Strasbourg Observers

Poll: Best and Worst ECTHR Judgment and Best Separate Opinion of 2023

February 16, 2024

Dear readers,

With the holiday season now well behind us, we are taking the opportunity to look back and reflect on 2023. After the turbulent year that was 2022, 2023 did not exactly turn out to be less challenging in terms of the human rights related issues that have arisen – and continue to arise. Firstly, the Russian invasion of Ukraine continues to persist, along with the suffering and human rights violations that come with it. Secondly, just outside of the European continent, innocent civilians fall victim to horrific acts in the Gaza strip on a daily basis, which has sown division among nations both within as well as outside of the Council of Europe.

Against the background of these difficult circumstances, the European Court of Human Rights continues its task of protecting human rights in its Member States. According to its Annual Report, the Court has ruled on 38,260 applications in 2023, of which 6,931 gave rise to judgments on the merits. Additionally, it appears that the amount of pending applications has diminished a little, with 68,450 applications currently pending (as opposed to the total number of 74,650 in 2022). Of these pending applications, Türkiye and Russia cover over half of this number, with these States taking up 34.2% and 18.2% respectively of the Court’s overall workload as of January 1st 2024.

Like the Court, our team at Strasbourg Observers has worked hard this year to provide you with interesting and thought-provoking blog posts on the case law of the European Court of Human Rights. We are, as ever, particularly grateful to all authors who wrote a contribution to our blog over the course of last year, and to our readers, the Court and the scholarly community in general for making it possible to have discussions on the Court’s case law.

Now, the time has come to give the power back to our readers. As the tradition at Strasbourg Observers goes, we hereby launch our annual ‘Best and Worst’ voting poll, in which we ask of you to vote for your picks in the categories ‘Best judgment’, ‘Worst judgment’ and ‘Best separate opinion’. Our teams at Ghent University and Hasselt University have assembled a shortlist of five nominees per category after an internal selection and voting round. From these five candidates, we invite you to vote for your top pick per category. Additionally, if you disagree with our picks and instead think another case or opinion is more deserving of receiving our ‘award’, we have added a sixth option: ‘Other’. You can fill in this field with your suggestion and we welcome you to share your reasons for this vote in the comments section below.

As usual, we have provided an overview of the key aspects of the nominated cases below, along with links to the relevant blog posts and judgments. 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, do you reckon the Court’s reasoning left 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!

The results of the voting will be announced in March.

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

Best Judgment

(in alphabetical order)

A.E. v. Bulgaria

In this case, the Court found under Article 3 that Bulgaria had failed to adequately protect the applicant from domestic abuse, as well as to punish the culprits of said abuse. More specifically, it explicitly emphasised the applicant’s vulnerable situation and denounced the prosecutor’s refusal to open criminal proceedings as inconsistent with her dignity. Additionally, the Court reprimanded Bulgaria for failing to provide the Court with evidence on what remedies it deployed to tackle the disproportionate manner in which women fell victim to domestic violence afflicted by men.

From our blog post by Ronagh McQuigg: ‘No longer is Article 8 frequently used as a basis for findings of violations of the ECHR in such cases; rather breaches of Articles 3 and 14 are now found. In its judgment in A.E. the ECtHR showed a high degree of understanding of domestic abuse. The case also serves to emphasise the necessity for States to collect comprehensive statistics in relation to issues such as domestic abuse, and demonstrates that a continual failure to do so may contribute towards a State being found to be in breach of Article 14.’

Fedotova and Others v. Russia

With this case, the Court extended its conclusion in Oliari and Others v. Italy for States to provide legal recognition and protection for same-sex couples to all its Member States. Importantly, it also clarified that the argument of protecting the traditional family no longer suffices as a justification for a complete lack of recognition. This case constituted the foundation on the basis of which several other cases involving States’ failure to protect and recognise same-sex couples have been adjudicated this year (see here and here).

From our blog post by Claire Poppelwell-Scevak: ‘Importantly, this case finally ends the discussion surrounding the extension of the reasoning in Oliari where the Court, for the first time, found there was an obligation on Italy to provide legal recognition and protection for same-sex couples. We see now that this positive obligation is no longer Italy-specific and a State Party which has not provided a legal framework for same-sex couples to recognise their relationship would most likely be seen as violating Article 8.’

Luca v. the Republic of Moldova

Another case involving facts relating to domestic abuse, the applicant in this case had been unable to see her children since she had fled her abusive husband. The Court found that the authorities had not only failed to adequately protect the applicant, they had also had a duty to take into account the applicant’s vulnerability as a victim of domestic violence in assessing her request to have contact with her children. As such, the Republic of Moldova was found to have violated Articles 3, 8 and 14 of the Convention.

