Title 2 of the Swiss Federal Constitution of 18 April 1999, entitled "Fundamental Rights, Civil Rights and Social Goals", contains a comprehensive and directly enforceable bill of rights, as well as a set of social goals which the state authorities are to pay heed to. A few rights, notably political ones, are explicitly reserved to Swiss citizens, while all others apply to all persons in Switzerland, including (insofar as possible) legal entities such as corporations.
While the 1874 constitution enumerated only a few civil rights, the 1999 constitution explicitly codifies the fundamental rights recognised in the case law of the Supreme Court and the European Court of Human Rights. It also incorporates the fundamental rights guaranteed in the European Convention on Human Rights, which Switzerland has ratified.
Chapter 1: Fundamental Rights
Application and limitation of fundamental rights Articles 35 and 36 contain the general rules governing the application of fundamental rights. According to article 35, "the fundamental rights shall be realized in the entire legal system". This implies that the Constitution's fundamental rights are binding on all levels of state authorities and are directly enforceable in the courts,Rainer J. Schweizer in Ehrenzeller, Art. 35 N 6. although the Constitution prohibits judicial review of federal statutes in article 190. Going beyond the classical notion of civil rights as purely defensive rights against the state, though, article 35 also mandates the authorities to give meaning to the fundamental rights in their legislative and executive acts,Rainer J. Schweizer in Ehrenzeller, Art. 35 N 6 et seq. and to actively protect fundamental rights even to some degree against non-state actors.Rainer J. Schweizer in Ehrenzeller, Art. 35 N 12 et seq. In between private actors, the fundamental rights do not apply directly.Rainer J. Schweizer in Ehrenzeller, Art. 35 N 20. Their "horizontal effect", though, is supposed to be realised through legislation to the extent the rights are suited to application between private persons.Rainer J. Schweizer in Ehrenzeller, Art. 35 N 21.
Article 36 outlines the circumstances under which the exercise of classical "negative" rights can be limited.Rainer J. Schweizer in Ehrenzeller, Art. 36 N 7. Exceptions must be limited to actions against those persons causing a clear and present danger that legislation cannot address in time.Rainer J. Schweizer in Ehrenzeller, Art. 36 N 16. Any public interest justifying a limitation of rights must arise from the Constitution or from constitutional statutes.Rainer J. Schweizer in Ehrenzeller, Art. 36 N 19. Proportionality requires that a limitation of rights be suitable and required to achieve its goal,Rainer J. Schweizer in Ehrenzeller, Art. 36 N 21 et seq. and that the degree of limitation is reasonable in view of that goal.Rainer J. Schweizer in Ehrenzeller, Art. 36 N 24. Essential guarantees, such as the prohibition on torture, the death penalty and censorship cannot be limited (see also art. 15 ECHR and jus cogens).Rainer J. Schweizer in Ehrenzeller, Art. 36 N 27.
Human rights and civil liberties
The bill of rights begins in article 7 by stating that "human dignity shall be respected and protected". This is a fundamental principle of the state that should inform all of its acts, a guideline to the interpretation of all law, and under certain circumstances a directly applicable fundamental right.Bernhard Ehrenzeller in Ehrenzeller, Art. 7 N 23 et seq. As such, it prohibits inhuman treatment and guarantees the right of people to be treated as a subject, not an object.Bernhard Ehrenzeller in Ehrenzeller, Art. 7 N 44.
Article 8 establishes equality before the law for all and prohibits discrimination based e.g. on grounds of origin, (perceived) race, sex, age, language, social position, lifestyle (including sexual orientation),Rainer J. Schweizer/Margrith Bigler-Eggenberger in Ehrenzeller, Art. 8 N 75. personal convictions or disabilities. The principle of equality implies economic neutrality of the state,Rainer J. Schweizer/Margrith Bigler-Eggenberger in Ehrenzeller, Art. 8 N 23. political equalityRainer J. Schweizer/Margrith Bigler-Eggenberger in Ehrenzeller, Art. 8 N 28. and equality of opportunity.Rainer J. Schweizer/Margrith Bigler-Eggenberger in Ehrenzeller, Art. 8 N 32. The principle of non-discrimination prohibits differential treatment based on the listed criteria except for clear objective reasons and in a proportionate manner.Rainer J. Schweizer/Margrith Bigler-Eggenberger in Ehrenzeller, Art. 8 N 54. Affirmative action is permitted.Rainer J. Schweizer/Margrith Bigler-Eggenberger in Ehrenzeller, Art. 8 N 58.
Article 9's prohibition of arbitrary treatment, an extension of the rule of law, guards individuals against rules or decisions of the state that have no serious, objective reasons, or that are meaning- and pointless.Christoph Rohner in Ehrenzeller, Art. 9 N 4. A decision is arbitrary only if its result is obviously untenable or contrary to the facts, or if it blatantly violates the law or the idea of justice. This rule, which is illimitable,Christoph Rohner in Ehrenzeller, Art. 9 N 14. permeates the entire legal system.Christoph Rohner in Ehrenzeller, Art. 9 N 13. Applied subsidiarily where other rights are unavailable,Christoph Rohner in Ehrenzeller, Art. 9 N 15. it features prominently in Supreme Court jurisprudence, which reviews questions of cantonal law that do not involve rules of federal or constitutional law not de novo, but only for arbitrary application of the law.Christoph Rohner in Ehrenzeller, Art. 9 N 33 et seq. However, the Court applies a narrow rule of standing to independent claims of arbitrary treatment, which has caused wide scholarly criticism.Christoph Rohner in Ehrenzeller, Art. 9 N 25 et seq. The rule of good faith requires the state to protect people's vested confidence in state actions, such as in governmental informations,Christoph Rohner in Ehrenzeller, Art. 9 N 51 et seq. and prohibits the abuse of rights by the state, such as through undue delays.Christoph Rohner in Ehrenzeller, Art. 9 N 57 et seq.
