Title 2 of the Swiss Federal Constitution
Encyclopedia
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.
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, and to actively protect fundamental rights even to some degree against non-state actors. In between private actors, the fundamental rights do not apply directly. Their "horizontal effect", though, is supposed to be realised through legislation to the extent the rights are suited to application between private persons.
Article 36 outlines the circumstances under which the exercise of classical "negative
" rights can be limited. Exceptions must be limited to actions against those persons causing a clear and present danger that legislation
cannot address in time. Any public interest justifying a limitation of rights must arise from the Constitution or from constitutional statutes. Proportionality
requires that a limitation of rights be suitable and required to achieve its goal, and that the degree of limitation is reasonable in view of that goal. Essential guarantees, such as the prohibition on torture
, the death penalty and censorship
cannot be limited (see also art. 15 ECHR and jus cogens).
to be treated as a subject
, not an object
.
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
), personal convictions
or disabilities
. The principle of equality implies economic neutrality of the state, political equality and equality of opportunity. The principle of non-discrimination prohibits differential treatment based on the listed criteria except for clear objective reasons and in a proportionate manner. Affirmative action
is permitted.
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. 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, permeates the entire legal system. Applied subsidiarily
where other rights are unavailable, 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. However, the Court applies a narrow rule of standing
to independent claims of arbitrary treatment, which has caused wide scholarly criticism. The rule of good faith
requires the state to protect people's vested confidence
in state actions, such as in governmental information
s, and prohibits the abuse of rights by the state, such as through undue delays.
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 abortion
or passive euthanasia
, 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. Article 11, a novel provision in the 1999 constitution, extends particular protection to child
ren and young people
.
Article 12, one of few enforceable social right
s 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. The Supreme Court has held that the right may not be limited, e.g. to coerce illegal immigrants into leaving the country.
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.
is guaranteed, and expropriation
s 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), and differing cantonal regulations still impede the intercantonal exercise of some regulated professions, the wide extent to which economic freedom is guaranteed is a distinguishing feature of the Swiss constitution, both in theory and practice. Parliament's extensive discussions about this provision reflect a fundamental systemic decision in favour of a free market economy
.
Article 28 guarantees the right of both employers and employees to unionise. Strikes
and lockout
s are declared permissible, but only when they relate to labour relations (i.e., general
or political strikes are not covered), do not violate collective agreement
s, are proportionate in scope and are organised by unions (i.e., are not wildcat strikes). The provision reflects a compromise solution found after long, acrimonious parliamentary debates.
. 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 witness
es) and the right to a well-reasoned decision. 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 a "independent and impartial tribunal established by law". 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. In any case, the provision's impact remains somewhat limited because article 190 excludes all federal statutes from judicial review.
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
.
Article 31 encompasses the rights guaranteed in article 5 of the ECHR, what the common law
calls the right to petition for a writ of habeas corpus
, and also what is known in the U.S. as the duty to administer "Miranda warnings" to arrested persons. Article 32 outlines the fundamentals of criminal procedure
. They include the presumption of innocence
(which includes the principle of in dubio pro reo
and the right to refuse self-incrimination
), the right to appeal and the right to effective defence (including the assistance of counsel).
Article 33 guarantees the right to petition
authorities without the fear of sanction. Article 34 guarantees the free exercise of the citizens' political rights as provided for by the federal and cantonal constitutions. This means that results of votes and elections must reflect the free, unaltered will of the people and that the government may not engage in propaganda
to influence a vote or election (although it may provide "objective information"). Switzerland has registered a reservation with respect to article 25 of the ICCPR
, which guarantees the right to a secret ballot
, because the Landsgemeinde
assembly system used by two cantons and many municipalities does not allow for secrecy.
, according to article 37, is legally a consequence of cantonal and municipal citizenship, reflecting the three-tiered setup of the Swiss state. Nonetheless, federal law regulates the general rules of acquisition and loss of citizenship, as set forth in article 38. The exact procedure of acquiring citizenship is governed by cantonal law. Some cantons have instituted administrative bodies to process petitions for citizenship, while in others, prospective citizens are vetted, and their petitions voted on, by a municipal citizens' assembly. These procedures are a subject of perennial political controversy between advocates of a more or less strict immigration policy.
