CASE OF ASSOCIATION RHINO AND OTHERS v. SWITZERLAND [Extracts]

THE LAW — I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

33. The applicants complained that the dissolution of the Association Rhino had breached Article 11 of the Convention, which reads as follows:

“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.”

34. The Government contested that argument.

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1. The parties’ submissions

(a) The applicants

36. The applicants alleged that there had been no sufficient legal basis and observed that, under Article 78 of the Civil Code, the dissolution of an association was ordered by a court only when its purpose was unlawful or immoral. However, the aim of the association had always been to defend its members’ right to housing.

37. As regards the legitimate aim, and more specifically the protection of the right of ownership, the applicants argued that the dissolution of the association had had no legal or factual effect on the possibility for the owners to exercise their property rights. As regards the protection of public order, the applicants referred to a passage from the judgment of the Administrative Court of the Canton of Geneva of 17 January 2006, according to which public order had not been breached by the occupation. Lastly, even if the Court were to find that the occupation of the buildings had breached public order, the dissolution of the association would not be a suitable means of redress. In the applicants’ submission, it now appeared that the aim really pursued by the dissolution had been to weaken the occupants and to confiscate the resources they had pooled so that they would no longer be able to defend their legitimate rights in the judicial proceedings against them.

38. As to the necessity of the impugned measure in a democratic society, the applicants did not share the Government’s view that the removal of properties from the market was against Swiss law. They argued that there were many properties in Switzerland to which the rules of the property market were not applicable, as a result, for example, of the federal legislation on rural land law, which removed all of the country’s farmland from the market. That was also the effect of the extensive regulation of excessive rents, within the meaning of the Code of Obligations, through which the determination of the rent to be paid by tenants circumvented market forces.

39. The applicants further challenged the Government’s argument that the fact that the authorities had tolerated the occupation of the building for years did not mean that the occupation had become lawful. They observed in that connection that the Government had omitted to mention that the owners themselves had tolerated the occupation.

40. In the applicants’ submission, the Government’s argument to the effect that the dissolution of the association had enabled progress to be made was not correct either. They asserted that whilst the dissolution happened to take place at around the same time as the eviction, there was no causal link between those events. The decision of the Head of the Construction and Information Technology Department of the Canton of Geneva concerned the need to commence renovation work. The fact of whether or not the association existed would have had no effect on that procedure. Thus, the dissolution of the association was neither appropriate nor necessary in order to put an end to the occupation, still less to make progress, as the Government themselves had admitted when they noted that the occupation of the properties had continued even after the Federal Court’s finding that the association should be dissolved.

41. In addition, in the applicants’ view it could be inferred from the authorities’ long-term tolerance of the association that there had been no compelling need to dissolve it.

42. Neither did the applicants share the Government’s argument to the effect that the dissolution of the association had not prevented its members or friends from pursuing their aims by setting up a new association. They stipulated in this connection that the dissolution of the association had had a very significant practical effect, namely the confiscation and devolution to the State of the association’s assets, which had been assigned to the defence of the interests that it was defending. They noted that under Article 57, paragraph 1, of the Civil Code, unless otherwise provided by law, the constitution, the founding charter or the governing bodies, the assets of a dissolved legal entity passed to the public body to which the entity was affiliated according to its object. Article 57, paragraph 3, stated that where a legal entity was dissolved on account of having an immoral or unlawful object, the assets passed to the public body, even where otherwise provided (see paragraph 30 above). According to the applicants, it would admittedly be possible for the members to set up a new association, but extremely difficult to reconstitute assets to the extent of those that had been seized. They stated that the association, at the time of its dissolution, had had three postal and bank accounts, in which the total balance amounted to 79,144.07 Swiss francs (CHF). Moreover, the applicants did not see what guarantees could be given to the members and friends of the dissolved association that the new one would not be dissolved in the same manner.

43. The applicants further referred to the findings of a Federal Court judgment of 22 June 2006 (1P.109/2006, point 4.2)² to the effect that, under Article 26 of the Federal Constitution, which guaranteed private property, the cantonal authorities did not have a duty to intervene by evicting the occupants of the Rhino properties.

(b) The Government

44. The Government did not call into question the fact that the dissolution of the association had constituted an interference within the meaning of Article 11 § 1 of the Convention. They further argued that it had been based on Article 78 of the Civil Code, under which such dissolution was ordered by a court when the association was unlawful or immoral (see paragraph 32 above). They pointed out in this connection that the applicants could not rely on any statutory or contractual basis to justify their action. Moreover, the unlawful nature of the occupation had been confirmed by all the domestic courts.

