This article highlights the particularities of the history of Switzerland's adherence to the European Convention on Human Rights and of the role of this human rights instrument in Switzerland.[1] It aims at providing a brief overview for those not familiar with the Swiss legal order and Switzerland's political culture.
Despite its long tradition as a liberal democracy, Switzerland joined the Convention only in 1974 as its 18th Member State. It has not yet ratified Protocol No. 1 and Protocol No. 4.[2] There were mainly three obstacles that prevented earlier adherence:
a) Neutrality concerns
In the 1950s, neutrality concerns played the key role in the Swiss attitude towards international organisations in general and the Council of Europe in particular. Switzerland considered membership in the Council as hardly compatible with the rigid concept of neutrality it had adopted after World War II. It acceded the Council of Europe in 1963 after it had become clear that the Council would not develop into a "political alliance".[3]
b) Legal obstacles
A range of apparent incompatibilities of the Swiss legal system with the Convention were also considered as major obstacles to adherence. Switzerland had not yet introduced female suffrage in the 1960s (which was contrary to Protocol No. 1)[4], and several articles of the Swiss constitution concerning religious matters were obviously contrary to Article 9.[5] Further important incompatibilities concerned Swiss procedural laws that were partly contrary to Article 5 and Article 6.[6]
c) Psychological aspects
In the national narrative of Switzerland, the legend of heroic Swiss resistance against malicious "alien judges" is a key element. This myth goes back to the times of the middle ages when the nucleus of Switzerland began to develop. Being alive to some extent still in the 20[th] century, it provided valuable psychological support for those opposed to accession to the Council and to adherence to the Convention in the 1950s and 1960s. Also after adherence to the Convention, it played a certain role: it tended to come to the surface after the Strasbourg Judges had found a violation of the Convention by Switzerland. Calling the Judges "alien judges" was - and to some extent seems to be even nowadays - an effective means to challenge the legitimacy of their judgements.
The first attempt to join the Convention was undertaken by the Swiss Federal Council in the late 1960s.[7] It was not successful however. The proposal to adhere to the Convention faced strong opposition in the Swiss Senate. Among the arguments put forward against joining, the demand to first assure compatibility of the Swiss legal system with the Convention played an important role. The proposal of the Federal Council - it had suggested making five reservations and one interpretative declaration - was considered as discordant with respect to the character of the Convention as a human rights instrument. In the early 1970s, some of the most important incompatibilities of Swiss law with the Convention were removed. In 1971, female suffrage was introduced at the federal level,[8] and in 1973, the "exceptional religious articles" concerning restrictions to the freedom of religion were removed. Other incompatibilities remained, however, some of which played an important role in cases against Switzerland before the Court.
Adherence in 1974 was accompanied by two reservations and two interpretative declarations. By limiting the field of application of the Convention, Switzerland hoped to avoid foreseeable condemnations by the Court. This goal was reached only partly; the history of Switzerland's reservations and interpretative declarations was in fact a history of their gradual invalidation by the Strasbourg Judges and the Swiss Federal Court. In a nutshell, Switzerland had underestimated the formal requirements to make
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reservations to the Convention. The history of the Swiss reservations and declarations shall briefly be summarised:
a) Reservation 1 concerning the right to liberty and security of the person (Article 5)
Switzerland excluded Article 5 from being applied to the placement of persons to institutions for so-called "administrative" reasons (reasons other than criminal proceedings, for example if a person is not capable of taking care of himself). Swiss laws in force at the time of adherence provided that some categories of decisions in this field were not to be taken by independent judicial organs as prescribed by the Convention. In 1982, Switzerland withdrew this reservation after it had brought its law in conformity with Article 5.
b) Reservation 2 concerning the right to a fair trial (Article 6 § 1)
Switzerland made a reservation with respect to two principles enshrined in Article 6 § 1; it excluded the principle of public hearing from being applied to cases decided by administrative authorities and the principle of public pronouncement from being applied to judgments communicated to the parties only in written form. This reservation was in fact invalidated by the judgement Weber v. Switzerland, delivered in 1990 by the Court.[9] The Court found that Switzerland had not complied with the formal requirements for making reservations to the Convention (Art. 64). This judgment followed the strand of reasoning given in an earlier judgment against Switzerland, in which an interpretative declaration made by Switzerland had been declared invalid as well (Belilos v. Switzerland, delivered in 1988).[10] The reservation was formally withdrawn 29 August 2000.
c) Interpretative Declaration 1 concerning the right to a fair trial (Article 6)
Switzerland "declared" that it regarded the right to judicial control by a court in cases concerning civil rights and criminal charges (contained in Article 6 § 1) as complied with if a "last instance judicial control" is provided by a court. In the aformentioned Belilos v. Switzerland case concerning a minor criminal charge, the Court found that the declaration had in fact the character of a reservation (as it excluded the application of a guarantee of the Convention to certain cases) and that the declaration fell foul of the rule set out in Article 64 that the reservations must not be of a general character.