Article 37 prohibits privileges or prejudices associated with any particular cantonal or municipal citizenship. Still, the Constitution makes allowance for the continued existence of bourgeoisie
s and corporations. These are traditional civic associations carried over from the Old Swiss Confederacy
, often consisting of formerly aristocratic
families, but regulated by cantonal public law.
Article 39 stipulates that all Swiss citizens may exercise full municipal, cantonal and national political rights at their place of residence, and article 40 allows Swiss citizens domiciled abroad to exercise political rights in Switzerland.
, health care
, housing
and public education
.
These goals are of a programmatic nature, and are declared not to be directly enforceable. They are also counterbalanced by a reference to individual responsibility
in article 6. This means that, contrary to many other Western constitutions, so-called positive
or second- and third generation rights
are mostly absent from the constitutional text, although they are more widely recognised in legal doctrine and practice. Even so, the inclusion of this provision in the constitution was strongly contested on grounds of economic policy and cantonal autonomy.
Swiss Federal Constitution
The Federal Constitution of 18 April 1999 is the third and current federal constitution of Switzerland. It establishes the Swiss Confederation as a federal republic of 26 cantons , contains a catalogue of individual and popular rights , delineates the responsibilities of the...
of 18 April 1999, entitled "Fundamental Rights, Civil Rights and Social Goals", contains a comprehensive and directly enforceable bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
, 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
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
. It also incorporates the fundamental rights guaranteed in the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, 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, although the Constitution prohibits judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
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, and to actively protect fundamental rights even to some degree against non-state actors. In between private actors, the fundamental rights do not apply directly. Their "horizontal effect", though, is supposed to be realised through legislation to the extent the rights are suited to application between private persons.
Article 36 outlines the circumstances under which the exercise of classical "negative
Negative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
" rights can be limited. Exceptions must be limited to actions against those persons causing a clear and present danger that legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
cannot address in time. Any public interest justifying a limitation of rights must arise from the Constitution or from constitutional statutes. Proportionality
Proportionality
Proportionality may refer to:*Proportionality , the relationship of two variables whose ratio is constant*Proportionality , A legal principle under municipal law in which the punishment of a certain crime should be in proportion to the severity of the crime itself, and under international law an...
requires that a limitation of rights be suitable and required to achieve its goal, and that the degree of limitation is reasonable in view of that goal. Essential guarantees, such as the prohibition on torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
, the death penalty and censorship
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
cannot be limited (see also art. 15 ECHR and jus cogens).
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. As such, it prohibits inhuman treatment and guarantees the right of peopleHuman
Humans are the only living species in the Homo genus...
to be treated as a subject
Subject (philosophy)
In philosophy, a subject is a being that has subjective experiences, subjective consciousness or a relationship with another entity . A subject is an observer and an object is a thing observed...
, not an object
Object (philosophy)
An object in philosophy is a technical term often used in contrast to the term subject. Consciousness is a state of cognition that includes the subject, which can never be doubted as only it can be the one who doubts, and some object or objects that may or may not have real existence without...
.
Article 8 establishes equality before the law
Equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
for all and prohibits discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
based e.g. on grounds of origin, (perceived) race, sex
Sex
In biology, sex is a process of combining and mixing genetic traits, often resulting in the specialization of organisms into a male or female variety . Sexual reproduction involves combining specialized cells to form offspring that inherit traits from both parents...
, age
Ageing
Ageing or aging is the accumulation of changes in a person over time. Ageing in humans refers to a multidimensional process of physical, psychological, and social change. Some dimensions of ageing grow and expand over time, while others decline...
, language
Language
Language may refer either to the specifically human capacity for acquiring and using complex systems of communication, or to a specific instance of such a system of complex communication...
, social position
Social position
Social position is the position of an individual in a given society and culture. A given position may belong to many individuals. Social position influences social status...
, lifestyle (including sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
), personal convictions
Belief
Belief is the psychological state in which an individual holds a proposition or premise to be true.-Belief, knowledge and epistemology:The terms belief and knowledge are used differently in philosophy....
or disabilities
Disability
A disability may be physical, cognitive, mental, sensory, emotional, developmental or some combination of these.Many people would rather be referred to as a person with a disability instead of handicapped...
