Human rights in Switzerland

Fundamental rights are guaranteed in Switzerland mainly by the Federal Constitution of the Swiss Confederation (BV). More particularly legal basis is the European Convention on Human Rights (ECHR ). The Federal Constitution provides conditions under which fundamental rights may be restricted. They are an important part of the rule of law.

Legal framework

Federal Constitutional

Current catalog

Not to fundamental social rights include social objectives ( Article 41 of the Constitution). Whether the protection of children and young people (Art. 11 BV) constitutes a fundamental social right or is to be among the social objectives is unclear.

In some cases, the right to legal aid and the right to strike to fundamental social rights be expected.

Historical Development

Formally on paper there was in Switzerland for the first time in 1798, after the invasion of French revolutionary troops, fundamental rights. A few, such as the freedom of trade, remained in the subsequent decades restricted receive. More comprehensive fundamental rights catalogs in the individual cantons resulted only after the liberal revolutions in the beginning of the 1830s, and then with the Federal Constitution of 1848.

The Federal Constitution of 1874 gave the following fundamental rights explicitly:

• Equality before the law,
• Freedom of establishment,
• Faith and conscience,
• Freedom of worship, which is now subsumed under the faith and conscience,
• Freedom of marriage,
• Freedom of the press,
• Freedom of association,
• Commercial and industrial freedom

Since 1959, the Federal Court recognized unwritten fundamental rights, following the entry into force of the new Federal Constitution: right to property ( over the explicit anchoring 1969), personal freedom, including the right to life and an arbitrary ban, speech freedom, freedom of expression, freedom of assembly and the right to livelihood.

In the new Federal Constitution of 1999, the fundamental rights have been summarized in a catalog. The recognized by the Federal Court unwritten fundamental rights and the most basic legal rights under international conventions have been incorporated into the Constitution. On 1 January 2007 Article 29a BV entered into force, which provides the legal warranty.

International Law

In international law, in particular the following sources of law are significant for the fundamental rights in Switzerland:

• European Convention on Human Rights (ECHR ),
• International Covenant on Economic, Social and Cultural Rights,
• International Covenant on Civil and Political Rights.

The Federal Court will, in practice, therefore, to bring the ECHR and the fundamental rights under the Federal Constitution in accordance.

Cantonal constitutions

Fundamental rights can be guaranteed in cantonal constitutions. However, this source of law has little practical significance with respect to the fundamental rights.

Restrictions on fundamental rights

Fundamental rights under Art 36 BV restricted under conditions:

" ( 1) restrictions on fundamental rights must have a legal basis. Severe restrictions must be prescribed in the law itself. Except in cases of serious, imminent and other course of action danger. "

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

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

"(4) The essence of fundamental rights is inviolable. "

Therefore need four conditions to be met for restrictions of fundamental rights: There must be a sufficiently definite and formal rightful legal proposition in this case, where a formal enactment is necessary for serious intervention. Exception to the general police clause, which allows temporally urgent measures for the protection of fundamental legal interests. Furthermore, the restriction of fundamental rights must serve a public interest or the protection of fundamental rights of others. The third condition of proportionality is required. Distinction is made between suitability of action to achieve the intended purpose, of necessity, according to which the measure has to be the least restrictive means, and proportionality in the narrow sense, which performs a balancing of the public and private interest, distinguished. The last of the four conditions requires that the core content of the fundamental right is not infringed by the engagement.

These criteria for restrictions of fundamental rights is tailored primarily to the classical freedom rights. In particular, for intervention in the legal equality other conditions apply. The fundamental social rights is Article 36 BV according to federal court by analogy.

Enforceability of fundamental rights

In case of violation of fundamental rights, which constitute constitutional rights, is in accordance with Article 189, paragraph 1 BV the possibility of an appeal to the Federal Court. This is done by means of appeal in matters of public law or by subsidiary constitutional complaint.

The Fundamental Rights represent directly applicable law, their legal enforceability does not require implementing legislation. This applies both to the fundamental rights in the Federal Constitution, as well as those under the ECHR and UN Covenant II the rights in the UN Covenant recognizes the Federal Court, however, only a programmatic character, are justified in principle not directly einklagbarene rights.

Federal laws that violate fundamental rights are, however, apply according to Article 190 BV of the courts and authorities. Exceptions are fundamental rights which are guaranteed by the ECHR. This grants the Federal Court precedence over federal laws, as otherwise determined a violation of the Convention by the European Court of Human Rights and compensation has to be awarded.

Swell

• Jörg Paul Müller / Markus Schefer: Fundamental Rights in Switzerland, 4th Edition, Stämpfli Verlag, Bern 2008, ISBN 978-3-7272-9792-2
• Ulrich Häfelin / Walter Haller: Swiss Federal Constitutional Law, 6th edition, Schulthess Zurich 2005, ISBN 3-7255-4907-9