CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 27 novembre 2023

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sE4770B24 { margin-top:0pt; margin-bottom:0pt; text-align:justify; border:0.75pt solid #000000; padding:1pt 4pt; font-size:10pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s9F2AE49E { margin-top:8pt; margin-right:28.35pt; margin-bottom:3pt; page-break-after:avoid; line-height:12pt } .s7ED160F0 { text-decoration:none } .s659CE682 { font-family:Arial; font-size:11pt; font-weight:bold; text-decoration:underline; color:#0069d6 } .sF13A94BC { margin:0pt 28.35pt 3pt 34pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .s695099B3 { width:10.89pt; text-indent:0pt; display:inline-block } .sEAB539EC { width:7.83pt; text-indent:0pt; display:inline-block } .s554D0A64 { width:4.78pt; text-indent:0pt; display:inline-block } .s3F015572 { margin:0pt 28.35pt 3pt 51pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .sB6D33163 { font-family:Arial; font-size:10pt; text-decoration:underline; color:#0069d6 } .s833B1EA7 { width:7.55pt; text-indent:0pt; display:inline-block } .s4859184F { width:7pt; text-indent:0pt; display:inline-block } .sC0FFF6FB { margin:0pt 28.35pt 3pt 68.05pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .sD46FFE5D { width:8.66pt; text-indent:0pt; display:inline-block } .s70E0A597 { margin:0pt 28.35pt 3pt 85.05pt; text-indent:-17pt; line-height:12pt } .s5336AA44 { margin:0pt 28.35pt 3pt 102.05pt; text-indent:-17pt; line-height:12pt } .s8E0B8B88 { width:8.12pt; text-indent:0pt; display:inline-block } .sF53451E7 { width:5.9pt; text-indent:0pt; display:inline-block } .s72A8FB50 { width:5.34pt; text-indent:0pt; display:inline-block } .sA425D9AB { width:311.11pt; font-family:'Lucida Console'; font-size:10pt; display:inline-block } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s590A3EF4 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sD4BA5B82 { width:229.46pt; text-indent:0pt; display:inline-block } .sFC1F2909 { width:0.52pt; text-indent:0pt; display:inline-block } .s1F7F12F1 { margin-top:0pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .sE9B40630 { width:19.85pt; text-indent:0pt; display:inline-block } .s2E3BD715 { width:11.51pt; text-indent:0pt; display:inline-block } .sDD35F56 { width:9.5pt; text-indent:0pt; display:inline-block } .sD091CC24 { width:185.81pt; text-indent:0pt; display:inline-block } .sE01501FE { width:2.52pt; text-indent:0pt; display:inline-block } .s83B2C21A { width:222.13pt; text-indent:0pt; display:inline-block } .s6B505E72 { margin:0pt; padding-left:0pt } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s31EEE7E5 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; line-height:150% } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3171A8A8 { margin-top:6pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:7.05pt; text-align:justify; font-size:10pt } .sC7411871 { margin-top:0pt; margin-left:21.25pt; margin-bottom:0pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA2548810 { margin-top:14pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:10pt } .s718D1C37 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sBDF853E { margin-top:6pt; margin-left:34.85pt; margin-bottom:6pt; text-indent:14.75pt; text-align:justify; font-size:10pt } .sC879EADF { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s381861D1 { margin-top:6pt; margin-left:49.6pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sB17199F3 { margin-top:14pt; margin-left:21.25pt; margin-bottom:6pt; page-break-after:avoid; font-size:10pt } .s665EF87B { margin-top:14pt; margin-bottom:6pt; text-indent:21.25pt; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s7DB8BC41 { width:183.09pt; display:inline-block } .sC986E16F { font-family:Arial; color:#ffffff } .s482114CD { width:34.88pt; display:inline-block } .s556D3942 { width:152.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s2D726B78 { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } GRAND CHAMBER CASE OF COMMUNAUTÉ GENEVOISE D’ACTION SYNDICALE (CGAS) v. SWITZERLAND (Application no. 21881/20)   JUDGMENT   Art 35 § 1 • Exhaustion of domestic remedies • Art 34 • Victim • Anti-Covid-19 related measures banning public events in the respondent State for two and a half months at the beginning of the pandemic • Impugned ban not amounting to a “general measure” as the relevant federal ordinance authorised exceptions • Applicant association’s unjustified decision not to continue authorisation request to hold a public event before receiving a formal decision and not to submit any other such request, deprived it of “direct victim” status and of opportunity to bring the matter before the domestic courts • Possibility of review of the compatibility of normative acts of the Federal Assembly and the