From our blog post by Ronagh McQuigg: ‘In conclusion, in Luca v The Republic of Moldova the ECtHR again demonstrated a praiseworthy recognition of the necessity of taking sufficient account of any context involving domestic abuse in considering issues relating to child contact.  In so doing, the case builds upon the Court’s earlier decision in I.M. and Others v Italy, by addressing a different type of situation in which issues relating to child contact in the context of domestic abuse can arise. The judgment in Luca is also reflective of patterns within the case law of the ECtHR in the area of domestic abuse more broadly, in terms of the now frequent findings of breaches of Articles 3 and 14 in such cases.’

Macatė v. Lithuania

In this case, the Court found that the suspension by the Lithuanian authorities of a collection of fairytales for the sake of protecting children from sexually explicit content and from content which promoted same-sex relationships by presenting different-sex relationships as ‘inferior’ was really actuated by homophobia. Such actions were inconsistent with the core values of the Convention, as they embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority. Moreover, the Court referred to the lack of scientific evidence that children would be negatively affected by receiving information on same-sex relationships and quoted various international and domestic bodies who had ruled similarly to the Court on comparable issues.

From our blog post by Ingrida Milkaitė: ‘This Grand Chamber judgment is convincing, its arguments are well-developed and grounded in both the previous case law of the ECtHR and the relevant international and regional policies and guidelines on the levels of the Council of Europe (CoE), European Union and the United Nations. However, it differs from the Court’s previous case law where it critically engaged with the legitimacy of the aims promoted by the government (see, for example, Bayev and Others v. Russia and Alekseyev v. Russia). In Macatė v. Lithuania, the Court in fact identified a hidden motive behind the restrictions (the authorities’ preference for different-sex relationships over same-sex relationships) and rejected all the aims the Government claimed to be pursuing as completely illegitimate (§ 215-216). This judgment is far-reaching and impactful not only for Lithuania but arguably for other members of the CoE as well.’

Simona Mihaela Dobre v. Romania

This case involved the domestic courts’ refusal to allow the applicant to relocate to Canada along with her child in spite of the child’s father’s wishes. Conducting an extensive procedural review into the domestic courts’ assessment of the child’s best interests in terms of his psychological and physical well-being, as well as the impact the move would have on his relations with his family members, the Court saw no reason to depart from the domestic courts’ finding that the relocation would not necessarily serve the child’s interests in the most effective manner. Overall, this case exemplifies subsidiarity in action and demonstrates the potential of the procedural review to promote engagement with Convention standards at the domestic level.

From the case: ‘The Court further accepts that the domestic courts had to ensure that the ties between Y and his father would not be severed by the child’ residence being moved to Canada, as that might have gone against Y’s best interests (…). The same applies for the ties between Y and his older half-brother E who had a positive influence on Y’s psychological development (…). In this respect, the Court is satisfied that, in reaching their decision, the domestic courts, relying on the conclusions of the psychological assessment, identified what would be the most beneficial solution for the child and assessed the impact that the change of residence would have in practice on contact between Y and his family members X and E (…).’

Worst Judgment

(in alphabetical order)

A.M. and Others v. Poland

In 2020, the Polish Constitutional Court found that the provisions legalising abortion in case of foetal abnormalities were unconstitutional. The applicants, eight Polish women, complained to the Court about this decision and relied on their potential victim status, stating that all persons who could become pregnant must be considered potential victims within the meaning of Article 34 of the Convention. However, the Court held that the applicants had failed to provide any convincing evidence that they had been at real risk of being directly affected by the amendments that were introduced following the the Constitutional Court’s judgment. It therefore declared the applications as inadmissible on the grounds of a lack of victim status.

From the case: ‘In the light of the foregoing, the Court cannot but conclude that the applicants failed to advance any convincing evidence that they were at real risk of being directly affected by the amendments introduced by the Constitutional Court’s judgment. It would thus appear that the restrictions resulting from those amendments could only have hypothetical consequences for the applicants’ personal situations, and such consequences seem too remote and abstract for the applicants to arguably claim to be “victims” within the meaning of Article 34 of the Convention. The Court further notes the complete absence of detailed individual particulars or any documentary evidence relating to the applicants’ personal circumstances, making it impossible to conduct an assessment of their situation.’

Humpert and Others v. Germany

In Germany, civil servants are constitutionally prohibited from striking. The applicants in this case were school teachers at State schools (therefore enjoying civil-servant status), who had gone on strike in 2009 and 2010 in demand of better learning and working conditions and who were subsequently subjected to disciplinary sanctions because of this. However, the Grand Chamber ruled that the impact of the absolute constitutional ban did not outweigh the convincing justifications adduced by the German government and found the ban to comply with Article 11 of the Convention. In so deciding, it deviated from the repeated criticism voiced by international monitoring bodies vis-à-vis the ban and disregarded the fact that Germany was the only Contracting Party to the Convention who knew such a ban.

