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2022 Austria Belgium Cyprus Denmark European Court of Human Rights France Germany Greece Luxembourg Private and family life Right to life Sweden Switzerland The Netherlands The United Kingdom

Five Young People v. France, Germany, the UK, and 9 other States

Summary:
On 21 June 2022, the Guardian reported that an application had been filed at the European Court of Human Rights concerning membership in the Energy Charter Treaty of 1994 (ECT), which entered into force in 1998. The case was brought by five young people, aged between 17 and 31, who allege that the 12 respondent States’ membership of the ECT stymies climate action, thereby violating their rights under Articles 2 (right to life) and 8 (right to respect for private and family life) ECHR.

Reuters reports that the 12 respondent States in this case are Austria, Belgium, Cyprus, Denmark, France, Germany, Greece, Luxembourg, Netherlands, Sweden, Switzerland and Britain. In these States, corporate actors in the fossil fuel sector can bring legal action against the respective governments for losses of profits due to energy-related measures, thereby raising the costs of the green energy transition or making it illusory. The applicants argue that their Convention rights have been violated as a result.

In this regard, the IPCC pointed out in Chapter 14 of its 6th Assessment Report in 2022 that “bilateral and multilateral agreements, including the 1994 Energy Charter Treaty, include provisions for using a system of investor-state dispute settlement (ISDS) designed to protect the interests of investors in energy projects from national policies that could lead their assets to be stranded. Numerous scholars have pointed to ISDS being able to be used by fossil-fuel companies to block national legislation aimed at phasing out the use of their assets”. It also noted that “international investment agreements may lead to ‘regulatory chill’, which may lead to countries refraining from or delaying the adoption of mitigation policies, such as phasing out fossil fuels”.

Categories
2021 Deciding Body Domestic court European Convention on Human Rights Keywords Paris Agreement Right to assembly and association Right to freedom of expression Rights at stake State concerned Switzerland Year

Credit Suisse Climate Activists Trial (Geneva)

Summary:
On 13 October 2018, during a climate march in Geneva, a young climate activist from the collective “BreakFree Suisse” spread his hands smeared with red paint all over the facade of the Swiss bank Credit Suisse, leaving red handprints to denounce investments in fossil fuels. According to the climate activist, these red handprints symbolized the blood of the various victims of climate change.

On 20 February 2020, the activist was found guilty by the Tribunal de police (“Police Court”) for property damage.

On 14 October 2020, the Cour de Justice (“Court of Justice”) acquitted the climate activist and argued that the young man had acted in a putative state of necessity due to climate change.

A year later, on 28 September 2021, the Swiss Bundesgericht (“Federal Supreme Court”) overturned this decision and referred the case back to the Cour de Justice. The Bundesgericht argued that climate change and the resulting consequences do not represent an imminent danger to individual legal interests.

Consequently, on 31 March 2022, the Cour de Justice revised its first decision and ordered the climate activist to pay a symbolic fine of 100 Swiss francs as well as compensation for material damage.

In a similar case in Lausanne, climate activists from the same collective were on trial after occupying the entrance halls of the Swiss bank Credit Suisse.  

Rights invoked:
The activist invoked his rights to freedom of expression (Article 10 European Convention on Human Rights (ECHR)) and assembly and association (Article 11 ECHR).

The Swiss Bundesgericht held that Article 11 ECHR only protects the right to freedom of “peaceful assembly”. With his behavior, the young man committed an act of vandalism, which is incompatible with freedom of expression. Accordingly, the Court found that the activist could not rely on Articles 10 and 11 ECHR.  

Further proceedings:
It was reported that applications concerning both of these cases have been filed at the European Court of Human Rights.

Date:
28 September 2021

Suggested citation:
Swiss Bundesgericht, N.B. v. Credit Suisse, 6B_1310/2020, 6B_1298/2020, Judgment of 28 September 2021.

Links:
For the Federal Supreme Court’s judgment, see here.

For the Cour de justice’s second judgment, see here.

For the Cour de Justice’s first judgment, see here.

For the Tribunal de police’s judgment, see here.

