ECHR application for the prohibition to hold a pblic event due to COVID before domestic remedies are exhausted. Inadmissible application
JUDGMENT
Communauté genevoise d’action syndicale (CGAS) v. Switzerand 30.11.2023 (app. no. 21881/20)
SUMMARY
The applicant is an association which defends the interests of workers and its members’ organisations, in particular in the field of trade union and democratic freedoms. During the restrictive measures in the wake of the covid 19 pandemic, the authorities refused to grant it a permit to hold a rally on 1 May 2020.
Before the European Court of Justice, the applicant association complained that it had been deprived of the right to organise and participate in public meetings as a result of the measures taken by the Swiss government in the context of the coronavirus response from 17 March to 30 May 2020.
Relying on Article 11 (freedom of association), the applicant association claimed, for the first time before the Broad Composition Chamber, that the ban on all assemblies, public or private, imposed by the above decree had infringed its right to freedom of association. Also under Article 11, the applicant association considered that the prohibitions introduced by Ordinance COVID-19 No. 2 had violated its right to freedom of peaceful assembly.
According to the ECtHR, in accordance with Article 35 § 1 of the Convention (admissibility criteria) as in force at the relevant time, the applicant association was obliged to submit this new application, at the latest, within six months of 30 May 2020, the date on which Decree COVID-19 No. 2 had ceased to be in force, and declared it inadmissible on this point.
It further clarified that, in the unprecedented and highly sensitive context of the COVID-19 pandemic, it was all the more important to first give national authorities the opportunity to strike a balance between competing private and public interests or between different rights protected by the ECHR. It held that the applicant association had not taken appropriate steps to enable the national courts to fulfil their fundamental role in the Convention’s system of protection and rejected the application by a majority as inadmissible.
PROVISIONS
Article 11
Article 35
THE DECISION OF THE COURT…
Article 11:
(1) Scope of the case – The Grand Chamber’s examination of the case was limited to the applicant association’s complaint of a violation of its right to peaceful assembly, as brought before the Chamber and examined by it. The complaint that the prohibitions introduced by O.2 COVID-19 no. 2 had constituted a violation of its rights under Article 11 also from the perspective of the right to trade-union freedom had been raised for the first time before the Grand Chamber and thus had constituted a new complaint relating to the distinct requirements of that provision. Accordingly, it fell outside the scope of the case as referred to the Grand Chamber. In any event, that complaint was inadmissible for failure to comply with the six-month rule under Article 35 § 1 of the Convention as in force at the relevant time since it had not been raised within six months of 30 May 2020, the date on which O.2 COVID-19 no. 2 had ceased to apply.
Conclusion: new complaint from the angle of trade-union freedom outside the scope of the case and, in any event, inadmissible (six months) (unanimously).
(2) The Government’s preliminary objection –
(a) Victim status – The question which arose was whether, in the absence of an individual measure taken against the applicant on the basis of the impugned legislation, it could nonetheless claim to be a “victim” within the meaning of Article 34 of the Convention.
According to the Court’s case-law, an applicant could claim that a law breached his or her Convention rights even in the absence of an individual measure of implementation –leaving aside the specific context of secret surveillance measures – where the individuals concerned had been required either to modify their conduct or risk being prosecuted or punished, or where they had adequately demonstrated that they belonged to a class of people who risked being directly affected by the legislation in question. The Chamber had concluded that the applicant association had belonged to the first group, in that it had been obliged to refrain from organising public meetings to avoid the criminal penalties provided for in O.2 COVID-19 no. 2.
However, only individual members of the association, or its representatives, would have been liable, for non-compliance with the ban on gatherings, to the imposition of sanctions based on the impugned legislation. Under the Criminal Code, the criminal liability of a non-profit‑making private association – such as the applicant association – could not be engaged. Consequently, the present case could not be compared to those in which the applicants had been required to choose between complying with the impugned legislation or the risk of being directly and personally exposed to sanctions.
It thus had to be determined whether the applicant association had nonetheless been directly affected by O.2 COVID-19 no. 2.
The Grand Chamber recalled that previous cases in which the Court had held that the applicants had been permitted to complain about a law in the absence of individual implementing measures, concerned texts which had been applicable to predefined situations regardless of the individual facts of each case and, in consequence, likely to infringe those persons’ rights under the Convention by their mere entry into force. That had not been so in the instant case. Although in the version of O.2 COVID-19 no. 2 in force from 17 March 2020 the possibility of requesting exemptions for “the exercise of political rights” had been removed, the granting of exemptions had still remained possible “if justified by an overriding public interest”, and if the organiser submitted a protection plan that was considered adequate. Indeed, the Government had indicated that several exemptions had been requested during the period of application of O.2 COVID-19 no. 2 and that, in certain cases, they had been granted by the administrative authorities, with the result that several gatherings had been held in public places. The Grand Chamber could not therefore subscribe to the Chamber’s conclusion that the impugned ban had amounted to a “general measure”, in the sense of a legislative measure which applied to predefined situations regardless of the individual facts of each individual case. In that connection, the Grand Chamber noted that it could it speculate in the abstract whether the events that the applicant association wished to organise might have entailed an “overriding public interest,” thus justifying the granting of an exemption.