Federal Council with provisions of superior legal force, by means of an application of a preliminary ruling, as part of an ordinary examination of a specific case by judicial bodies at all levels • Remedy directly available to litigants and made it possible, where appropriate, to have impugned provision declared unconstitutional • Requirement of judicial review in advance of the date of a planned event not decisive for determining effectiveness of a remedy allowing for review of a law’s compatibility with the Convention • Absence of particular circumstance absolving applicant association at the material time from obligation to exhaust domestic remedies • Importance of Court’s fundamentally subsidiary role • States’ wide margin of appreciation in healthcare policy matters • Given unprecedented and highly sensitive context of the Covid-19 pandemic, important for national authorities to be given the opportunity to strike a balance between competing private and public interests at stake or between different rights protected by the Convention • Application inadmissible for non-exhaustion of domestic remedies   STRASBOURG 27 November 2023 This judgment is final but it may be subject to editorial revision. TABLE OF CONTENTS PROCEDURE INTRODUCTION THE FACTS I.   THE GLOBAL CONTEXT II.   THE NATIONAL CONTEXT III.   THE CIRCUMSTANCES OF THE CASE A.   The steps taken by the applicant association to organise an event on 1   May 2020 B.   The impact of Ordinance COVID-19 no. 2 on the organisation of public events in Switzerland RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW AND PRACTICE A.   The Federal Constitution B.   The relevant legislation C.   Relevant practice 1.   Appeals seeking review of the compatibility of cantonal normative acts with provisions of superior legal force 2.   Ordinary appeals against implementing acts based on federal ordinances (a)   The so-called “Climate Strike” case (i)   Judgment delivered by the Administrative Division of the Court of Justice of the Canton of Geneva on 18   August 2020 (ii)   The Federal Supreme Court’s judgment of 12   August 2021 (b)   Case no.   2D_32/2020: the Federal Supreme Court’s judgment of 24   March 2021 II.   INTERNATIONAL LAW MATERIALS A.   The United Nations B.   The Council of Europe C.   The European Union III.   COMPARATIVE-LAW MATERIALS THE LAW I.   SCOPE OF THE CASE BEFORE THE GRAND CHAMBER II.   THE GOVERNMENT’S PRELIMINARY OBJECTIONS A.   The applicant association’s alleged lack of victim status 1.   The Government’s submissions before the Grand Chamber 2.   The applicant association’s submissions before the Grand Chamber 3.   The third-party interveners (a)   The French Government (b)   The Assas Clinique de droit international (“the CDIA”) (c)   Amnesty International 4.   The Chamber judgment 5.   The Court’s assessment (a)   General principles deriving from the Court’s case-law (b)   Application of those principles to the present case B.   Exhaustion of domestic remedies 1.   The Government’s submissions to the Grand Chamber 2.   The applicant association’s submissions before the Grand Chamber 3.   The Chamber judgment 4.   The Court’s assessment (a)   General principles pertaining to the exhaustion of domestic remedies (b)   Application of the above principles to the present case OPERATIVE PROVISIONS JOINT DISSENTING OPINION OF JUDGES BOŠNJAK, WOJTYCZEK, MOUROU-VIKSTRÖM, KTISTAKIS AND ZÜND ................................................... In the case of Communauté genevoise d’action syndicale (CGAS) v.   Switzerland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Síofra O’Leary,   Marko Bošnjak,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Arnfinn Bårdsen,   Krzysztof Wojtyczek,   Egidijus Kūris,   Branko Lubarda,   Armen Harutyunyan,   Stéphanie Mourou-Vikström,   Pauliine Koskelo,   Tim Eicke,   Lətif Hüseynov,   María Elósegui,   Ioannis Ktistakis,   Andreas Zünd,   Diana Sârcu , judges , and Abel Campos, Deputy Registrar, Having deliberated in private on 12 April and 13   September 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1 .     The case originated in an 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 constituted under Swiss law, the Communaute genevoise d’action syndicale (CGAS) (“the applicant association”), on 26 May 2020. 2 .     The applicant association was represented by Mr O. Peter and Mr   C.   Moreau, lawyers practising in Geneva, and by Mr G. Genton, a lawyer practising in Lausanne. The Swiss Government (“the Government”) were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice. 3 .     