Dear readers,

Award season has started, and we at Strasbourg Observers want to take this opportunity to reflect upon last year. The year 2024 has proved to be a challenging year for human rights protection across the globe. The humanitarian crisis in Gaza has continued to worsen, and in Eastern Europe Russia continues to persist with its invasion of Ukraine. Innocent civilians have continued to fall victim to bloodshed and suffering. Additionally, democratic foundations have come under increasing pressure, both within Council of Europe territory as well as beyond.

Against the background of these difficult circumstances, the European Court of Human Rights has continued its mission to strengthen the protection of human rights in its Member States. According to its own statistical data of 2024, the Court decided on 33,942 applications, 9,836 of which resulted in judgments. This represents a 63% increase in judgments delivered in comparison to 2023. Additionally, 61,250 are currently pending before the Court, which constitutes an 11% decrease compared to the beginning of the year. Of these pending applications, Türkiye continues to take up the largest share, followed by Russia and Ukraine.

Much like the Court, our team at Strasbourg Observers has continued to work hard this year to provide our readers with interesting and thought-provoking blog posts on the case law of the European Court of Human Rights. We are, as ever, 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 academic community in general for making it possible to continue our discussions on the Court’s case law.

Our blog posts have sought to both praise and critique the Court, and now we are giving our readers the chance to do the same. As the tradition at Strasbourg Observers goes, the time has come to launch our annual ‘Best and Worst’ voting poll, in which we ask 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 think another case or opinion that was not shortlisted is more deserving of receiving our ‘award’ instead, you may fill in the field ‘Other’. We welcome all of you to share the reasons for your votes 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, conversely, do you reckon the Court’s reasoning left something to be desired or could more far-reaching human rights protection have been appropriate? 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 learning about your views on these questions!

The polls are open until 28 February 2025. The results of the voting will be announced in March.

Best Judgment

(in alphabetical order)

Krachunova v. Bulgaria

This case concerned the applicant’s attempts to obtain compensation for the earnings from sex work that X, her trafficker, had taken from her. It was the first case in which the Court examined whether the prohibition of forced labour under Article 4 imposed a positive obligation on the State to enable victims of human trafficking to claim compensation from their traffickers for lost earnings. In a lucid and well-reasoned judgment, the Court found that such an obligation did exist in light of three general canons of interpretation: that rights should be interpreted in a way that renders them practical and effective; that the Convention and its Protocols should, as far as possible, be construed in harmony with other rules of international law; and that the Court may have regard to developments in domestic legal systems that indicate the emergence of a European consensus in a given area. In addition to the Court’s clear reasoning, this judgment can be praised from a normative perspective, as it enhances the protection of the rights enshrined in Article 4 and bolsters the position of those whose rights have been violated.

From our blog post by Vladislava Stoyanova: ‘Article 15(3) of the CoE Anti-Trafficking Convention (‘Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators’) reflects the above-mentioned proposition. As I have argued here, the reference to internal law in this provision leaves States wide discretion. Krachunova v. Bulgaria is very useful in limiting this discretion. The discretion has indeed been limited since States are not allowed to deny a victim of human trafficking compensation for pecuniary damages on the ground that the earnings have been immorally obtained.’

M.A. and Z.R. v. Cyprus

The case concerned the interception of Syrian nationals at sea by the Cypriot authorities and their immediate return to Lebanon without their asylum claims being processed. In a strong and well-reasoned judgment, the Court found a violation of Articles 3, 4 of Protocol No. 4 (prohibition of collective expulsion), and 13, on account of the applicants’ return to Lebanon, as well as an additional violation of Article 3 due to how they were treated by the Cypriot authorities during the two days they remained on the boat. Particularly notable in this judgment is the Court’s thorough engagement with the evidence before it and its willingness to shift the burden of proof onto the State in a situation where the events at issue lay wholly, or in large part, within its exclusive knowledge. Although the applicants could not prove by direct evidence that they had expressed a wish to seek asylum, the Court gave credibility to their version of events and found that they had provided sufficient prima facie evidence to shift the burden of proof to Cyprus to refute their claims.

