.]

Best Judgment

(in alphabetical order)

Advance Pharma Sp. Z O.O v. Poland

This case is a classic case concerning the independence of the judiciary in Poland, in which the applicant company complained that the Civil Chamber of the Supreme Court that had dealt with its case had not been an ‘independent and impartial tribunal established by law.’ The Court found that the procedure for appointing judges to the Civil Chamber of the Supreme Court had been unduly influenced by the legislative and executive powers. Particularly notable in this case is that the Court applied art. 46 ECHR, stating that rapid action was required on the part of the Polish State to remedy the violations, which might lead to further aggravation of the rule of law crisis in Poland. 

From the case: ‘[I]t is an inescapable conclusion that the continued operation of the NCJ as constituted by the 2017 Amending Act and its involvement in the judicial appointments procedure perpetuates the systemic dysfunction as established above by the Court and may in the future result in potentially multiple violations of the right to an “independent and impartial tribunal established by law”, thus leading to further aggravation of the rule of law crisis in Poland. […]. That being said, in accordance with its obligations under Article 46 of the Convention, it will fall upon the respondent State to draw the necessary conclusions from the present judgment and to take any individual or general measures as appropriate in order to resolve the problems at the root of the violation found by the Court and to prevent similar violations from taking place in the future.’

Darboe and Camara v. Italy 

This case concerns age assessment and legal safeguards for asylum seekers. The Court’s reasoning in this judgment is very clear. Refraining from speculating on the applicant’s age, it establishes that the principle of the presumption of minor age is an inherent element of the protection of a foreign unaccompanied individual declaring to be a child. This presumption triggers procedural guarantees that must accompany the age assessment procedure, which the Court borrows from EU and domestic law standards: the appointment of a legal guardian and the right to information. The absence of those safeguards triggered a violation of art. 8 ECHR. With this judgment, the Court also aligns itself with previous rulings of the Committee on the Rights of the Child.

From our blog post by Daniel Simon and Mark Klaassen: ‘Important lessons can be distilled from the Court’s ruling in the present judgment. First and foremost, the presumption of minor age implies that the safeguards for minors apply to asylum seekers during the age assessment process. A lack of respect for these safeguards amounts to a violation of the ECHR. Not appointing a legal guardian and not informing the applicant properly of the age assessment process is at odds with the right to respect for private life and results in a violation of Article 8 ECHR. Placing an asylum seeker in a reception centre unsuitable for children violates the prohibition of inhuman and degrading treatment protected by Article 3 ECHR. And last, not granting the right to an effective remedy against the alleged violation of these provisions violates Article 13 ECHR. The procedural, and for that matter, the principled approach of the Court means that this all applies even if the applicant, in the end, is found to be an adult.’

Elmazova and others v. North Macedonia

The case of Elmazova concerns the segregation of Roma pupils in two primary schools in North Macedonia. In the first school, Roma pupils represent 83.5% of the total number of pupils. In the second school, a number of Roma pupils are put into Roma-only classes. Mentioning that both schools offered a program that was the same as, or at least similar to, that of other public primary schools, the Court established that both instances violate the prohibition of discrimination. It held that the state was required to ‘take positive effective measures to correct the applicants’ factual inequality and avoid the perpetuation of the discrimination that resulted from their over-representation in [one of the schools], thereby breaking the circle of marginalisation and allowing them to live as equal citizens from the early stages of their life’ (§74). The Court ordered the State to take measures in order to ensure the end of the segregation of Roma pupils in both schools.

From our forthcoming blog post by Merel Vrancken: ‘The unanimous judgment in Elmazova and Others v. North Macedonia marks another tremendous step forward in prohibiting segregation and guaranteeing equality of all pupils in education. Together with the recent case of X and Others v. Albania, it shows a shift in the ECtHR’s approach from a focus on an assessment of whether situations of segregation in education are discriminatory under the Convention to a focus on positive obligations stemming from segregation and desegregation measures. […] Elmazova itself can moreover be applauded for its realism in assessing the existence of segregation, contrasting the overrepresentation of Roma pupils in one school to the very homogeneous ethnic composition of the majority school in the same catchment area.’