The applicant association complained that it had been deprived of the right to organise public gatherings, and to take part in such gatherings, as a result of the measures adopted by the Government in the context of tackling the coronavirus during the period of application of Ordinance no. 2 on measures to combat the coronavirus (“Ordinance COVID-19 no.   2”), that is, from 17 March to 30 May 2020. 4 .     On 11 September 2020 the Government were given notice of the application. 5 .     The application was allocated to the Third Section of the Court (Rule   52 §   1 of the Rules of Court). On 15 March 2022 a Chamber of that Section, composed of Georges Ravarani, President, Georgios A. Serghides, Darian Pavli, Anja Seibert-Fohr, Peeter Roosma, Andreas Zünd and   Frédéric   Krenc, judges, and Milan Blaško, Section Registrar, delivered a judgment in which it declared, by a majority, the application admissible and held, by four votes to three, that there had been a violation of Article 11 of the Convention. The concurring opinion of Judge Krenc, joined by Judge   Pavli, and the joint dissenting opinion of Judges Ravarani, Seibert-Fohr and Roosma were appended to the judgment. 6 .     On 10 June 2022 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 5   September 2022 the panel of the Grand Chamber granted the request. 7 .     The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule   24. 8 .     The applicant association and the Government each filed observations on the admissibility and the merits of the case (Rule 59 § 1). In addition, third ‑ party comments were received from the French Government, the Assas Clinique de Droit International and Amnesty International, all of which had been given leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rules   71   §   1 and   44 §   3). 9 .     A hearing took place in public in the Human Rights Building, Strasbourg, on 12   April 2023. There appeared before the Court: (a)     for the respondent Government Mr   A . Chablais,   Agent , Mr   A . Sheidegger, Ms   I. Reyser,   Mr   M. G erber,   Mr   P . Mathys, Ms   L. Luchetta Myit,   Advisers ; (b)     for the applicant association Mr   O. Peter, Mr   C. Moreau,   Counsel .   The Court heard addresses by Mr Chablais, Mr Peter, Mr Moreau and Ms   Luchetta Myit. INTRODUCTION 10 .     Under Article 11 of the Convention, the application concerns measures adopted by the Swiss Government to combat the coronavirus-2019 disease (“COVID-19”), which were in force from 17 March to 30   May 2020. THE FACTS THE GLOBAL CONTEXT 11 .     In December 2019 an epidemic of pneumonia cases, described at the relevant time as being viral in nature and of unknown cause, was detected in the city of Wuhan, China. On 9 January 2020 the Chinese health authorities and the World Health Organization (“WHO”) officially announced that a new coronavirus had been identified. 12.     The number of confirmed cases of persons infected by COVID-19 rose rapidly in China and across the world, and from 30 January 2020 WHO declared that the disease was a public-health emergency of international concern. On 11 March 2020 WHO declared COVID-19 a pandemic. 13.     National and international public-health organisations recommended compliance with preventive measures including, in particular, wearing a mask, regularly washing one’s hands or using a hydro-alcoholic solution, greeting others without shaking hands, maintaining a distance of at least 1.5   metres when speaking to other people and properly ventilating living areas. 14.     On 12 March 2020 the European Centre for Disease Prevention and Control (“the ECDC”), an agency of the European Union aimed at strengthening Europe’s defences against infectious diseases, alerted the EU and EEA countries to the risks associated with the spread of the virus and affirmed the need to take public-health measures in order to mitigate the impact of the pandemic. In particular, it recommended social distancing measures, including the immediate isolation of symptomatic persons, the suspension of mass gatherings and social distancing in the workplace (see paragraph   69 below). 15.     During the spring of 2020, many countries declared a public-health state of emergency and introduced special protection measures, including lockdowns. 16.     According to reports published by WHO, more than 3 million cases of coronavirus infection and almost 220,000 deaths were confirmed worldwide by 30   April 2020. European States alone represented almost half of the infections and two-thirds of the deaths at global level [1] . 17.     On 31 December 2020 WHO validated the first anti-Covid-19 vaccine through the emergency use procedure [2] . 18 .     On 5 May 2023, following a mass vaccination campaign (more than 13 billion vaccine doses administered worldwide), which had made it possible to contain the effects of the disease, WHO lifted the alert classifying COVID-19 as a public-health emergency of international concern. By that date, more than 766 million cases of COVID-19 infection and almost 7   million deaths had been recorded worldwide. THE NATIONAL CONTEXT 19.     