45. The Government were of the view that the interference pursued two legitimate aims, namely the protection of the rights and freedoms of others, in the present case those of the property owners and the prevention of disorder. They noted that the main aim of the applicant association was “to remove any buildings that it occupie[d] from the real-estate market and from speculation” and that active member status, with voting rights, was reserved only for those who occupied one of the three buildings.

46. The Government observed that whilst it was not illegitimate to protest against real-estate speculation, the crux of the issue lay in the means used. In the light of the judgment in Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 98, ECHR 2003‑II), it was necessary to examine, firstly, whether the means used were legal and democratic and, secondly, whether the proposed change in the law or the legal and constitutional structures was itself compatible with fundamental principles. In the present case, the very essence of the association’s aim, namely the removal of occupied buildings from the market, was at odds with Swiss domestic law, as were the means used; the occupation of buildings against the will of their owners was clearly in breach of the law.

47. In so far as the applicants called into question the unlawfulness of the occupation, arguing that the association had not endangered the State institutions or the rights and freedoms of others, the Government observed that the occupation of the buildings had continued, even after the Federal Court’s judgment finding that the association should be dissolved. The Government admitted that there had been a consensus within the cantonal administration as to the policy of tolerance vis-à-vis the squatters, on the ground that there was no need to use police assistance to evict them from premises which were bound to remain vacant. However, the Government argued that the applicants could not now take advantage of that tolerance to prove that the dissolution of the association was not necessary within the meaning of Article 11 § 2 of the Convention. In spite of the Canton’s practice, the occupation of the buildings had nevertheless been regarded as in breach of the law.

48. The Government further pointed out that the owners had never accepted the unlawful situation but had sought, from the outset, a legal solution to the situation. Initially, immediately after the applicants had occupied the building, they had attempted to achieve this through legal channels (eviction order, never enforced, of the principal public prosecutor of 10 November 1988). Subsequently, from 1992 onwards, they had started negotiations with the association with a view to selling it the buildings or agreeing on a long-term lease. Lastly, from 2002 onwards, the owners had again started legal proceedings (application for building permit, possession applications, action for dissolution of the association, summons to pay).

49. In so far as the applicants had alleged that the dissolution of the association had not been an appropriate of means of protecting the rights and freedoms of others, because it did not involve the eviction of the squatters, the Government were convinced that it was the Federal Court’s judgment of 10 May 2007 confirming the dissolution which had finally enabled progress to be made. That judgment had been served on the parties on 14 May 2007 and, on the same day, the Head of the Construction and Information Technology Department had ordered the owners to carry out the necessary work. It could not therefore be doubted that the subsequent chain of events leading to the eviction had been triggered by the adoption of that judgment.

50. The Government added that the dissolution of the association had not prevented its friends and sympathisers from pursuing their aims by legal means. In particular, they were free to set up a new association in the legal framework circumscribed by the Civil Code.

51. In the light of the foregoing, the Government took the view that the domestic courts, in the present case, had struck a fair balance between, on the one hand, the public interest in safeguarding social peace and “housing peace” at a time of serious housing shortage in the Geneva region, and, on the other, the owners’ interest in being able to dispose of their property. After twenty years of occupation, the interference with freedom of association that was constituted by the dissolution of the association appeared as a necessary measure which served to fulfil the positive obligation inherent in the right to property. By taking that measure, the domestic authorities had not overstepped the margin of appreciation afforded to them.

52. Accordingly, the Government requested the Court to declare the present application inadmissible as manifestly ill-founded.

2. The Court’s assessment

(a) Whether there has been an interference

53. The Government did not dispute the point that the dissolution of the applicant association constituted an interference with its freedom of association.

54. The Court shares that view. It is not in dispute that Rhino was an association which could avail itself of rights under Article 11. In addition, it reiterates its case-law to the effect that the dissolution of an association constitutes an interference with that right (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, §§ 32-34, Reports of Judgments and Decisions 1998‑I).

55. Accordingly, both the association Rhino and the other applicants, who all worked for it (see paragraph 1 above), are entitled to claim that there has been an interference with their freedom of association within the meaning of Article 11.

(b) Whether the interference was justified

56. An interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” for the achievement of such aim or aims.

(i) “Prescribed by law”

57. The Government claimed that the impugned measure had been based on Article 78 of the Civil Code (see paragraph 32 above). The applicants argued that this provision was not specific enough to serve as a basis for the interference.

58. The Court shares the Government’s opinion and observes that the domestic courts based their decision to dissolve the association on Article 78 of the Civil Code. It takes the view that the wording of that provision is sufficiently clear for the disputed measure to be regarded as “prescribed by law”.

