THIRD SECTION
CASE OF COMMUNAUTÉ GENEVOISE D’ACTION SYNDICALE (CGAS) v. SWITZERLAND
(Application no. 21881/20)
 
JUDGMENT
 
Article 11 • Freedom of peaceful assembly • General ban on public gatherings, for two and a half months at the beginning of the COVID-19 pandemic, to which criminal sanctions were attached and without judicial review of proportionality • Drastic measure affecting the applicant association’s activity for a considerable period of time and requiring strong justification and particularly rigorous judicial review • No examination of the merits of appeals by the Supreme Federal Court during the general lockdown • No use of Article 15 by the State to take measures derogating from its obligations
 
STRASBOURG
15 March 2022
 
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 27/11/2023
 
 
This judgment may be subject to editorial revision. In the case of Communauté genevoise d’action syndicale (CGAS) v. Switzerland,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Georgios A. Serghides,
 Darian Pavli,
 Anja Seibert-Fohr,
 Peeter Roosma,
 Andreas Zünd,
 Frédéric Krenc, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 21881/20) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association governed by Swiss law, the Communaute genevoise d’action syndicale (CGAS, “the applicant association”), on 26 May 2020;
the decision to give notice to the Swiss Government (“the Government”) of the complaint under Article 11 of the Convention;
the parties’ observations;
Having deliberated in private on 18 January 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the measures taken by the Swiss Government to counter the coronavirus disease (“COVID-19”). The applicant is an association whose declared aim to defend the interests of workers and of its member organisations, especially in the sphere of trade-union and democratic freedoms. Relying on Article 11 of the Convention, it alleges that it was deprived of the right to organise and to participate in public gatherings. THE FACTS
2. The applicant association was established under Swiss law in 1962 and is based in Geneva. Its statutory aim is to defend the interests of workers and of its member organisations, particularly in the area of trade-union and democratic freedoms. It claims to organise and participate in dozens of gatherings each year in the Canton of Geneva. It was represented by Mr O. Peter, lawyer. 3. The Government were represented by their Deputy Agent, Mr A. Scheidegger, Federal Office of Justice. 4. The context of the present case is the coronavirus disease (“COVID-19”) pandemic, the first cases of which were reported in Wuhan, China, on 31 December 2019. 5. On 25 February 2020 the new coronavirus was detected for the first time on Swiss territory, in the Canton of Ticino. 6. Faced with a sharp and rapid increase in the number of confirmed cases and hospitalisations, on 28 February 2020 the Federal Council (the government) decreed that the situation in hand was a “special situation” for the purposes of section 6 (1) (b) of the Epidemics Act (see paragraph 18 below) and, on the same date, adopted the Ordinance on measures to tackle the coronavirus, prohibiting public or private events involving more than 1,000 persons at one time. 7. On 11 March 2020 the World Health Organisation (WHO) described the situation as a pandemic. 8. On 13 March 2020 the Federal Council replaced the Ordinance of 28 February 2020 with Ordinance 2 on measures to tackle the coronavirus (“O.2 COVID-19”, see paragraph 19 below), in which it ordered the closure of schools, universities and other training establishments and prohibited public or private gatherings of more than 100 persons. This ordinance provided that certain exemptions, in particular for gatherings which pursued the exercise of political or training rights, could be accorded by the cantonal authority on the basis of Article 7 (a). 9. On 16 March 2020 the Federal Council announced that there existed an “extraordinary situation” within the meaning of section 7 of the Epidemics Act (see paragraph 18 below) and amended the preamble to O.2 COVID-19. On that basis, it prohibited, in particular, all public and private gatherings and announced the closure of State establishments and commercial premises such as shops, markets restaurants, museums and cinemas, but specifically maintained the possibility for certain establishments, including food shops, banks, petrol stations and hotels, to remain open. In this version of the Ordinance (which entered into force on 17 March 2020), the reference to exceptional authorisation for the exercise of political rights had been removed (Article 7, see paragraph 20 below). Under the heading “Criminal Provisions”, Article 10 (d) (1) provided that the fact of intentionally organised or conducted a gathering prohibited by Article 6 would be punishable by a custodial sentence of up to three years or a fine, unless the person concerned had committed a more serious offence within the meaning of the Criminal Code. 10. On 20 March 2020 the Federal Council strengthened these measures further, by prohibiting gatherings of more than five persons in public places. On 8 April 2020 the Federal Council extended the measures for one further week, that is, until 26 April 2020. 11. On 29 April 2020 the Federal Council announced a relaxation of the majority of emergency measures, with effect from 11 May 2020. The end of lockdown took place earlier than the Federal Council had initially envisaged: shops, restaurants, markets, museums and libraries were authorised to reopen. Primary and secondary schools were authorised to resume in-class teaching. 12. On 20 May 2020 the Federal Council announced that religious worship – private services or within a religious community – could resume from 28 May 2020, subject to compliance with the appropriate protection measures. 13. The applicant association lodged an application with the Court on 26 May 2020. Relying on Article 11 of the Convention, it stated that it had been obliged, following the enactment of O.2 COVID-19, to cancel a gathering planned for 1 May 2020 and had withdrawn its request for authorisation. More generally, it claimed that it had been deprived of the possibility of organising or participating in public meetings. It submitted that in Switzerland the Federal Council’s ordinances were measures which applied generally and that no appeal lay against them to a domestic court, explaining that it was for this reason that it had not applied to the national courts. 14. On 27 May 2020 the Federal Council decided on a new stage in opening up: from 30 May 2020, the ban on gatherings was relaxed (a maximum of 30 persons); from 6 June 2020, private and public gatherings of up to 300 persons were again authorised (for example, family celebrations, fairs, concerts, plays or film projections); political gatherings were also authorised again. Events involving more than 1,000 persons were prohibited until the end of August. On 20 June 2020 the prohibition on gatherings was lifted, although wearing a mask remained compulsory. 15. On 19 June 2020 the Federal Council declared a return to the “special situation” as of 22 June 2020. RELEVANT LEGAL FRAMEWORK AND PRACTICE
DOMESTIC LAW
16. The relevant provisions of the Federal Constitution of 18 April 1999 (“the Constitution”) read as follows:
Article 16: Freedom of expression and of information
“1. Freedom of expression and of information is guaranteed. 2. Every person has the right freely to form, express, and impart their opinions. ...”
