Swiss fight on Covid restrictions marks first for Grand Chamber

STRASBOURG, France (CN) — Europe’s top rights court heard arguments Tuesday over whether Switzerland was too aggressive with its pandemic restrictions.

A trade union instigated the case after Geneva forbade it from holding its 2020 May Day gathering. When the Third Section of the European Court of Human Rights sided with the union last year, it was the first time the Strasbourg-based court had found fault with government policies taken during the pandemic.

Geneva is appealing to the Grand Chamber now for a reversal, arguing that court must consider the chaos of the early days of the pandemic

"Individual freedoms had to give way to protect life," Switzerland's agent at the court, Alain Chablais, told the 17-judge panel in his opening statement.

He emphasized how Switzerland borders the Italian region of Lombardi, which was hit hard by the virus in the early days, and cautioned the judges against relying too much on hindsight. At the time of the planned event, Chablaid noted, the only measures governments had available to combat the pandemic were social distancing and reducing contacts.

The Geneva Community of Trade Union Action, or CGAS, had applied for a permit from the city of Geneva to hold its annual May Labor Day celebrations but, as is standard practice, was contacted by the local authorities to say the request would be denied because of the ban on public gatherings. Rather than receiving an official rejection, which comes with a fee of 100 Swiss francs ($110), the workers’ group withdrew its application.

In mid-May, the group filed a complaint with the ECHR, claiming Switzerland had violated their right to assembly as guaranteed under the European Convention of Human Rights. The 1950 treaty protects the civil and political rights of Europeans.

When they prevailed before the lower chamber, the Third Section called the blanket ban on demonstrations a “radical measure that requires strong justification and particularly serious review by the courts.” The 4-3 ruling was handed down in French.

One point of Geneva's defense is that CGAS never attempted in Switzerland to appeal the permit denial. Typically, applicants to the ECHR must, in court parlance, exhaust all domestic remedies before filing a complaint.

While the union says that the Swiss system lacked an avenue for such a challenge, Geneva disagreed, arguing that it could have appealed rather than withdraw its permit.

According to CGAS, the pandemic measures deeply restricted the rights of workers to organize, even though the government did everything it could to allow business to continue. "The government's priority was to maintain economic activity, not to protect people," the union's lawyer, Céline Moreau, said in her opening remarks.

Moreau also criticized the speed at which the Covid measures were passed and lack of involvement from unions in creating them.

A final decision is expected from the court sometime next year. It will be the first time that the Grand Chamber of the rights court has ruled on pandemic restrictions, but there are at least eight other pending applications before the judges.

Most of the cases focus on specific aspects of pandemic measures, rather than whether a response was merited at all. CGAS acknowledged the pandemic was an exceptional situation and doesn’t dispute the government’s figures regarding cases, deaths or other data.

“There must be some guidance as to where the lines are,” Isabella Risini, a visiting professor at the Walther Schücking Institute in Germany, told Courthouse News in an interview. She’s working with a group that has brought a case against the German government over Covid-19 school closures. The court is set later the challenge later this year.

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