Victim Status before the ECtHR in Cases of Alleged Omissions: The Swiss Climate Case

The European Court of Human Rights (ECtHR) announced on Friday, 29^th April, that the Swiss Climate case will be dealt with by the Grand Chamber. In accordance with article 30 of the ECHR, the competent Chamber relinquished jurisdiction in favour of the Grand Chamber. This option can be used when the seven judges decide that the case raises ‘a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court’. The latest development underlines the high-profile the Court is giving that case.

In this blog post, I want to focus on a key aspect of the admissibility issues in relation to articles 2 and 8 (the right to life and the right to private life). The question of how the Court will interpret victim status in this case will tell us more about how Court defines its engagement with complex, urgent and large-scale threats to human rights and its understanding of subsidiarity in a context in which political and scientific factors are particularly prominent.

The decision to relinquish jurisdiction in favour of the Grand Chamber comes almost exactly a year after the decision by the German Federal Constitutional Court in which the Bundesverfassungsgericht ruled that Germany’s Climate Protection Act of December 2019 is not sufficient to meet Germany’s obligations. The Swiss case also focuses on the alleged insufficiently of domestic climate measures and raises a range of fascinating legal and political questions. The applicants are the Klimaseniorinnen, an association of elderly women for climate protection and some of their individual members. They argue that Switzerland is not doing enough to protect them from climate change – they claim that they are actual and potential victims of omissions by Switzerland.

Some background

Before discussing some aspects of the victim status requirement in this case, it is worth explaining why the Swiss case will be the first climate case at the ECtHR. The first communicated climate case, Cláudia Duarte Agostinho and others (also referred to as the ‘GLAN case’), was brought by six Portuguese children and young people against 32 Council of Europe Member States (originally 33, down to 32 now that the Russian Federation is no longer part of the Council of Europe). Ole W Pedersen, Paul Clark, Gerry Liston and Ioannis Kalpouzos , and Corina Heri each commented on the application on this blog. The Agostinho and the Swiss cases share the focus on insufficient state action in relation to climate change, but they have fundamentally different admissibility issues (the Portuguese youth began their case directly in Strasbourg while the case of the Klimaseniorinnen started as a domestic, administrative law case before the Swiss instances). The Swiss case was submitted in November 2020 and has moved quickly so far. Measured against the standards of how long an application at the ECtHR usually takes, the Swiss case moved at the procedural speed of light while the Agostinho case takes a bit more time, in part because so many governments have to respond. There are also two other interesting climate applications pending before the ECtHR: one against Austria (not yet communicated) and one against Norway. Out of these four climate cases before the ECtHR, given last Friday’s announcement, we now know that the Swiss case will in all likelihood be the very first climate case decided by the ECtHR.

The applicants in the Swiss Climate Case invoke violations of articles 2, 6, 8 and 13 of the Convention. They exhausted domestic remedies (all documents are available here; see for instance here and here for criticism by Swiss scholars of the highest domestic instance’s ruling). The ECtHR could potentially limit its analysis to articles 13 and 6 and produce a judgment that would align with what has been termed the ‘procedural turn’, i.e. the idea to analyse the procedural requirements of the Convention while indicating deference towards substantive assessments (see e.g. this brand-new article by Helen Keller and Corina Heri for the pros and cons of looking at environmental cases from a narrow procedural perspective). The admissibility issues in relation to the procedural questions seem straightforward, with the possible exception of the victim status of the association as a legal person (as opposed to the four applicants who are individual members of the association). On this key point, the third party intervention by the European Network of National Human Rights Institutions provides a concise summary of the case-law on standing for NGOs appearing in often technically complex environmental cases. In sum, I speculate that the Court will not find it overly difficult to deal with the article 13 and 6 issues.