3. Every person has the right freely to receive information, to gather it from generally accessible sources and to disseminate it.”
Article 22: Freedom of assembly
“1. Freedom of assembly is guaranteed. 2. Every person has the right to organise meetings and to participate or not to participate in meetings.”
Article 23: Freedom of association
“1. Freedom of association is guaranteed. 2. Every person has the right to form, join or belong to an association and to participate in the activities of an association. 3. No one may be compelled to join or to belong to an association.”
Article 29a: Guarantee of access to a court
“In a legal dispute, every person has the right to have their case determined by a judicial authority. The Confederation and the Cantons may by law preclude the determination by the courts of certain exceptional categories of case.”
Article 35: Upholding of fundamental rights
“1. Fundamental rights must be upheld throughout the legal system. 2. Whoever acts on behalf of the state is bound by fundamental rights and is under a duty to contribute to their implementation. 3. The authorities shall ensure that fundamental rights, where appropriate, apply to relationships among private persons.”
Article 36: Restriction of fundamental rights
“1. Restrictions on fundamental rights must have a legal basis. Significant restrictions must have their basis in a federal act. The foregoing does not apply in cases of serious and immediate danger where no other course of action is possible. 2. Restrictions on fundamental rights must be justified in the public interest or for the protection of the fundamental rights of others. 3. Any restrictions on fundamental rights must be proportionate. 4. The essence of fundamental rights is sacrosanct.”
Article 185: External and internal security
“1. The Federal Council takes measures to safeguard external security, independence and neutrality of Switzerland. 2. It takes measures to safeguard internal security. 3. It may in direct application of this Article issue ordinances and rulings in order to counter existing or imminent threats of serious disruption to public order or internal or external security. Such ordinances must be limited in duration. 4. In cases of emergency, it may mobilise the armed forces. Where it mobilises more than 4,000 members of the armed forces for active service or where the deployment of such troops is expected to last for more than three weeks, the Federal Assembly must be convened without delay.”
Article 189: Jurisdiction of the Federal Supreme Court
“1. The Federal Supreme Court hears disputes concerning violations of:
a. federal law;
b. international law;
c. inter-cantonal law;
d. cantonal constitutional law;
e. the autonomy of the communes and other cantonal guarantees in favour of public law corporations;
f. federal and cantonal provisions on political rights. 2. It hears disputes between the Confederation and Cantons or between Cantons. 3. The jurisdiction of the Federal Supreme Court may be extended by law. 4. Acts of the Federal Assembly or the Federal Council may not be challenged in the Federal Supreme Court. Exceptions may be provided for by law.”
Article 190: Applicable law
“The Federal Supreme Court and the other judicial authorities are required to apply the federal statutes and international law.”
17. The relevant provisions of the Federal Supreme Court Act of 17 June 2005 (“the LTF”) read as follows :
Chapter 3:
The Federal Supreme Court as an ordinary court of appeal
 
... Section 2: Criminal-law appeals
Article 78: Principle
“1. The Federal Supreme Court hears appeals against decisions in criminal matters. 2. The following may also be examined in criminal-law appeals:
a. decisions on civil claims, which must be determined at the same time as the criminal proceedings;
b. decision on the execution of sentences and measures.”
... Section 3: Public-law appeals
Article 82: Principle
“1. The Federal Supreme Court hears appeals:
a. against decisions taken in public-law proceedings;
...”
Chapiter 4: Appeals procedure
... Section 2: Grounds of appeal
Article 95: Swiss law
“An appeal may be lodged for a breach of:
a. federal law;
b. international law;
c. cantonal constitutional law;
d. cantonal provisions on the voting rights of citizens and on elections and referenda;
e. inter-cantonal law.”
Article 103: Suspensive effect
“1. As a general rule, an appeal does not have suspensive effect. 2. An appeal shall have suspensive effect with regard to its findings where ... :
...
b. in criminal law, if [the appeal] is lodged against a decision which imposes a custodial sentence or a measure entailing a deprivation of freedom; the suspensive effect does not extend to the decision on the civil claims;
... 3. The investigating judge may, of his or her own motion or on an application by a party, decide differently with regard to any suspensive effect.”
18. The relevant provisions of the Federal Act on the Fight against Human Communicable Diseases (Epidemics Act, LEp), of 28 September 2012, read as follows:
Section 1: Subject matter
“The present Act governs the protection of human beings against communicable diseases and provides for the necessary measures to that end.”
Section 2: Aim
“1. The aim of the present Act is to prevent and combat the appearance and spread of communicable diseases. 2. The measures provided by it pursue the following aims:
a. to monitor communicable diseases and acquire fundamental knowledge about their spread and development;
b. to detect, evaluate and prevent the appearance and spread of communicable diseases;
c. to encourage individuals, certain groups of persons and certain institutions to contribute to preventing and combating communicable diseases;
d. to create the organisations, professional and financial frameworks required to detect, monitor, prevent and combat communicable diseases;
e. to guarantee access to facilities and methods of protection against communicable diseases;
f. to reduce the effects of communicable diseases on society and the persons concerned.”
