Swiss law and European fundamental rights – a problematic field of tension

When you think of “Europeanization” you inevitably think of them European Union (EU). However, Europe has about the EU institutionalized in many other international organizations – for example in the Council of Europe with its 46 member states, including Switzerland. Over the past 60 years, Switzerland’s membership has left its mark, particularly in the federal constitution.

Switzerland’s view of itself as a responsible partner in an internationally connected world is already reflected in the preamble to the federal constitution in force today. The federal government must constantly renew itself “to strengthen freedom and democracy, independence and peace in solidarity and openness to the world”. However, this declaration of solidarity by Switzerland does not go so far as to establish a clear primacy of international law in the federal constitution. Article 5 obliges the Confederation and the cantons only to comply with international law.

As a rule, international law does not limit the right of initiative. The Federal Assembly only has to declare citizens’ initiatives invalid if they violate mandatory provisions of international law. A contradiction for European Convention on Human Rights (ECHR) usually not enough for their rejection. Various popular initiatives, such as the 2004 Conservation Initiative, the 2009 Minarets Ban Initiative or the 2010 Expulsion Initiative, which from the point of view of the EVRM are critical, access to the federal constitution.

This tension between direct democratic rights and the European or international standard of fundamental rights was not resolved with the new federal constitution of 1999. It remains one of Switzerland’s major constitutional problems.

Switzerland was the last Western European country to join the Council of Europe in 1963, ratifying the Council in 1974 EVRM. This was the first step towards the Europeanization of Swiss fundamental rights. In the run-up to this ratification, Switzerland had to introduce women’s suffrage and with the recognition of the EVRM she submitted to the jurisdiction of European Court of Human Rights (ECtHR).

While it was fairly certain in the late 1960s that Switzerland would never be condemned because the Swiss standard of fundamental rights met these minimum requirements, future history would teach Switzerland otherwise. In the years that followed, judgments were passed repeatedly in Strasbourg, which reprimanded Switzerland.

The judgments often concerned procedural rights. At that time in Switzerland there was still a patchwork of procedural rules. Each canton had its own code of civil and criminal procedure. These did not consistently meet European standards. For example, in criminal cases the prosecuting authority was not always separated from the deciding authority and the public prosecutor often made the decision himself.

The ECtHR but also intervened because Switzerland imposed legal costs on defendants who had been acquitted. This motto – “It’s not enough for a conviction, but you still have to do a little penance” – was not compatible with the presumption of innocence. In addition, legal protection in Switzerland was still limited at the time for various procedures of minor importance. Certain fines could not be challenged in any court, if anything EVRM– was compliant.

In the 1980s and 1990s there was a wide variety of jurisprudence ECtHR which further developed and refined Swiss fundamental rights. The text of the old federal constitution of 1848/1874 lagged far behind. It is therefore not surprising that the catalog of fundamental rights has been considerably expanded in the new federal constitution of 1999 and that the text of the EVRM as well as the jurisprudence of ECtHR has oriented. Legal protection has been significantly improved.

In addition, the procedural rights received three new provisions: a general procedural guarantee (Article 29), a specific guarantee for 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 the jurisprudence of the ECtHR to questions such as: In which cases can pre-trial detention be ordered? How long can this take? When and in what form should I be informed of the crimes I am accused of? When can I report my defence?

The 2000 reform of the judiciary also realized that the great fragmentation of the law in 26 cantonal codes of criminal law and civil procedure costs citizens seeking legal proceedings a lot of time and money and makes it more difficult to enforce their rights. to force. Accordingly, the federal government was empowered to standardize the rules of procedure, for which the jurisprudence of the ECtHR prepared the ground. Today, Switzerland has a Federal Code of Civil and Criminal Procedure that enshrines fundamental rights, such as the prohibition on the use of illegally obtained evidence and the right to mandatory defence.

After refusing to join the European Economic Area in 1992, Switzerland had to reorient itself in European policy. It is amazing that there is no provision for it EU included in the federal constitution of 1999. However, the silence has been deliberately chosen. Politically, it was not possible to agree on a future European article. So this fateful question remained unanswered. She left a void with consequences to this day. Even today, after the failure of the framework agreement, Switzerland’s relations do not have a solid foundation EU.