. The principle of equality implies economic neutrality of the state, political equality and equality of opportunity. The principle of non-discrimination prohibits differential treatment based on the listed criteria except for clear objective reasons and in a proportionate manner. Affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
is permitted.
Article 9's prohibition of arbitrary
Arbitrary
Arbitrariness is a term given to choices and actions subject to individual will, judgment or preference, based solely upon an individual's opinion or discretion.Arbitrary decisions are not necessarily the same as random decisions...
treatment, an extension of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
, guards individuals against rules or decisions of the state that have no serious, objective reasons, or that are meaning- and pointless. 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
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
. This rule, which is illimitable, permeates the entire legal system. Applied subsidiarily
Subsidiarity
Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which...
where other rights are unavailable, 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
De novo
In general usage, de novo is a Latin expression meaning "from the beginning," "afresh," "anew," "beginning again." It is used in:* De novo transcriptome assembly, the method of creating a transcriptome without a reference genome...
, but only for arbitrary application of the law. However, the Court applies a narrow rule of standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to independent claims of arbitrary treatment, which has caused wide scholarly criticism. The rule of good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
requires the state to protect people's vested confidence
Confidence
Confidence is generally described as a state of being certain either that a hypothesis or prediction is correct or that a chosen course of action is the best or most effective. Self-confidence is having confidence in oneself. Arrogance or hubris in this comparison, is having unmerited...
in state actions, such as in governmental information
Information
Information in its most restricted technical sense is a message or collection of messages that consists of an ordered sequence of symbols, or it is the meaning that can be interpreted from such a message or collection of messages. Information can be recorded or transmitted. It can be recorded as...
s, and prohibits the abuse of rights by the state, such as through undue delays.
Article 10 prohibits the death penalty, torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
and cruel, inhuman or degrading treatment. It also refers to the right to live, which does not prohibit abortion
Abortion in Switzerland
Abortion in Switzerland is legal during the first trimester, upon condition of counseling, for women who state that they are in distress. It is also legal with medical indications – threat of severe physical or psychological damage to the woman – at any later time. Persons performing illegal...
or passive euthanasia
Euthanasia
Euthanasia refers to the practice of intentionally ending a life in order to relieve pain and suffering....
, 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
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
". 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. Article 11, a novel provision in the 1999 constitution, extends particular protection to child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
ren and young people
Youth
Youth is the time of life between childhood and adulthood . Definitions of the specific age range that constitutes youth vary. An individual's actual maturity may not correspond to their chronological age, as immature individuals could exist at all ages.-Usage:Around the world, the terms "youth",...
.
Article 12, one of few enforceable social right
Social Right
Social Right was the main national and social-conservative faction within National Alliance, a political party in Italy.The faction had two main leaders: Francesco Storace and Gianni Alemanno...
s 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. The Supreme Court has held that the right may not be limited, e.g. to coerce illegal immigrants into leaving the country.
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
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
and philosophy (art. 15), opinion, information
Freedom of information
Freedom of information refers to the protection of the right to freedom of expression with regards to the Internet and information technology . Freedom of information may also concern censorship in an information technology context, i.e...
(art. 16), the media (art. 17), language (art. 18), science (art. 20), art (art. 21), assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
(art. 22) and association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
(art. 23). Also, article 19 provides for a right to free primary education
Primary education
A primary school is an institution in which children receive the first stage of compulsory education known as primary or elementary education. Primary school is the preferred term in the United Kingdom and many Commonwealth Nations, and in most publications of the United Nations Educational,...
.
Freedom of domicile
Domicile
*In architecture, a general term for a place of residence or "permanent residence" in legal terms*Domicile , the zodiac sign over which a planet has rulership...
anywhere in the country (art. 24) and protection against extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
without consent (art. 25) are rights reserved to Swiss citizens. However, foreigners enjoy the guarantee of non-refoulement
Non-refoulement
Non-refoulement is a principle in international law, specifically refugee law, that concerns the protection of refugees from being returned to places where their lives or freedoms could be threatened...
provided by article 25.