Section 6: Special situation
“1. A special situation exists where:
a.  the habitual implementing bodies are unable to prevent and combat the emergence and spread of a communicable disease and one of the following risks is present:
1.  an increased risk of infection and spread,
2.  a specific risk for public health,
3.  a risk of serious repercussions for the economy or other vital sectors;
b.  the World Health Organisation (OMS) has noted the existence of a health emergency of international scope, threatening the health of the population in Switzerland. 2. The Federal Council may, after having consulted the cantons:
a.  order measures in respect of individuals;
b.  order measures in respect of the population;
c.  compel doctors and other health professionals to take part in the fight against communicable diseases;
d.  declare that vaccinations are compulsory for the endangered population groups, particularly exposed individual and persons carrying out certain activities. 3. The Federal Department of the Interior (DFI) coordinates the measures taken across the Confederation.”
Section 7: Extraordinary situation
“If an extraordinary situation so requires, the Federal Council may order the necessary measures for all or part of the country.”
19. The relevant provisions of Ordinance 2 on the measures to tackle coronavirus (COVID-19, hereafter “O.2 COVID‑19”) of 13 March 2020 were worded as follows:
Article 6: Gatherings and establishments
“1. Public or private gatherings bringing together 100 persons or more at the same time are prohibited. 2. Gatherings of less than 100 persons may take place if the following prevention measures are complied with:
a. measures to exclude persons who are ill or who feel ill;
b. measures aimed at protecting particularly vulnerable persons;
c. measures to inform the people present about the general protection measures, such as hand-washing, the distances to be kept, the hygiene rules in the event of coughing or sneezing;
d. changes to the spatial conditions in order to ensure compliance with the hygiene measures.
...”
Article 7: Exceptions
“The competent cantonal authority may grant exceptional exemptions to the prohibitions set out in Articles 5 and 6 if:
a. this is justified by overriding public interests, such as gatherings for the purpose of exercising political or training rights, and if
b. the training institution, the organisers or the operators submit a protection plan which includes the protection measures set out in Article 6, paragraph 2.”
20. As of 17 March 2020, the relevant provisions of O.2 COVID‑19 read as follows:
Section 3: Measures in respect of the population, organisations and institutions
... Article 6: Gatherings and establishments
“1. All public or private gatherings, including sporting events and associative activities, are forbidden. 2. Public establishments shall be closed, in particular:
... 3. Article 2 shall not apply to the following establishments and gatherings:
... ”
Article 7: Exemptions
“The competent cantonal authority may allow exceptions from the prohibitions set out in Articles 5 and 6, if:
a. it is justified by overriding requirement in the public interest, for example training establishments or in the event of supply-line difficulties, and if
b. the training establishment, the organiser or operator produces a protection plan, including the following prevention measures:
1. measures aimed at excluding person who are ill or who feel ill,
2. protection measures in respect of persons who are particularly at risk,
3. measures to inform the persons in attendance about general protection measures, such as handwashing, social distancing or the hygiene rules to be complied with in case of a cough or cold,
4. alteration to the premises to ensure compliance with the hygiene regulations.”
Section 6: Criminal provision
Article 10d
“Anyone who intentionally opposes the measures referred to in Article 6 (1), (2) and (4) shall be liable to a custodial sentence of up to three years or by a financial penalty, unless he or she has committed a more serious offence within the meaning of the Criminal Code”. 21. On 21 March 2020 O.2 Covid-19 was supplemented by a new Article 7c, and its Article 10d was amended as follows:
Section 3: Measures concerning the population, organisations and institutions
... Article 6: Gatherings and establishments
“1. All public and private demonstrations, including sports gatherings and associative activities, shall be forbidden. 2. Public establishments shall be closed, in particular:
...”
Article 7c: Prohibition of gatherings in public areas
“1. Gatherings of more than five persons in public areas, especially on public squares, walkways and in parks, shall be forbidden. 2. In the event of a gathering of five or more persons, they must keep at a minimum distance of two metres from each other. 3. The police and other enforcement bodies authorised by the cantons shall ensure compliance with the above provisions in public areas.
...”
Section 6: Criminal provision
Article 10d
“1. Anyone who intentionally opposes the measures referred to in Article 6 (1), (2) and (4) shall be liable to a custodial sentence of up to three years or a financial penalty, unless he or she has committed a more serious offence within the meaning of the Criminal Code. 2. Persons acting in breach of the prohibition on gatherings in public places, as set out in Article 7c, shall be liable to a fine. 3. Violations of the prohibition on gatherings in public places within the meaning of Article 7c may be punished by a fixed-penalty fine of 100 francs, in accordance with the procedure provided for in the Law of 18 March 2016 on fixed-penalty fines.”
22. O.2 COVID-19 was subsequently amended again on several occasions at very short intervals. 23. The Law of the Republic and the Canton of Geneva on gatherings in public spaces (LMDPu-GE) of 26 June 2008 governs the organisation and holding of gatherings on public land as follows:
Section 3: Principle of authorisation
“The organisation of an event on public land shall be subject to authorisation, issued by the Department of Safety, Employment and Health (hereafter: the Department).”
Section 4: Authorisation procedure
“1. Applications for authorisation must be submitted to the Department by one or more adult natural persons, either individually or as the authorised representatives of a legal person, within a time-limit to be determined by regulation. 2. The cantonal government shall specify in the Regulations the content of the application for authorisation. 3. If the request does not comply with the requirements of the Regulation, the applicant shall be given a short period within which to comply. Failure to do so may result in the application being refused. 4. The Department may levy a fee per authorisation. 5. The beneficiary of the authorisation or a responsible person designated by the latter shall be required to remain at the disposal of the police throughout the event and to comply with their instructions.
