Prohibition of public events as an anti COVID-19 measure and imposition of criminal sanctions! Violation of the freedom of assembly
JUDGMENT
Communaute genevoise d’action syndicale (CGAS) v. Switzerland 15.03.2022 (app. no. 21881/20)
SUMMARY
Prohibition of public events of a union as a preventive measure regarding COVID-19. Freedom of assembly.
The applicant association, Communaute genevoise d’action syndicale (CGAS), is based in Geneva. Its aim is to defend the interests of workers and member organizations, especially in the field of trade union and democratic freedoms, by organizing and participating in dozens of events each year in the Canton of Geneva.
It complained that it was deprived of the right to organize and participate in public events after the adoption of government measures to address COVID-19 under Decree O.2 COVID-19, adopted by the Federal Council on 13 March 2020. Based on this decree , public and private events have been banned since March 16, 2020. Failure to comply with the ban was punishable by imprisonment or a fine.
In particular, citing Article 11 (freedom of assembly and association) of the ECHR, the applicant association complained that it had been deprived of the right to organize and participate in public events following government measures adopted under that decree.
The ECtHR ruled that the ban on public gatherings, which is part of the government’s measures to deal with COVID-19, was tantamount to interfering with the association’s exercise of the right to freedom of assembly. The intervention was based on Decree O.2 COVID-19 and aimed at protecting the health and rights and freedoms of others. He added that, given the urgency of taking appropriate action to address the unprecedented threat of COVID-19 in the early stages of the pandemic, it was not necessary to expect very detailed discussions at home, especially with his participation. Parliament, before adopting the urgent measures deemed necessary to tackle the global scourge. However, in such circumstances, an independent and effective judicial review of the measures adopted by the executive was even more vital.
Although the threat posed by COVID-19 to society and public health is by no means ignored, the Court has ruled – in the light of the importance of freedom of peaceful assembly in a democratic society, and in particular the issues and values promotes, in accordance with its statutes, the general nature and duration of the ban on public events within its sphere of activity and the nature and severity of possible sanctions Article 11 was not commensurate with the objectives pursued. In addition, the national courts had not effectively reviewed the measures complained of during that period. Switzerland had exceeded the margin of appreciation.
The Court found a violation of Article 11 (freedom of assembly and association) of the ECHR and awarded the applicant EUR 3,000 in costs and expenses.
PROVISION
Article 11
PRINCIPAL FACTS
The applicant, Communaute genevoise d’action syndicale (CGAS), is an association under Swiss law
with its registered office in Geneva. Its declared aim is to defend the interests of workers and of its
member organisations, especially in the sphere of trade-union and democratic freedoms. According
to the association, it organises and participates in dozens of events each year in the Canton of
Geneva.
In the present case 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
under Ordinance O.2 COVID-19, enacted by the Federal Council on 13 March 2020. On the basis of
that ordinance, public and private events were prohibited with effect from 16 March 2020. Failure to
comply with the prohibition was punishable by a custodial sentence or a fine.
On 26 May 2020 the applicant association applied to the European Court of Human Rights,
complaining that, following the enactment of O.2 COVID-19, it had been obliged to cancel a rally
planned for 1 May 2020 and had withdrawn its request for authorisation.
As of 30 May 2020 the ban on gatherings was relaxed (maximum of 30 participants). Events involving
more than 1,000 participants continued to be prohibited until the end of August 2020.
On 20 June 2020 the ban on public events was lifted, although participants were required to wear a
mask.
THE DECISION OF THE COURT…
Article 11 (freedom of assembly and association)
Admissibility
On the question of victim status the Court found that the applicant association – which had been
obliged to alter its behaviour and even to refrain, in order to avoid criminal penalties, from
organising public events that would have contributed to the achievement of its declared aim – could
claim to be a victim of a violation of the Convention.
With regard to the exhaustion of domestic remedies, the Court noted that at the relevant time the
applicant association had not had an effective remedy, available in practice, by which to complain of
a violation of its right of assembly within the meaning of Article 11 of the Convention. In particular,
although federal ordinances could normally be the subject of a preliminary ruling on constitutionality by the Federal Supreme Court, including in the absence of any current interest, that
court, in the very particular circumstances of the general lockdown declared by the Federal Council
as part of efforts to tackle COVID-19, had not examined freedom-of-assembly applications on the
merits and had not assessed the compatibility of Ordinance O.2 COVID-19 with the Constitution.
The Court therefore declared the application admissible.
Merits
The Court considered that the ban on public gatherings, which formed part of government measures
to tackle COVID-19, amounted to interference with the exercise by the applicant association of its
right to freedom of assembly. The interference had been based on Ordinance O.2 COVID-19 and had
been aimed at the protection of health and of the rights and freedoms of others.
Regarding the necessity of the measure in a democratic society, the Court reiterated the principles
set out in Kudrevičius and Others.
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. It also took into account the competing interests at stake in the very
complex circumstances of the pandemic, and especially the positive obligation for the States Parties
to the Convention to protect the lives and health of the persons within their jurisdiction, under
Articles 2 and 8 of the Convention in particular.
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 it and called for particularly thorough scrutiny by the courts empowered to weigh
up the interests at stake. 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. Accordingly, the balancing exercise between the competing interests at
stake, required by the Court for the purposes of assessing the proportionality of such a drastic
measure, had not been carried out. This was especially worrying in terms of the Convention given
that the blanket ban had remained in place for a significant length of time.
The Court added that, in view of the urgency of taking appropriate action to counter the
unprecedented 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 under O.2 COVID-19, the Court reiterated
that the imposition of criminal sanctions had to be justified by particularly strong reasons and that
the organisation of a peaceful gathering should not normally entail a risk of such sanctions. In the
present case, 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. Accordingly, it had been required to abide by the
Convention under Article 1 and, in the context of the present case, to comply fully with the
requirements of Article 11, within the margin of appreciation afforded to it.
While by no means disregarding the threat posed by COVID-19 to society and to public health, the Court nevertheless held, in the light of the importance of freedom of peaceful assembly in a democratic society, and in particular of the topics and values promoted by the applicant association
under its constitution, the blanket nature and significant length of the ban on public events falling
within the association’s sphere of activities, and the nature and severity of the possible penalties,
that the interference with the enjoyment of the rights protected by Article 11 had not been
proportionate to the aims pursued. Moreover, the domestic courts had not conducted an effective
review of the measures complained of during the relevant period. Switzerland had thus overstepped
the margin of appreciation afforded to it in the present case. Consequently, the interference had not
been necessary in a democratic society within the meaning of Article 11 of the Convention and there
had therefore been a violation of that provision.
Just satisfaction (Article 41)
The Court held (4 votes to 3) that the finding of a violation of Article 11 constituted sufficient just
satisfaction in respect of any non-pecuniary damage sustained by the applicant association. It also
held that Switzerland was to pay the applicant association 3,000 euros (EUR) in respect of costs and
expenses.
Separate opinions
Judge Krenc expressed a concurring opinion, joined by Judge Pavli.
Judges Ravarani, Seibert-Fohr and Roosma expressed a joint dissenting opinion.
These opinions are annexed to the judgment.
