Background
see 4.1
Summary
The primacy of international law over a federal law, especially where the international legal norm serves the protection of human rights: ruling of 26 July 1999 in the case A. v. Swiss Federal Prosecutor (BGE 125 II 417)
The complainants appealed to the Federal Supreme Court a Federal Council decision to confiscate and destroy propaganda material of the Kurdish Workers Party (PKK). There was no avenue available for appeal provided against the decision under domestic law. The complainants referred to Article 6 (1) ECHR, according to which every individual is entitled to have disputes over civil claims heard by an independent and impartial court. Because the confiscation encroached on the complainants’ property rights, the Federal Supreme Court deemed Article 6 ECHR to be applicable which in turn implies judicial review of the decision taken by the government under broad police powers. The conflict was not resolvable by interpreting national law in conformity with international law. The Federal Supreme Court therefore took recourse to the generally recognized principles of international law, which are binding for Switzerland as customary international law and at the same time constitute applicable international treaty law. Thus according to Art. 26 of the Vienna Convention on the Law of Treaties, Switzerland must fulfil international legal obligations binding upon it, and no state body can invoke national law as justification for non-fulfilment of an international treaty. In the event of a conflict, international law takes precedence over national law as a rule. A legal norm under national law that conflicts with international law cannot be applied in a particular case, especially not if primacy derives from an international legal norm that serves to protect human rights. The Federal Supreme Court was able to refer to its own precedents and left open whether the conflict could be resolved differently in other configurations.