...”
Section 5: Issuing, conditions for and refusal of an authorisation permit
“1. When it received a request for authorisation, the Department shall assess all of the interests affected, and in particular the danger which the requested event could pose to public order. The Department shall base its assessment, in particular, on the information contained in the authorisation request, past experience and the correlation between the subject matter of the requested event and potential disorder. 2. When granting authorisation, the Department shall set out the arrangements, conditions and requirements in relation to the event, having regard to the authorisation request and the competing private and public interests. In particular, it shall determine the location or route of the event and the date and scheduled start and end times. 3. To this end, the Department shall ensure, in particular, that the route does not create a disproportionate risk to persons or property and that the police and their resources are able to intervene along the entire itinerary. It may stipulate that the gathering shall be held at a specified place, without moving elsewhere. 4. Where such a measure appears necessary in order to limit the risks to public order, the Department shall require the applicant to provide a stewarding service. The size of the stewarding team shall be proportionate to the risk of disruption to public order. The Department shall verify the applicant’s ability to meet this requirement prior to the event. The stewarding team is obliged to cooperate with the police and to comply with their instructions. 5. Where the imposition of conditions or requirements does not allow respect for public order to be guaranteed or prevent disproportionate interference with other interests, the Department shall refuse authorisation to demonstrate. 6. The Department may amend or withdraw an authorisation if the circumstances change.”
24. The Law of the Republic and the Canton of Geneva on Administrative Proceedings (LPA-GE) of 12 September 1985 provides as follows:
Section 4: Decisions
“Decisions within the meaning of Article 1 shall be deemed to be individual and concrete measures taken by the authority in individual cases based on federal, cantonal or communal public law intended:
(a) to create, amend or set aside rights or obligations;
(b) to establish the existence, absence or scope of rights, obligations or facts;
(c) to reject or declare inadmissible requests to create, amend, set aside or establish rights or obligations.
...”
Section 4A: Right to challenge an act
“Any person who has an interest which merits protection may require that the competent authority for acts based on federal, cantonal or municipal law and affecting rights or obligations:
(a) refrain from, cease to perform or revoke unlawful acts;
(b) eliminate the consequences of unlawful acts;
(c) establish that such acts are unlawful. The authority shall give its ruling in the form of a decision. Where it is not designated, the competent authority shall be the authority directly responsible for the State intervention in question.”
Section 5: Administrative authorities
“The following shall be deemed to be administrative authorities within the meaning of Article 1:
(a)  the cantonal government;
...
c)  the départements;
...”
Section 6: Administrative courts
“For the purposes of the present law, the following shall be deemed to be administrative courts:
(a) the administrative court of first instance;
... (c) the administrative division of the Court of Justice;
...”
Section 57: Subject of the appeal
“An appeal may be lodged against:
(a) final decisions;
(b  decisions by which the authority recognises or declines its jurisdiction;
(c) interlocutory decisions, if they may cause irreparable damage or if the admission of an appeal may lead immediately to a final decision which makes it possible to avoid a lengthy and costly evidentiary procedure;
(d) constitutional laws, the laws and regulations of the cantonal government.”
DOMESTIC PRACTICE
25. Under Article 189, al. 4 of the Constitution and section 82 (c) of the LTF, the ordinances of the Federal Council are not subject to a judicial appeal seeking an abstract review of their compatibility with higher-ranking legal norms (see, in particular, the Federal Supreme Court’s judgment 2C_280/2020 of 15 April 2020 concerning O.2 COVID-19 and the ATF (judgment of the Supreme Federal Court) 139 II 384 [2012]). In contrast, the implementing acts based on such ordinances may be challenged through an ordinary appeal. In this context, the ordinance’s conformity with higher‑ranking law, such as the Constitution or public international law, may also be challenged and examined by the courts in a preliminary ruling, in accordance with the Federal Supreme Court’s consistent case-law (see, inter alia, ATF 104 Ib 412, ground 4c [1978]; 123 IV 29, ground 2 [1997]; 131 II 670, ground 3 [2005]; and 141 I 20, grounds 5 and 6 [2014]). 26. In the case 2D_32/2020 (Federal Supreme Court judgment of 24 March 2021), the company A. SA alleged that Article 11 (3) of the Federal Council’s Ordinance on mitigating the economic consequences of the coronavirus (Ordinance on COVID-19 in the cultural sector), according to which “no appeal lies against [the] decisions taken in execution of the present ordinance”, entailed a breach of the guarantee of access to a court as set out in Article 29a of the Constitution. In its judgment, the Federal Supreme Court reiterated its settled case-law to the effect that, like the other authorities, it was entitled to review the constitutionality of a federal ordinance through a preliminary ruling. It concluded that the impugned provision was contrary to Article 29a of the Constitution, in that it excluded any appeal against the decisions taken in execution of the above-mentioned ordinance and that, in consequence, it was unconstitutional and unenforceable. 27. In the Canton of Geneva, gatherings on public land require authorisation, as provided for by sections 3 to 5 of the LMDPu-GE (see paragraph 23 above). The decision issued by the competent authority can be appealed against before the cantonal courts (see the relevant provisions of the LPA-GE, paragraph 24 above), then before the Federal Supreme Court (section 82 of the LTF, see paragraph 17 above). Following an appeal, the Administrative Division of the Canton of Geneva Court of Justice examined, in a preliminary ruling, the conformity of Article 6 of O.2 COVID-19 with the higher-ranking law (Court of Justice, Administrative Division, judgment of 18 August 2020). It found, on the merits, that the Ordinance constituted a sufficient legal basis and that the public interest in stemming the spread of the virus prevailed over the applicant party’s interest in demonstrating in a public area. In a judgment of 12 August 2021 (1C_524/2020), the Federal Supreme Court declared an appeal inadmissible as being devoid of current purpose, in that the request for authorisation to demonstrate concerned a date that had already passed when the judgment being challenged was delivered, and that the prohibition on gatherings of five or more persons had been lifted on 30 May 2020. The Supreme Federal Court also held that the country was not in a situation which justified an exemption from the condition that there had to be a current interest. Given the rapid developments in the situation and in knowledge about the pandemic, there was nothing to suggest that a fresh request in respect of a similar gathering would be subject to identical or analogous rules as in the relevant case. THE LAW
