May 09, 2022
by Stijn Smet
Communauté genevoise d’action syndicale (CGAS) v. Switzerland is the first COVID-19 case (that I am aware of) in which the European Court of Human Rights (ECtHR) has found a violation of the European Convention on Human Rights (ECHR). In CGAS, the Court rules that an absolute ban on public manifestations, which remained in place for roughly ten weeks at the start of the COVID-19 pandemic in Switzerland, violates the right to freedom of peaceful assembly (article 11 ECHR).’
The case stands out from earlier COVID-19 cases tackled by the ECtHR (see here and here), in that the Court adopts a less deferential stance towards the state in its new(er) judgment. Careful scrutiny of both the procedural and substantive aspects of the case guide to the conclusion that the absolute ban on public manifestations in place at the start of the COVID-19 pandemic in Switzerland violates article 11 ECHR in procedural terms (given the absence of judicial review of the COVID-19 measure) and in substantive terms (given the disproportionate nature of the ban).
Yet, the Court’s ruling in CGAS is not uncontroversial. It was delivered with the narrowest possible majority (4-3) and comes with a vocal dissent by the three judges in the minority. The dissenting judges disagree vehemently with the majority on just about every significant aspect of the case. This post will discuss the major points of disagreement amongst the judges, delving into both procedure and substance. But first, a brief summary of the facts.
The applicant in CGAS is an association that aims to defend the interests of working and non-working persons, especially in the sphere of trade-union and democratic freedoms. In Strasbourg, it claimed to be the victim of a complete deprivation of its right to organise public demonstrations at the start of the COVID-19 pandemic. Through a series of federal ordinances, Switzerland had adopted the familiar COVID-19 measures in the early months of the pandemic. These included an absolute ban on public demonstrations, which remained in place (in slightly different iterations) for roughly ten weeks, before restrictions were gradually eased to first 30 and later 300 persons in the subsequent four weeks (after which all public assemblies were permitted once more). Breaches of these early COVID-19 measures were punishable by a prison sentence of up to three years or a criminal fine.
Before the ECtHR, the applicant organisation complained about its complete inability to organise or take part in public assemblies from mid-March 2020 until the end of May 2020. It referred, in particular, to feeling obliged to withdraw its request for authorisation of a Labour Day manifestation on 1 May 2020, since the federal ordinance clearly prohibited all public manifestations under penalty of criminal sanctions.
In its judgment, the ECtHR considers three significant aspects of the case, all of which are potentially controversial: (a) the applicant’s victim status; (b) the exhaustion of domestic remedies; and (c) the proportionality of the interference with the right to freedom of peaceful assembly. Let us have a closer look at each of these points.
In relation to the question of victim status, it was beyond dispute that the applicant organisation had not been the victim of a concrete decision banning it from organising a specific demonstration. Instead, it complained in Strasbourg about the abstract rule in the federal ordinances. This case thus raised the spectre of actio popularis, an action that is not admissible under the Convention system. The majority nevertheless entertained the case by categorising it among those ‘very exceptional’ (para. 37) situations in which victim status is extended to potential victims of a violation of Convention rights.
Depending on the perspective one takes, CGAS involves either a valid application of the potential victim doctrine (per the majority) or an invalid extension thereof to situations it was not intended to cover (per the dissenters). To buttress its application of the potential victim doctrine, the majority underscores the analogy between CGAS and earlier cases, especially Dudgeon v. the United Kingdom, noting that the applicant organisation was forced to adapt its behaviour (that is, by not organising demonstrations) under penalty of criminal sanctions. The dissenting judges, by contrast, emphasise a central difference between the applicant organisation’s case and Dudgeon, insofar as CGAS would not need to willingly subject itself to a criminal trial just to be able to challenge the ordinance at the domestic level. All it needed to do, according to the dissenting judges, was request authorisation of a demonstration and challenge the refusal thereof (as such, this did not involve any threat of criminal sanctions).
Both the majority judgment and the dissent rely on seemingly valid reasoning, emphasising different aspects of the potential victim doctrine. The majority rightly indicates that the CGAS was forced to adjust its behaviour in response to the absolute ban and did so under threat of criminal penalties. This indeed makes the case analogous to Dudgeon. The dissenting judges also have a point, however, when they note that the consequences of following through on its normal behaviour were less grave for the applicant organisation than it was for the applicants in Dudgeon. Perhaps the most accurate interpretation of the majority reasoning, then, is that it entails a valid extension (not merely a straightforward application) of the Dudgeon doctrine to a new situation.
If one agrees with the majority on this point (as I do), an important question remains: how far can and will the potential victim doctrine be stretched in the future? Naturally, there must remain limits to its extension, lest the ECtHR become a sort of court of appeal, in abstract review cases, to domestic constitutional courts and highest administrative courts. Or lest the Court assume the role of a court of first instance in abstract review cases, as the dissenting judges accuse the majority of doing in CGAS. Which brings us to the second point of disagreement between the majority and the minority: the exhaustion of domestic remedies.
