Dear readers,

In February, we presented you with this year’s edition of our annual 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 2023, Worst Judgment of 2023, and Best Separate Opinion of 2023. We would like to thank everyone who participated in the voting. All votes have been counted and we are excited to announce the results!

Best Judgment of 2023

In the category of Best Judgment of 2023, with an overall share of 33.64% of all votes cast, the winner is… Macatė v. Lithuania!

Emerging as the favourite in this category among our readers, Macatė v. Lithuania involved the temporary suspension of the publication of a book depicting same-sex relationships, and its subsequent labelling as ‘harmful’ to children under the age of fourteen. The Lithuanian government argued that they had sought to protect children from sexually explicit content and from content which depicted different-sex relationships in an inferior light compared to same-sex relationships. However, the Court instead found that the measures were actually motivated  by a desire to restrict children’s access to content depicting same-sex relationships in an equivalent light to different-sex relationships. Given the complete absence of any scientific evidence suggesting that the mere mention of homosexuality could negatively affect minors, the Court concluded that such aims had no place under the Convention system – instead refuting it as ‘incompatible with the core values behind the Convention’.

Macatė’s ‘victory’ signifies that our readers not only applaud the Court’s rejection of the – by now arguably obsolete – aim of the protection of children in support of measures that seek to target the LGBTQI+ community, but also support its arguably bold move to instead revert to the legislative history of the statutory provision behind the measure and identify an ulterior motive on that basis. Indeed, decisions like this one contribute to the uncovering of negative biases of the heterosexual majority against sexual minorities and result in a firmer embedding of equal respect for one’s sexuality as an important element of the Convention acquis. Perhaps it is therefore not surprising that our readers voted Fedotova and Others v. Russia in second place, another judgment in which the Court arguably continued to further embed the protection of same-sex relationships in its case law.

The overall top three of this category was:

First place: Macatė v. Lithuania – 33.64%

Second place: Fedotova and Others v. Russia – 28.04%

Third place: Luca v. the Republic of Moldova – 17.76%

Worst Judgment of 2023

In the category of Worst Judgment of 2023, the winner (or, more aptly called) loser, with an overall share of 35.83% of all votes cast, is… Humpert and Others v. Germany!

In this case, the applicants, who were school teachers at various State schools, had partaken in strikes, demanding an improvement in learning and working conditions. They were later subjected to disciplinary sanctions on account of the fact that civil servants were precluded from participating in strikes by the German Constitution. When tasked to review the compliance of this absolute constitutional ban with Article 11 of the Convention, the Court deviated from the criticism voiced by other international monitoring bodies and decided to uphold the ban. In so deciding, the Court heavily relied on the civil-service trade unions’ right to participate in decision-making when the process pertained to them, along with other institutional safeguards and the relatively mild nature of the sanctions imposed.

The outcome of the voting in this category reveals that our readers were critical of the discrepancy between the Court’s position and the standards set by other international bodies. Among others, the United Nations Committee on Economic, Social and Cultural Rights and the Committee of Experts on the Application of Conventions and Recommendations of the International Labour Organisation had denounced the ban’s incompliance with the respective international instruments which they supervised and had repeatedly called on the German government to recognise the right to strike of civil servants. As Judge Ravarani noted in his Concurring Opinion to the judgment: ‘the Convention cannot be interpreted in a vacuum and should as far as possible be interpreted in harmony with other rules of international law of which it forms part’.

The overall top three of this category was:

First place: Humpert and Others v. Germany – 35.83%

Second place: A.M. and Others v. Poland – 26.67%

Third place: Y. v. France – 14.17%

Best Separate Opinion of 2023

Finally, in the category of Best Separate Opinion of 2023, with an overwhelmingly convincing share of 64.43% of all votes cast, the winner is… Judge Serghides in Semenya v. Switzerland!

The case of Semenya v. Switzerland concerns the application of the regulations introduced by the International Association of Athletics Federations (IAAF) on the eligibility for athletes with ‘differences of sex development’ to be categorised as female athletes. Under these regulations, the applicant in the case, a South African Olympian gold medallist, would have had to submit to invasive hormone treatment with the aim of lowering her testosterone levels in order to be allowed to participate in the female category of international sports competitions. The Court found violations of Article 14 in conjunction with Article 8, and Article 13 in combination with Articles 8 and 14.

In his Partly Concurring, Partly Dissenting Opinion, Judge Serghides emphasised the impossible choice with which intersex athletes are faced on account of these regulations. On the one hand, the applicant’s ability to compete in international competitions touches on her very identity. Accordingly, the IAAF Regulations undermined her right to privacy, her physical and psychological integrity, her identity and her right to self-determination, all of which enjoy protection under Article 8. On the other hand, Article 3 of the Convention protects the applicant from any infringement upon her bodily autonomy and therefore grants her the right not to undergo any surgical treatment unless with her explicit consent. By ordering her to submit to hormone treatment, the applicant was essentially forced to choose between waiving her rights under either Article 3 or Article 8. Judge Serghides stressed that this would violate Member States’ positive obligation to ensure that individuals should not be making forced choices as to their rights under the Convention.

By the margin of this victory, it appears that our readers echo Judge Serghides’s concerns about the continued discrimination and stigmatisation which intersex athletes face in international sports competitions. On 6 November 2023, the case of Semenya v. Switzerland was referred to the Grand Chamber at the Swiss government’s request. It remains to be seen in which direction the Grand Chamber will go in its judgment and whether this judgment will reflect some of the points raised by Judge Serghides in his Separate Opinion to the Chamber judgment.

The overall top three of this category was:

First place: Partly Concurring, Partly Dissenting Opinion of Judge Serghides in Semenya v. Switzerland – 64.43%

Second place: Joint Dissenting Opinion of Judges Wojtyczek and Zünd in Sanchez v. France – 14.77%

Third place: Partly Dissenting Opinion of Judge Pavli, joined by Judge Motoc in Fedotova and Others v. Russia – 9.40%

Once again, we would like to thank everyone for participating in the voting! We welcome you to share your views on the results in the comments section below. In the meantime, we will continue providing you with interesting blog posts on the case law of the European Court of Human Rights and we promise we will be back with a new ‘Best and Worst’ voting poll next year!