G.M. and others v. Moldova

This case concerns the imposition of abortions and contraceptive measures upon women with intellectual disabilities, which the Court declared to be a violation of art. 3 ECHR. In its legal reasoning, the Court makes a detailed analysis of the importance of reproductive rights, as well as of supporting the autonomy of people with intellectual disabilities. In contrast with much of its previous case law on disability rights, the Court embraces a rights- and agency-based approach in addressing reproductive rights of women with intellectual disabilities. It stresses the importance of systemically empowering women with intellectual disabilities to give their informed consent about their reproductive decisions, and explicitly engages with the systemic oppression and paternalistic stereotypes that governed the authorities’ decisions about the applicants. Furthermore, it performs a detailed examination of the applicants’ vulnerabilities as women with intellectual disabilities who had been the victim of rape in the neuropsychiatric institution they resided it, and thus expands not only its case law on vulnerability, but also its implicit recognition of vulnerability. 

From our blog post by Eva Sevrin and Emma Varnágy: ‘In conclusion, G.M. and others has centralized the autonomy of intellectually disabled women. Through targeting a broader context, the Court has addressed a more complete legislative reality that can lead to severe human rights abuses of intellectually disabled women. Unlike other disability-related case law, the Court seems to have aligned itself with other international human rights instruments and their enforcement mechanisms, most notably the CRPD.’

Safi and others v. Greece

This case originated from the sinking of a fishing vessel in the Aegean Sea, aboard which were 27 migrants who sought to enter Greece from Turkey. As a result of the sinking, 11 of the vessel’s passengers died, in the presence of a coast guard vessel. The Court found a violation of art. 2 ECHR in both its procedural and substantive aspects, condemning the State’s failure to adequately respond to the risk to the passengers’ lives and to properly investigate the fatal sinking of the vessel, as well as of art. 3 ECHR, due to the imposition of body searches to persons in such vulnerable circumstances.

From our blog post by Spyridoula (Sissy) Katsoni:Regarding the alleged violation of the substantive aspect of Article 2, the Court observed that upon its arrival to the scene, the crew of the Greek Coast Guard’s boat had undoubtedly became aware of the adverse weather conditions and the fishing vessel’s condition (para. 159). It further noted that there was no explanation as to how the crew intended to rescue the persons with a speedboat that lacked the necessary rescue equipment and as to why they requested no additional assistance (e.g. a more suitable boat) from the competent authorities (para. 160). Regarding the Government’s allegation that the capsizing of the fishing vessel had occurred as a result of the passengers’ panic, after the anchor point at the bow of the vessel was torn off following the Coast Guard’s first attempt of towing, the Court found that this panic was expected and could not explain the Coast Guard’s second attempt to tow the vessel under these circumstances (para. 161).’

Worst Judgment

(In alphabetical order)

Muhammad v. Spain

In this ‘racial profiling’ case, the Third Section of the Court found no violation of Article 14 in conjunction with Article 8. The applicant was subjected to an impromptu identity check by the police in a touristic area of Barcelona where pickpocketing is common. The Court ruled that the burden of proof could only be shifted from the applicant to the government once the applicant could substantiate his allegation. This led to the outcome that victims of racial profiling will bear a disproportionate burden in proving the existence of a racial motivation on the part of the authorities, despite the state being better placed to do so (see also the nomination for Y and Others v. Bulgaria below, as well as the nomination of the separate opinion of Judge Krenc in the category of best separate opinion).

From our blog post by Mathias Möschel: ‘Especially problematic is the extension of the criminal law standard of proof beyond reasonable doubt to individual applicants in a human rights court. At the national level, rightly so, it is supposed to protect individual criminal defendants from state prosecutors who have all the information and power, but applicants before the Court are in a vastly different position. Overall, a careful and equal application of shifting the burden of proof in all cases involving (race) discrimination once the applicant has made a prima facie case of racism, whether direct or indirect discrimination or arising from criminal, civil or administrative law cases, should be the way forward.’

Otite v. the United Kingdom

Otite concerns the deportation of a settled migrant as a result of his conviction for a serious fraud offence. At the domestic level, the UK courts conducted the balancing exercise without reference to the ECtHR’s case law, but solely based on the domestic Immigration Rules. Regardless, the Fourth Section of the ECtHR still found no violation of Article 8 on procedural grounds, thus bringing into question the Court’s procedural approach that is typically applied for expulsion cases.

From our blog post by Harriet Ní Chinnéide: ‘[I]t is somewhat surprising that despite identifying failings at the domestic level the Court continued to reach a finding of no violation in Otite. The literature suggests that one of the key merits of process-based review is increased engagement with the Convention at the national level – a benefit that Otite arguably serves to undermine.  Arguably, regardless of the outcome which should have been reached based on a substantive assessment of the applicant’s conduct and personal circumstances, from a procedural perspective, the flaws in the domestic balancing process identified by the Court, should have led to a finding of a violation. Such a result would have reinforced the importance of proper consideration of Article 8 requirements at the domestic level and incentivised greater engagement with the Convention in future cases.’