From our post from Isabel Kienzle and Jonathan Kießling: ‘As the parties provided conflicting accounts of the incidents and no prior domestic proceedings had taken place, the ECtHR, despite its subsidiary role, had to establish the facts itself. In the judgment at hand, the Court took this task seriously and examined the submitted evidence thoroughly. Its legal assessment reinforces the procedural obligations following from the principle of non-refoulement and the prohibition of collective expulsion, although limiting these findings to asylum seekers.’

The J. Paul Getty Trust and Others v. Italy

This case concerned a confiscation order, issued by the Italian authorities, aimed at the recovery of an object of cultural heritage, the Statue of Victorious Youth, a bronze statue dating from the classical Greek period and attributed to Lysippus. Discovered by fishermen in the Adriatic Sea in 1964, the statue was allegedly illegally purchased by the J. Paul Getty Trust during the 1970s and has been displayed in the Getty Museum in California ever since. In its ruling, the Court found that the confiscation order was lawful and had been adopted in the public interest to protect cultural heritage. It also found that the order was proportionate, given the lack of due diligence shown by the Getty Trust, which failed to carry out a ‘careful and objective assessment of the Statue’s provenance.’

As Marie Sophie de Clippele explains in her blog post on the case, while the Court ‘carefully avoid’ giving a straight answer to the long contested issue of the Statue’s ownership, this is a ‘landmark case for historical restitution claims’ as ‘[t[he Court recognizes an international and European consensus on the protection and restitution of cultural heritage to its country of origin, while also carving a breach in the inter-temporality of the law.’

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

In one of its most high-profile judgments this year, the ECtHR found that Article 8 of the ECHR encompasses a right to effective protection by State authorities from the serious adverse effects of climate change on lives, health, well-being, and quality of life. Accepting the admissibility of a claim by an environmental NGO for the first time, the Court found that Switzerland had failed to comply with its positive obligations concerning climate change, as there were critical gaps in the process of implementing the relevant domestic legal framework. The Court also found a violation of Article 6.1, as the Swiss courts had not provided sufficient reasons for considering it unnecessary to examine the merits of the applicant association’s complaint.

From Jef Segher’s post on our blog: ‘In its 9 April judgments, the ECtHR created a new paradigm for rights-based climate change litigation. The Grand Chamber put the living instrument doctrine to work, interpreting Convention obligations in the light of climate change. While it was clearly aware of the criticism it opened itself up to, the decisions are carefully argued in legal terms, and thoroughly grounded in unimpeachable climate science. The Court, in my opinion, thus fully exercises its mandate, without overstepping any boundaries set by the separation of powers: the reality of climate change compels it to spell out what is required to safeguard Convention rights. Even though climate change is technically complex, the judgment is legitimised by its highly robust scientific underpinnings. The principles developed are sure to be applied in future climate cases before the Court. Even though these will raise new points of law, it will be almost impossible for both states and the Court to argue their way out of their obligations in view of the undeniable reality of climate change and the dangers it poses to human rights.’

Wa Baile v. Switzerland

This case concerned an allegation of racial profiling during an identity check at Zurich railway station and the subsequent proceedings in the criminal and administrative courts. In its ruling, the Court found both a procedural and substantive violation of Article 14, read in conjunction with Article 8. It also found a violation of Article 13 in connection with the applicant’s other complaints. 

On a procedural level, the Court condemned Switzerland for its failure to examine whether racial discrimination played a role in the police search to which the applicant was subjected. With respect to the substantive violation, the Court indicated that the absence of an appropriate legal and administrative framework could give rise to discriminatory identity checks. In light of a previous judgment by an administrative court, which found that the identity check had not been based on objective reasons, a presumption of discrimination had arisen, which the State failed to rebut. In contrast to its previous case law, in Wa Baile the Court clearly established that where there is evidence that a State does not have an appropriate framework in place to protect against racial profiling, indications of a general practice of racial profiling are sufficient to shift the burden of proof onto the State, relieving the applicant of the obligation to prove individual racist intent.