Lastly, the applicant association had deliberately chosen not to continue the authorisation procedure begun by it for the purpose of holding an event on 1 May 2020, even before receiving a formal decision from the competent administrative authority that could have been challenged before the courts. In addition, it had also refrained from submitting any other authorisation request. Such conduct, without adequate justification, had a bearing on its victim status. In its capacity as a non-profit-making private association the applicant association had not been subject to criminal sanctions. Hence, its decision not to continue the authorisation procedure could not be justified by the fear of their imposition. In any event, there was nothing to suggest that the mere fact of taking administrative steps to organise public events would have amounted to conduct that had been likely to be sanctioned.
The applicant association’s conduct had therefore had the effect of not only depriving it of its status as a “direct” victim, within the meaning of Article 34, but also of an opportunity to apply to the courts and to complain, at national level, of a violation of the Convention.
As the issue of compliance with the rule of exhaustion of domestic remedies was closely linked to that of victim status, particularly with regard to a measure of general application such as a law, the Grand Chamber considered it necessary to examine that question too.
(b) Exhaustion of domestic remedies – The applicant association had not complained of a breach of its right to freedom of assembly arising from a refusal to organise a specific public event, but from the general prohibition prohibiting such events introduced by O.2 COVID-19 no. 2. The Court therefore had to determine whether, in the light of the parties’ submissions and all the circumstances of the case, the applicant association had had available to it at the material time a domestic remedy that would have enabled it to obtain a review of whether O.2 COVID-19 no. 2 had been compatible with the Convention.
Under domestic law it was possible to obtain review of the compatibility of normative acts of the Federal Assembly and the Federal Council with provisions of superior legal force, through a preliminary ruling, as part of the ordinary examination of a specific case by the judicial bodies at all levels. That was clear from the Federal Supreme Court’s consistent case-law, several examples of which had been produced by the Government, including in the specific sphere of combating the COVID-19 pandemic. Indeed, all the elements of relevant domestic law that had been produced indicated that an application for a preliminary ruling on constitutionality, lodged in the context of an ordinary appeal against a decision implementing federal ordinances, was a remedy which was directly accessible to litigants and made it possible, where appropriate, to have the impugned provision declared unconstitutional. That was not disputed by the applicant association; it rather argued that such a remedy would have not offered reasonable prospects of success in the circumstances in the present case.
In so far as it argued that given the circumstances prevailing at the relevant time, it had been unlikely that the ordinary court required to examine its case would have ruled in advance of the date of the planned event, the Grand Chamber noted that the requirement that judicial review took place prior to the date set for the intended public event had been developed in the Court’s case-law regarding remedies to secure judicial review of an individual measure restricting freedom of assembly under Article 11. However, that criterion was not absolute, as the consequences of failure to comply with it would depend on the circumstances of each case. It transpired from the Court’s case-law that that criterion entered into play if the organisers complied with the time-limits laid down in the domestic law. Equally, the planned date of the event must be of crucial importance for the organiser.
The situation complained of by the applicant association did not result from a specific measure restricting freedom of assembly, but from the very content of O.2 COVID-19 no. 2. The Grand Chamber considered that that criterion was not in itself decisive for determining whether the given remedy made it possible, in the circumstances of the case, to obtain a review of whether the legislation in question had been compatible with the Convention.
The applicant association also argued that once the case had been brought before the Federal Supreme Court, the latter would have would have probably refused to give a ruling on an appeal as being devoid of current interest as it had done in another case, the so-called “Strike for the Climate” case. The Grand Chamber, however, did not accept that argument. The Government had submitted several examples, including in the field of measures taken against COVID-19, showing that that court habitually waived the requirement of a current interest in order to have standing where the dispute was likely to recur in identical or similar circumstances, where the nature of the issue meant that it could not be determined before it was no longer topical, or if there were sufficiently important public-interest grounds for resolving the question in dispute. The Federal Supreme Court had justified its decision in the “Strike for the Climate” case in the light of the specific circumstances of that case and the judgment had been delivered after the lodging of the instant application with the Court. The outcome in that case could not itself be regarded as a particular circumstance which would have released the applicant association, at the relevant time, from the obligation to exhaust the domestic remedies.
Drawing attention to its fundamentally subsidiary role, the Court reiterated that in health care policy matters the margin of appreciation afforded to States was a wide one and that the national courts should initially have the opportunity to determine questions regarding the compatibility of domestic law with the Convention.
In addition, the Grand Chamber could not ignore the exceptional nature of the context which had existed at the relevant time. The emergence of the COVID-19 pandemic had presented the States with the challenge of protecting public health while guaranteeing respect for every person’s fundamental rights. All the member States of the Council of Europe had decided to restrict certain fundamental rights, including freedom of assembly in public places. During the first phase of the pandemic, a large number of international organisations and bodies had underlined the need to take urgent measures with a view to mitigating the impact of the pandemic and compensating for the lack of a vaccine and medication. Those same bodies had called on States to ensure that the rule of law, democracy and fundamental rights were maintained. In that unprecedented and highly sensitive context, it had been all the more important that the national authorities had been first given the opportunity to strike a balance between competing private and public interests or between different rights protected by the Convention, taking into consideration local needs and conditions and the public-health situation as it had stood at the relevant time.
The applicant association, however, had failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, namely, to prevent or put right eventual Convention violations through their own legal system. Accordingly, even supposing that the applicant association could claim to have victim status, the application was inadmissible for failure to exhaust domestic remedies.
Conclusion: preliminary objection allowed (non-exhaustion of domestic remedies); inadmissible (twelve votes to five).
