ECtHR judgments are mayflies in the media spectacle. Swiss media usually report on judgments against Switzerland briefly and perfunctorily, without sustained public debate. Politics rarely engages with these judgments, except perhaps to justify misconduct publicly in order to save face — as in the case of the kettling at Helvetiaplatz during Zurich’s May Day celebrations in 2012.
Switzerland is under no meaningful pressure from the media or the public to avoid ECtHR judgments. Nor are the costs of proceedings before the Court, or the compensation awarded to victims, particularly deterrent for one of Europe’s wealthiest nations. Switzerland can afford such judgments, so to speak, out of petty cash.
There is no European competition over human rights. If neglecting human rights lowers state expenditure, few seem to care.
This weakens Switzerland’s practical incentive to prevent ECHR violations. At the same time, its financially elitist legal system makes it extremely difficult in practice for most victims to litigate such violations all the way to Strasbourg.
The factual impunity of ECHR violations, in turn, invites further violations. It should therefore not surprise us when cases emerge in which ECHR violations appear not merely to have been knowingly accepted, but deliberately brought about as a form of punishment: extralegal punitive measures outside the ordinary legal process, outside the law, and outside fair proceedings — themselves a violation of Article 6 ECHR.
In such constellations, violations of privacy under Article 8 ECHR, degrading or inhuman treatment under Article 3 ECHR, and the suppression of effective remedies under Article 13 ECHR may converge. Such deliberately induced violations often arise from denial of justice and abuse of power.
When the ECHR No Longer Deters Human Rights Violations
So if the ECHR no longer deters ECHR violations because Switzerland pays the costs of human rights violations censured by the ECtHR out of petty cash; if low financial and political costs make such violations appear as a manageable administrative risk — then what?
It is hardly to be expected that European states will exert serious pressure on Switzerland to respect and protect shared European values. There is no longer any competition over human rights. On the contrary: protecting human rights costs money. Violating them appears to cost less.
What is violated is not merely abstract fundamental rights. Victims lose quality of life, health, assets, earning capacity, privacy and trust in the rule of law. For them, an ECHR violation is not a symbolic event. For the state, it often remains a manageable file.
One might now ask, of course, whether a state in which human rights violations repeatedly remain without consequences can still claim the same moral authority with which it demands obedience to the law from its citizens.
One might further ask whether public officials who knowingly bring about, cover up or use ECHR violations as a means of administrative punishment remain fit to hold public office.
One might even ask whether a constitutional state takes itself seriously when it continues to entrust such persons with state power.
The answer should be self-evident. That in Switzerland it apparently is not is part of the problem.
Why are persons who knowingly bring about or cover up human rights violations still considered fit to hold public office in Switzerland?
When all intended corrective mechanisms fail, a crisis of constitutional legitimacy arises. When secrecy becomes a weapon, publication is not an attack. It is defence.