From our blog post from Nozizwe Dube: ‘Wa Baile is an improvement of the ECtHR’s racial profiling jurisprudence. To begin with, the ECtHR foregrounded the systemic nature of racial profiling. This differs from Muhammad and Basu where it prioritised requiring applicants to prove individual racist intent. By considering the systemic nature of racial profiling in Wa Baile, the ECtHR was able to conclude that there was a presumption of discriminatory treatment. This is important because in Basu (§38) the ECtHR had been unable to determine whether there had been a substantive violation of Article 14 in conjunction with Article 8 due to its individual-oriented assessment.’

Worst Judgment

(in alphabetical order)

Dian v. Denmark

In this case, the applicant was a homeless person who had been criminally convicted for begging in Denmark. Before the ECtHR, he argued that this conviction constituted a violation of his right to respect for private life as enshrined in Article 8. However, the Court found his application ‘manifestly ill-founded’, stating that the applicant was not sufficiently vulnerable in light of his economic and social situation, thereby insinuating that the applicant was ‘not poor enough’ for his complaint to infringe upon his private life. It highlighted in particular that begging did not constitute the sole means to survival for the applicant. In so doing, the Court appeared to deviate from its seminal Lăcătuş judgment.

From our blog post by Sarah Ganty: ‘In a nutshell, in an unexpected reversal, the ECtHR pulled the rug out from under a slow movement towards the decriminalization of life-sustaining activities which started after Lăcătuş, sending an ambiguous message to the Member States, which have been taking decriminalization initiatives since then. This backward step from Lăcătuş is difficult to understand, especially when ‘there is a growing international consensus that criminalizing life-sustaining activities in public spaces is not acceptable’. The criminalization of poverty, including of life-sustaining activities, is a real scourge, which has been proven to be damaging and costly for all of society, prompting UN bodies in general and UN rapporteurs one after another to advocate for repealing these destructive, nonsensical legal practices, including in Denmark (see here and here).’

Executief van de Moslims and Others v. Belgium

In Executief van de Moslims and Others v. Belgium, the Court had to rule on the compatibility of a ban on ritual slaughter of animals without stunning with Articles 9 and 14 ECHR. In its judgment, the Court recognised a new legitimate aim (‘the protection of animal welfare’) under the ambit of the protection of morals, and granted the Belgian State a wide margin of appreciation in light of the sensitivity of the issue. No inquiry was conducted into traces of religious hostility that may have been at the basis of the ban. In spite of the applicant organisations’ claim that the alternative of ‘non-lethal’ stunning did not comply with their religious doctrine, the Court ruled that the option was a valid alternative – thereby appearing to weigh in on religious debate, as pointed out by Judge Yüksel in her separate opinion. Furthermore, the fact that no measures had been taken in respect of hunting or fishing was ruled to be not discriminatory. Ultimately, the newly recognised aim succeeded in outweighing the harm caused to Muslim and Jewish minorities.

From our blog post by Harriet Ní Chinnéide and Cathérine Van de Graaf: ‘The application of procedural proportionality review of parliamentary measures in the context of minority rights is  problematic given the inherently majoritarian nature of the democratic legislative process. While it is commendable that the Flemish and Walloon parliaments commissioned expert reports and consulted with representatives of affected groups, it does not mean that the rights of observant Muslims and Jews were properly protected in the resulting decrees. Giving voice to members of minority groups in the parliamentary process may amount to an empty procedural guarantee if their voices ultimately remain unheard. […] We recognise that the Court has to judge the interference with the applicants’ rights in concreto and is thus not tasked with a general reflection on which interventions are desperately needed to improve animal welfare across the Council of Europe. Yet, what needs to be noted is the ease with which the Court accepts novel legitimate aims as justification to interfere with minority rights in this case.’