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
28. The applicant association complained that it had been deprived of the right to organise and participate in public meetings as a result of the measures enacted by the Government to tackle the coronavirus under O.2 COVID-19. It relied on Article 11 of the Convention, which provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
AdmissibilityVictim status

(a)   The parties’ submissions
(i)      The Government
29. The Government pointed out that on 13 March 2020 gatherings of more than 100 persons were banned until 30 April 2020 and that, on 16 March 2020 this restriction was replaced by a prohibition on public gatherings (to enter into force on 17 March 2020), initially valid until 19 April 2020, then extended on three occasions for limited periods. They also argued that O.2 COVID-19 had not been applied in a discriminatory manner to certain categories of the population, but that, on the contrary, it had covered all of the events listed in Article 6 without distinction. Furthermore, the competent cantonal authority could grant exemptions under Article 7. For that reason, they considered that it could not be claimed that this Ordinance, as such, absolutely prohibited any public demonstration or gathering. 30. The Government then noted that the applicant association had itself withdrawn its request for authorisation for a public gathering. It had not referred to any specific instance when it had been prohibited from organising a public demonstration or any request lodged by it for an exemption in application of Article 7 of O.2 COVID‑19, rejection of which could have been appealed before the courts. 31. Lastly, the applicant association had not shown or even alleged the likelihood that it had been directly affected by the impugned measures, although, in the Government’s view, this was a condition imposed by the Court’s case-law. Its application thus amounted to an actio popularis which, for that reason, could not be examined by the Court. (ii)    The applicant association
32. The applicant association submitted that, in so far as the Government alleged that the ban on gatherings concerned everyone, and, in consequence, did not target certain categories of the population in a discriminatory manner, the Convention did not require that an applicant be affected more than anyone else, but simply that he or she be directly concerned by the decision. Thus, in so far as the prohibition had a general scope, it had also concerned the applicant association, which could therefore claim to be a victim of the ordinance. It considered that this conclusion seemed all the more justified in that a trade-union confederation, which very regularly organised demonstrations, marches, gatherings, strike pickets and other public events would be especially affected by the ban on any public or private gatherings, even of a political or trade-union nature. 33. In response to the Government’s allegation that the applicant association had not shown that it was directly affected by the impugned measures, since it had chosen to withdraw its request for authorisation for the demonstration on 1 May and had never received a formal refusal of authorisation to organise an event, the association submitted that, while it had indeed withdrawn its request, this had been done following an announcement by the Geneva police department had that no gatherings would be authorised, pursuant to the Ordinance in question. In its view, its decision to withdraw confirmed that it had intended to organise a gathering to mark May Day, as it did every year, but that had been prevented from doing so as a result of the prohibition laid down in the ordinance. 34. The applicant association alleged that the trade-union movement had been required to comply with the ban on organising marches, gatherings or strike pickets, failing which its members would have been liable to prison sentences. It added that, as a result, it had been impossible to organise any trade-union demonstration between 17 March and 30 May 2020. Even in the absence of a formal refusal to grant authorisation, it had therefore been obliged to alter its activity, under threat of serious penalties, including prison sentences and that, in consequence, its standing as a victim was also valid for the remainder of the period under consideration. 35. Accordingly, the applicant association concluded that it had been directly concerned by the general prohibition on demonstrations and that, accordingly, its standing as a victim should be acknowledged. (b)   The Court’s assessment
36. The Court reiterates that the concept of “victim” within the meaning of Article 34 of the Convention must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004‑III, and Tourkiki Enosi Xanthis and Others v. Greece, no. 26698/05, § 38, 27 March 2008). It primarily concerns the direct victims of the alleged violation, or the persons directly affected by the matters allegedly constituting the interference (see Norris v. Ireland, 26 October 1988, § 31, Series A no. 142; Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 43, Series A no. 246‑A; Otto-Preminger-Institut v. Austria, 20 September 1994, §§ 39-41, Series A no. 295‑A; Tanrıkulu and Others v. Turkey (dec.), no. 40150/98, 6 November 2001; and SARL du Parc d’Activités de Blotzheim v. France, no. 72377/01, § 20, 11 July 2006). 37. Moreover, the Court, very exceptionally, finds that certain persons who are likely to have been affected by the matters allegedly constituting the interference may be granted victim status. Thus, it has accepted the concept of a potential victim in the following cases: where the applicant was not able to establish that the legislation he complained of had actually been applied to him, on account of the secret nature of the measures it authorised (see Klass and Others v. Germany, 6 September 1978, § 34, Series A no. 28); where the applicant was required to modify his conduct or risk being prosecuted (see Dudgeon v. the United Kingdom, 22 October 1981, §§ 40-41, Series A no. 45; Norris, cited above, § 29; and Bowman v. the United Kingdom, 19 February 1998, § 29, Reports 1998‑I), or where the applicant belongs to a class of people who run the risk of being directly affected by the impugned legislation (see Marckx v. Belgium, 13 June 1979, § 27, Series A no. 31; Johnston and Others v. Ireland, 18 December 1986, § 42, Series A no. 112; and Burden v. the United Kingdom [GC], no. 13378/05, § 35, ECHR 2008). 38. In any event, whether or not the person concerned is a direct, indirect or potential victim, there must be a link between the applicant and the harm which they consider they have sustained on account of the alleged violation. The Convention does not envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Norris, cited above, § 31, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 28, ECHR 2009). 