Article 10 prohibits the death penalty, torture and cruel, inhuman or degrading treatment. It also refers to the right to live, which does not prohibit abortionRainer J. Schweizer in Ehrenzeller, Art. 10 N 12. or passive euthanasia,Rainer J. Schweizer in Ehrenzeller, Art. 10 N 14. both of which are legal in Switzerland. Also, Article 10 provides for a "right to personal liberty, particularly to corporal and mental integrity, and to freedom of movement". Personal liberty, according to case law, covers all important aspects of personal development and lifestyle, such as choices in diet, healthcare, personal relations and sexual activity.Rainer J. Schweizer in Ehrenzeller, Art. 10 N 24 et seq. Article 11, a novel provision in the 1999 constitution, extends particular protection to children and young people.
Article 12, one of few enforceable social rights in the Constitution, provides for a right to obtain the means indispensable for leading a simple, dignified life. The cantons and municipalities are responsible for running welfare programmes to that effect.Margrith Bigler-Eggenberger in Ehrenzeller, Art. 12 N 9. The Supreme Court has held that the right may not be limited, e.g. to coerce illegal immigrants into leaving the country.Decision BGE 131 I 166 of 18 March 2005.
The subsequent articles proceed to guarantee the right to privacy (art. 13), the right to marriage and to have a family (art. 14), as well as the freedom of religion and philosophy (art. 15), opinion, information (art. 16), the media (art. 17), language (art. 18), science (art. 20), art (art. 21), assembly (art. 22) and association (art. 23). Also, article 19 provides for a right to free primary education.
Freedom of domicile anywhere in the country (art. 24) and protection against extradition without consent (art. 25) are rights reserved to Swiss citizens. However, foreigners enjoy the guarantee of non-refoulement provided by article 25.
Economic rights
Articles 26 to 28 cover fundamental economic rights. The right to property is guaranteed, and expropriations made subject to full compensation, by article 26. Article 27 guarantees economic freedom, free choice of profession and free private enterprise. Although some state monopolies are permitted (by way of art. 94),Klaus A. Vallender in Ehrenzeller, Art. 27 N 47 et seq. and differing cantonal regulations still impede the intercantonal exercise of some regulated professions,Klaus A. Vallender in Ehrenzeller, Art. 27 N 4. the wide extent to which economic freedom is guaranteed is a distinguishing feature of the Swiss constitution, both in theory and practice.Klaus A. Vallender in Ehrenzeller, Art. 27 N 7. Parliament's extensive discussions about this provision reflect a fundamental systemic decision in favour of a free market economy.Klaus A. Vallender in Ehrenzeller, Art. 27 N 66 et seq.
Article 28 guarantees the right of both employers and employees to unionise. Strikes and lockouts are declared permissible, but only when they relate to labour relations (i.e., general or political strikes are not covered),Klaus A. Vallender in Ehrenzeller, Art. 28 N 25. do not violate collective agreements, are proportionate in scopeKlaus A. Vallender in Ehrenzeller, Art. 28 N 26. and are organised by unions (i.e., are not wildcat strikes).Klaus A. Vallender in Ehrenzeller, Art. 28 N 27. The provision reflects a compromise solution found after long, acrimonious parliamentary debates.Klaus A. Vallender in Ehrenzeller, Art. 28 N 21.
Procedural guarantees
Articles 29 to 32 guarantee essential aspects of due process. Article 29 covers the rights to fair trial and to an effective remedy as provided for in articles six and thirteen of the ECHR. Specifically, it guarantees the right to be treated equally and fairly within a reasonable time in legal or administrative proceedings, the right to be heard, and the right of indigents to free legal representation (generally realised through appointed private counsel). The right to be heard notably covers the right to be informed about and to participate in all proceedings concerning oneself, the right to offer and to examine evidence (such as to call and question witnesses) and the right to a well-reasoned decision.Reinhold Hotz in Ehrenzeller, Art. 29 N 10 et seq. Article 29 also prohibits the delay or denial of justice, or excessive formalism in its administration.
Article 29a, in addition, guarantees a right to have legal disputes judged by a judicial authority. This provision, which was adopted by popular vote in 2000 and entered into force in 2007, is intended to realise more fully the right guaranteed by article 6 of the ECHR to a hearing by an "independent and impartial tribunal established by law".Andreas Kley in Ehrenzeller, Art. 29a N 2. In administrative law in particular, access to a court was previously not possible in all cases. As a result of this constitutional provision, the Federal Administrative Court replaced a number of administrative review panels in 2007. The provision still allows statutes to exclude judicial review in "exceptional cases" that are considered not amenable to judicial review, such as actes de gouvernement e.g. in the area of national security, or acts of pardon or clemency.Andreas Kley in Ehrenzeller, Art. 29a N 10 et seq. In any case, the provision's impact remains somewhat limited because article 190 excludes all federal statutes from judicial review.Andreas Kley in Ehrenzeller, Art. 29a N 21.
Article 30 sets minimal standards for judicial procedures, guaranteeing access to independent and impartial courts established by law, as well as the right to an open trial. It establishes the principle of separation of powers as relating to the judiciary.Reinhold Hotz in Ehrenzeller, Art. 30 N 7.