The ECHR Begins to Deal with Violations of Constitutional Guarantees During Covid

ER Editor: So some cases against governments over their tyrannical Covid measures have been essentially fast-tracked by the ECHR, including cases from Switzerland and Malta. The Maltese case is not described below; the Swiss case involves a trade union whose members could not work. The legal judgements went AGAINST the member state governments.

This fast-tracking is unusual, however. Most of the cases against EU member state governments during the Covid time will take up to FIVE YEARS to reach the court, the requirement being that the member state concerned must have time to reply to the charges.

We sincerely hope that not just governments but particular individuals within those governments get held responsible for their despicable, disproportionate actions.

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The ECHR begins to deal with violations of constitutional guarantees linked to the covid years

TERESITA DUSSART for FRANCE SOIR

ECHR © FREDERICK FLORIN / AFP/Archives

Cases of interference with fundamental freedoms are beginning to arrive at the European Court of Human Rights (ECHR). Two convictions have been pronounced, against Switzerland and against Malta.

The most spectacular case in terms of its jurisprudential impact is that of the Geneva Community of Trade Union Action. This organization complained that it was unable to participate in events specific to its activity due to health restrictions. In its judgment of March 15, the ECHR considers that the margin of appreciation of the Swiss authorities was “disproportionate” and retains the violation of article 11 (right of meeting and assembly).

To measure the impact of this decision, France Soir interviewed Maître Julien Martin, lawyer at the Strasbourg bar and president of the Human Rights Commission of the same bar.

The judgment delivered by the European Court of Human Rights against Switzerland is binding, and the solution adopted by the Court is enforceable against any Member State which has adopted measures of interference, including in times of crisis health, provided that these measures of interference were disproportionate to the aims pursued, namely: the protection of health security. There could therefore be a violation of the right to freedom of association in a case whose facts and circumstances are similar or identical to those of the judgment against Switzerland. Any Member State of the European Convention on Human Rights is bound by the case law of the European Court of Human Rights”

In the Geneva case, the ECHR was remarkably quick. Normally, the court set up by the Council of Europe does not take up cases until all appeals to the national authorities have been exhausted.

If the application is not declared manifestly inadmissible by the registry of the European Court of Human Rights, it is then communicated to the respondent government for its observations in reply. This stage can last an average of six months to a year for the French division of the Court“says the lawyer.

It is expected that most cases of violations of constitutional guarantees and freedoms during the Covid years will end up at the ECHR Registry in the next five years, with the exception of cases relating to Article 2 (right to life) or Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, in which case the ECHR may take action ex officio. However, a criterion comes into play, which is that of the assessment of the impact of the case by the judges. Media and social impact: this criterion introduces a suspicion of political reading with regard to the selectivity of admissibility.

It is a sensitive matter for many citizens which is that of the vaccination obligation imposed on certain professional categories. (Law of August 5, 2021). This is the case of Thevenon v. France, named after a firefighter suspended from work and having lost the enjoyment of his salary. The automaticity of admissibility was rejected and transferred back to the State, pending a debate on the merits, if any.

Faced with the legal risk, it would have been imaginable that the Member States, especially those which had recourse to the most repressive measures of the state of health, would activate Article 15 or the derogation clause. This article provides Contracting States with the possibility of ignoring freedoms in a limited context and supervised by the European Council. Yet they did not. According to Master Martin,

‘the interest for the Member States of not invoking the application of the exceptional derogations under Article 15 of the Convention is, in [his] opinion, that of remaining subject to a classic control of proportionality by the Court and retaining the benefit of a wider margin of appreciation recognized by the case-law of the Court in the implementation of measures which may constitute an interference with the exercise of the rights and freedoms of individuals. This margin of appreciation for States is generally considered to be “broad” by the European Court of Human Rights in times of crisis, and we have seen this particularly in times of terrorist crisis.

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