Information Note on the Court’s case-law 255

October 2021

Zambrano v. France (dec.) - 41994/21

Decision 21.9.2021 [Section V]

Article 35

Article 35-3-a

Abuse of the right of application

Call to “paralyse” the Court by submitting a very high number of applications, using an automatically generated form on the applicant’s internet site and copying his application: inadmissible

Article 3

Degrading treatment

Inhuman treatment

No obligatory vaccination against Covid-19 for individuals who are not subject to compulsory vaccination, as a result of the introduction of the health pass: inadmissible

Article 34

Victim

Application complaining in abstracto about the health pass system and other measures for managing the Covid-19 crisis, without specifying their effect on the applicant’s personal situation: inadmissible

Article 35

Article 35-1

Exhaustion of domestic remedies

Non-exhaustion of judicial review as a remedy in order to challenge the health pass system and other measures for managing the Covid-19 crisis: inadmissible

Facts – In his application form the applicant complained about Laws no. 2021-689 and 2021-1040 on the management of the public-health crisis caused by the Covid-19 pandemic. Law no. 2021-689 introduced a transitional regime for lifting the public-health state of emergency, valid until 30 September 2021, and authorised the Prime Minister, among other measures, to limit travel and the use of public transport and to impose protective measures in shops. It also introduced a “health pass”, effective until 30 September 2021, for international travellers to and from France and for access to large gatherings. Law no. 2021-1040 extended the regime for exiting the public-health state of emergency until 15 November 2021 and also broadened the use of the health pass to other areas of daily life, at least until 15 November 2021. It is now required in: bars and restaurants, including patio areas, with the exception of workplace canteens; department stores and shopping centres, on a decision by the prefect of the relevant département , if he or she considers that there is a risk of contamination; seminars; long-distance public transport by train, coach and aeroplane; hospitals, institutions for dependent elderly persons and retirement homes, to be shown by accompanying staff, visitors and patients with scheduled appointments (admissions for a medical emergency are exempted). The health pass has been mandatory for adults wishing to take part in activities in the relevant premises, and for staff working in them, since 30 August 2021. Penalties may be imposed on the public for failure to present a health pass or for fraudulent use of a pass, and on the business owners and staff responsible for checking health passes should they fail to comply with this requirement. Law no. 2021-1040 also imposed compulsory vaccination against Covid-19, except where there is a recognised medical contraindication, for persons working in the health and social-care sectors. A deadline of 15 September 2021 was set, and this was extended to 15 October 2021 for individuals who had already received a first dose of the vaccine.

The applicant relied on Articles 3, 8 and 14 of the Convention, and on Article 1 of Protocol No. 12. In his view, by creating and imposing a health pass system, these laws amounted to discriminatory interference with the right to respect for private life and were intended primarily to coerce individuals into consenting to vaccination.

Law

Article 35 § 1 (exhaustion of domestic remedies): The applicant had not submitted an appeal on the merits to the administrative courts against the regulations which were the implementing decrees in respect of the contested Laws. Admittedly, he submitted that, in so far as the laws in question had been found to be in conformity with the Constitution by the Constitutional Council, there had been no effective and available remedy which he ought to have used before applying to the Court.

Under French law, however, an application for judicial review, in the context of which it was possible to develop arguments alleging a violation of the Convention in support of a request for a text to be set aside, was a domestic remedy that had to be used. In order to exhaust the domestic remedies fully, it was therefore necessary to pursue the domestic proceedings, where appropriate, before the jurisdiction entitled to set decisions aside. This requirement was valid irrespective of whether or not a ruling had been adopted by the Constitutional Council, which did not examine cases from the standpoint of the Convention’s provisions. Scrutiny of an individual measure’s conformity with the Convention as conducted by the “ordinary courts” was different from scrutiny of a law’s conformity with the Constitution as conducted by the Constitutional Council: a measure adopted pursuant to a law (a regulation or individual decision) whose conformity with constitutional provisions protecting fundamental rights had been established could be ruled incompatible with the same rights as safeguarded by the Convention on the grounds, for instance, of its disproportionate nature in the particular circumstances of a case. Furthermore, an applicant who submitted a request to the Conseil d’État for judicial review of a decree implementing a law, or of a decision refusing to repeal such a decree, was entitled to argue, exceptionally and in support of his or her arguments for it to be set aside, that the law in question did not comply with the Convention. An effective remedy had thus been available in domestic law, which would have enabled the applicant to challenge the compliance of the Law of 5 August 2021 with the articles of the Convention relied on before the Court (see Graner v. France and Charron and Merle-Montet v. France). The application was in any event inadmissible for failure to exhaust the domestic remedies.

