Urteil des Bundesgerichts vom 27. Oktober 1995 i.S. V. gegen Einwohnergemeinde X. und Regierungsrat des Kantons Bern (BGE 121 I 367)
Background
As outlined in the two preceding texts, in the second half of the previous century the Federal Supreme Court recognized a number of fundamental rights which are not guaranteed in the written Federal Constitution. In the ruling summarized below, the Federal Supreme Court recognized the right to secure one’s livelihood as a further unwritten constitutional right of the Confederation – a right which foreign nationals equally are able to invoke, irrespective of their status of residency. The constitutional rights recognized by the Federal Supreme Court were codified in the new Federal Constitution of 1999. Since then, no new unwritten constitutional rights have been recognized, so the 1995 ruling marks the provisional conclusion of this impressive development. In addressing future challenges, constitutional legislators however did not rule out the recognition of further unwritten constitutional rights.
While other unwritten constitutional rights recognized by the Federal Supreme Court have been incorporated into the new constitution, the right to subsistence has been elaborated and limited versus the form in which it was recognized in Federal Supreme Court rulings, as Jörg Paul Müller wrote in his text (Part II E. 2.). Although the Federal Council had proposed the inclusion of a right to subsistence in the new constitution, Parliament wanted to avoid this turning into a guarantee of a comprehensive basic and minimum income. The new constitution thus only guarantees the right to assistance in emergency situations, which has been interpreted in court rulings as temporary bridging assistance. This decoupled the fundamental right from regular social assistance, for which the cantons are responsible (except in the area of asylum). Müller raises the question in the preceding text as to whether the state’s duty of care as under earlier Federal Supreme Court rulings should not be recodified, making both short-term and longer-term state support subject to the protection of fundamental rights. The wording of the new constitutional provision does not contain a time limit, and allows such an interpretation. Müller refers to the case law of the German Federal Constitutional Court, which derives the fundamental right to subsistence from the principle of human dignity in relation to principles of the welfare state.
Summary
The facts of the case concerned in the ruling are as follows: Three brothers had lived for ten years in Switzerland with their mother as recognised refugees. Due to the changed political conditions in their country of origin in the early 1990s, the criminal expulsion imposed on them became enforceable and they lost asylum status. They re-entered Switzerland a year later without permits but could no longer be expelled because the three brothers refused to submit an application of re-naturalisation – which would have been granted in their country of origin. Social assistance was refused to them by the municipality on grounds that by refusing to submit the application and return to their country of origin they were deliberately prolonging the emergency situation and abusing the law. The Federal Supreme Court, to which the brothers had filed an appeal against the refusal of social assistance, examined whether the complainants were entitled to invoke the right to subsistence as a matter of federal constitutional law. In the judgement it is recalled that the constitution also contains unwritten rights. This was recognized by the Federal Supreme Court in relation to rights as “constituting a prerequisite for the exercising of other freedoms (per the Constitution), or otherwise as elements apparently indispensable to upholding the democratic and constitutional order. To avoid exceeding the limits set for constitutional judges, the Federal Supreme Court has always examined whether the guarantee in question corresponds to a widespread constitutional reality in the cantons and is supported by general consensus.” Over the years the Federal Supreme Court has recognized the guarantee of property, freedom of expression, personal freedom, freedom of language and freedom of assembly as unwritten constitutional rights. It did not recognize a right to education or freedom of demonstration beyond the content of freedoms of expression and assembly (nor freedom of gravestone design). The Federal Supreme Court then examined whether the requirements were met for recognition of an unwritten constitutional right to subsistence and found the fulfillment of basic human needs such as food, clothing and shelter is both pre-conditions for human existence and personal development amounts to an indispensable element of a constitutional and democratic polity. This fundamental right is furthermore supported by general consensus, as evident in the law, cantonal and by legal theory. Reference was also made to the provision of the Federal Constitution according to which needy individuals receive support from their canton of residence. The Federal Supreme Court confirmed that the fundamental right to subsistence in the form of a minimum standard proceeds from fundamental rights (assistance in emergency situations) and is justiciable. It does not concern and extent to a guaranteed minimum income but rather cash or in-kind benefits which are essential to human dignity, “sparing individuals from an undignified, beggarly existence”. As a fundamental right based on human rights, the right to subsistence is a human right which foreign nationals can equally invoke irrespective of nationality. The Federal Supreme Court ruled that there was no abuse of the law because the complainants were not allowed to pursue any gainful employment in Switzerland, and because as former refugees they did not wish to return to their country of origin for understandable reasons. The contested decision thus violated the now-recognized unwritten constitutional right to subsistence.