The European Court of Human Rights Declares an Association’s Application Concerning Anti-Covid Measures Banning Public Events in Switzerland Inadmissible

28-11-2023

Sofía Medina Sánchez 

International Justice and Human Rights Researcher 

Global Human Rights Defence 

On the 27th of November, the European Court of Human Rights (ECtHR) declared the application in the case of Communauté genevoise d’action syndicale (CGAS) v. Switzerland inadmissible.

The case concerns an association that alleges the infringement of its right to organise and partake in public events subsequent to the implementation of government measures addressing COVID-19. These measures were instituted through Ordinance O.2 COVID-19, officially enacted by the Swiss Federal Council on March 13, 2020. Under this ordinance, both public and private events were prohibited, starting from March 16, 2020. Non-compliance with this prohibition carried the penalty of either imprisonment or a fine.

Invoking Article 11, pertainining to freedom of assembly and association under the European Convention of Human Rights, the applicant association presented that the prohibition on all gatherings, encompassing both public and private events constituted a violation of its right to trade union freedom. Additionally, the applicant association asserted that the restrictions imposed by Ordinance COVID-19 no. 2 encroached upon its right to freedom of peaceful assembly.

The ECtHR declared the application inadmissible according to the provisions of Article 35 of the Convention. In a unanimous decision, the Court determined that the complaint related to trade-union freedom was beyond the scope of the case presented to the Grand Chamber. Furthermore, it ruled that even if it were within scope, the complaint was inadmissible due to a failure to adhere to the six-month deadline stipulated by Article 35 of the Convention, applicable at the relevant time. This new complaint was introduced for the first time during the Grand Chamber proceedings and should have been submitted no later than six months from May 30, 2020, the date when Ordinance COVID-19 no. 2 ceased to be in effect.

By a majority vote of 12 to 5, the Court determined that the complaint related to freedom of peaceful assembly was inadmissible due to the applicant association's failure to exhaust domestic remedies. The Court emphasised that the association did not take appropriate measures to allow national courts to fulfill their crucial role within the Convention protection system. Specifically, the Court pointed out that filing a request for a preliminary ruling on constitutionality during a standard appeal against a decision implementing federal ordinances constituted a remedy directly accessible to litigants. This avenue could potentially result in having the contested provision declared unconstitutional. The Court emphasised that there were no exceptional circumstances relieving the applicant association from the obligation to exhaust this remedy.

Underscoring its subsidiary role, the Court highlighted the importance of giving national authorities the initial opportunity to balance conflicting private and public interests or various Convention-protected rights. This balancing act should be carried out while considering local needs, conditions, and the public-health situation during the unprecedented and highly sensitive context of the COVID-19 pandemic.

Sources and further Reading: 

Case of Communauté genevoise d’action syndicale (CGAS) v. Switzerland (Application no. 21881/20 ), Judgement, Grand Chamber, 27 November 2023: https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-229376%22]}

Press Release issued by the Registrar to the Court, ECHR 325 (2023), 27 November 2023: 

https://hudoc.echr.coe.int/fre-press#{%22itemid%22:[%22003-7811041-10836637%22]}