Since 1974 Swiss citizens have also been able to bring actions to assert the human rights guaranteed in the *ECHR* before this Court in Strasbourg. The Court has met in this building, designed by architect Richard Rogers to resemble a set of scales from above, since 1995. European Court of Human Rights in Strasbourg, photographed by Christian Beutler, 2018. Keystone

How Swiss law is adopting European fundamental rights

The Swiss Federal Constitution is caught in a push-and-pull between direct democracy, on the one hand, and European and international law, on the other. Certain European fundamental rights standards are being adopted nonetheless. The Council of Europe and the European Convention on Human Rights have had a marked effect on the current version of the Constitution. Decisions in Strasbourg continue to develop and enhance human rights standards that apply not just in the EU, but in Switzerland, too.

Helen Keller

Prof. Dr. iur. Helen Keller holds the Chair for Public Law at the University of Zurich and is a former member of the United Nations Human Rights Committee. She served as a judge at the European Court of Human Rights in Strasbourg.

The European Union (EU) inevitably comes to mind when we think about ‘Europeanisation’. Yet Europe itself has become institutionalised in many other international organisations outside the EU. One example is the Council of Europe (CoE), which comprises 46 member states, including Switzerland. Over the past almost 60 years, this CoE membership has left its mark, not least on the Federal Constitution.

Constitutional balancing act

Switzerland's view of itself as a responsible partner in an internationally connected world is expressed right at the start of the current Federal Constitution, in the preamble. It states that the Swiss people and the cantons must continuously “...renew their alliance so as to strengthen liberty, democracy, independence and peace in a spirit of solidarity and openness towards the world”. This declaration of solidarity only goes so far, however. It stops short of the Federal Constitution giving clear precedence to international law: Article 5 simply obliges the federal government and the cantons to respect it. International law does not generally restrict the right of (legislative) initiative. The Swiss Federal Assembly must declare popular initiatives invalid only if they violate the imperative provisions of international law. In most cases, contravention of the European Convention on Human Rights (ECHR) in itself would not be sufficient grounds to reject them. Indeed, a number of initiatives have actually been incorporated into the Federal Constitution despite being contentious from the ECHR perspective. Take the indefinite incarceration initiative of 2004, for example, or the 2009 initiative to ban minarets, or the 2010 initiative to expel convicted foreign nationals. The new Federal Constitution of 1999 did not make this balancing act between direct democratic rights and European/international fundamental rights standards any easier. It remains one of Switzerland's biggest constitutional headaches.

European fundamental rights standard

Switzerland was the last western European country to join the Council of Europe, in 1963. It ratified the ECHR in 1974, initiating the first moves towards the Europeanisation of fundamental rights in Switzerland. Before it was able to ratify the Convention, the country had to give women the right to vote in federal elections, and by recognising the ECHR it also had to acknowledge that it was subject to the jurisdiction of the European Court of Human Rights (ECtHR).

The Federal Council was planning to sign the European Convention on Human Rights with the caveat that votes for women would be exempted. Protests from numerous women's groups accelerated a second referendum proposal, however. In the canton of Zurich, the initiative committee relied on male advocates to front their campaign, such as former city mayor Emil Landolt. The campaign was led by legendary advertising executive Doris Gisler Truog (standing). Votes for women campaign in Zurich, November 1970, photographed by Hans Gerber. ETH Library

Ten western European states founded the Council of Europe in the wake of the Second World War. The Council went on to draft the ECHR, which was signed by the now-14 member states of the Council of Europe in Rome in November 1950. Switzerland ratified the ECHR in 1974. — Ten western European states founded the Council of Europe in the wake of the Second World War. The Council went on to draft the *ECHR*, which was signed by the now-14 member states of the Council of Europe in Rome in November 1950. Switzerland ratified the *ECHR* in 1974. Council of Europe, Strasbourg

At the end of the 1960s the Swiss authorities were confident that the ECtHR would never find against Switzerland, because the Swiss fundamental rights standard satisfied the minimum requirements of the Convention. Future events would prove otherwise. The years that followed were to bring a series of rulings from Strasbourg that censured Switzerland. These often concerned procedural law. At the time, the country still had a patchwork of rules for legal proceedings, with each canton having its own codes of civil and criminal procedure. Not all of these adhered to European standards in all respects. For example, in a criminal trial the authority prosecuting the case was not always separate from the authority deciding it. The public prosecutor's office frequently also played judge and jury. The ECtHR also intervened because defendants who had been acquitted were still ordered to pay legal costs. The Swiss approach – that there might not be enough to convict a person, but they should still pay some form of fine – was hardly compatible with the presumption of innocence. Legal protections in various minor proceedings were also still limited at the time. There was no avenue of judicial appeal against certain penalties, for example, which was inconsistent with the ECHR. In the 1980s and 1990s, a diverse body of ECtHR case law emerged that further expanded and refined fundamental rights in Switzerland, but the wording of the old Federal Constitution of 1848/1874 lagged way behind in comparison. Unsurprisingly, then, the new Federal Constitution of 1999 significantly expanded the catalogue of fundamental rights while also drawing on both the wording of the ECHR and the rulings of the Court. There were decisive improvements in legal protections, for example, and three new provisions were added to procedural rights: general procedural guarantees (Article 29), specific guarantees in judicial proceedings (Article 30), and a provision on guarantees in the event of deprivation of liberty (Article 31). The latter is particularly important, and is based on ECtHR jurisprudence with regard to such questions as: (i) the cases in which pre-trial detention may be ordered, (ii) the length of that detention, (iii) when and in what form a person must be informed of the crimes of which they are accused, and (iv) how a person may notify their defence counsel. It became clear in the course of the judicial reform of 2000 that an enormously fragmented legal system, with 26 cantonal codes of criminal and civil procedure, was costing citizens who wished to take a case to court an enormous amount of time and money, thus making it difficult for them to enforce their rights. With this in mind, the federal government was given the authority to harmonise the different codes of criminal procedure. ECtHR jurisprudence prepared the ground for this. Today, Switzerland has one federal code of civil and criminal procedure that enshrines such fundamental rights as a ban on the use of illegally procured evidence, and the right to the mandatory appointment of a defence lawyer.

No word on the EU

The electorate having rejected membership of the European Economic Area in 1992, Switzerland had to refocus its European policy. It may therefore seem surprising that not a single provision on the EU was incorporated into the Federal Constitution of 1999. This was a deliberate omission, however. Swiss politicians could not agree on an article about a European future. This vital question therefore remained unanswered, leaving a gap that continues to have ramifications to this day. The recent failure to reach a framework agreement means that Swiss-EU relations are still on anything but a stable footing.

In the early 1990s it emerged that the European Economic Community (EEC) planned to form an even closer bloc. This soon gave rise to nationalistic resistance in German-speaking Switzerland. Helvetia defends herself forcefully against membership of the EEC, which was to become the EU. ‘Le Divorce’, by Raymond Burki, 1990. — In the early 1990s it emerged that the *European Economic Community (EEC)* planned to form an even closer bloc. This soon gave rise to nationalistic resistance in German-speaking Switzerland. Helvetia defends herself forcefully against membership of the *EEC*, which was to become the EU. ‘Le Divorce’, by Raymond Burki, 1990. Fondation du Trait

The Confederation and the Cantons shall respect international law.

Federal Constitution of 1999, Article 5, paragraph 4

More of: Federal Constitution 20th / 21st century Politics

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