Information Note on the Court’s case-law No. 123
October 2009
Gsell v. Switzerland - 12675/05
Judgment 8.10.2009 [Section V]
Article 10
Article 10-1
Freedom of expression
Journalist’s inability, owing to general police ban, to gain access to Davos during World Economic Forum: violation
Facts – The applicant is a journalist and the editor of a good-food magazine. In 2001, on the fringes of the annual meeting of the World Economic Forum (WEF) in Davos, various anti-globalisation organisations staged a separate international gathering. The applicant, who had been asked to write an article on the events and their effects on local restaurants and hotels, was refused access to Davos by the police, who had put in place numerous security measures after being informed that an unauthorised demonstration and disturbances were planned. The applicant made a complaint to the authorities, which was declared inadmissible. His subsequent public-law appeals were dismissed by the Federal Court.
Law – Article 10: The impugned measure had not targeted the applicant specifically in his capacity as a journalist. However, the measure, which had been applied in wholesale fashion by the cantonal police to all persons wishing to travel to Davos, amounted to interference with the exercise of the applicant’s freedom of expression, as he had been on his way to Davos to write an article on a specific subject. The ban imposed on the applicant had not had any explicit legal basis. However, the domestic authorities and, at final instance, the Federal Court, had overcome this gap in the law by referring to the general police clause which the authorities, by virtue of Article 36 § 1 of the Federal Constitution, could invoke in the event of a “serious, direct and imminent threat”. The Federal Court had ruled in 2000 that the general police clause was designed to deal with “serious emergencies” where no other legal means existed of averting a “clear and present danger”, but could not be used by the authorities in foreseeable and recurring situations. In the instant case the Court acknowledged that it had been extremely difficult for the authorities to weigh up the situation and make a precise assessment of the risks inherent in the WEF and the anti‑globalisation demonstrations in terms of public order and safety. Moreover, the threat had undoubtedly been serious. Nevertheless, the Court was not satisfied that the scale of the demonstrations which actually took place had been unforeseeable for the competent authorities, in view of previous events around the globe and in the context of the WEF. Indeed, the Federal Court had found that the disturbances occurring in other cities in connection with other events – and, in particular, the riots occurring in Nice in December 2000, just a few weeks before the 2001 WEF – had given the competent authorities grounds to believe that there was a serious threat in relation to the WEF. The circumstances surrounding the 2001 WEF could therefore be said to have been foreseeable and recurring within the meaning of the Federal Court’s case-law. The competent authorities could and should have taken action earlier in order to place the impugned measure on a more precise legal footing than Article 36 § 1 of the Federal Constitution. Furthermore, according to the Federal Court’s case-law, measures restricting freedom of assembly were valid only if they were targeted, that is to say, directed at the person or persons responsible for the disturbance or the serious threat to public order. In the present case, however, the authorities had made no distinction between potentially violent individuals and peaceful demonstrators. The applicant had therefore been the victim of a general ban imposed by the cantonal police on all persons wishing to travel to Davos. In view of the specific circumstances of the case, the competent authorities had not been entitled to make use of the general police clause. The authorities’ refusal to allow the applicant into Davos had therefore not been prescribed by law.
Conclusion: violation (unanimously).
Article 41: EUR 1,026 in respect of pecuniary damage; finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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