29 Mar General anti-COVID measures prohibiting public events in breach of the Convention

In the case of Communaute genevoise d’action syndicale (CGAS) v. Switzerland (application no. 21881/20, 15.03.2022) the European Court of Human Rights held, by a majority (4 votes to 3), that there had been a violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights.

The applicant, is an association under Swiss law whose declared aim is to defend the interests of workers and of its member organisations, especially in the sphere of trade-union and democratic freedoms. The applicant association complained of being deprived of the right to organise and participate in public events following the adoption of government measures to tackle COVID-19.

The Court recognised in the present case that the threat to public health from COVID-19 had been very serious and that knowledge of the characteristics and dangerousness of the virus had been very limited at the beginning of the pandemic; accordingly, States had had to react swiftly during the period under consideration. The Court considered at the outset that the outright prohibition of a certain type of conduct was a drastic measure which required strong reasons to justify it and called for particularly thorough scrutiny by the courts empowered to weigh up the interests at stake. Between 17 March and 30 May 2020 all the events by means of which the applicant association might have conducted its activities in accordance with its statutory aim had been subject to an outright ban. According to the Court’s case-law, a blanket measure of this kind required strong reasons to justify. Even assuming that such a reason had existed – namely the need to tackle the global COVID-19 pandemic effectively – it transpired from the Court’s examination of the exhaustion of domestic remedies that no such scrutiny had been performed by the courts, including the Federal Supreme Court.

The Court added that, in view of the urgency of taking appropriate action to counter the threat posed by COVID-19 in the early stages of the pandemic, it was not necessarily to be expected that very detailed discussions would be held at domestic level, and especially involving Parliament, prior to the adoption of the urgent measures deemed necessary to tackle this global scourge. However, in such circumstances independent and effective judicial review of the measures taken by the executive was all the more vital.

As to the penalty for a breach of the ban on public events, a new Article 10d had been inserted in Ordinance O.2 COVID-19 on 17 March 2020. According to that provision, any person who deliberately violated the ban on public events under Article 6 of the ordinance was liable to a custodial sentence not exceeding three years or to a fine (except in the presence of a more serious offence within the meaning of the Criminal Code). In the Court’s view, these were very severe penalties that were liable to have a chilling effect on potential participants or groups seeking to organise such events.

Lastly, the Court emphasised the fact that in the face of the worldwide public-health crisis, Switzerland had not had recourse to Article 15 of the Convention, which allowed a State Party to take certain measures derogating from its Convention obligations in time of war or other public emergency threatening the life of the nation. 

References from the official website of the European Court of Human Rights