39. With regard to non-profit-making companies, the Court considers that they cannot themselves claim to be victims of measures which allegedly infringed their members’ rights under the Convention (see Association des amis de Saint-Raphaël et de Fréjus and Others v. France (dec.), no. 45053/98, 29 February 2000, and Čonka and the Human Rights League v. Belgium (dec.), no. 51564/99, 13 March 2001). 40. In the present case, the Court notes that prior to the pandemic the applicant association had organised numerous demonstrations, particularly in support of trade-union and democratic freedoms, a fact that is not disputed by the Government. Following the introduction of the measures to tackle the coronavirus, it was prevented from doing so, on pain of prosecution with the possibility of custodial sentences. In particular, it claims to have been obliged to abandon plans to organise a demonstration scheduled for 1 May 2020 and to have withdrawn its request for authorisation. 41. Moreover, given that the applicant association was thus deprived of an important means of pursuing its statutory aims, there is a sufficient link between it and the harm that it claims to have sustained following the alleged violation of Article 11 of the Convention. 42. In view of the above considerations, the Court concludes that, since the applicant association was obliged to alter its behaviour and even, in order to avoid criminal penalties, to refrain from organising public meetings that would have contributed to achieving its statutory aim, it can claim to be a victim of a violation of the Convention. Exhaustion of domestic remedies
(a)   The parties’ arguments
(i)      The Government
43. The Government acknowledged that federal legislative acts were not submitted to judicial review in abstracto, that is, without an implementing act; nevertheless, they considered that those acts could be the subject of a preliminary ruling in the context of an appeal against an implementing legislative text. 44. The Government based its objection of non-compliance with Article 35 § 1 of the Convention on the possibility, allegedly available to the applicant association, to request authorisation at any moment for a public event in the exemptions provided for in Article 7 of O.2 COVID-19. According to the Government, the authorities would in that scenario have been obliged to examine any such request in the light of the applicable law, that is, the constitutional and international law. 45. The Government submitted that, more specifically, a refusal to grant an exemption could have been appealed against, initially before the Administrative Division of the Canton of Geneva Court of Justice (section 6 (1) of the LPA-GE), which, they argued, had in fact carried out such an assessment in a similar case (Administrative Division, judgment of 18 August 2020, mentioned in paragraph 27 above). They added that subsequently, had it failed at first instance, the applicant association could have lodged a public-law appeal with the Federal Supreme Court (section 82 (a) of the LTF, see paragraph 17 above) alleging, inter alia, a violation of federal law and international law, including the Convention (Article 189 (1) a and b of the Constitution; section 95 (a) and (b), of the LTF, at paragraphs 16 and 17 above). They stated that, equally, any criminal convictions could have been appealed against at final instance before the Federal Supreme Court on the same grounds (sections 78 (1) and 95 (a) and (b), of the LTF, in paragraph 17 above). They explained that in the context of such proceedings, the compatibility of O.2 COVID-19 with the higher-ranked law would have been the subject of a preliminary ruling. 46. Lastly, the Government pointed out that under Article 35 (2) of the Constitution all of the competent authorities were required “to uphold fundamental rights and to contribute to their implementation”. The Government therefore considered that it was incumbent on them, in a case concerning the application of the law, to resolve a possible conflict between, on the one hand, the fundamental rights set out in the Constitution and the Convention guarantees, and, on the other, an ordinance of the Federal Council in the light of this obligation also. From their perspective, it followed that proceedings on granting an exemption within the meaning of Article 7 of O.2 COVID-19 could not be said to have had no prospect of success. In the Government’s view, this possibility of judicial review differentiated the present application from the situation in the case of S.A.S. v. France ([GC], no. 43835/11, § 61, ECHR 2014 (extracts)), in which the conformity of the law in question with fundamental rights had already been examined by the highest French courts, namely the Constitutional Council and the Court of Cassation. 47. In the light of these considerations, the Government considered that the national authorities, and in particular the Federal Supreme Court, ought not to be deprived of the possibility of being the first to examine the dispute, before its submission to an international court. (ii)    The applicant association
48. The applicant association disagreed with the Government’s view that it could have attempted to obtain a refusal of authorisation in a specific situation before then lodging an appeal against that decision with the cantonal authorities, which would subsequently have been required to examine, in a preliminary ruling, the compatibility of O.2 COVID-19 with the higher‑ranking law. In this connection, it argued that its application did not concern a refusal to authorise a specific event, but rather the introduction of a strict legal framework which, for two and a half months, had – in its submission – prohibited any political or trade-union event, on pain of a penalty of up to three years’ imprisonment. It considered that such a measure could not be directly challenged by means of an individual decision. 49. The applicant association alleged that, contrary to what was suggested by the Government, while an appeal against a specific decision could lead a court to examine a given legal text’s compatibility with the higher-ranking law, this was not guaranteed. It stated that, by applying the jura novit curia principle a Swiss court could base its judgment on the legal principles of its choice, without being obliged to examine the issues raised by the parties. It added that, to the extent that the Swiss courts had, in its view, no competence to rule on the compatibility of a legal norm with the higher-ranking norm, there was no possibility that they would examine, in a preliminary ruling, the national law’s compatibility with the higher sources of law. 50. Lastly, it stated that the possible finding of a violation based on a refusal to authorise a specific event would by no means enable the damage caused by a general prohibition, valid for two and a half months, to be recognised and made good, although this was the subject of the present application. 51. In view of the particular circumstances of the present case, the applicant association submitted that the Court should find that it had had no possibility of securing an examination of the alleged violation of its rights, arising from a two-and-a-half-month general ban on gatherings and the related threats of penalties. In other words, since bringing a case before the Swiss courts was not an option, it was entitled to avail itself of the exceptional possibility of applying directly to the Court. (b)   The Court’s assessment
