A Right to an Answer: G.K. and A.S. v. Switzerland  and the duty to engage with Convention claims

By Engin Firat

Everyone is calling G.K. and A.S. v. Switzerland the vegan judgment. On 16 July 2026 the European Court of Human Rights held for the first time that dietary rules ‘dictated by genuine and consistently held vegan beliefs’ fall within the scope of Article 9 of the Convention, the freedom of thought, conscience and religion (para 120), and found that Switzerland had violated both Article 9 and Article 13 in respect of two applicants who had sought vegan food in pre-trial and psychiatric detention. Yet the Court did not find that the meals actually provided were themselves incompatible with the Convention. What the judgment recognises is, I will argue, at once more procedural and more consequential than the shorthand suggests: a right to have a serious claim engaging protected convictions substantively addressed by the public authorities, within a framework capable of producing a reasoned and reviewable answer. The violation was not the menu. It was the silence.

The misreading is understandable. Within hours of delivery, ‘the vegan case’ was the shorthand across Europe, and the judgment does, for the first time, recognise the observance of vegan dietary rules as falling within the ambit of Convention protection. The novelty is narrower than it sounds: that Article 9 protects non-religious convictions has long been settled; what is new is that vegan dietary practice now counts among the protected manifestations. And recognition was the easy part: the Government did not even contest the sincerity of the applicants’ convictions, and the Court found without difficulty that they met the cogency, seriousness, cohesion and importance that Article 9 requires (para 89). Look instead at what the Chamber did not do. It never decided whether the meals actually served were adequate from the standpointof the applicants’ vegan convictions; ‘the parties are in dispute’, the Court observed, and left them there (para 123). Its judgment, declaratory as all Strasbourg judgments are, required no change to any menu; it awarded EUR 12,000 and EUR 4,000 in respect of non-pecuniary damage. A judgment that refuses to touch the substance of the underlying claim and still finds a violation of Article 9, by six votes to one, is doing something other than protecting vegans. It marks, instead, a significant development in the Court’s procedural approach under Articles 9 and 13.

G.K. and A.S. v. Switzerland  and the duty to engage with Convention claims

The facts are institutional rather than culinary. The first applicant spent eleven months on remand in Geneva’s Champ-Dollon prison. What was on offer was the prison’s vegetarian menu, which the Government would later describe as almost entirely vegan-compatible; by his account, the dishes actually served regularly contained fish, butter, cheese or cream, leaving him on some days with little he could conscientiously eat (paras 6-8). eventually requesting through his lawyer at least one vegan meal a day and, finally, an entirely vegan diet.The prison answered with letters describing the arrangements already in place (paras 9-19). When his lawyer requested a formal ‘decision’, the gateway to judicial review, the answer was another letter (paras 21-22). The second applicant, held in psychiatric intensive care at Lausanne’s university hospital, handwrote a ‘request for a declaratory decision’, asking that his right to receive nutritionally balanced vegan meals be acknowledged. At that point, the hospital had begun ordering vegan dishes for him. The second applicant, held in psychiatric intensive care at Lausanne’s university hospital, handwrote a ‘request for a declaratory decision’, asking that his right to receive nutritionally balanced vegan meals be acknowledged. At that point, the hospital had begun ordering vegan dishes for him, although non-vegan meals still arrived by mistake on several days (paras 29-30). The reply forwarded his request to the head of his care unit  ‘to find a solution’ (paras 32, 35). The ensuing appeals to the Administrative Chamber of the Geneva Court of Justice and the Administrative and Public Law Court of the Canton of Vaud respectively were declared inadmissible because a letter is not a decision, and the Federal Supreme Court agreed: the letters were ‘merely informative’ and created no ‘binding legal relationship’ (paras 25, 27, 40, 42). No organ of the Swiss state ever asked whether the applicants’ convictions required something it was not providing. Nor was this the accident of a single case: the Court records a 2023 letter to another inmate ending ‘this letter is purely informative and does not constitute a decision’ (para 69). That is the entire case.

A duty of justification

Strasbourg condemned precisely that silence. Under Article 13, the right to an effective remedy, the ‘practical impossibility’ of obtaining a challengeable decision made the remedy the  applicants pursued, the administrative-law appeal available only against a formal ‘decision’, ‘ineffective in practice’. The authorities’ approach was ‘excessively formalistic and showed that the applicants’ complaints were not taken seriously’ (para 94). Under Article 9, the Court held that the authorities ’were under a positive obligation stemming from Article 9 to address those requests in substance and within a clear domestic legal framework’, weighing the applicants’ interest against ‘any possible organisational, financial or practical constraints’ (para 126). Because the domestic findings ‘concerned technical matters only’, leaving ‘no domestic findings on the substance’ (para 129), Article 9 was violated by ‘the failure of the domestic authorities to provide a substantive examination of the applicants’ serious and arguable grievances’ (para 131).

The obligation this creates is deliberative, not necessarily distributive. What the applicants were owed was not an automatic entitlement to vegan food but a reasoned answer about vegan food, produced within a framework capable of giving one. Refusal remains possible; para 126 itself lists the constraints that may justify it. What is no longer possible is not answering. Seen from the applicant’s side,  this can be understood as a right to an answer.

A duty of this kind is familiar constitutional ground elsewhere. German administrative law treats the giving of reasons as a precondition of effective judicial protection, and EU law writes it into Article 41 of the Charter, the right to good administration, as well as into Article 296 TFEU. The Convention contains no such right; nothing in its text obliges a prison governor to explain himself. G.K. and A.S. builds a narrower functional equivalent, triggered by the engagement of fundamental convictions.