On 25 February 2020 COVID-19 was detected for the first time on Swiss territory, in the Canton of Ticino. 20.     According to data published by the Federal Office of Public Health (“the OFSP”), by the end of April 2020 about 29,000 cases had been confirmed in Switzerland and 1,427 COVID-19-related deaths had been registered. In the Canton of Geneva, 4,949 cases had been confirmed by laboratory tests and there had been 263 deaths [3] . 21.     In order to deal with the pandemic, on 28 February 2020 the Federal Council declared that the situation in hand was a “special situation” for the purposes of section 6 (1) (b) of the Epidemics Act; on the same date it adopted an Ordinance on measures to combat the coronavirus, prohibiting public or private events bringing together more than 1,000 persons at any one time. 22.     On 13 March 2020 the Federal Council replaced the Ordinance of 28   February 2020 with Ordinance COVID-19 no. 2 on measures to combat the coronavirus (“Ordinance COVID-19 no. 2”), in which it announced the closure of schools, universities and other training establishments and prohibited public or private gatherings of more than 100 persons. Article   7   (a) of 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. 23.     On 17 March 2020 the Federal Council announced that there existed an “extraordinary situation” within the meaning of section 7 of the Epidemics Act and amended the preamble to Ordinance COVID-19 no. 2. 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 expressly specified that certain establishments, including food shops, banks, petrol stations and hotels, could remain open (see § 42 below). 24.     Under the heading “Criminal Provisions”, Ordinance COVID ‑ 19   no.   2 provided that anyone who intentionally opposed the measures set out therein would be liable to 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. 25.     On 21 March 2020 the Federal Council strengthened these measures further, by prohibiting gatherings of more than five persons in public areas. On 8 April 2020 it extended the measures for a further week, that is, until 26   April 2020 (see § 43 below). 26.     On 29 April 2020 it announced that the majority of emergency measures were to be eased, with effect from 11 May 2020. Shops, restaurants, markets, museums and libraries were given permission to reopen. Primary and secondary schools were authorised to resume in-class teaching. 27.     On 20 May 2020 the Federal Council announced that religious worship – whether private services or within a religious community – could resume from 28 May 2020, subject to compliance with the appropriate protection measures. 28.     On 27 May 2020 it authorised a further stage in easing the relevant measures: from 30 May 2020, the ban on gatherings was relaxed (up to a maximum of 30 persons); from 6 June 2020, private and public events involving up to 300   persons were again authorised (for example, family celebrations, fairs, concerts, plays or film projections); political gatherings were also possible once again. Events involving more than 1,000 persons were prohibited until the end of August. On 20 June 2020 the prohibition on public events was lifted, although mask-wearing remained compulsory. 29.     On 19 December 2020 the authority responsible for authorising and supervising therapeutic products in Switzerland ( Swissmedic ) authorised the first COVID-19   vaccine [4] . THE CIRCUMSTANCES OF THE CASE 30.     The applicant is an association registered under Swiss law, which was set up in 1962 and has its headquarters in Geneva. It is an umbrella organisation for all of the trade unions in the canton of Geneva, and its statutory aim is to defend the interests of workers and of its member organisations, particularly in the field of trade-union and democratic freedoms. The steps taken by the applicant association to organise an event on 1   May 2020 31 .     In a press release of 19 March 2020, the applicant association’s organising committee announced that, in view of the public-health crisis and the restrictions in force, it had decided not to organise the traditional commemorative march scheduled for 1 May 2020. 32.     On 14 April 2020 Ms L.F., the permanent secretary of the applicant association, submitted an authorisation request for a static gathering of 20   persons on the Mont-Blanc Bridge in Geneva, to be held at 12 noon on 1   May 2020. 33.     On an unspecified date the Department for Security, Employment and Health (“the Department”) contacted the association by telephone and informed it that the authorisation would be refused for the purposes of Ordinance COVID-19   no.   2. 