Exhaustion of domestic remedies
A particular feature of the CGAS case, which limits the broader relevance of the majority’s procedural findings, concerns the operation of article 189 of the federal Constitution of Switzerland. This constitutional provision prohibits judicial review by the federal Tribunal of not just federal legislation, but also decrees issued by the executive branch of the federal government. The applicant organisation thus argued that the Swiss constitutional framework prevented it from challenging the absolute ban on public demonstrations before the domestic courts. This forced CGAS, so it claimed, to bring its case directly to the Court, by-passing all domestic courts.
The dissenters construe this as a ‘short-circuiting’ of the subsidiary nature of the Convention machinery (more on their reasoning below). The majority, by contrast, agrees that no effective domestic remedies were available to challenge the contested measure. As a result, the requirement to exhaust domestic remedies could not pose a procedural hurdle to the applicant’s case in Strasbourg. An applicant cannot exhaust remedies that do not exist.
Moving from admissibility to the merits, the majority subsequently comes to the inevitable conclusion – having declared the case admissible – that the lack of judicial review of the proportionality of the COVID-19 measure entails a procedural violation of article 11 ECHR. Domestic judicial review of the proportionality of rights-infringing measures is an obvious cornerstone of the subsidiary nature of the Convention system. Its complete absence in the face of executive action that restricts Convention rights logically leads to the finding of a violation, as the majority rightly concludes.
It should be noted that the implications of this finding do not extend (far) beyond the Swiss context. Since most Council of Europe states do provide for abstract judicial review of executive action (there is more divergence in relation to constitutional review of legislation), the same issue will simply not arise in these jurisdictions. In other Council of Europe countries, an applicant organisation in analogous circumstances could have challenged the decree before the (administrative) courts. Switzerland is an outlier in this respect, by barring judicial review of decrees issued by the executive branch of government.
Although its broader relevance is thus limited, the procedural conclusions of the CGAS judgment may have major ramifications for the Swiss system of judicial review. The judgment might require a constitutional amendment in Switzerland to introduce abstract judicial review of the proportionality of at least the kinds of rights-restrictive measures at issue in CGAS. Perhaps for this reason, the dissenters vehemently disagree with the majority. They argue that the majority finding of admissibility rests on a fundamental misunderstanding of the Swiss system of judicial review.
While abstract review was indeed precluded, so note the dissenters, a perfectly viable avenue for concrete review remained available to the applicant organisation. It could – and according to dissenters should – have simply pursued a request to organise a peaceful assembly. Once this request was rejected, it could then have challenged the refusal before the domestic courts, claiming a violation of its right to peaceful assembly. Since such a claim on the basis of the exception of illegality was within the applicant organisation’s reach, not all domestic remedies had been exhausted. Or so argue the dissenting judges.
Although the dissent’s argument follows logically from a strictly theoretical understanding of public law remedies, it remains hard to find fault with the majority’s finding that this alternative avenue for redress was hypothetical and, in that sense, ineffective. Since a clear and undisputed absolute ban was in force at the time, any and all requests for authorisation of a demonstration would have been rejected. In those circumstances, it seems non-sensical to expect an applicant to nonetheless file such a request, just to be able to challenge the absolute ban. The central problem in the case was clearly the inability to challenge the ban itself. This brings us back to what could have been the final say on the matter by the Court: the lack of judicial review of the proportionality of the COVID-19 measure violates article 11 ECHR. The majority could have left it at that conclusion. But it chooses not to. Instead, it goes on to evaluate, for itself, the proportionality of the ban and finds a substantive violation of article 11 ECHR as well.
Proportionality of the COVID-19 measure
In reviewing the proportionality of the absolute ban on public demonstrations during the initial phase of the COVID-19 pandemic in Switzerland, the majority acknowledges that general bans without exceptions can be compatible with the Convention (with reference to Animal Defenders International). The majority also notes that it will take into account the difficult balancing exercises governments had to make during the pandemic, in particular to adhere to their positive obligation to protect the right to life and the health of persons within their jurisdiction (with reference to Vavřička). The majority finally acknowledges that the Swiss authorities were due a ‘certain’ margin of appreciation, given the foregoing and in light of the threat that COVID-19 poses to society and public health.
Despite all the above, the majority ultimately concludes that the COVID-19 measure was disproportionate, in light of a number of factors: the importance of freedom of assembly in a democratic society (with reference to Kudrevičius), the general character of the ban, the long duration of the absolute prohibition, the fact that a range of other activities (including indoors) remained permitted under the relevant COVID-19 regulations, and the threat of criminal sanctions. Taking all these elements together, along with the absence of judicial review, the majority concludes that the Swiss authorities have overstepped their margin of appreciation.