Nealon and Hallam v. the United Kingdom

This Grand Chamber judgment concerns the British compensation regime for victims of miscarriages of justice. By virtue of this regime, applicants had to show that a ‘new or newly discovered fact’ proved ‘beyond reasonable doubt’ that they had not committed the offence for which they had been convicted. This regime did not violate the presumption of innocence as enshrined in Article 6 (2) ECHR according to the Grand Chamber, as refusal of compensation would not attribute any criminal liability onto the unsuccessful applicants. In particular, the Grand Chamber lauded the respondent government for having refrained from explicitly using the term ‘innocence’, instead phrasing the burden of proof as ‘they had not committed the offence’ – a distinction which appears to amount to nothing more than semantics. Five judges dissented in this judgment, criticising the Grand Chamber for rendering the protection provided by Article 6 (2) ‘illusory’.

From our blog post by Holly Greenwood: ‘Nevertheless, whilst the GC has potentially succeeded in bringing more clarity to the case law, its conclusion about the scope of Article 6 (2) is disappointing. The majority’s decision has arguably reduced the protection of the presumption of innocence in Article 6 (2) post-acquittal/discontinuance to nothing but a semantic exercise. The dissenting judges criticised the majority for rendering the protection in Article 6 (2) to becoming only ‘theoretical and illusory’ (para 9) through their implication that Convention compliance arises purely by ensuring that ‘no wording to the effect the applicant is guilty or not innocent’ is included in the decision.’

Pindo Mulla v. Spain and Lindholm and the Estate after Leif Lindholm v. Denmark

Both of these cases, which we decided to group together for the purpose of this award, involve blood transfusions administered to Jehovah’s witnesses against their will. In both cases, the applicants had made it explicit that they did not wish to receive blood transfusions, yet these were still administered by hospitals when the applicants’ lives grew endangered. The applicants in both cases brought complaints under Articles 8 and 9, yet the Court rephrased the complaints to a balancing exercise between the right to personal autonomy under Article 8, and the States’ duty to protect the lives of patients under Article 2. In so doing, the Court effectively subordinated patient autonomy to a paternalistic understanding of the State’s duty to protect the lives of its citizens.

From our blog post by Thibaut Lesseliers: ‘I agree with Judge Ktistakis’ separate opinion that the Grand Chamber’s ruling in this case is paradoxical and paternalistic in framing it as a ‘conflict of rights’ between Articles 8 and 2. Such framing is only appropriate when the rights at issue belong to different legal persons; while here, only the applicant’s rights were at issue. Moreover, the applicant relied solely on Article 8 and explicitly excluded Article 2 from her complaint. For the Court to then invoke a ‘conflict of rights’ and to preferentially frame the ‘conflict’ around the standards of the right the applicant sought to exclude (i.e. as a duty to protect life with a narrowly construed exception for reliable refusal) is plainly paternalistic.’

Yasak v. Türkiye

While last year’s Grand Chamber judgment in Yalçinkaya v. Türkiye was largely met with enthusiasm in the academic community, this year’s judgment in Yasak v. Türkiye did not quite elicit the same reaction. In the judgment, the Court upheld the conviction of the applicant for membership to a terrorist organisation, the Gülen movement. This membership largely amounted to his involvement as a senior student supervisor. The Court largely endorsed the Turkish government’s arguments, thereby overlooking concerns about the manner in which witness statements were delivered and the fact that his involvement with the movement predated the movement’s designation as a terrorist organisation following the 2016 coup attempt. The applicant’s complaint about the extensive interpretation of domestic law on membership to a terrorist organisation was left unaddressed. Turkish courts have since invoked this judgment to uphold other convictions for membership to a terrorist organisation, in spite of the Yalçinkaya standards. In December, the case was referred to the Grand Chamber.