Article 35 § 3 (a) (abuse of the right of application): Mr Zambrano had chosen, using his internet site “nopass.fr”, to oppose the introduction of the health pass in France by inviting visitors to his site to join him in lodging a collective application with the Court and to submit multiple applications through an automatically generated and standardised application form. Almost 18,000 applications had already been sent to the Court as a result of this technique. In unambiguous terms, the objective being pursued was not to win the respective cases, but, on the contrary, to bring about “congestion, excessive workload and a backlog” at the Court, to “paralyse its operations”, to “create a relationship of power” in order to “negotiate” with the Court by threatening its operations, and to “derail the system” in which the Court was a “link in the chain”.

The Court had been dealing with mass litigation arising out of different structural or systemic problems in the Contracting States for nearly two decades. Nonetheless, it sought to ensure the long-term effectiveness of the human-rights protection system set up by the Convention, while maintaining the right of individual petition, the cornerstone of this system, and access to justice. It was clear that a major surge in applications such as those lodged in support of the applicant’s objective was liable to affect the Court’s ability to fulfil its mission under Article 19 in relation to other applications, lodged by other applicants, which did meet the criteria for allocation to judicial formations and, prima facie , the admissibility conditions. Protection of the Convention system was a concern which was also reflected in Article 17 of the Convention. Having particular regard to the objectives openly pursued by the applicant, his approach was manifestly contrary to the purpose of the right of individual application. He was deliberately seeking in this case to undermine the Convention system and the functioning of the Court, as part of what he described as a “legal strategy” and was in reality contrary to the spirit of the Convention and the objectives pursued by it.

Article 34 (victim status): Firstly, the applicant complained in abstracto about the unsuitability and inadequacy of the measures taken by the French State to combat the spread of Covid-19. He had not provided detailed information about his own situation and did not explain in practice how the national authorities’ alleged violations were likely to affect him directly or to target him on account of any personal characteristics.

With more specific regard to the complaint under Article 3, he had not shown that any coercion had existed on him as a person who did not wish to be vaccinated and likely to come within the scope of this provision. The contested laws did not impose any general obligation to be vaccinated. In addition, the applicant had not submitted evidence that he worked in one of the specific occupations subject to compulsory vaccination under Law no. 2021-1040 (see, in this connection, Thevenon v. France ). Nor did this latter Law impose vaccination on persons wishing to undertake certain journeys or be able to access certain premises, venues, services or events. On the contrary, it specifically provided for the possibility of showing the document of one’s choice from three options: the result of a PCR test indicating no Covid-19 contamination, proof of full vaccination against Covid-19 or a certificate showing recovery from Covid-19. Lastly, the Law also envisaged the option of obtaining a document indicating a medical contraindication to vaccination.

However, the Court did not consider it necessary to determine whether the applicant could claim victim status. As to Article 1 of Protocol No. 12, relied on by the applicant, that Protocol had not been ratified by France.

Conclusion : inadmissible (failure to exhaust domestic remedies; abuse of the right of application).

With regard to the applications lodged at the applicant’s initiative

The Court’s conclusions as to the admissibility of the present application were likely to apply to the thousands of other standardised applications. The abstract nature of the petition was clear from these applications, which did not contain personal details and in fact corresponded to an identical document that had been completed automatically. Further, these thousands of applications did not fulfil all of the conditions laid down in Rule 47 § 1 of the Rules of Court. In this connection, by a letter and an email of 17 August 2021, the applicant, who had been automatically designated as representative in all these standardised applications, was invited, under Rule 47 § 5.2, to complete the files and warned that, were this not done, these applications were unlikely to be examined. The Registry’s correspondence had remained unanswered.

( Graner v. France (dec.), 84536/17, 5 May 2020; Charron and Merle-Montet v. France ( dec.), 22612/15, § 30, 16 January 2018; Thevenon v. France , 46061/21, communicated)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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