Deciding body (English)
Type of body
Type of Court (material scope)
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
The present case originates from the enactment by the Swiss government of measures aimed to evert the spread of the Covid-19 pandemic. Such measures imposed a general prohibition on public gatherings, including trade union events and demonstrations, and sanctioned a violation of such measures by introducing a criminal penalty. The CGAS seized the ECtHR directly, claiming that the Federal Council’s orders, being general in nature and scope, cannot be challenged before any domestic Court. The claimant further claimed that the measures prevented it from both organizing and participating in public demonstrations. The Court upheld the arguments put forward by the trade union and found in favor of a breach of article 11 of the European Convention on Human Rights.
Facts of the case
The Communauté Genevoise d’Action Syndacale (CGAS) is a Swiss trade union. Its statutory aim is to defend the interests of the workers and its member organizations, especially in the field of trade union and democratic freedoms. It routinely organizes (and participates in) several public events and demonstrations in the Geneva canton. Following the spread of the Covid-19 pandemic, the Swiss Federal Council enacted a series of measures aimed at everting the risks to public health posed by the virus. In particular, by orders of 13, 16, and 20 March 2020 (O.2 Covid-19), the government imposed several prohibitions on public gatherings. On April 29, the Federal Council announced the easing of most of the measures previously adopted as from May 11, 2020. By invoking article 11 of the ECHR, the CGAS claimed that, following the adoption of O.2 Covid-19 measures, it was forced to cancel a public demonstration scheduled on May 1st, 2020.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
As for the admissibility of the claim, the Court found that the CGAS was directly affected by the measure. In particular, the Court recalled that, with regard to nonprofit organizations, the notion of “victim” enshrined in article 34, ECHR differs from that of “direct standing” and “legitimacy”. Since CGAS institutionally organizes collective demonstrations and events to enhance and protect the freedom of association of workers, measures prohibiting to undertake such activities under the threat of criminal punishment must be considered as directly affecting the association in accordance with article 34, ECHR.
As for the requirement of the exhaustion of local remedies, the Swiss government submitted that CGAS could have sought authorization to organize a public event by virtue of the exceptions provided for under the O.2 order. It further argued that, should local authorities had refused such authorization, the claimant could have challenged the decision before the Court of Justice of the Geneva Canton, instead of seizing directly the ECtHR. The Court found that the possibility to request authorization was provided for in the O.2 order which remained in force only until March, 2020. Furthermore, it found that the Government had not been able to provide evidence of cases in which such authorization has effectively been granted in like circumstances. Hence, the Court concluded that CGAS was not provided with effective local remedies to challenge the measures. As for the merits of the case, while acknowledging that a State enjoys a certain margin of appreciation in deciding which measures to implement while facing exceptional circumstances, the Court found that the general prohibition on all activities carried out by the CGAS was not proportional and reasonably justifiable in light of the competing interests at stake. In particular, the Court noted that, while prohibiting public gatherings, the Swiss government still allowed for workers to go to the workplace, provided that employers set up health and safety arrangements in loco. Hence, it found unreasonable a generalized ban on open-air activities while going to work was still allowed.
With regard to the introduction of criminal penalties in case of violation of the anti-Covid measures, the Court further recalled that the introduction of criminal penalties requires a particularly strict justification within the framework of the ECHR. It concluded that the organization of peaceful open air demonstrations shall not in any case be the subject of criminal punishment and found the measures introduced by the Swiss government unreasonable.
Conclusions of the deciding body
The Court upheld the claim by the CGAS and found that the measures introduced by the Federal Council constituted a violation of article 11, ECHR. However, the Court rejected the claimant’s request for compensation and found that a finding of a violation of article 11 constitutes per se an adequate compensation for any non-pecuniary damage.
Implementation of the ruling
The decision does not require implementation since the Court concluded that the finding of a violation of section 11 is in itself sufficient satisfaction for any non-material damage suffered by the applicant association. At the same time, the Court dismissed the request for compensation for material damages, as the request was not adequately substantiated.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court elaborated on the principles of proportionality and reasonableness to conclude that the measures introduced by the Swiss government were not justified under article 11 of the European Convention on Human Rights. In particular, the Court considered that a general and prolonged ban on public open-air gatherings was not proportional nor justifiable in light of the fact that other activities (such as going to work) were still allowed under Swiss law. Furthermore, it considered that the decision by the Swiss government to establish criminal liability for those who contravened such measures was also not proportional and unreasonable. In particular, the Court found that the imposition of criminal sanctions requires a specific justification which must meet a specific threshold within the ECHR framework. The mere organization of public gatherings, even if contrary to the measures aimed at preventing the spread of a pandemic, shall not in any case be subject to criminal punishment.