What does climate protection have to do with the right for private life?

ECtHR judgements getting out of hand

by Dr iur. Marianne Wüthrich

What does climate protection have to do with the right of older women to respect for their private and family life? People with common sense agree: nothing. What does the CO2 that Switzerland releases into the air have to do with the European Convention on Human Rights (ECtHR)? Nothing. The accusation that Switzerland is doing too little to protect the climate is downright absurd. Certainly, more can be done, but pillorying the small Switzerland with its minimal CO2 emissions is not only arbitrary, but also of little benefit to the environment. And as I said, there is nothing in the ECtHR about climate protection. With their decision against Switzerland, the Strasbourg judges have once again overstepped their competences.

‘Gateway for influential NGOs’

The mission of the European Court of Human Rights (ECtHR) is to protect the rights of citizens guaranteed in the 1953 ECtHR against encroachments by the contracting states of the Council of Europe, full stop. However, the European Court of Human Rights has long been used by Western NGOs for other purposes. According to a study, at least 22 of the 100 judges appointed in Strasbourg between 2009 and 2019 were linked to powerful transatlantic NGOs “that are very active with complaints at the ECtHR”. These include George Soros’Open Society network, Amnesty International, Human Rights Watch and the Helsinki Committee. During this period, “these judges took part in almost 90 proceedings in which ‘their’ NGO was involved” (NZZ editor Katharina Fontana). The Swiss climate seniors, for example, travelled to Strasbourg with Greenpeace.
  In plain language: The European Convention on Human Rights “is now being misused by the majority of Strasbourg judges as a vehicle for enforcing the zeitgeist” (Fulvio Häfeli, federal administrative judge from 2007 to 2022).

National law is overturned –
as long as we put up with it

Law professors and administrative lawyers with no grounding in the legal and cultural life of their own countries have long been busy overturning the customs and values of these.
  And we good Swiss have bowed and are still bowing and scraping to the judgements of judges that are out of touch with our national understanding of the law. A little titbit: in 1994, the ECtHR ruled that the provision in the Swiss Civil Code (CC): “The name of the husband is the family name of the spouses”, was contrary to the equal rights of men and women. Parliament has since amended the naming law in the Swiss Civil Code several times, against the vehement opposition of a minority. Today, Mrs Müller and Mr Meier can each keep their own name when they get married and choose one of these names for their children. Equal rights for the sexes? You tell that to the marines! In reality, it is about breaking up the unity of the family as a community.
  The good news is that the bride and groom can also choose one of their married names as their joint surname instead – most couples still do this today, despite the cheap value-dissolving propaganda.

Crucifix judgement: What the
Italians can do, we might do as well

Do you remember the crucifix judgement? An Italian mother complained to the European Court of Human Rights because crucifixes were hanging in her children’s classrooms at a public school. In November 2009, the Small Chamber of the Strasbourg court ruled in favour of the applicant based on Article 9 of the ECtHR (freedom of religion). This caused an outcry in Italy that spread to every corner of the depressed “Europe of values”. From Como to Sicily, people hung crucifixes in public buildings. The government in Rome followed this clear expression of the people’s will and demanded that the judgement be reviewed by the Grand Chamber of the ECtHR.
  And lo and behold: this overturned the decision of the Small Chamber and ruled the complete opposite by fifteen votes to two(!): “Christian crosses displayed in public school classrooms do not violate any fundamental rights – neither Article 2 of the First Additional Protocol (right to education) nor Article 9 of the ECtHR (freedom of thought, conscience and religion).”
  This remarkable case should be framed and hung above your desk. Two lessons suggest themselves. Firstly: If we, the people, are no longer willing to toe the line, our classe politique will, for better or worse, have to deign to follow the will of the people. Secondly, the so-called “international law” fudged by the de facto sacrosanct Court of Justice in Strasbourg is obviously not carved in stone, but can be quickly changed again depending on political weather conditions.