34.     By an email of 22 April 2020, Ms L.F. informed the Department that the association had decided to refrain from organising the gathering. 35.     The applicant association decided to limit its actions to attaching a banner to the parapet of the Mont-Blanc Bridge, while urging citizens to demonstrate their solidarity by “making a noise” from windows and balconies. The impact of Ordinance COVID-19 no. 2 on the organisation of public events in Switzerland 36 .     During the period of application of Ordinance COVID-19   no.   2, several requests were lodged under Article   7 of that Ordinance in ten cantons, including the Canton of Geneva, by various entities (associations, political parties, religious groups, etc.) seeking exemptions from the ban on public events. In six cantons (Aargau, Berne, Basle Rural, Grisons, Lucerne and Zurich), the competent administrative authorities granted some exemptions. 37 .     According to information submitted by the Government on 8   May 2023 in response to a request made at the close of the public hearing on 12   April 2023 (see paragraph 9 above), events such as municipal assemblies, information meetings, religious gatherings, training courses and events organised by sports bodies and professional associations were authorised in public places in several cantons throughout the period of application of Ordinance COVID-19 no. 2. Where the authorities refused to grant the requests, the organisers voluntarily called off the planned events. A formal refusal by the authorities to grant an exemption was appealed before the courts in only one instance, giving rise to the so-called “Climate Strike” case (see §§   52-61 below). RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICE The Federal Constitution 38 .     The relevant provisions of the Federal Constitution read as follows: 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   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 to 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 shall 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.” The relevant legislation 39.     The relevant provisions of the Federal Supreme Court Act of 17   June 2005 (“the LTF”) read as follows: Section   3: Public-law appeals Article   82: Principle “1.     The Federal Supreme Court hears appeals: a.     against decisions taken in public-law proceedings; b.     against cantonal normative acts; c.     which concern citizens’ right to vote, and also elections and referenda.” Chapter   4: Appeals procedure ... Section   2: Grounds of appeal Article   95: Swiss Law “An appeal may be lodged against 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.” 40 .     The relevant provisions of the Federal Act on the Fight against Human Communicable Diseases (“the Epidemics Act”) 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. ...” Section   6: Special situation “1.     A special situation exists where: a.     the habitual enforcement bodies are unable to prevent and combat the emergence and spread of a communicable disease and where 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 (WHO) has noted the existence of a public-health emergency of international concern, 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 participate in combating 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) shall coordinate the measures taken across the Confederation.” Section   7: Extraordinary situation “If an extraordinary situation so requires, the Federal Council may order the necessary measures in respect of all or part of the country.” 41 .     The relevant provisions of Ordinance 2 on the measures to combat the coronavirus (“Ordinance COVID-19 no. 2”), which entered into force on 13   March 2020, were worded as follows: Article   6: Public events and establishments “1.     Public or private events bringing together 100 persons or more at the same time are prohibited. 2.     Events involving fewer 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 events 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.” 42 .     As of 17 March 2020, the relevant provisions of Ordinance COVID ‑ 19   no.   2 read as follows: Article   6: Public events and establishments “1.     All public or private events, 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.” Article   10 “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 to a financial penalty, unless he or she has committed a more serious offence within the meaning of the Criminal Code.” 43 .     On 21 March 2020 Ordinance COVID-19 no. 2 was supplemented by a new Article   7 c , and its Article 10 d was amended as follows: 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.” 