Economic rights
Articles 26 to 28 cover fundamental economic rights. The right to propertyRight to property
The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...
is guaranteed, and expropriation
Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
s made subject to full compensation, by article 26. Article 27 guarantees economic freedom
Economic freedom
Economic freedom is a term used in economic and policy debates. As with freedom generally, there are various definitions, but no universally accepted concept of economic freedom...
, free choice of profession
Profession
A profession is a vocation founded upon specialized educational training, the purpose of which is to supply disinterested counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain....
and free private enterprise. Although some state monopolies are permitted (by way of art. 94), and differing cantonal regulations still impede the intercantonal exercise of some regulated professions, the wide extent to which economic freedom is guaranteed is a distinguishing feature of the Swiss constitution, both in theory and practice. Parliament's extensive discussions about this provision reflect a fundamental systemic decision in favour of a free market economy
Market economy
A market economy is an economy in which the prices of goods and services are determined in a free price system. This is often contrasted with a state-directed or planned economy. Market economies can range from hypothetically pure laissez-faire variants to an assortment of real-world mixed...
.
Article 28 guarantees the right of both employers and employees to unionise. Strikes
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
and lockout
Lockout (industry)
A lockout is a work stoppage in which an employer prevents employees from working. This is different from a strike, in which employees refuse to work.- Causes :...
s are declared permissible, but only when they relate to labour relations (i.e., general
General strike
A general strike is a strike action by a critical mass of the labour force in a city, region, or country. While a general strike can be for political goals, economic goals, or both, it tends to gain its momentum from the ideological or class sympathies of the participants...
or political strikes are not covered), do not violate collective agreement
Collective agreement
A collective agreement or collective bargaining agreement is an agreement between employers and employees which regulates the terms and conditions of employees in their workplace, their duties and the duties of the employer...
s, are proportionate in scope and are organised by unions (i.e., are not wildcat strikes). The provision reflects a compromise solution found after long, acrimonious parliamentary debates.
Procedural guarantees
Articles 29 to 32 guarantee essential aspects of due processDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. Article 29 covers the rights to fair trial
Right to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
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
Public defender
The term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way...
(generally realised through appointed private counsel
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
). 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
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
(such as to call and question witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
es) and the right to a well-reasoned decision. Article 29 also prohibits the delay or denial of justice, or excessive formalism
Formalism
The term formalism describes an emphasis on form over content or meaning in the arts, literature, or philosophy. A practitioner of formalism is called a formalist. A formalist, with respect to some discipline, holds that there is no transcendent meaning to that discipline other than the literal...
in its administration.
Article 29a, in addition, guarantees a right to have legal disputes judged by a judicial authority
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
. 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 a "independent and impartial tribunal established by law". In administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public 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
Federal Administrative Court of Switzerland
The Federal Administrative Court of Switzerland is the judicial authority to which decisions of the federal authorities of Switzerland can be appealed...
replaced a number of administrative review panels in 2007. The provision still allows statutes to exclude judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
in "exceptional cases" that are considered not amenable to judicial review, such as actes de gouvernement e.g. in the area of national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
, or acts of pardon or clemency. In any case, the provision's impact remains somewhat limited because article 190 excludes all federal statutes from judicial review.
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
Open trial
Open trial may refer to:*Public trial*Open-label trial, a type of clinical trial that is not blinded...
. It establishes the principle of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
as relating to the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
.
Article 31 encompasses the rights guaranteed in article 5 of the ECHR, what the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
calls the right to petition for a writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, and also what is known in the U.S. as the duty to administer "Miranda warnings" to arrested persons. Article 32 outlines the fundamentals of criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
. They include the presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
(which includes the principle of in dubio pro reo
In dubio pro reo
The principle of in dubio pro reo means that a defendant may not be convicted by the court when doubts about his or her guilt remain....
and the right to refuse self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
), the right to appeal and the right to effective defence (including the assistance of counsel).