Categories
2021 Deciding Body Domestic court European Convention on Human Rights Imminent risk Keywords Paris Agreement Right to assembly and association Right to freedom of expression Rights at stake State concerned Switzerland Year

Credit Suisse Climate Activists Trial (Lausanne)

Summary:
On 22 November 2018, a group of 20 to 30 climate activists from the collective “BreakFree Suisse”, among them the 12 complainants, occupied the entry halls of the Swiss bank Credit Suisse in Lausanne to demonstrate against the bank’s investment in fossil fuels. The protest aimed to draw attention to this issue by condemning the participation of the Swiss tennis player Roger Federer in the advertising campaign of this bank. To do so, the activists were dressed in sports clothes and staged a tennis match. While some activists complied with the police request to leave the premises, others had to be dragged out by the police.

The activists argued that they had been in a “justifiable state of emergency” (rechtfertigender Notstand) due to climate change and that their protest was therefore lawful.

On 13 January 2020, the Tribunal de police de l’arrondissement de Lausanne (“Police Court of the district of Lausanne”) ruled in favor of the protesters. The judge found that climate change posed an imminent threat and that the protest was therefore a necessary and proportionate means to achieve the activists’ intended goal.

On 22 September 2020, this decision was overruled by the Tribunal Cantonal du Vaud (“Vaud Cantonal Tribunal”). The Court argued that the activists could have protested the bank by using other means, such as political or legal instruments. It further found that climate change is an imminent threat and that measures must be taken to address it. However, the Tribunal Cantonal du Vaud doubted that the protest could have led to a reduction in greenhouse gas emissions. Furthermore, it also noted that the Swiss government is aware of the issue and has already taken necessary measures, such as ratifying the Paris Agreement. Finally, the Court held that it is not yet too late to take the necessary protective measures to combat climate change.

On 26 May 2021, the Swiss Bundesgericht (“Swiss Federal Supreme Court”) mainly upheld the Tribunal Cantonal du Vaud’s decision. It argued further that climate change may be considered an imminent threat and that the activists did not intend to protect a specific legal interest, but rather collective interests, namely the environment, health, or the well-being of the population, and thus, the protest was not lawful.

In a similar case in Geneva, a climate activist from the same collective was on trial after putting red handprints all over the front of the Swiss bank Credit Suisse.

Rights invoked:
The complainants invoked their rights to freedom of expression (Article 10 European Convention on Human Rights (ECHR)) and assembly and association (Article 11 ECHR).

The Swiss Bundesgericht argued that the complainants are not entitled to invoke Articles 10 and 11 ECHR in this context because they had no right to enter private property to take their actions. The freedom of assembly does not include the right to gather on private property without the owner’s consent. Consequently, the claimants could not rely on Articles 10 and 11 ECHR.

Date of decision:
26 May 2021

Suggested case citation:
Swiss Bundesgericht, 12 climate protesters v. ministère public central du canton de Vaud, 6B_1295/2020, Judgment of 26 May 2021.


Links:
For the judgment of the Swiss Bundesgericht (in French), see here.

For the judgment of the Tribunal Cantonal du Vaud (in French), see here.

For the judgment of the Tribunal de police de l’arrondissement de Lausanne (in French), see here.  

Categories
Elderly Emissions reductions European Convention on Human Rights European Court of Human Rights Fair trial Keywords Margin of appreciation Paris Agreement Private and family life Right to life Switzerland Victim status

Verein Klimaseniorinnen et al. v. Switzerland

Summary:
In 2016, the Senior Women for Climate Protection Switzerland (German: ‘Verein Klimaseniorinnen’), a Swiss organisation, brought proceedings concerning the alleged omissions of the Swiss federal government to adopt an adequate climate protection policy. They submitted that current domestic climate targets and measures are not sufficient to limit global warming to a safe level. This failure to prevent climate-related disasters, they argue, represents a failure to protect the enjoyment of the rights under Articles 2 and 8 ECHR (the rights to life and respect for private and family life, respectively) of the organization’s members. The applicants also invoke two procedural rights under the Convention, namely the rights in Articles 6 and 13 ECHR (right to a fair trial and right to an effective remedy, respectively).

