March 14, 2023
In February, we presented our readers with the 2022 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 2022, Worst Judgment of 2022, and Best Separate Opinion of 2022. We would like to thank everyone who participated in this vote, and are happy to announce the results!
Best Judgment of 2022
In the category of best judgment, with a total number of 162 votes, the winner is… Safi and others v. Greece!
1st place: Safi and others v. Greece – 28.4%
2nd place: Elmazova and Others v. North Macedonia – 19.14%
3rd place: G.M. and Others v. Moldova – 18.52%
Safi and Others v Greece concerns the sinking of a fishing vessel carrying 27 migrants who tried to enter Greece from Turkey. According to the applicants, the incident happened after the Greek coastguard vessel approached at a very high speed in order to push the fishing boat back to Turkish waters. The sinking led to the death of 11 passengers. In a unanimous judgment, the Court found multiple violations of the Convention. It found a violation of the procedural and substantive limbs of the right to life under art. 2 ECHR, since Greece has failed to properly investigate the incident and to undertake all measures that could reasonably be expected from state authorities to prevent the loss of life. Furthermore, the Court found a violation of art. 3 ECHR on the prohibition of inhuman and degrading treatment, as the survivors were subjected to body searches after the incident. According to the Court, such searches were not based on compelling security needs.
The result of this vote demonstrates the appreciation of our readership to the Court when it takes a stand against illegal pushbacks of migrants, which have caused the loss of lives in the treacherous Mediterranean waters and represent what Niamh Keady-Tabbal and Itamar Mann call “an erosion of refugee law, and a parallel license to inflict ever more extreme violence upon people on the move who are not bone fide refugees.” Nevertheless, the differences in votes between the five nominees are not stark. This indicates that as far as our readers are concerned, many of the Court’s judgments deserve appreciation.
Worst Judgment of 2022
In the category of worst judgment, with a total number of 165 votes, the winner (or, more aptly, loser) is… Y and Others v. Bulgaria!
1st place: Y and Others v. Bulgaria – 40.00%
2nd place: Muhammad v. Spain – 24.85%
3rd place: Savickis and Others v. Latvia – 12.73%
Y and Others v. Bulgaria is a tragic case of domestic violence. V was a victim of abuse by her husband and had submitted various complaints to the Bulgarian authorities during the course of nine months. On 18 August 2017, she was shot and killed by her husband. The ECtHR eventually found no violation of the accessory right to non-discrimination under Article 14 ECHR. According to the Court, the applicants had failed to provide statistical evidence demonstrating general complacency of Bulgarian authorities towards domestic violence. This is despite the Court already finding that the failure of Bulgaria in keeping statistical evidence was a serious omission.
The result reveals that our readership is concerned about the Court’s approach to the burden of proof in domestic violence cases, which puts victims at a disadvantage as the state is in a (much) better position to collect and maintain statistical evidence. The second judgment in this category is Muhammad v Spain, which reveals a similar concern about the allocation of the burden of proof in (alleged) racial profiling cases.
Best Separate Opinion of 2022
In the category of best separate opinion, with a total number of 165 votes, the winner is… Judge Krenc in Muhammad v. Spain!
1st place: Judge Krenc in Muhammad v. Spain – 35.15%
2nd place: Judge Šimáčková in Bouton v. France – 23.03%
3rd place: Judges O’Leary, Grozev and Lemmens in Savickis v. Latvia – 18.18%
It is perhaps not a coincidence that the winner of the ‘best separate opinion of 2022’ is Judge Krenc in Muhammad v. Spain, given that the majority judgment came second in the category of worst judgment. This case of alleged racial profiling involved a person of Pakistani nationality who was subjected to impromptu identity check in a crowded area of Barcelona, where pickpocketing is common. As mentioned above, the allocation of the burden of proof was a central aspect of the case.
In his dissenting opinion, Judge Krenc noted that “[t]he present judgment rightly emphasises the importance of combating racial discrimination, which ‘is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction’”. While he acknowledged that identity checks for security reasons pursue a legitimate aim under the Convention, Judge Krenc emphasised that people cannot be targeted solely based on their ethnicity. In the case at hand, he was unable to share the view of the majority, arguing that the Spanish authorities had failed to fulfil their obligation to carry out an effective investigation. Moreover, he emphasised that the majority should have addressed the positive obligation of the state to set up an adequate legal framework providing effective safeguards against racial profiling. Judge Krenc also tackled the issue of evidence by emphasizing that applicants are facing difficulties in proving discriminatory intent on the part of the authorities.
The overlap between this result and the two ‘worst judgments of 2022’ confirms the reservations (some of) our readers have about the Court’s approach to the allocation of the burden of proof in discrimination cases, in which the victims are often in a vulnerable situation.