Article 33 guarantees the right to petition
Petition
A petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer....
authorities without the fear of sanction. Article 34 guarantees the free exercise of the citizens' political rights as provided for by the federal and cantonal constitutions. This means that results of votes and elections must reflect the free, unaltered will of the people and that the government may not engage in propaganda
Propaganda
Propaganda is a form of communication that is aimed at influencing the attitude of a community toward some cause or position so as to benefit oneself or one's group....
to influence a vote or election (although it may provide "objective information"). Switzerland has registered a reservation with respect to article 25 of the ICCPR
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, which guarantees the right to a secret ballot
Secret ballot
The secret ballot is a voting method in which a voter's choices in an election or a referendum are anonymous. The key aim is to ensure the voter records a sincere choice by forestalling attempts to influence the voter by intimidation or bribery. The system is one means of achieving the goal of...
, because the Landsgemeinde
Landsgemeinde
The Landsgemeinde or "cantonal assembly" is one of the oldest forms of direct democracy. The first historically documented assembly took place in 1294...
assembly system used by two cantons and many municipalities does not allow for secrecy.
Chapter 2: Citizenship and Political Rights
Swiss citizenshipCitizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
, according to article 37, is legally a consequence of cantonal and municipal citizenship, reflecting the three-tiered setup of the Swiss state. Nonetheless, federal law regulates the general rules of acquisition and loss of citizenship, as set forth in article 38. The exact procedure of acquiring citizenship is governed by cantonal law. Some cantons have instituted administrative bodies to process petitions for citizenship, while in others, prospective citizens are vetted, and their petitions voted on, by a municipal citizens' assembly. These procedures are a subject of perennial political controversy between advocates of a more or less strict immigration policy.
Article 37 prohibits privileges or prejudices associated with any particular cantonal or municipal citizenship. Still, the Constitution makes allowance for the continued existence of bourgeoisie
Bourgeoisie
In sociology and political science, bourgeoisie describes a range of groups across history. In the Western world, between the late 18th century and the present day, the bourgeoisie is a social class "characterized by their ownership of capital and their related culture." A member of the...
s and corporations. These are traditional civic associations carried over from the Old Swiss Confederacy
Old Swiss Confederacy
The Old Swiss Confederacy was the precursor of modern-day Switzerland....
, often consisting of formerly aristocratic
Aristocracy
Aristocracy , is a form of government in which a few elite citizens rule. The term derives from the Greek aristokratia, meaning "rule of the best". In origin in Ancient Greece, it was conceived of as rule by the best qualified citizens, and contrasted with monarchy...
families, but regulated by cantonal public law.
Article 39 stipulates that all Swiss citizens may exercise full municipal, cantonal and national political rights at their place of residence, and article 40 allows Swiss citizens domiciled abroad to exercise political rights in Switzerland.
Chapter 3: Social Goals
Article 41 consists of a list of "social goals" which the confederation and the cantons "shall strive to ensure". They include the availability of social securitySocial security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
, health care
Health care
Health care is the diagnosis, treatment, and prevention of disease, illness, injury, and other physical and mental impairments in humans. Health care is delivered by practitioners in medicine, chiropractic, dentistry, nursing, pharmacy, allied health, and other care providers...
, housing
House
A house is a building or structure that has the ability to be occupied for dwelling by human beings or other creatures. The term house includes many kinds of different dwellings ranging from rudimentary huts of nomadic tribes to free standing individual structures...
and public education
Education
Education in its broadest, general sense is the means through which the aims and habits of a group of people lives on from one generation to the next. Generally, it occurs through any experience that has a formative effect on the way one thinks, feels, or acts...
.
These goals are of a programmatic nature, and are declared not to be directly enforceable. They are also counterbalanced by a reference to individual responsibility
Moral responsibility
Moral responsibility usually refers to the idea that a person has moral obligations in certain situations. Disobeying moral obligations, then, becomes grounds for justified punishment. Deciding what justifies punishment, if anything, is a principle concern of ethics.People who have moral...
in article 6. This means that, contrary to many other Western constitutions, so-called positive
Negative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
or second- and third generation rights
Three generations of human rights
The division of human rights into three generations was initially proposed in 1979 by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg. He used the term at least as early as November 1977...
are mostly absent from the constitutional text, although they are more widely recognised in legal doctrine and practice. Even so, the inclusion of this provision in the constitution was strongly contested on grounds of economic policy and cantonal autonomy.