I will spend the rest of this blog post focusing on the question of victim status in relation to articles 2 and 8 ECHR. I find them the most intriguing because the applicants argue to be (potential and current) victims of a regulatory omission by the state in relation to a wide-spread threat of multiple origins. Responsibility for omissions is in any event a conceptually complex constellation and this is even more so when the obligation arguably requires ambitious measures by domestic legislators. I will make two main points (both elaborated in more detail in the third-party intervention):

Admissibility and merits are inevitably intertwined

My first point is to observe that no Court can be expected to neatly separate admissibility from merits if the applicants invoke allegations of violations by regulatory omissions. Article 34 ECHR requires that applicants can claim ‘to be the victim of a violation’ by one of the states of the rights in the ECHR. If the allegation is an omission to take sufficient measures required by a positive obligation, the legal assessment inevitably requires at least a preliminary engagement with the scope of the positive obligation when deciding whether the applicants have victim status. A Court trying to keep the admissibility issues for victim status by omissions neatly separated from substantive engagement with the scope of protection fails to recognize the conceptual nature of responsibility for omissions and avoids the steps required by standard legal reasoning. Nothing is wrong and no one should be surprised if judges don’t manage to analyze victim status without already saying or implying at least something on the scope of protection of the rights to life and private life.

Responsibility for violations by omissions is well-established in European human rights law as well as in the law of state responsibility. To know if an omission exists and if the applicant(s) are affected by it, one must first ask what measures would have, approximately, been required. The assessment of victim status in relation to an allegation of an omission requires us to compare the measures adopted by the State with what is required under the international obligation – in the present case, articles 2 and 8 of the Convention, interpreted in the light of present-day conditions and the ‘best available science’. If a disconformity between the two seems likely, we have a potential violation of the ECHR, and the next step consists of assessing whether the applicants are directly affected by the omission. In the Cordella v. Italy judgment, the Court stated that individuals are ‘personally affected’ by the measure complained of if they find themselves in a situation ‘of high environmental risk’, in which the environmental threat ‘becomes potentially dangerous for the health and well-being of those who are exposed to it’. If we apply this to omissions and the case-law on potential victims, it is not unreasonable to believe that the Klimaseniorinnen arguably meet that test.

The second aspect I want to outline concerns the distinction between different types of positive obligations to protect against threats to human rights.

Positive obligations to protect against large-scale threats

The ECtHR has recognized positive obligations to protect against threats of different conceptual natures. Positive obligations have regularly been invoked in cases in which a sate failed to protect a specific individual against a specific threat at a specific point in time, such as when a woman is threatened by domestic violence, calls the police but receives no aid. But the Court has equally recognized positive obligations to protect against more widespread threats by the obligation to put in place a legislative and administrative framework to effectively protect Convention rights, requiring more than one-time intervention against an external wrongdoer. The two types of positive obligations to protect can appear alongside in one and the same case, be it in relation to domestic violence or other threats.

It requires a bit of conceptual imagination to argue that one is personally affected by a state’s failure to take measures against large-scale threats in the absence of a specific harmful past event. But it is legally possible. The possibility to establish the responsibility for regulatory failures to protect against large-scale threats follows from the recognition of that type of positive obligations. The Court’s case-law recognizing obligations to protect against large-scale threats by legislative and other measures (and the acknowledgement that there can be potential victims, before harm has occurred) implies conceptual consequences on the assessment of the victim status requirement: If allegations concerning failures to act in response to specific, one-time threats would benefit of a more favourable treatment than the allegations concerning violations of obligations to protect against potentially severe threats on a larger scale, protection would not be effective. Admittedly, the positive obligations at issue in the present case are mostly addressed to the legislator (and they thus interest political institutions, as the Swiss Federal Tribunal pointed out). But their legal nature should not render their invocation inadmissible for procedural reasons.

While we wait for official reactions to the announcement by the ECtHR, we can speculate that the relinquishment of jurisdiction in favour of the Grand Chamber is a shortcut that will be welcomed by the applicants and everyone eager to know the outcome as soon as possible, including possibly the defending state. The next step will probably be oral hearings in Strasbourg. Whatever the Grand Chamber decides, the case will have important implications on the Court’s role with the defining challenges of our time. What the Court will say about the assessment of the victim status requirement in relation to articles 2 and 8 ECHR not only promises to be academically fascinating but will tell us much about how the Court conceptualises its engagement with systemic problems.

* Disclaimer: The author of this blog posts, together with Prof. Véronique Boillet, is a third-party intervenor in the Swiss climate case. The full intervention can be found here in French and in English. The author warmly thanks Véronique Boillet for the collaboration during the elaboration of the intervention.