(i)      Applicable principles
52. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, in particular, the judgments in Vernillo v. France, 20 February 1991, § 27, Series A no. 198, or Dalia v. France, 19 February 1998, § 38, Reports of Judgments and Decisions 1998‑I). In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal (see, for example, Ringeisen v. Austria, 16 July 1971, §§ 89 and 92, Series A no. 13). 53. Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time; that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996‑IV). 54. The Court would emphasise that the application of this rule must make due allowance for the context. It has therefore recognised that Article 35 § 1 must be applied with a degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). It has further agreed that the rule on exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Ringeisen, cited above, §§ 89 and 92). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, § 69). (ii)    Application of the above principles
55. With regard to this specific case, the Government, based on the relevant domestic law and practice as set out above, considered that there had been nothing to prevent the applicant association from requesting authorisation to organise a public event under the exemptions provided for in Article 7 of Ordinance 2 COVID-19, taken together with sections 3 to 5 of the LMDPu-GE (see paragraph 23 above). They argued that in such a scenario a refusal by the cantonal authorities could have been appealed against before the Canton of Geneva Court of Justice under the relevant provisions of the LPA-GE (paragraph 24 above), then before the Federal Supreme Court by means of a public-law appeal (section 82 of the LTF, see paragraph 17 above), for the purpose of obtaining a finding, through a preliminary ruling, that there had been, among other things, a violation of international law, including the Convention. 56. With regard, firstly, to the possibility of requesting an exemption, certain exemptions could be granted by the cantonal authorities under Article 7 (a) of O.2 COVID-19 in the version of 13 March 2020, especially for events related to the exercise of political or training rights. Nonetheless, once an “extraordinary situation” within the meaning of section 7 of the Epidemics Act had been declared by the Federal Council on 16 March 2020 (see paragraph 18 above), all public and private events were prohibited. In the version of the ordinance that was in force from 17 March 2020, the reference to exceptional authorisation for the exercise of political rights had been removed (see paragraph 20 above). In consequence, the Court notes that the possibility for an exemption for the exercise of political rights was provided for only in the version of 13 March 2020 of O.2 COVID-19, which was in force only until 16 March 2020, that is, for a very short period of time. Moreover, the Government did not provide a single example from the Canton of Geneva in which the relevant authorities had granted a request for an exemption and permitted the organisation of a public event during the relevant period. They had not therefore shown that this possibility was available in practice. 57. The Court will now address the possibility, as alleged by the Government, of challenging before the Swiss courts a potential refusal to grant authorisation for a peaceful assembly. In so far as the Government referred to case 2D_32/2020 (judgment of 24 March 2021, see paragraph 26 above, in which the Federal Supreme Court concluded that the impugned provision of the Covid Ordinance (Culture) was contrary to Article 29 (a) of the Constitution, in that it ruled out any appeal against the decisions taken in execution of that Ordinance and was accordingly unconstitutional and unenforceable), the Court points out that this judgment was delivered only on 24 March 2021, that is, approximately one year after the period under consideration in the present application, which concerns the weeks which followed the enactment of O.2 COVID-19 on 13 March 2020. In particular, the above-mentioned case concerned the right of access to a court in the context of services in the cultural sector – in other words, a right and a sector which are quite distinct from those in issue in the present case, which concerns the right to freedom of assembly within the meaning of Article 11 of the Convention. It follows that the above-mentioned judgment of the Federal Supreme Court is not relevant to the question of whether or not the applicant association, in the circumstance of this case, had at its disposal an effective remedy in order to complain of a violation of Article 11 of the Convention. 58. With more specific regard to freedom of assembly, the Federal Supreme Court, in a judgment of 12 August 2021 (1C_524/2020, in paragraph 27 above), declared inadmissible an appeal on the grounds that it was devoid of current interest, in that the request for authorisation to hold a gathering concerned a date that had already passed by the time that the judgment being appealed against was delivered and the restrictions previously in force had been lifted and would very probably not be reimposed in the same manner in future. Thus, the Federal Supreme Court did not rule on the merits of the appeal and did not carry out a preliminary examination of the constitutionality of the federal ordinance. The Court notes that, in the given case, even the first instance-court delivered its judgment after the date of the event for which authorisation had been requested. Such a delay is not, however, compatible with the principle in the Court’s well-established case-law to the effect that an effective remedy requires that review of a refusal to grant authorisation must occur prior to the date of the intended meeting or gathering (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, § 345, 7 February 2017, and Baczkowski and Others v. Poland, no. 1543/06, §§ 81-83, 3 May 2007). This example shows that it is unlikely that the Swiss courts would, in the very specific context of the present case, have conducted a preliminary review of constitutionality with regard to the relevant ordinance of the Federal Council within a useful time although, in normal circumstances, the Swiss courts, and in particular the Federal Supreme Court, do carry out such an assessment. 59. In view of these considerations and of the overall public-health and political situation, the Court is not persuaded that the applicant association enjoyed at the relevant time an effective remedy, available in practice, by which to complain of a violation of the right to freedom of assembly within the meaning of Article 11 of the Convention. Indeed, it is clear from the relevant domestic practice, especially the Federal Supreme Court’s judgment of 12 August 2021 (see paragraph 27 above) that, although federal ordinances could ordinarily be the subject of a preliminary ruling on constitutionality by the Federal Supreme Court, including in the absence of any current interest, that court, in the very particular circumstances of the general lockdown declared by the Federal Council as part of the efforts to tackle the coronavirus, did not examine freedom-of-assembly applications on the merits and did not assess the compatibility of O.2 COVID-19 with the Constitution. 60. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies. Conclusion as to admissibility
61. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant association
62. The applicant association submitted that the general prohibition on demonstrations was based on a single Government ordinance and had not been approved by Parliament, which in itself raised a serious issue as to the quality of the legal basis, given the duration of the measures and the degree of the interference entailed by them. It also argued that the potential measures open to the Federal Council in application of section 6 (2) of the LEp were not defined by the law with sufficient precision. 63. The applicant association added that the Government had taken advantage of a power, which it described as unlimited, in order to enact measures which in substance amounted, in its view, to a derogation from a fundamental right guaranteed by the Convention, without observing any of the conditions imposed by Article 15. It considered that, given the intensity of the restriction on guaranteed rights, O.2 COVID-19 did not constitute a sufficient legal basis to justify the interference with the rights enshrined in Article 11. 64. The applicant association did not dispute that there had been legitimate aims for the alleged interference with the exercise of the right to freedom of peaceful assembly. As to the necessity of the impugned measures in a democratic society, it submitted that all events had been prohibited, that no exceptional exemption was applicable to gatherings related to the exercise of political rights and that, for that reason, no such gathering had been authorised during the period concerned. 65. In so far as the Government referred to a “short period” during which the restrictions were applicable, the applicant association noted that the period in question ran from 17 March to 30 May 2020. It submitted that, having regard to the severity of the measures, this duration was to be considered as particularly long. 66. The applicant association also argued that anyone merely attending an event during the period concerned had been liable to a custodial sentence of three years’ imprisonment in application of Article 10 (d) of Ordinance O.2 Covid-19. It considered that, given the seriousness of the penalty, and the chilling effect that it implied, the interference had been extremely severe. 67. The applicant association also alleged that although the Government justified the restrictions by referring to the epidemiological situation, they had in fact always refused to impose a general lockdown. According to the applicant association, the Government had always authorised access to workplaces, such as factories or offices, even when those premises were used by hundreds of people. The applicant association submitted that maintaining the latter types of activity had been possible, subject to the single condition that employers took organisational and technical measures to ensure compliance with the health and social-distancing recommendations. This meant that while it had been possible to bring together thirty persons in a shopping centre, building site or factory, bringing together those same persons – in compliance with health-protection measures – on a picket line or in a gathering had, in contrast, been subject to a three-year prison term. 68. The applicant association also considered it relevant to note that other member States of the Council of Europe, faced with a similar epidemiological situation, had not forbidden all political and trade-union gatherings, but, on the contrary, had merely restricted this right by making its exercise conditional on compliance with precautionary measures (social distancing, masks, disinfecting) in order to limit the health risks. It further indicated that certain States, aware of the incompatibility of a general prohibition on demonstrations with Article 11 of the Convention, had chosen to derogate formally from the Convention, by informing the Secretary General of the Council of Europe of that fact on the basis of Article 15 of the Convention. 69. In consequence, the applicant association concluded that a general prohibition had amounted to a manifestly excessive measure that had not been necessary in a democratic society. For that reason, it considered that there had been a violation of Article 11. (b)   The Government
70. The Government submitted that the prohibition on public gatherings had been provided for in Article 6 et seq. of Ordinance O.2 COVID-19. They also considered that those provisions had pursued two aims within the meaning of Article 11 § 2, namely the protection of health and protection of the rights and freedoms of others. 71. With regard to their necessity in a democratic society, the Government acknowledged that the prohibition of any public event amounted to a serious interference with the right to freedom of assembly and association. They observed that it was not therefore surprising that the Federal Council had not immediately had recourse to this radical measure, instead taking its decisions in the light of developments in the epidemiological situation, and had strengthened the relevant measures when the virus began to spread more quickly. In this connection, they added that it was only from 17 March 2020 that Article 6 of O.2 COVID-19 had prohibited all public gatherings. 72. The Government also specified that Article 7 of O.2 COVID-19 provided from the outset for the possibility of granting exemptions. Additionally, the validity of the ban had been limited in time and extensions had only been adopted for short periods and in light of developments in the epidemiological situation. They added that the various prohibitions had been relaxed and lifted in stages, as the situation improved. 73. With regard to the option of imposing criminal penalties on all those who failed to comply with the prohibition set out in Article 6 of O.2 COVID-19, the Government considered that the severity of the threat to public health as a result of the coronavirus was such that, exceptionally, it was essential that the epidemiological measures were accompanied by penalties likely to discourage offending. In consequence, the Government concluded that they had not overstepped their margin of appreciation in exercising their power to sanction persons who participated in an event which did not meet the authorisation requirement. 74. In view of these considerations, the Government concluded that the complaint submitted under Article 11 of the Convention was manifestly ill-founded.

Outcome for Article 41: violation