These claims were rejected by the domestic instances at three levels of jurisdiction. The Swiss Federal Supreme Court, in its ruling, considered that the case represented an actio popularis, concerned questions better suited to the political arena, and did not raise an arguable claim of a rights violation.

This case was only the second climate change-related case to come to Strasbourg. Like the Duarte Agostinho case, this application raises novel questions before the Court, including the issue of victim status in climate cases, the standing of (environmental) NGOs to bring cases to the Court, and the extent of the State margin of appreciation in regard to environmental protection measures related to climate change.

Third-party interventions:
There have been several third party interventions in this case.

For the full text of the joint intervention by the International Commission of Jurists (ICJ) and the Swiss Section of the International Commission of Jurists (ICJ-CH), click here.

For the full text of the third-party intervention submitted by the European Network of National Human Rights Institutions (ENNHRI), click here.

For the seven other third party interventions filed in the case, click here.

Admissibility:

Pending

Merits:

Pending

Remedies:

Pending

Separate opinions:

Pending

Implementation measures taken:

N/A

Date of decision:

Pending

Type of Forum:

Regional

Status of case:

Communicated to the respondent State on 17 March 2021

Suggested case citation:

ECtHR,Verein Klimaseniorinnen Schweiz and Others v. Switzerland, no. 53600/20, Communicated Case, 17 March 2021

Links:

Categories
Austria Belgium Bulgaria Children and young people Croatia Cyprus Czechia Denmark Emissions reductions Estonia European Convention on Human Rights European Court of Human Rights Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Non-discrimination Norway Paris Agreement Poland Portugal Private and family life Prohibition of torture Right to life Romania Russian Federation Slovakia Slovenia Spain Sweden Switzerland The Netherlands The United Kingdom Turkey Ukraine

Duarte Agostinho et al. v. Austria et al.

Summary:
This case was brought by a group of six young people, acting together as the ‘Youth for Climate Justice’, against 33 Council of Europe Member States. Theirs is the first climate case to come before the ECtHR. In their application, the six applicants, who are aged between 8 and 21, argue that the 33 respondent States have failed to comply with their positive obligations under Articles 2 and 8 of the Convention, read in the light of the commitments made under the 2015 Paris Climate Agreement. They claim that their right to life (Art. 2 ECHR) is being threatened by the effects of climate change in their home State of Portugal, including through the harms caused by forest fires. Moreover, they claim that their right to respect for their private and family life under Art. 8 ECHR is being threatened by heatwaves that force them to spend more time indoors. They also note their anxiety about their uncertain future, and the fact that, as young people, they stand to experience the worst effects of climate change. They accordingly allege a violation of Article 14 ECHR (non-discrimination), given the particular impacts of climate change on their generation. According to the applicants, the absence of adequate measures to limit global emissions constitutes, in itself, a breach of the obligations incumbent on States.

This is the first climate application brought before the European Court of Human Rights, and it was brought with the support of the Global Legal Action Network (GLAN). The issues raised here are novel in the Strasbourg context. In addition, in communicating the case, the Court also proprio motu raised an issue under Article 3 ECHR, the prohibition of torture and inhuman and degrading treatment.

Domestic proceedings:
None, this case was brought directly to the ECtHR. The applicants submit that, given the complexity of the case and their limited financial means, requiring them to exhaust the domestic remedies in each of the 33 respondent States would impose an excessive and disproportionate burden on them.

Admissibility:
Pending

Merits:
Pending

Remedies:
Pending

Separate opinions:
Pending

Implementation measures taken:
N/A

Date:
Pending

Type of Forum:
Regional

Status of case:
Communicated by the Court on 30 November 2020

Suggested case citation:
ECtHR, Duarte Agostinho and Others v. Portugal and 32 Other Member States, no. 39371/20, Communicated Case, 30 November 2020

Links:

For more information on the case, see the following links.

  • For more background on the case and profiles on the applicants, click here: https://youth4climatejustice.org/
  • For the original application for as submitted to the Court, click here
  • To see all of the third party interventions filed in the case to date (eight in total), click here.
  • To read the observations of the 33 respondent states in this case, click here.