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.” On 2 April 2020 Article 7(b), point 4 of Ordinance COVID-19 no. 2 was amended as follows: “The competent cantonal authority may derogate from the prohibitions laid down in Articles   5 and   6 if: ... b.     the training establishment, organiser or operator submits a protection plan which includes the following prevention measures: 4.     adaptation of the premises to ensure compliance with the OFSP’s recommendations on hygiene and social distancing.” On 8, 16 and 29 April 2020 the Federal Council amended Ordinance COVID-19 no. 2, specifically by extending the term of validity of the limitations on public gatherings until 26 April, 8 May and 8 June 2020 respectively. On 8 May 2020 this term was brought forward to 7 June 2020. 44.     The explanatory report by the Federal Department of the Interior (DFI) concerning Article 7 of Ordinance COVID-19 no. 2, in the version in force from 17   March 2020, is worded as follows: “The principle of proportionality requires, for certain situations, a case-by-case assessment by the implementing authorities. Otherwise, there is a risk that the organisation of meetings, protected by fundamental rights (see Article 22 of the Constitution), would be completely prohibited, although the spread of the coronavirus could be ruled out or would be unlikely. Exceptions will therefore be provided for the general principle that prohibitions are to be introduced. Accordingly, the competent cantonal authority may grant exceptional authorisation with regard to the prohibitions referred to in Articles 5 and 6 if this is justified by overriding public interests, for example for training institutions in fields where the availability of the professionals concerned is compulsory or, in a given case, necessary in order for the educational activity to take place. Lastly, difficulties in the supply of basic goods and services may make it necessary to extend this exception to clearly defined institutions or suppliers. In addition, training institutions, organisers or operators must submit a protection plan that includes the following preventive measures, showing how the likelihood of transmission can be minimised: •   Persons who are ill or feel ill must be requested not to attend the event or institution, or to leave it. •   Protection of vulnerable persons: this group includes individuals aged over 65 and persons suffering from one of the diseases listed in Article   10(b), §   2. •   Participants or attendees must be actively informed about general protective measures such as hand-washing, the distances to be maintained and the hygiene rules to be followed in the event of a cough or cold (such as by placing the OFSP’s official leaflets in clearly visible locations). •   The spatial aspect: the smaller the event or institution, the lower the risk of infection and spread (low density). More space means less risk. Efforts should be made to secure larger venues, so that more space is available for those present. Appropriate instructions on the movement of groups of people can also reduce the risk of transmission. Another criterion to be taken into account, for example, is whether the event is held in open or closed premises. Lastly, the activities of the individuals present (number of close contacts, compliance with social-distancing rules during the actual activity) must also be taken into account.” 45.     The Law of the Republic and Canton of Geneva on events in public places (LMDPu-GE) of 26 June 2008 governs the organisation and holding of events in public places. The relevant provisions read 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 receives 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 theme 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 private and public interests at stake. 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 in a specified location, 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 hold public events. 6.     The Department may amend or withdraw an authorisation if the circumstances change.” 46.     Article   2 of the implementing regulations for the LMDPu-GE provides that authorisation requests must be submitted to the Department of Security, Employment and Health no later than thirty days prior to the scheduled date of the event. 47 .     The Criminal Code provides as follows with regard to the liability of legal persons: Article   102 “1.     A crime or offence which is committed within an enterprise in the exercise of commercial activities which correspond to the aims of that enterprise shall be imputed to the enterprise if it cannot be imputed to any specific individual on account of the enterprise’s inadequate internal structure. In such cases, the enterprise shall be liable to a fine not exceeding 5 million francs. ... 