Context

In the case of Communauté genevoise d'action syndicale (CGAS) v. Switzerland, the European Court of Human Rights ( The Court "The European Court of Human Rights (ECHR) has had occasion to rule on the compatibility of certain measures to combat the coronavirus with Article 11 of the European Convention on Human Rights (hereinafter " the Convention ") which enshrines freedom of assembly and association.

Facts

As part of the fight against the spread of the COVID-19 virus, the Swiss government adopted the ordinance "O.2 Covid 19" which, among other things, prohibits public or private demonstrations and limits gatherings to a maximum of 5 people in public areas. While the possibility of obtaining an exemption for demonstrations aimed at exercising political rights was initially enshrined, it was excluded as of 16 March 2020.

These prohibitions are accompanied by a criminal sanction involving deprivation of liberty or a fine.

The applicant is an association whose statutory aim is to defend the interests of workers and its member organisations, particularly in the field of democratic freedoms. In its application, the applicant association alleges a violation of the Convention in that it has been deprived of the right to organise and take part in public meetings.

Decision of the Court

 On the merits, the Court notes first of all that the prohibition on public meetings, which was part of the measures taken by the Government to combat the coronavirus, constitutes an interference with the applicant's right to freedom of assembly, as guaranteed by Article 11§1^er of the Convention.

The Court then examines the justification for this interference.

As regards the legal basis, the Court considers that there is a sufficient legal basis for the interference.

With regard to the legitimate aimThe Court accepted the Government's argument that the measures at issue pursued legitimate aims within the meaning of Article 11§2 of the Convention, namely the protection of health and the protection of the rights and freedoms of others.

With regard to the necessity in a democratic societyThe Court notes that a general prohibition of a certain conduct is a radical measure which requires a strong justification and a particularly serious review by the courts.

The Court observes that between 17 March and 30 May 2020, all the events by which the applicant association could have pursued its activities by virtue of its statutory aim were subject to a general ban.

However, in the Court's view, even assuming that a strong justification existed, namely the effective fight against the global pandemic of the coronavirus disease, it was found that no serious review by the courts, and in particular by the Federal Court, had taken place.

Thus, without denying the threat posed by the coronavirus to society and public health, the Court nevertheless considers, in the light of the importance of freedom of peaceful assembly in a democratic society, and in particular the general nature and considerably long duration of the ban on public demonstrations falling within the scope of the applicant association's activities, as well as the nature and severity of the penalties provided for, that the interference with the exercise of the rights protected by Article 11 was not proportionate to the aims pursued.

The Court finds a violation of Article 11 of the Convention.

Comments

The criteria used by the Court to find that the disputed measure was not proportionate

are worth noting:

• The Court stresses the importance of freedom of peaceful assembly in a society

and puts this fundamental freedom back at the heart of the democratic debate;

• The Court uses the criterion of judicial review, which must be available against measures taken by the executive. As Judge KRENC points out in his concurring opinion, access to independent and effective judicial review is a fundamental guarantee against the risk of excess and abuse, which can never be overlooked;

• The Court stresses the disproportionality of the measure in view of its general nature and its considerably long duration;

• The Court uses the criterion of the severity of the penalties for infringement. Where there is a restriction on freedom of association, the sanctions cannot be so severe as to have a deterrent effect on potential participants or groups wishing to organise such events.

The conclusion reached by Judge KRENC in his concurring opinion is worth reproducing:

" Faced with a situation as exceptional and uncertain as the Covid-19 pandemic, the task of the internal authorities, guarantors of public health, was considerably more complex, especially at the beginning of this pandemic, the extent and duration of which nobody could predict. This complexity must be taken into account when assessing decisions with the comfort of hindsight. However, this judgment sets out salutary guidelines that help to preserve my conception of the rule of law within the meaning of the Convention. The Court had a duty to recall them, on pain of failing in its task ".

Jean LAURENT and Charlotte VERRIER.

For more information, please contact Jean LAURENT (jean.laurent@cew-law.be), lawyer, CEW & Partners.