(ii) Legitimate aim

59. The Government took the view that the interference pursued two legitimate aims, namely the protection of the rights and freedoms of others, in this case the owners of the buildings, and the prevention of disorder. The applicants disputed this assertion. They argued that the dissolution of the association had had no legal or factual effect on the possibility for the owners to exercise their property rights. Even assuming that the occupation of the buildings had breached public order, the applicants failed to see how the association’s dissolution remedied the problem.

60. The Court accepts that the association’s dissolution sought to protect the rights of the owners of the occupied buildings. However, reiterating that exceptions to freedom of association must be narrowly interpreted and are subject to rigorous supervision by the Court (see, among other authorities, Sidiropoulos and Others v. Greece, 10 July 1998, § 38, Reports 1998‑IV), it is not convinced that the impugned measure also sought to prevent disorder. Nevertheless, in view of the fact that the Court will not find the impugned measure to be necessary in a democratic society, it may leave that question open.

(iii) “Necessary in a democratic society”

(α) General principles

61. The main question to be addressed is whether the interference was necessary in a democratic society. The fundamental principles underlying this question as regards applications which, as in the present case, are lodged by associations other than political parties, have been summed up in particular in Gorzelik and Others v. Poland ([GC], no. 44158/98, §§ 88 et seq., ECHR 2004‑I), as follows:

“88. The right to freedom of association laid down in Article 11 incorporates the right to form an association. The ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning (see Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1614, § 40).

Indeed, the state of democracy in the country concerned can be gauged by the way in which this freedom is secured under national legislation and in which the authorities apply it in practice (ibid.). In its case-law, the Court has on numerous occasions affirmed the direct relationship between democracy, pluralism and the freedom of association and has established the principle that only convincing and compelling reasons can justify restrictions on that freedom. All such restrictions are subject to a rigorous supervision by the Court (see, among many authorities, United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, pp. 20 et seq., §§ 42 et seq.; Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1255, et seq,. §§ 41 et seq.; and Refah Partisi (the Welfare Party) and Others, cited above, §§ 86 et seq.).

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92. While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes, including those protecting cultural or spiritual heritage, pursuing various socio-economic aims, proclaiming or teaching religion, seeking an ethnic identity or asserting a minority consciousness, are also important to the proper functioning of democracy. For pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively.

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94. Freedom of association is not absolute, however, and it must be accepted that where an association, through its activities or the intentions it has expressly or implicitly declared in its programme, jeopardises the State’s institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons. This follows both from paragraph 2 of Article 11 and from the State’s positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within its jurisdiction (see Refah Partisi (the Welfare Party) and Others, cited above, §§ 96-103).

95. Nonetheless, that power must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a ‘pressing social need’; thus, the notion ‘necessary’ does not have the flexibility of such expressions as ‘useful’ or ‘desirable’ (see Young, James and Webster, and Chassagnou and Others, cited above).

96. It is in the first place for the national authorities to assess whether there is a ‘pressing social need’ to impose a given restriction in the general interest. While the Convention leaves to those authorities a margin of appreciation in this connection, their assessment is subject to supervision by the Court, going both to the law and to the decisions applying it, including decisions given by independent courts.

When the Court carries out its scrutiny, its task is not to substitute its own view for that of the national authorities, which are better placed than an international court to decide both on legislative policy and measures of implementation, but to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, United Communist Party of Turkey and Others, cited above, p. 27, §§ 46-47, and Refah Partisi (the Welfare Party) and Others, cited above, § 100).”

(β) Application of the above-mentioned principles to the present case

62. The Court would first observe that the impugned measure consisted in the outright dissolution of the association, which was a harsh measure entailing significant consequences, particularly financial, for its members. Such a measure may be taken only in the most serious cases (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others, cited above, § 100, with references therein). The Court must examine whether this measure is, in the present case, exceptionally justified by “relevant and sufficient” reasons and whether the interference was “proportionate to the legitimate aims pursued”.

63. As regards the legitimate aim of protecting the rights of others, it clearly transpires from the various sets of proceedings brought by the owners that they complained about the occupation of their properties to the domestic authorities. After attempting unsuccessfully to obtain the squatters’ eviction, they sought the dissolution of the association. Having regard to all the circumstances, the Court notes that the dissolution of the association, which is essentially a legal act, did not by itself remedy the occupation of the buildings that was claimed to be unlawful. Accordingly, it cannot be alleged that the impugned measure had the practical and effective aim of protecting the rights of the owners within the meaning of Article 11 § 2 and the Court’s relevant case-law (see, mutatis mutandis, Artico v. Italy, 13 May 1980, § 33, Series A no. 37; Emonet and Others v. Switzerland, no. 39051/03, § 77, 13 December 2007; and Stoll v. Switzerland [GC], no. 69698/01, § 128, ECHR 2007‑V).