3.     The court shall determine the fine, in particular, on the basis of the seriousness of the offence and of the inadequacy of the internal structure, the damage caused, and the economic capacity of the enterprise. 4.     For the purposes of this heading, enterprises shall mean: a.     legal persons governed by private law; b.     public-law entities, with the exception of territorial corporations; c.     corporations; d.     sole traders.” Relevant practice 48 .     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 provisions of superior legal force, as only the normative acts of cantons can be brought before the Federal Supreme Court (see, in particular, the Federal Supreme Court’s judgment 2C_280/2020 of 15 April 2020 concerning Ordinance COVID ‑ 19   no.   2, and ATF (judgment of the Supreme Federal Court) 139   II   384   [2012]). The implementing acts based on such ordinances may be challenged through an ordinary appeal. In this context, the ordinance’s conformity with provisions of superior legal force, 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] ). 49.     In their observations before the Grand Chamber, the Government submitted the following examples of judicial practice in the area of restrictions on freedom of assembly in the context of combating the COVID ‑ 19 pandemic. Appeals seeking review of the compatibility of cantonal normative acts with provisions of superior legal force 50.     The Federal Supreme Court has examined several appeals against cantonal ordinances imposing bans or restrictions on the freedom to hold public events in the context of combating the COVID-19 pandemic. In an initial judgment, it held that the introduction of a maximum number of 30   participants in public gatherings, adopted by the Canton of Schwyz on 30   October 2020, had been a proportionate restriction on the freedom to hold public events (ATF 147 I 450 of 8   July 2021, point 3). Similarly, it examined regulations issued by the Canton of Uri which entered into force on 1   April 2021 and limited the number of participants in political and civil-society events to 300 persons, and it emphasised the essential role of freedom of assembly in a democratic and liberal State that was governed by the rule of law (ATF 148 I 19 of 3 September 2021, points 5 and 6). Called on to examine an ordinance issued by the Canton of Berne on 4   November 2020, limiting the number of participants in political and civil-society gatherings to 15   persons, it held that this regulation deprived freedom of assembly of any meaning and was, for that reason, disproportionate and anti-constitutional (ATF   148   I   33 of 3 September 2021, point   7). 51 .     At the cantonal level, the Canton of Zurich Administrative Court (TA ‑ ZH) ruled on an ordinance issued by the Canton of Zurich, which limited the number of participants at public gatherings to 15 persons during the period from 1 March to 30 April 2021. Like the Federal Supreme Court, it emphasised the importance of political and civil-society events for democracy and held that the restriction in question was disproportionate (TA ‑ ZH judgment   AN.1021.0003 of 29 April 2021, point   5). Ordinary appeals against implementing acts based on federal ordinances (a)    The so-called “Climate Strike” case (i)       Judgment delivered by the Administrative Division of the Court of Justice of the Canton of Geneva on 18   August 2020 52 .     On 5 May 2020 the collective “Climate Strike” submitted to the Department for Security, Employment and Health an authorisation request for a public event involving twenty-eight people, scheduled for 15   May 2020. On 6 May 2020 it was informed by telephone that the authorisation request had been filed out of time and that, in any event, the gathering was prohibited under Ordinance COVID-19 no. 2. By a decision of 11 May 2020, noting that the event had not been cancelled, the Department refused to grant authorisation and prohibited the gathering. 53.     On 14 May 2020 an appeal against the Department’s decision was lodged with the Administrative Division of the Court of Justice of the Canton of Geneva (“the Administrative Division”). 54.     The Administrative Division delivered its judgment on 18   August 2020. It noted, firstly, that the date of the event had passed by the date when the appeal was lodged and that, furthermore, the ban on public events had been lifted on 30 May 2020. Nonetheless, it considered that the appellant party retained a current interest in its appeal since, as the COVID-19 pandemic had not yet been eliminated, the Federal Council could decide to prohibit public gatherings again. In any event, in order to guarantee access to a court against a decision refusing a request for authorisation to demonstrate, a