Savickis and Others v. Latvia

The case concerns the rights of non-citizens (a majority of whom are ethnic Russians) in Latvia. They are denied recognition of their period of work outside Latvia in the calculation of their pension, while such a recognition is accorded to Latvian citizens. The Grand Chamber found no violation of Article 14 in conjunction with Article 1 of Protocol No. 1. The Court accepted protection of constitutional identity as a legitimate aim. While differential treatment must have ‘very weighty reasons’, the majority ruled that this criterion must be read in light of a wide margin of appreciation. In this regard, the Court’s reasoning in finding a wide margin can be seen as unsystematic and confusing. Furthermore, the Court essentially put the blame on the applicants for not having sought to acquire Latvian citizenship. This appears to constitute an unexplained departure from Andrejeva v. Latvia, in which the Court ruled that the applicant could not be expected to change their status to avoid discrimination (see also the nomination of the separate opinion of Judges O’Leary, Grozev and Lemmens in the category of best separate opinion).

From our blog post by Sarah Ganty and Dimitry Kochenov: ‘The decision of the ECtHR Grand Chamber in Savickis will be remembered for its dissents, since the majority played a dangerous game by directly engaging in victim blaming and overturning a settled precedent against the spirit and the letter of the Convention. This was done in a manner which also contradicts the idea of non-discrimination as such. In order not to be discriminated against, according to the Grand Chamber, it is now necessary to naturalize in the state directly discriminating against you, however difficult this could be and whatever the victims of direct discrimination think about the procedure. Most crucially, the reasons for saying goodbye to foundations of non-discrimination law in Savickis are entirely unclear: the twists and turns of good old guilt by association are incapable of helping us make sense of this blow to the Court’s reputation.’

Vegotex International S.A. v. Belgium

The Grand Chamber in this case went against its own case law in accommodating the Belgian legislator’s retrospective regularisation of an administrative practice which had been found to be unlawful by the Court of Cassation. In doing so, the Court could be seen to have undermined the Court of Cassation’s authority and, more importantly, revived an already expired limitation period (see also the nomination of the separate opinion of Judges Spano, Kjølbro, Turković, Yudkivska, Pejchal, Mourou-Vikström and Felici in the category of best separate opinion).

From our blog post by Tobias Mortier: ‘Instead of raising its scrutiny level regarding the compelling nature of the interests adduced by the government, the ECtHR actually displayed an excessive amount of deference and even went so far as to contradict its own case law on the matter. Admittedly, determining how compelling a certain interest is, is a heavily context-specific task, which makes it nearly impossible for the ECtHR to apply a one-size-fits-all approach. However, it behooves the ECtHR to at least adhere to its own standards in doing so; otherwise, the compelling aim of preserving legal certainty might not only be impeded within the Belgian legal order, but across all Contracting Parties to the Convention as well.’

Y and Others v. Bulgaria

On 18 August 2017, V was fatally shot by her husband. In the preceding nine months, she had submitted various complaints concerning domestic violence. The Fourth Section of the ECtHR found no violation of Article 14 because the applicants had failed to supply statistical evidence demonstrating general complacency of authorities towards domestic violence. While the failure of Bulgaria in keeping statistical evidence was considered a serious omission, the Court still shifted the burden of proof to the applicants. This requirement was then adopted in Landi v. Italy as well, which also concerns domestic violence. 

From our blog post by Stella Christoforidou: ‘The rulings in Landi v. Italy and Y and Others v. Bulgaria mark a U-turn in the Court’s approach in domestic violence cases when compared with Opuz v. Turkey, the cornerstone of the Court’s domestic violence case law up until now. Despite the fact that victims of domestic violence should be considered by definition as a vulnerable group, especially in light of the Istanbul Convention, in these two cases the Court placed a disproportionate burden on the applicants, vis-à-vis their status, by obliging them to provide statistical evidence to prove that authorities treated them in a way that violated Article 14 in conjunction with Article 2.’

