Proportionality and the Covid pandemic – Communauté genevoise d’action syndicale (CGAS) v. Switzerland

The case Communauté genevoise d’action syndicale (CGAS) v. Switzerland  was decided by the European Court of Human Rights (ECtHR) on the 15th of March 2022 (case 21881/20). It is the first time the ECtHR ruled on human rights violations with regards to the public health measures taken by a government in response to the COVID- 19 pandemic, specifically on their interference with the freedom of assembly and association (Article 11 of the European Convention on Human Rights (ECHR)).

By means of an ordinance issued on the 13th of March 2020, Switzerland decided to enforce a ban on public meetings for two and a half months (from the 17th of March to the 30th of May 2020). Such a decision was challenged by the applicant association. The applicant is an association whose declared aim is to defend the interests of working and non-working persons and of its member organisations, especially in the sphere of trade-union and democratic freedoms. Relying on Article 11 of the Convention, it alleged that it had been deprived of the right to organise or take part in any public gatherings, under the federal ordinance (“O.2 COVID-19") enacted during the early months of the COVID-19 pandemic.

The ECtHR declared admissible the complaint. It also dismissed the claim of non-exhaustion of domestic remedies made by the Swiss Government because at the relevant time the association had not had an effective remedy available before domestic courts. Ruling on the proportionality of the measures taken to tackle COVID-19, the ECtHR highlighted the importance of the freedom of peaceful assembly in a democratic society, including in times of a health crisis and as Switzerland did not trigger the use of article 15 of the ECHR that allows to take derogating measures, it still had to abide by the ECHR within the margin of appreciation afforded to it. The interference with the enjoyment of the freedom of assembly had to be proportionate to the aims pursued. THE ECtHR recognized nonetheless the legitimate aims of protecting health and protecting the rights and freedoms of others in the context of the threat posed by COVID-19 but insisted on the balancing exercise between the competing interests at stake for the purposes of assessing the proportionality of such a drastic measure. The organisation of an event in the public space, and thus outdoors, was not allowed even if the public-health protocols were adhered to. The ECtHR held that no such scrutiny had been performed, including the Federal Supreme Court. This was especially worrying in terms of the ECHR given that the blanket ban had remained in place for a significant length of time.

For a measure to be considered proportionate and necessary in a democratic society, there had to be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned. The quality of the parliamentary and judicial review of the necessity of a general nationwide measure was also of particular importance in assessing its proportionality, including with regard to the operation of the relevant margin of appreciation.

The Court finally concluded that there had been an unjustified violation of the freedom of assembly and that Switzerland overstepped the margin of appreciation afforded to it. 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 at issue during the relevant period. This case established that a restriction to the freedom of assembly in times of health crisis must be strictly supervised. The states do not have a wider margin of appreciation in such cases, they still have to abide by the principle of proportionality. It seems likely that the same decision will be reached in similar pending cases in which member states relied on the need to protect public health to impose a hard lockdown.