64. The same applies to the other legitimate aim relied on by the Government, namely the prevention of disorder. The Court, reiterating that exceptions to freedom of association must be narrowly interpreted and are subject to its rigorous supervision (see the case-law cited in paragraph 61 above), is not convinced that the dissolution of the association was necessary for the prevention of disorder, even supposing that any disorder had actually been caused by the association or its activities since its creation in 1988.

65. As to the Federal Court’s argument that the question whether there were other possibilities apart from the dissolution of the association was of little importance in the present case (see point 4.3 of the Federal Court judgment, paragraph 23 above), the Court would observe that it has ruled in a different context that, in order for a measure to be considered proportionate and necessary in a democratic society, there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned (see Glor v. Switzerland, no. 13444/04, § 94, ECHR 2009). In the Court’s opinion, in order to satisfy the proportionality principle fully, the authorities should have shown that no such measures were available.

66. Accordingly, having regard to the longstanding tolerance by the authorities of the occupation of the buildings, and also to the association’s declared aims, the Government have not sufficiently shown that the dissolution, which undermined the very substance of the applicants’ freedom of association, was the only option for the fulfilment of the aims pursued by the authorities. In the Court’s view, other measures could have been taken that would have less seriously interfered with the right guaranteed by Article 11. Consequently, the interference cannot be regarded as proportionate to the aims pursued.

67. Having regard to the foregoing, the Court is of the view that the reasons given by the Swiss courts to justify the impugned interference were not relevant or sufficient and that the measure was disproportionate in relation to the aims pursued. It finds that the dissolution of the association was not necessary in a democratic society.

68. There has accordingly been a violation of Article 11 of the Convention.

69. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

1. Pecuniary damage

70. The applicants claimed the sum of 79,144.07 Swiss francs (CHF; about 65,651 euros (EUR)) in respect of pecuniary damage that they alleged to have sustained, corresponding to the value of the association’s assets at the time of its dissolution. They submitted that this sum had been seized by the liquidator for devolution to the public authority under Article 57 of the Civil Code (see paragraph 30 above). They further claimed the sum of CHF 9,600 (about EUR 7,963) to cover a year’s worth of lost earnings for the third applicant, who had been employed by the association as a secretary on a part-time basis (12 x CHF 800).

71. The Government argued that, if the Court were to find a violation of the Convention, the association’s aim could no longer be regarded as unlawful. On the basis of the Court’s judgment, the applicants would be entitled to seek the revision of the Federal Court’s judgment concerning the association’s appeal. Thus, if the revision application were upheld, Article 57, paragraph 3, of the Civil Code would no longer apply and the alleged damage would not be sustained. The applicants’ claim was therefore unfounded.

72. The Government further observed that no sum could be awarded in respect of the third applicant’s loss of earnings. The applicant had failed to indicate whether he had been able to find a new job and, if so, how quickly. In those circumstances, his request could not be regarded as sufficiently substantiated.

73. As regards the request for reimbursement of the third applicant’s lost earnings, the Court shares the Government’s opinion that this request is not sufficiently substantiated.

74. However, it considers that the devolution of the association’s assets to the public authority is clearly a direct consequence of its dissolution, which has been found by the Court to be incompatible with Article 11. The Court, moreover, does not share the Government’s opinion that the applicants should look to the domestic courts, through the revision procedure, in order to seek redress for their pecuniary damage (see, mutatis mutandis, Guzzardi v. Italy, 6 November 1980, § 113, Series A no. 39, and Bozano v. France, 18 December 1986, § 66, Series A no. 111).

75. Accordingly, the Court takes the view that it is appropriate to award to the second, third and fourth applicants, jointly, the sum of EUR 65,651 in respect of pecuniary damage, plus any tax that may be chargeable on that amount, it being for them to distribute that sum among the former members of the association or to dispose of it in accordance with the association’s constitution (see, mutatis mutandis, Özbek and Others v. Turkey, no. 35570/02, 6 October 2009).

2. Non-pecuniary damage

76. As regards non-pecuniary damage, the applicants were of the view that the finding of a violation would constitute sufficient redress.

77. The Court shares that view and finds that no award should be made in respect of non-pecuniary damage.

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