Alfred Kölz, Neuere schweizerische Verfassungsgeschichte, Ihre Grundlinien in Bund und Kantonen seit 1848, Bern 2004 (excerpt chapter Staatsrechtliche Praxis und frühe Rechtsprechung, pp. 804 – 820)
Alfred Kölz – Staatsrechtliche Praxis und frühe Rechtsprechung
Background
The Federal Supreme Court has two functions: first, to function as the highest court of ordinary appeal in nearly all matters of federal law, and secondly to act as constitutional court. Unlike in certain other countries, these functions are not distributed among multiple supreme courts. When Federal Supreme Court justices rule on disputes over violations of federal law, this refers to both the Federal Constitution and other federal law. Within the framework of the Federal Constitution, fundamental rights occupy a prominent position. The Constitution stipulates that fundamental rights are to be applied throughout the entire legal system and that all bodies that perform state functions are bound by fundamental rights and obliged to contribute to their realization. Fundamental rights also apply to private individuals insofar as they are suitable to deploy such effects (Art. 35 of the Federal Constitution of 1999). The Federal Supreme Court’s rulings on fundamental rights are therefore of paramount and particular importance to the overall Swiss legal system. A limitation to this effect exists with regard to legislative acts of the Federal Parliament that are binding on the Federal Supreme Court (see Part I A. 2 on The Federal Supreme Court in Relation to Parliament). Based on the primacy of federal law over cantonal law (see Part I A. 4 on The Federal Supreme Court in Relation to the Cantons, Part II F. on Federalism in Federal Court Rulings), federal court rulings on fundamental rights affect the cantons, thereby shaping Swiss federalism. However, the Federal Supreme Court’s influence is not limited to upholding fundamental rights under the Federal Constitution throughout the Confederation. The Federal Supreme Court also adjudicates disputes over potential violation of cantonal constitutional rights, i.e. fundamental rights under cantonal constitutions. It is the court of last resort also on matters pertaining to the cantons.
The excerpt below provides a description of the highly creative development of the Federal Supreme Court’s views on fundamental rights and their formative impact on the Swiss nation. Reasons are also outlined for what made such rulings possible in the first place. Despite few references to foreign law in landmark rulings only, the influence of constitutional legal theory, which makes reference to the US and French constitutions, cannot be underestimated. The influence of foreign and international law became apparent upon ratification of the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms in 1974, as well as its influence on court rulings on fundamental rights. The new Federal Constitution of 1999 largely codified Federal Supreme Court case law on unwritten fundamental rights under the 1874 Constitution, as amended.
Summary
Since the comprehensive revision of the Federal Constitution in 1874, the Federal Supreme Court has been responsible for adjudicating complaints concerning the violation of the constitutional rights of citizens. At the time, it was not the Federal Constitution but rather the implementing legislation that determined which constitutional rights can be challenged before the Federal Supreme Court (and not the Federal Council or Federal Assembly). Until 1911, jurisdiction over almost all fundamental rights was gradually transferred to the Federal Supreme Court. It developed into a highly creative practice. Until the First World War, roughly two thirds of all complaints were based on the principle of equality of rights. The Federal Supreme Court developed on the basis the requirement to treat similar facts similarly both in legislation and the application of the law. However, no claim to equal treatment of men and women was recognised under the principle of equality. Most of legal equality complaints were rejected because the Federal Supreme Court did not want to interfere with the cantons’ sphere of influence. Importantly, the Federal Supreme Court derived from the principle of equality the prohibition of denial of justice and due process, which specifically includes the right of citizens to legal protection, the procedural prohibition of delaying justice, the right to a hearing (e.g. reviewing of files), the prohibition of excessive formalism, the prohibition of retroactive effect of the law, the requirement of a formal legal basis in criminal and tax law, the right to be informed of the grounds for administrative orders. It entails the right to lawful composition of the deciding authorities, the right to exclusion of biased persons from proceedings, the right of destitute persons to no-cost legal proceedings in cases which are not without prospect, the right to no-cost defence in criminal proceedings, protection of the right to rely on appeal advisories despite incorrectness, the presumption of innocence under criminal law, and the prohibition of unlawfully obtained evidence and the principle of proportionality of state intervention. The author shares the view expressed by others that the development of these rights on the basis of the right to equality amounts to the greatest and most important achievements and contribution to Swiss legal culture by the Federal Supreme Court. The rights reinforced the rule of law and integrity in the cantons. It strenghend the legal standing of individuals in dealing with public authorities. There are several reasons in the author’s opinion why this development was possible when powers of review of the Federal Supreme Court was introduced in 1874. All federal judges belonged to the liberal majority and were strong and well educated. Nearly all had studied abroad and become acquainted with judicial traditions under the monarchies there unknown in Switzerland. Also, the Court’s rulings mainly pertained to formal rules. They hardly ever led to politically motivated conflicts in the cantons. The procedural rights developed favouring citizens were immediately welcomed being fair and widely shared. The Federal Supreme Court also developed significant case law in regard to political rights in the cantons and other constitutional rights, such as freedom of religion. And the Federal Supreme Court recognized certain elements of the national structure as a constitutional right. Thus municipalities and private individuals could invoke municipal autonomy as a proper right if the canton did not respect the autonomy of the municipalities, which certain authors also consider to be a significant achievement of constitutional review over acts of the cantons. The cantons thus would not become unitary states, following the French model but had to respect the prerogatives of communes as a matter of federal constitutional law. Citizens could also complain to the Federal Supreme Court for violations of separation of powers as a violation of political rights if the cantonal governments encroached on the legislators’ territory through the issuance of ordinances. And at last the principle of the primacy of federal law over cantonal law, which is not clearly anchored in the Federal Constitution, was brought in suit before the Federal Supreme Court.
In a later era, after the Second World War, there was a growing need to expand the freedoms which were only partially guaranteed under the 1874 Federal Constitution. In 1941, the eminent constitutional law expert Zaccaria Giacometti was the first scholar to call for the expansion of civil liberties beyond the written text of the constitution in his work on the constitutional law of the Swiss cantons. He argued that the constitutional charters, in line with a liberal system of values, “guarantee every individual freedom that may ever become legally relevant. In the classic catalogue of civil liberties of the American and French declarations of human and civil rights, which for the most part was incorporated into the cantonal and federal constitutions, the legally guaranteed individual freedom was broken down into individual freedoms of contemporary relevance, i.e. which appeared to be threathened by state power at the time. The catalogues of individual freedoms in the current constitutions therefore cannot represent an exhaustively completed process. If new aspects of individual freedom emerge as relevant, the corresponding new rights/freedoms must be derivable from the catalogues of rights to freedom unless the constitution should contain explicit provisions to the contrary.” This theory of unwritten constitutional rights paved the way for recognition at federal level. In 1961, the Federal Supreme Court recognized freedom of expression as an unwritten constitutional right, followed shortly afterwards by personal freedom, and then freedom of language in 1965, freedom of assembly in 1970, and right to livelihood security in 1995. All these rights were only incorporated into the Federal Constitution of 1999. Constitutional legislators expressed the will that the catalogue of civil liberties should remain open, and that it should continue to be permitted for the Federal Supreme Court to create new constitutional rights going forward. Following ratification of the European Convention on Human Rights in 1974, Switzerland had to implement changes, particularly to strengthen the independence of its courts, ensure fair trial and uphold personal freedom. The many cantonal constitutions revised since the Second World War contain extensive catalogues of fundamental rights that are applied by the courts and create a nationwide consensus.