Federal Administrative
Court overrides Swiss law

Unlike the Italians, our Swiss authorities regard everything that comes from Strasbourg as “international law”, and they implement it unquestioned. For example, the Federal Administrative Court (FAC), “adapted its case law to a judgement of the European Court of Human Rights” in 2022. In 2021, the ECtHR had ruled that “the strict and automatic application of a waiting period of more than two years” for family reunification of temporarily admitted persons was “incompatible with the right to respect for family life”. The FAC therefore instructed the Federal Administration to no longer adhere to the waiting period of three years in accordance with Art. 85 of the Foreign Nationals and Integration Act (FNIA).
  The Foreign Nationals Act had been passed by parliament in 2005 and approved by the Swiss people in the 2006 referendum. You have to taste this and savour it slowly: The judiciary instructs the administration to override the supreme power of the state, the legislature, and makes law itself! If the panel of judges in Strasbourg merely passes wind, the separation of powers – a fundamental principle of the rule of law! – is simply thrown overboard.

Stop the Federal
Council knuckling under!

And the icing on the cake: the 2021 ECtHR judgement was not directed against Switzerland at all, but against Denmark. Former federal administrative judge Fulvio Haefeli commented: “The decisions of the ECtHR have no general binding effect on all contracting states of the ECtHR beyond the case in question.” The decision is therefore not binding for Switzerland.
  Nevertheless, the Federal Council quickly declared it an ECtHR “landmark judgement” and recently opened the consultation process in order to “implement the FAC’s ‘adaptation of practice’ at the legislative level”. We voters will probably decide on this legislative amendment – if it is approved by Parliament – in a referendum. After all, faster family reunification means even more immigration into our generous welfare state. Do we want to leave such a serious decision to the judiciary in Switzerland or to that in Strasbourg?
  Incidentally, we can also stop the Federal Council during the consultation process. It will last until 22 August 2024.  •


ECtHR Judgment: Verein Klimaseniorinnen Schweiz vs. Switzerland, judgment of 9 April 2024, complaint 53600/20 ECtHR; Burghartz vs. Switzerland (family name), judgment of 22 February 1994, complaint A/280-B ECtHR; Lautsi et al. vs. Italy (crucifix in the classroom), judgment of 18 March 2011, complaint no. 30814/06.

Federal Administrative Court press release on judgement F-2739/2022 of 7 December 2022, “Adaptation of the waiting period for family reunification”; Federal Council Medienmitteilung of 1 May 2024, “Federal Council proposes adjustment of the waiting period for family reunification”

Haefeli, Fulvio. “Stoppt Strassburg!” In: Die Weltwoche of 25 April 2024

Fontana, Katharina. “Heute Aktivist, morgen Richter: Wie unparteiisch ist das Strassburger Gericht?” (Today an activist, tomorrow a judge: How impartial is the Strasbourg court?) In: Neue Zürcher Zeitung of 12 April 2024

A Swiss passport does not make a Swiss judge

mw. One of the 47 judges at the European Court of Human Rights is from Switzerland. This fact is supposed to legitimise the Strasbourg judgments for us Swiss. But does the judge sent by the Federal Council also represent our interests?
  Andreas Zünd (SP) currently represents Switzerland on the ECtHR. According to NZZ editor Katharina Fontana, Zünd was already “one of the leading voices of the ‘internationalists’” during his 17 years as a federal judge. No ECtHR judge can be expected to always support the opinion of their own country, says Fontana, but adds: “Another question is whether a judge must almost always rule against their own country even in cases where opinions among the judiciary differ - as Zünd does.”
  We can vividly imagine what kind of team the Federal Council would send to the so-called “independent equal arbitration tribunal” in accordance with the draft framework agreement between Switzerland and the EU. Lawyers with close ties to their country, such as the long-serving EFTA Court President Carl Baudenbacher or the Zurich law professor Andreas Glaser, would probably not make the cut. You can bet that the same EU turbos that we already listen to on a daily basis in our “leading media” would also appear there ...

Source: Fontana, Katharina. “Richter Andreas Zünd: Niemand verurteilt die Schweiz zuverlässiger als er”. 
(Judge Andreas Zünd: Nobody condemns Switzerland more reliably than he does). 
In: Neue Zürcher Zeitung of 26 February 2024

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