Not unsurprisingly, the dissenting judges disagree on virtually all points. They dispute the granting of a ‘certain’ margin of appreciation and claim that the Swiss authorities should have benefited from a ‘wide’ margin instead (relying on Vavřička). In her analysis of CGAS, Ronagh McQuigg furtherpoints out that the European consensus seemed to be in favour, at the time of the facts, of the measures adopted by the Swiss government. The dissenting judges further claim that the restriction was not imposed for an excessively long period, taking into account the acute and unpredictable nature of the COVID-19 pandemic after its outbreak (see also Ronagh McQuigg). Perhaps most significantly, the dissenting judges are astonished that the majority says almost nothing about the spread of the virus, overcrowded hospitals, lack of vaccines and the general science on COVID-19 at the time of the facts. As such, the dissent notes, the majority’s reasoning seems out of touch with reality, unlike the Court’s decisions in earlier cases (the dissenters cite several cases, including Bah v. the Netherlands, referenced at the start of this post).
Even if one agrees with the majority on the outcome of the case, the dissent cannot be rejected outright. I, for one, find it difficult to look past two troublesome impressions that arise from the majority judgment. First, freedom of assembly is seemingly elevated to the top of the ‘hierarchy’ of Convention rights in the majority judgment. This impression flows from the majority’s emphasis, further underscored in the concurring opinion (at para. 10), on the importance of freedom of assembly within the Convention system (with reference to established case law). It is further strengthened by the majority putting aside a domestic judgment (which seemed to operate against some of the applicant’s procedural claims) as irrelevant, because it concerned restrictions of cultural rights and not freedom of assembly. Although cultural rights are not safeguarded by the ECHR, as such, one does wonder: are other COVID-19 restrictions less suspect to the Court, since they infringe less ‘central’ rights within the Convention system than freedom of assembly? If the majority indeed considers freedom of assembly worthy of ‘special treatment’ within the Convention system, for purposes of the evaluation of the proportionality of COVID-19 measures, a stronger justification would seem to be needed than what is offered in the majority judgment.
Second, and perhaps more importantly, it is difficult to look past the impression that the majority is ruling with the benefit of hindsight, insofar as its reasoning appears to factor in later scientific knowledge on how (limited) the virus spreads in open air (see para. 87). In that sense, the majority judgment stands out from rulings of several domestic courts at the start of the pandemic. At the time, many courts were cautious and restrained in their evaluation of the proportionality of COVID-19 restrictions; arguably too cautious and too restrained. In its first significant ruling during the March-April 2020 ‘hard lockdown’, the Belgian Council of State (the highest administrative court) for instance found that the minister who had governed the early stages of the pandemic by decree disposed of ‘the widest possible discretionary power of judgment’. The Council of State, most scholars of public law in Belgium now agree, was overly deferential to the executive branch of government during the early stages of the pandemic, thereby all but abandoning its vital role in evaluating the proportionality of COVID-19 restrictions (it later corrected course).
The majority in CGAS, by contrast, ends up close to the other end of the spectrum. Although it professes to grant a certain margin of appreciation to the state, the majority goes on to scrutinise the proportionality of the measure as if the government was due no deference at all (see the first half of para. 91 especially). This substantive evaluation of the proportionality of the measure was moreover not necessary to resolve the case, as the Court had already found a (perfectly logical) procedural violation due to the total absence of judicial review at the domestic level. By nevertheless conducting a proportionality analysis of its own, the majority drives home the point that there is only one correct conclusion on the substance of this case: the COVID-19 measure at issue was disproportionate. I cannot help but wonder: would the same Court have found a substantive violation if it had to rule ‘in the heat of the moment’ at the start of the pandemic, instead of now, when governments are pretending that the COVID-19 threat is over although it is not?
Regardless of how one evaluates the majority’s reasoning in CGAS, the judgment is likely to have major ramifications. Its implementation in Switzerland might require a constitutional amendment (I leave it to experts of Swiss public law to evaluate this need). Within the case law of the ECtHR, the judgment could lead to a further extension of the potential victim doctrine (with hitherto unknown consequences). And the majority’s findings on the proportionality of the COVID-19 measure are also likely to have major implications, to the extent that other COVID-19 measures are vulnerable to the same reasoning.
In a number of pending cases that involve similar COVID-19 measures (see here, here and here), we can now, in principle, expect identical findings of a violation. Unless CGAS would be referred to the Grand Chamber, that is. Given the clear analogy to the ban in CGAS, it also seems likely that core features of a ‘hard lockdown’ will be declared disproportionate in future cases, especially insofar as the impact on freedom of movement is concerned (see this pending case). At the same time, it remains uncertain how the Court will deal with COVID-19 restrictions that are less analogous to the ban in CGAS, including a general ban on family visits in prisons (at issue in this pending case and this one) or long-term closures of schools at the start of the pandemic (not currently the subject of an application, as far as I know). Regardless of how the Court evaluates the proportionality of the myriad COVID-19 measures that will one day reach it, CGAS is likely to become its first yardstick.