Best Separate Opinion

(In alphabetical order of the judgments)

Concurring opinion of Judge Šimáčková in Bouton v. France

The case concerns the imposition of a suspended prison sentence on a Femen activist who conducted a topless protest in a church. She was convicted under Article 222-32 of the French Criminal Code, which prohibits ‘indecent sexual exposure imposed on the view of others in a public place’. The Fifth Section of the ECtHR found a violation of Article 10, since the sentence was disproportionate. In her concurring opinion, Judge Šimáčková disagreed with the majority’s finding that the criminal conviction was prescribed by law. In reference to the content of national decisions, she identified the real reason behind the conviction, which was the protection of believers and their freedom of religion. Since France does not criminalise blasphemy, the criminal sanction was unlawful. She then made a reference to French culture and art, in which women are frequently bare-chested, and pinpointed the sexism inherent in cases like these, asserting that ‘[s]ociety accepts and even demands that the legislator discipline women as to what they can or cannot exhibit and even use the tools of criminal law to do so. Indeed, women do not have the right to be dressed too much or too little. Everyone is free, but women have to be careful what they reveal and what they hide.’

Partly dissenting opinion of Judge Pavli in D.B. and others v. Switzerland 

See our blog post here.

In his partly dissenting opinion, Judge Pavli considers that the majority was wrong to consider that, having found a violation of art. 8, it was unnecessary to examine the case separately under art. 14. He argues that, while it is already hard enough for children when the State does not legally recognise their relationship with one of their de facto parents, it is even worse when that treatment is reserved to children of homosexual couples. Indeed, the best interests of the child should not depend solely on their parents’ sexual orientation. He argues that laws have a moral dimension, and that a discriminatory law thus creates a discrete form of harm, beyond the violation of children’s rights under art. 8. Consequently, the majority is wrong to argue that art. 14 does not raise a distinct issue in this case. Judge Pavli is convinced that in time, equality reasoning will be applied in all cases concerning a discrimination based on sexual orientation. 

Dissenting opinion of Judge Krenc in Muhammad v. Spain

See our blog post here

In his dissenting opinion, Judge Krenc provides a thorough analysis of the state’s positive obligations in the case of racial profiling. He argues that the Spanish authorities failed to fulfill their positive obligation to carry out an effective investigation. Moreover, Judge Krenc insists that the majority should have addressed the state’s positive obligation to set up an adequate legal framework providing effective safeguards against racial profiling, which it did not, despite the applicant having raised this argument. Furthermore, regarding evidence, Judge Krenc highlights that  ‘[a]pplicants are often faced with difficulties in proving discriminatory treatment (…)’, though the issue is ‘particularly tricky’ (para. 14).

Dissenting opinion of Judges O’Leary, Grozev and Lemmens in Savickis v. Latvia

See our blog post here

The three judges rebuke the way the majority applied the ‘very weighty reasons’ criterion. They point out that by requiring ‘very weighty reasons’ to be read in light of a wide margin of appreciation, the majority undermined this criterion. The three judges also question the legitimate aims invoked by Latvia. Finally, they strongly disagree with the majority’s statement that the decision to acquire citizenship of a given State is purely a matter of ‘personal choice’. In their words: ‘As regards discrimination cases generally, we find it very troublesome that the Andrejeva logic is abandoned in the present case. The majority’s reasoning risks undermining the very essence of the prohibition of discrimination. This case is about nationality. We wonder to what other non-immutable prohibited grounds the majority would be prepared to extend this reasoning. It appears to us to be a dangerous and slippery slope.’ (para. 18)

Partly dissenting opinion of Judges Spano, Kjølbro, Turković, Yudkivska, Pejchal, Mourou-Vikström and Felici in Vegotex International S.A. v. Belgium

See our blog post here

The partly dissenting judges criticise the majority for not adhering to the Court’s own standards under art. 7. They point to the several potential negative consequences of the majority’s reasoning, in particular concerning the legitimacy of the applicant’s expectations and the revival of an already expired limitation period. They argue that the majority did not in fact put an end to a situation of legal uncertainty and instead did the opposite, since the Court of Cassation, as the highest Belgian court competent for the present matter, actually provided legal certainty with its judgment, which the present ECtHR judgment undoes. They conclude that in not finding a violation of art. 6, the majority applies art. 6 in a manner that is inconsistent with art. 7, since the outcome is that a legislative intervention with retrospective effect is allowed to restore criminal liability for offences that have become time-barred. In their words: ‘The Court’s reliance on the “compelling grounds” test and the argument that tax surcharges differ from “the hard core of criminal law”, invoked in order to justify the finding of no violation of Article 6, lead to the unfortunate outcome that a legislative intervention with retrospective effect restoring criminal liability for offences that have become time-barred – something that would amount to a violation of Article 7 of the Convention – can, nevertheless, be in conformity with Article 6 of the Convention. Article 6 is thereby interpreted in a manner that renders it inconsistent with Article 7 of the Convention.’

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