From our blog post by Ignatius Yordan Nugraha: ‘This judgment will definitely attract the criticism of human rights scholars, as the ECtHR seems to have side-lined international human rights standards that recognise the right of civil servants to strike. In fact, this is not the first time that the Strasbourg Court has diverged from the position of other international human rights bodies. What is also curious is that the Court has effectively rendered the concept of European consensus devoid of substance. Despite Germany’s isolated position with regard to the prohibition of State school teachers from striking, which normally should have narrowed the margin of appreciation it enjoyed, the ECtHR brushed aside these so-called ‘trends’ as being non-decisive. All in all, international and European consensus did not seem to matter in the face of procedural rationality.’

O.H. and G.H. v. Germany and A.H. and Others v. Germany

In these cases, which we decided to pool together for the purpose of this award, several transgender applicants complained of the German authorities’ refusal to recognise them as the father or mother on the birth certificates of their children. However, the Court found that the German authorities had struck a fair balance between the rights of the applicants and the children’s welfare and the public interests and had therefore not acted in violation of Article 8 of the Convention. In so deciding, the Court appeared to attach considerable value to the perceived interest of the child in hiding the fact that one of their parents is transgender and to have a father and mother whose legal sex would not change.

From the case of O.H. and G.H. v. Germany (translated from French): ‘Lastly, the Court notes that the Federal Court of Justice emphasised that the legal attachment of the child to its parents in accordance with their procreative functions enabled the child to be attached in a stable and immutable manner to a mother and a father who would not change, even in the hypothesis, which the high court considered to be not merely theoretical, that the transgender parent would seek the annulment of the gender-change decision. (…) The Court (…) notes that, in the view of the Federal Court of Justice, the solution proposed by the Münster District Court was not only incompatible with the wording of section 5 § 3 of the TSG (…), but also ran counter to the purpose of that provision, which was to keep secret the transgender nature of a parent so as not to oblige the child to produce a birth certificate that allowed the conclusion that the parent was transgender.’

Valiullina and Others v. Latvia and Džibuti and Others v. Latvia

Both of these cases dealt with legislative reforms of the Latvian education system, through which Russian-language education was restricted (Valiullina concerned Latvian public schools, whereas Džibuti concerned private schools). The Court embraced the Government’s argument that protecting and strengthening the official language goes to the heart of the constitutional identity of the State and as such applied a low level of scrutiny, stating it would not interfere in such matters unless the end decision were arbitrary. Ultimately, the Court upheld the restrictions as compatible with Article 14, read in conjunction with the right to education as enshrined in Article 2 of Protocol No. 1.

From our blog post by Sarah Ganty and Dimitry V. Kochenov: ‘The reasoning of the Court in these two cases denies minority rights entirely, thus leaving no trace of what was once thought to be protected by the Convention. To make matters worse, the successful attack on minority rights comes with no analysis to provide sound reasons to underpin this move, which threatens to further undermine the legitimacy of the ECtHR, especially among continental ethnic and linguistic minorities, who are being repeatedly betrayed by the Court.’

Y. v. France

In this case, the applicant, an intersex person, complained of the domestic authorities’ refusal to grant their request to have their legal gender be recognised as ‘neutral’ or ‘intersex’ in accordance with their gender identity. The Court ruled that it is best to exercise restraint in this area, observing that siding with the applicant’s arguments in this case would impose an obligation onto the French legislature to amend its national law in order to provide for a third gender category – an obligation which the Court, in light of the absence of a European consensus on the matter, was reluctant to impose. Rather than relying on legal reasoning, the Court therefore mostly seemed to defer to the political sensitivity of the question in support of its finding that no violation of Article 8 could be found.

From the dissenting opinion of Judge Šimáčková (translated from French): ‘The obligation to declare membership of a particular sex touches on a central and sensitive aspect of the applicant’s personal life as a human being, and makes this personal characteristic highly visible to the public. Consequently, the State must also ensure that information relating to gender reflects a person’s individual sexual identity with its specific biological and psychic characteristics. Furthermore, in the case of intersex people, they still sometimes undergo unnecessary suffering in childhood through a series of operations and constant medication without any real benefit to their quality of life (…). Consequently, in order to prevent such mistreatment, intersexuality must be recognised as an official option in order to protect people from the practices described.’

Best Separate Opinion

(in alphabetical order of the judgments)

Concurring Opinion of Judge Ravarani in Baret and Caballero v. Belgium

See our blog posts here and here.