The Swiss twist is that the duty was already there. Article 29(2) of the Swiss Constitution guarantees the right to be heard, from which the Federal Supreme Court has long derived a duty to give reasons. But that duty attaches to a ‘decision’, and in the  Swiss courts’ view none existed here: only an act creating binding legal effects qualifies as a decision, and letters that are ‘merely informative’ do not. The domestic guarantee was gated by the very form the authorities declined to produce. Strasbourg’s intervention imports no foreign idea into Swiss law; it removes the gate that kept a domestic one from operating.

An objection suggests itself: is the Article 9 violation anything more than the Article 13 violation counted twice? The Court invites the doubt, since it builds the Article 9 analysis expressly on the remedial finding (para 128). But para 126 adds content no remedy supplies: a duty to address requests in substance, within a clear framework, weighing named factors. That is the architecture of a substantive obligation, not a remedial echo. What the overlap really shows is a reversal of rank. Article 13, here becomes  the engine rather than the afterthought: the right to a remedy supplies the substantive right with its content. That reversal,  rather than any simple duplication of Articles 9 and 13, is what makes the judgment significant: the right to an effective remedy does more than police access to court; it helps shape what Article 9 requires of the domestic authorities in the first place.

Subsidiarity turned into a sword

The judgment’s most consequential move, in my view, concerns subsidiarity. Twice at decisive moments the Court recites its ‘fundamentally subsidiary role’ and the national authorities’ superior position ‘to evaluate local needs and conditions’ (paras 117, 130), and both times the recital condemns rather than defers. The logic is simple: deference presupposes a domestic assessment to defer to, and there was none. Subsidiarity here is not a shield for the state but a sword against its silence. This is what Brems has called positive subsidiarity: subsidiarity understood not simply as a ground for Strasbourg’s restraint but as a source of obligations for the domestic authorities, reflecting the same active engagement with Convention rights that the recent turn towards shared responsibility mandates. Strasbourg’s procedural turn has mostly been analysed from the Court’s side, as procedural deference, with good domestic process earning restraint. G.K. and A.S.states the domestic side of the same principle as a demand: the national authorities’ superior position to evaluate local needs does not relieve them of the obligation to undertake that evaluation. Rather, it is what makes their engagement the condition of meaningful subsidiarity. What is distinctive in G.K. and A.S. is not positive subsidiarity as such but how visibly it operates: the absence of any substantive domestic assessment becomes itself the ground of the Convention violation. The nearest constitutional vocabulary is Mureinik’s ‘culture of justification’: the idea that the exercise of public power is legitimate only in so far as it can be defended with reasons. G.K. and A.S. translates that idea into Strasbourg procedure: the Convention right functions, first of all, as a right  to require the state to explain itself.

The Court’s older dietary cases bring the contrast into focus. In Jakóbski v. Poland (2010) Strasbourg itself assessed whether a Buddhist prisoner’s request for  meat-free food was justified, concluded that providing it would not unduly burden the prison, and found a violation of Article 9 on that basis.. In G.K. and A.S. the Court takes a different procedural route. It does not ask whether vegan catering was feasible at Champ-Dollon; it asks who in Switzerland ever asked, finds nobody did, and stops there.

G.K. and A.S. does not invent this procedural emphasis; it has been building for years, through Eweida and, most visibly, KlimaSeniorinnen, where the Grand Chamber reviewed the adequacy of the domestic framework rather than prescribing outcomes, a move persuasively read as orthodoxy rather than innovation. Warrant: the Court surveyed forty-one member states, found deep divergence over whether people in custody are entitled to belief-based diets, and located consensus in method alone, ‘the necessity to take requests for such diets into account’ (para 125). Where Europe does not agree on outcomes, it agrees on justification. That matters, because divergence of outcomes ordinarily widens the margin of appreciation and pushes the Court back; convergence of method lets it insist on a uniform duty of engagement while leaving every outcome national. Reach: nothing in the Court’s reasoning confines the duty to prisons, and its logic would seem to travel to any public authority faced with a serious and arguable request engaging protected convictions, an implication of the reasoning, it should be stressed, rather than anything the judgment holds. A public authority that answers such a request with an unreviewable letter is, on that logic, no longer simply unhelpful. It is courting a violation.

Whether reasons are enough

The timing gives the judgment an institutional edge. Through the Chișinău process, states are currently pressing subsidiarity on Strasbourg as a demand for restraint. G.K. and A.S. shows the same principle bearing the opposite face in the same season, and it hints at how a Court under political pressure might survive: justification review is a way of remaining exacting while prescribing nothing.

The uncomfortable implication cuts against future applicants. A duty to justify can be performed. A state that examines a request carefully, weighs the constraints, and refuses may now stand safer in Strasbourg than a state that accommodates without paperwork; the judgment supplies the vocabulary of refusal in the very paragraph imposing the duty (para 126). And reasons can run thin. Judge Grigoryan dissented on every point in a single unexplained sentence, a declaration without reasons annexed to a judgment about the duty to give them. The absence of reasons is particularly striking because it mirrors the very procedural deficiency identified by the majority. Why he considered the applications inadmissible, and both findings of a violation wrong, readers are left to guess.

The deeper worry is an old one about protecting rights through procedure. The promise is real: procedure disciplines power precisely where substantive standards are contested or absent. So is the standing objection: procedural protection can become  a substitute for the substantive protection it was meant to secure, and the more elaborate the process, the more legitimate an unchanged outcome appears. G.K. and A.S. engages the promise and the objection together, and cannot yet refute the objection.

Sooner or later the harder case arrives: an administration that identifies the belief, takes it seriously, weighs it within an impeccable framework, and says no. The Court has recognised a right to receive a substantive,  reasoned answer. It has not yet said at what point a procedurally flawless refusal would become substantively insufficient. The harder question, which G.K. and A.S. leaves open, is whether reasons alone will ever be enough.