From our blog post by Yasir Gökçe: ‘by deferring to Türkiye’s counter-terrorism arguments, showing reluctance to acknowledge the ineffectiveness of domestic remedies, or relying on the principle of subsidiarity, the Court has contributed to the continuation of severe human rights violations and the entrenchment of the authoritarian policies in Türkiye, including killings, disappearances, torture, and discrimination against minorities.’

From our blog post by Kerem Altiparmak and Rumeysa Budak: ‘The Yasak judgment is a ruling that gives the green light to convictions for membership of an armed terrorist organisation for non-violent acts, contrary to the principle of non-retroactivity of criminal law. Indeed, the Turkish judicial authorities, which disregarded the Yalçınkaya Grand Chamber judgment for more than a year, have recently taken steps to turn the Yasak Chamber judgment into precedent. The first and most concrete example of this reflection in domestic law took place during the retrial of Mr Yalçınkaya as a result of the Grand Chamber judgment of the ECtHR. The domestic court re-convicted Mr Yalçınkaya relying on the line of reasoning put in the Yasak judgment. If the Yasak judgment becomes a precedent, this will not be limited to Mr Yalçınkaya.’

Best Separate Opinion

(in alphabetical order of the judgments)

Partly Dissenting Opinion by Judge Serghides in Adamčo v. Slovakia (no. 2), Grande Oriente d’Italia v. Italy, and X and Others v. Slovenia

See the judgments here, here and here. Blog post forthcoming.

In three separate partly dissenting opinions from December, Judge Serghides criticized the Court’s practice of declaring certain arguments “not necessary to review.” Elaborating on his perspective in Adamčo v. Slovakia (no. 2), Judge Serghides explains that when a complaint is raised by the applicant, the Court has a duty to examine it, derived from the principle of effectiveness (both as a norm of international law and a method of interpretation), the principle of indivisibility of rights, and the right of individual application. He contends that ‘it is not compatible with the duty of the Court, as the guardian of human rights in Europe, to first select certain complaints as worthy of consideration, and after deciding on them, to be content that it has sufficiently performed its duty and therefore opt out of considering the remainder.’

Partly Dissenting Opinion by Judge Gnatovskyy in Tsaava and Others v. Georgia

See the judgment here.

Tsaava and Others v. Georgia concerned the use of force by the police during the dispersal of a protest outside the Georgian Parliament in June 2019 and the State’s failure to properly investigate the matter. The 26 applicants were participants in the protest or journalists reporting on it, some of whom had been badly injured. In its ruling, the Court found a procedural violation of Article 3, as the criminal investigation into the injuries sustained by the demonstrators and journalists, as well as their alleged ill-treatment during the dispersal of the demonstration, had been ongoing for more than four years without any result. However, with regard to the substantive aspect of Article 3, as well as their complaints under Articles 10 and 11, the Court refrained from taking a decision in light of the fact that the investigation was still ongoing and further facts needed to be elucidated at the domestic level. In doing so, the Court emphasised the principles of subsidiarity and shared responsibility.

In his partly dissenting opinion, Judge Gnatovskyy criticised the majority’s decision to refrain from examining the substantive aspect of Article 3, as well as the complaints under Articles 10 and 11. He suggested that the approach taken in this case is inconsistent with the existing case law and poses ‘fundamental questions about the role of the Court and the very nature of its function.’ Arguing that the majority’s approach has ‘potentially groundbreaking consequences for the development of the case law,’ he asks whether it is appropriate for such a ‘revolutionary innovation’ to be introduced in a Chamber judgment. Moreover, Judge Gnatovskyy contends that the majority’s approach appears to ‘run counter to the very essence of the doctrine of positive obligations developed in the Court’s case-law,’ undermining its ability to provide effective protection to the applicants.

Dissenting Opinion by Judge Mits in Verhoeven v. France

See our blog post here.

