Fundamental rights (Switzerland)

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In Switzerland, fundamental rights are mainly guaranteed by the Federal Constitution of the Swiss Confederation (BV). The European Convention on Human Rights (ECHR) in particular forms a further legal basis . The Federal Constitution provides for conditions under which basic rights may be restricted. They are an important part of the rule of law.

Legal basis

federal Constitution

Latest catalog

Classic civil liberties
Fundamental right Article of the BV
human dignity Art. 7
Right to life and personal freedom Art. 10
Protection of privacy Art. 13
Right to marriage and family Art. 14
Freedom of belief and conscience Art. 15
Freedom of expression and information Art. 16
Media freedom Art. 17
Freedom of language Art. 18
Academic freedom Art. 20
Artistic freedom Art. 21
Freedom of assembly Art. 22
Freedom of association Art. 23
Freedom of establishment Art. 24
Protection against expulsion , extradition and deportation Art. 25
Property guarantee Art. 26
Economic freedom Art. 27
Freedom of association Art. 28
Legal equality and other constitutional guarantees
Fundamental right Article of the BV
Equal rights and non-discrimination Art. 8
Protection from arbitrariness and protection of good faith Art. 9
General procedural guarantees , in particular
Prohibition of formal denial of justice
Right to be heard ,
Right to free justice
Art. 29
Legal recourse guarantee Art. 29a
Guarantees in judicial proceedings Art. 30
Guarantees Regarding Imprisonment Art. 31
Criminal Proceedings Guarantees Art. 32
Right of petition Art. 33
Basic social rights
Fundamental right Article of the BV
Right to help in emergencies Art. 12
Right to primary education Art. 19

The social goals (Art. 41 BV) are not part of the basic social rights . It is unclear whether the protection of children and young people (Art. 11 BV) is a fundamental social right or is one of the social goals.

In some cases, the right to free justice and the right to strike are also included in the basic social rights.

historical development

Formally on paper there were basic rights in Switzerland for the first time in 1798, after the French revolutionary troops marched in. A few, such as the freedom of trade, remained restricted in the following decades. More comprehensive catalogs of fundamental rights in the individual cantons only came about after the liberal revolutions at the beginning of the 1830s, and then with the Federal Constitution of 1848.

The Federal Constitution of 1874 explicitly named the following basic rights:

Since 1959, the Federal Supreme Court recognized unwritten fundamental rights until the new Federal Constitution came into force: property guarantee (before it was explicitly anchored in 1969), personal freedom including the right to life and a ban on arbitrariness, freedom of language, freedom of expression, freedom of assembly and the right to a livelihood.

In the new federal constitution of 1999, the basic rights were summarized in a catalog. The unwritten fundamental rights recognized by the Federal Supreme Court and the most important fundamental rights claims based on international conventions were incorporated into the constitution. On January 1, 2007, Art. 29a BV came into force, which provides for a legal recourse guarantee.

International right

In international law , the following sources of law are particularly relevant for fundamental rights in Switzerland:

In practice, the Federal Supreme Court tries to bring the ECHR and the fundamental rights according to the Federal Constitution into harmony.

Cantonal constitutions

Fundamental rights can be guaranteed in cantonal constitutions . However, these are only of legal significance if they go beyond the basic rights catalog of the Federal Constitution. Examples of this are the public administration principle (Art. 17 Para. 3 Cantonal Constitution of Bern, Art. 17 Cantonal Constitution of Zurich), the right to state aid for initial vocational training (Art. 37 Cantonal Constitution of Vaud) or the right of parents to state or private training Supplementary family day care option at affordable conditions within a reasonable period of time (Section 11 (2) (a) of the Cantonal Constitution of Basel-Stadt). Because there is often no cantonal constitutional jurisdiction, cantonal basic rights are of little practical importance. However, there is the possibility of a complaint to the Federal Supreme Court in the event of a violation of cantonal constitutional rights (Art. 95 lit. c Federal Supreme Court Act).

Restrictions on fundamental rights

According to Art. 36 BV, fundamental rights can be restricted under certain conditions:

“(1) Restrictions on fundamental rights require a legal basis. Serious restrictions must be provided for in the law itself. Cases of serious, immediate and not otherwise avertable danger are excluded. "

"(2) Restrictions on fundamental rights must be justified by a public interest or by the protection of the fundamental rights of third parties."

"(3) Restrictions on fundamental rights must be proportionate."

"(4) The core content of the fundamental rights is inviolable."

For restrictions on fundamental rights, four conditions must therefore be met: A sufficiently specific and formally lawful legal sentence must be present, whereby a law in the formal sense is required for serious interference . The exception is the general police clause , which permits urgent measures to protect fundamental legal interests. Furthermore, the restriction of fundamental rights must serve a public interest or the protection of the fundamental rights of third parties. The third condition required is proportionality . A distinction is made between suitability of the measure to achieve the intended purpose, the necessity, according to which the measure has to be the mildest means, and proportionality in the narrower sense, which weighs up the public and private interests concerned. The last of the four conditions requires that the core content of the fundamental right is not violated by the interference.

These criteria for the restrictions of fundamental rights are essentially tailored to the classic freedom rights. In particular, other conditions apply to interference with legal equality. According to the Federal Supreme Court, Art. 36 BV applies mutatis mutandis to basic social rights.

Enforceability of fundamental rights

If fundamental rights, which are constitutional rights , are violated , there is the possibility of a complaint to the Federal Supreme Court in accordance with Art. 189 Para. 1 BV . This is done by means of a complaint in public law matters or by means of a subsidiary constitutional complaint .

The fundamental rights are directly applicable law, their judicial enforceability does not require any implementing legislation. This applies both to the fundamental rights in the Federal Constitution and to those under the ECHR and UN Pact II. The Federal Supreme Court, however, only grants the rights in UN Pact I programmatic character; these fundamentally do not justify any directly enforceable rights.

Federal laws which violate fundamental rights, however, are to be applied by the courts and authorities on the basis of Art. 190 BV. Exceptions are fundamental rights, which are guaranteed by the ECHR. The Federal Supreme Court grants them priority over federal laws, as otherwise the European Court of Human Rights would determine a violation of the Convention and award compensation.

literature

  • Jörg Paul Müller: Realization of the fundamental rights according to Article 35 of the Swiss Federal Constitution. Stämpfli Verlag, Bern 2018.

Web links

supporting documents

  1. ↑ BGE 121 I 196 E. 2d; Häfelin / Haller / Keller, Federal State Law, N. 231