In his Concurring Opinion, Judge Ravarani expressed his discomfort with the applicants’ situation in which they would be left following the majority’s judgment. In light of the explicit consent of the applicants’ deceased husbands to move forward with the medically assisted reproduction with the preserved gametes or embryos, the French Government had justified its legislative ban on posthumous conception by the aim of ‘protecting the conception of the family’. Judge Ravarani pointed out the inconsistency of that logic, clarifying that this would yield the perverse consequence that the applicants would be forced to destroy the embryos conceived with the gametes from their deceased husbands on account of the fact that the child would be raised without a father, yet would then be allowed to conceive a child using gametes from an unknown third-party donor. Lastly, he denounced the majority’s insinuation of ‘fraudulent intent’ on the applicants’ end.

Partly Concurring, Partly Dissenting Opinion of Judge Krenc, joined by Judge Derenčinović in Camara v. Belgium

See our blog post here.

The Belgian Government has developed a habit of ignoring court orders relating to providing accommodation for refugees. Whilst the majority identified a systemic failure on the part of the Belgian authorities to enforce final judicial decisions in contravention of Article 6, it declared the applicant’s complaint under Article 3 inadmissible due to failure to exhaust all local remedies (specifically, a claim for damages on the basis of Article 1382 of the Belgian Civil Code). In his Partly Concurring and Partly Dissenting Opinion, Judge Krenc, joined by Judge Derenčinović, pointed out the inconsistency of the majority’s reasoning on the admissibility of Article 3, instead referencing several judgments in which the Court had ruled that civil actions on the basis of Article 1382 did not constitute effective remedies since these were of a purely compensatory nature and thus unable to bring any substantial change to the applicant’s situation. In his words (translated from French): ‘Paradoxical as it may seem, by indicating a provisional measure before examining the application, the Court offers the respondent State the opportunity to avoid the substantive debate and, where appropriate, a finding of a violation of Article 3.’

Partly Concurring, Partly Dissenting Opinion of Judge Serghides in Caster Semenya v. Switzerland

See our blog post here.

In his Partly Concurring, Partly Dissenting Opinion, Judge Serghides highlights the impossible choice which intersex athletes, including the applicant in this case, must face if they wish to take part in competitions. On the one hand, the applicant has the right to personal autonomy as guaranteed by Article 8. Accordingly, she has the right to personal autonomy and self-determination and the right to pursue professional activities as a high-level athlete in the female categories. On the other hand, she has the right not to be tortured or subjected to any inhuman or degrading treatment as protected by Article 3, including the right not to undergo any surgery or hormonal treatment unless with her explicit consent. By banning her from competing in any international competitions, the applicant was essentially forced to choose between waiving her protection under either Article 3 or Article 8 – an impossible dilemma, which Judge Serghides deems to render the applicant’s consent meaningless and to be in violation of both provisions.

Partly Dissenting Opinion of Judge Pavli, joined by Judge Motoc in Fedotova and Others v. Russia

See our blog post here.

Judge Pavli, joined by Judge Motoc, criticises the majority’s decision not to examine the case under Article 14, instead deeming it ‘not necessary’ in light of the previously found violation of Article 8 taken separately. He argues that this decision is regrettable, given that the applicants’ sexual orientation was the sole reason for their inability to have their relationship protected or recognised in any way. Judge Pavli is therefore of the opinion that the equal treatment claim cannot but constitute a ‘fundamental aspect’ of the case. Furthermore, he expresses his regret at the Grand Chamber’s failure to outline the margins within which Member States have leeway to shape the forms of legal recognition they must now provide for same-sex relationships. He warns that the fact that Member States are granted a wide margin of appreciation in this field cannot result in outcomes that run counter to the standards imposed by Article 14, under which ‘very weighty reasons’ are required in order to justify a difference in treatment on the grounds of sexual orientation.

Joint Dissenting Opinion of Judges Wojtyczek and Zünd in Sanchez v. France

See our blog posts here and here.

In their Joint Dissenting Opinion, Judges Wojtyczek and Zünd disagree with the Grand Chamber majority that no violation of Article 10 could be found. Arguing that Article 10 must have been read in the light of Article 7 standards, the Judges argue that the French law failed to meet the foreseeability standards as derived from these provisions. These standards must be interpreted in accordance with the viewpoint of the average ‘man in the street’. This is all the more important in light of the various questions that they argue still permeate the applicable French legislation and the criminal liability which is imposed onto individuals, who now carry the burden of having to monitor their Facebook pages without knowing with certainty which acts or omissions would trigger this criminal liability. Instead, the Judges propose the following: ‘A balanced system should at least comprise a mechanism for the giving of prior notice to the holder of an account on Facebook or another social network, allowing a reasonable time-limit for the deletion of unlawful comments, before that account holder can be held personally liable for any failure to delete such comments.’

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