In Verhoeven v. France, the applicant, a French national, had married a Japanese national and had moved to Japan with him, where they had a child. A few years later, she returned to France with the child and subsequently filed for divorce. The father applied for assistance in securing the return of the child, which the French courts granted. The ECtHR did not find a violation of Article 8 in this case, stating that the domestic courts had sufficiently taken the child’s best interests into account and had conducted a sufficient examination into the applicant’s claims concerning alleged domestic violence exhibited by the father. 

In his dissenting opinion, Judge Mits disagreed with the majority’s finding that Article 8 ECHR had not been violated. He argued in favour of a revision of the Hague Convention on the Civil Aspects of International Child Abduction, noting that the Convention did not sufficiently take domestic abuse into consideration and potentially exposed victims to repeated victimisation by ordering them to accompany their child to the child’s country of habitual residence. He pointed out that the allegations of domestic violence were insufficiently examined at the domestic level, with the domestic courts taking on an excessively formalistic approach. Finally, Judge Mits highlighted the issues with parental visiting rights in Japan, issues to which the European Parliament had even drawn attention by way of a resolution in the past. In short: ‘While every effort must be made to apply the Convention and the Hague Convention harmoniously, the principle of harmonious interpretation has its limits, which derive from the Court’s duty to discharge its function fully and to apply the Convention in a way that makes its guarantees concrete and effective’.

Joint Partly Dissenting Opinion by Judges Krenc and Sârcu in Vieru v. the Republic of Moldova

See our blog post here.

Vieru v. the Republic of Moldova concerned the death of the applicant’s sister, after she fell from the fifth floor of a building having been subjected to repeated episodes of domestic violence. In its ruling, the Court found a procedural violation of Article 2, a procedural and a substantive violation of Article 3 and a violation of Article 14 read in conjunction with Articles 2 and 3. However, due to the fact that the victim’s death had never been investigated, the Court found that it was not possible to determine without speculation how it occurred. Thus, it did not examine whether a substantive violation of Article 2 took place.

In their partly dissenting opinion, Judges Krenc and Sârcu argued that the Court should have examined this aspect of the case. They noted that the victim had died following a fall from her fifth floor flat while her abuser was present during yet another episode of domestic violence and that in such circumstances, her death could not be ‘divorced from the context of recurring domestic violence’ in which it occurred. In their view, with this ruling, ‘the Court has missed an opportunity to deal with the issue of suicide as it arises in the context of proven domestic violence and to reiterate the corresponding obligations on the authorities to provide support for the victims of such violence who, for the most part, feel isolated and trapped in their own private tragedy.’ 

Partly Dissenting Opinion by Judge Răduleţu, joined by Judges Vehabović and Guerra Martins in Zăicescu and Fălticineanu v. Romania

See our blog post here.

In Zăicescu and Fălticineanu v. Romania, the applicants complained of the retrial and acquittal of two army officers in the 1990s, who had been convicted for their involvement with the persecution of Romanian Jews during World War II, and in particular their involvement in the Iași pogrom. The applicants, who were both Holocaust survivors, were not informed about the acquittals until 2016. The ECtHR found a violation of Article 8 read in conjunction with Article 14 as far as the secondary victimisation of the applicants is concerned, and found that the authorities should have publicised the retrial proceedings and their outcome. However, the Court found the complaints under Article 3 as to the investigation into the deaths and ill-treatment of Holocaust victims inadmissible ratione temporis, as the events of World War II predated Romania’s ratification of the ECHR.

In his dissenting opinion, Judge Răduleţu disagreed with this finding, stating that the Court in fact had jurisdiction as the reopening of the trials and subsequent acquittals of the perpetrators had not taken place until after the Convention had entered into force in Romania. The majority should not have relied on the Janowiec and Others v. Russia case, and the ‘genuine connection’ test and the ‘Convention values’ test ought not to have been applied.