ECHR watches over rule of law in review of Corona measures
Yesterday, on 15 March 2022, two years after the first lockdown in Belgium, the European Court of Human Rights (ECtHR) for the first time condemned a country for a disproportionate Corona measure in the judgment Communauté genevoise d’action syndicale (CGAS) c. Suisse. In this blog, we will briefly explain what the ECtHR decided and whether this judgment teaches us anything about the compatibility of the Belgian Corona measures with the European Convention on Human Rights (ECHR).
In Switzerland, public demonstrations were completely forbidden from 17 March to 30 May 2020: no exceptions were allowed. Moreover, the punishment was severe: three years of imprisonment. In accordance with its established case law, the ECtHR considers such a prohibition a serious interference with the freedom of assembly (Article 11 ECHR). Such interference is only permissible if there is a reasonable justification and if a judge has been able to weigh the interests at stake.
That is where the shoe pinches in this case. There was no (direct) judicial review of the ban on public demonstrations. The regulation containing the ban could not be challenged directly before the Swiss courts. This could only be done indirectly: first, one had to apply for permission to hold a public demonstration and then one could challenge the refusal of permission in court. However, the applicant to the ECtHR did not request permission for a particular public demonstration. After all, this was pointless: no exception to the ban on public events had been provided for. The applicant immediately submitted an application to the ECtHR. The ECtHR, which requires that internal remedies have been exhausted in order for an action to be admissible, does not reproach the applicant and recognises that it would have been pointless for the applicant first to apply for permission to hold a public demonstration, which would then have been manifestly refused (three judges disagreed, however, see the dissenting opinion).
In assessing the proportionality of the ban on public events, the ECtHR attaches great importance to the absence of judicial review. For the ECtHR, the internal court must be able to rule on the balancing of interests. Because judicial review was lacking here, it concludes that the ban on public events is disproportionate. The ECtHR understands that the urgency of the corona measures prevented extensive (preferably parliamentary) debates on the proportionality of Corona measures. But it was precisely the absence of an in-depth (parliamentary) debate that made independent and effective judicial review of the executive's measures even more necessary.
In Belgium, the jurisprudence on the corona measures of the Council of State, Administrative Jurisdiction Division, was criticised. Many appeals against corona measures were stranded on the lack of urgency: the Council of State did not come to an assessment on the merits of the case. Today's judgment of the ECtHR makes us wonder whether the (strict) interpretation of the urgency requirement by the Council of State would lead the ECtHR to conclude that also in Belgium no independent and effective judicial control was exercised in time on the Corona measures.* If a concrete Corona measure is a comparable serious interference as the Swiss ban on public manifestations, Belgium could in that case also be condemned for violating the ECHR.
* We will investigate this in the coming months, in the framework of book projects on the coronamate measures of, among others, KU Leuven (Leuvense Staatsrechtelijke Standpunten).