The Court's decision in Belilos v. Switzerland provoked several harsh reactions in Switzerland that deserve some extra attention.[11] The judgment was partly considered an illegitimate interference into Swiss sovereignty and contrary to the liberal practices in the field of reservations. A Swiss senator demanded immediate measures to re-establish Swiss sovereignty, suggesting that this could include also abrogating membership to the Convention and re-adherence only after rephrasing of the declara-tion.[12] The Federal Council took these reactions very seriously. It tried to solve the problem by rewording the declaration and limiting its field of application to civil rights matters. The validity of this reworded version was questionable: the Swiss Federal Court seemed to consider it invalid for the reasons given by the Court in the Belilos judgment.[13] The declation was also withdrawn by the Swiss government by August 29 2000.
d) Interpretative Declaration 2 concerning the right to a fair trial (Article 6)
The second interpretative declaration concerned the right to legal assistance and to an interpreter. Switzerland declared that it regarded it compatible with Article 6 § 3 c and e to consider exemption from costs for legal assistance and interpretation as "not final".[14] The Swiss Federal Court seemed to question its validity for the reasons given in the Belilos case.[15 ]It was finally withdrawn on August 29 2000.
A further particularity concerns the rather unclear status of the Convention in the Swiss legal order.[16 ]Switzerland has adopted a monistic system,[17] but it has not clarified the precise hierarchical rank of international law and of the Convention in the Swiss legal order.
a) Constitution
Neither the constitution in force at the time of adherence nor the revised constitution entered into force in 2000 contain a clear-cut provision on the relationship between international law and the domestic legal order. They only vaguely state that the authorities are "bound"[18] by international law, and the revised constitution holds that the Confederation and the Cantons "shall respect"[19] international law. None of
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these provisions, however, is conclusive with respect to the rank of international law. The new constitution is unambiguous only insofar, as it attributes a supra-constitutional rank to rules of compulsory international law.[20]
b) Practice
The Swiss Federal Court adopted two different approaches when dealing with the rank of international law in the domestic legal order. On the one hand, there is a large number of cases in which it openly subscribed to the principle of predominance of international over domestic law.[21] On the other hand, there is also important case law in which the Court accepted that the parliament can consciously deviate from international treaties even in ordinary laws.[22] In sum, the relationship between international law (and of the Convention in particular) and the domestic legal order remained unclear in the Swiss Federal Court's case law. It seemed to have been decided on a case-by-case basis.[23]
Recently, the question of the rank of international law prominently arose after the adoption in 2004 of a new constitutional provision in the field of criminal law. The provision prescribes lifelong imprisonment of extremely dangerous and untreatable offenders and sexual offenders and categorically prohibits early release. It is widely regarded as incompatible with Article 5 § 4 of the Convention.[24] The parliament therefore has to decide whether it wants to give preference to the constitutional rule or the Convention in the ordinary criminal laws. The question is not decided yet, but the parliament seems to follow the proposal of the Federal Council to give preference to the Convention (the Swiss Senate has already decided on the matter whereas the first chamber of the parliament has not yet taken its decision).[25]
The Swiss Federal Court played a remarkably important and active role in the reception process. [26 ]It has promoted the Convention and the Court's jurisprudence in several ways:
a) Anticipatory application
The highest Swiss court in fact applied several aspects of the Convention already in the years before Switzerland's adherence to the Convention.[27] On several occasions, it "interpreted" the Swiss constitution in a way that takes fully account of the Convention and the Court's judgements, thereby substantially departing from the text of the Swiss constitution. In a judgment delivered in 1972, for example, it declared that the principles expressed in Art. 6 § 3 corresponded also to the national legal order and therefore had to be respected by the Swiss authorities.[28]
b) Interpretation of the Swiss constitution
After adherence, the Swiss Federal Court often used the Convention as a source of inspiration for the interpretation of fundamental rights guaranteed by the Swiss constitution. Partly concealing its approach, it often declared applying Swiss constitutional law when it was in fact referring for its interpretation to the Convention and its case law. The well-known judgement in the case of Vest, for example, was obviously inspired by the judgement Klass and others v. Germany by the ECHR.[29]
c) Status of the Convention at the procedural level
In 1975, only one year after adherence, the Swiss Federal Court decided to treat Convention and constitutional rights equally at the procedural level.[30] This is remarkable insofar as there are in principle different procedures for violations of international treaties and constitutional law.[31] This measure enhanced the status of the the Convention in the Swiss legal system.[32]
Switzerland's most important problem areas as regards compliance with the Convention are Articles 5 and 6.33 These provisions are generally among those mostly invoked before the Strasbourg Court and domestic courts, but there might be an additional factor explaing Swiss difficulties to comply with it : the Swiss legal and political culture with its basic democratic roots has not developed a particularly strong sense for the importance and the benefits of an independent and strong judiciary. The Swiss difficulties in complying with Article 5 and 6 shall briefly be exemplified:
a) Decisions on the lawfulness of arrest and detention (Article 5 § 3/4, habeas corpus)
Article 5 caused not only Switzerland's first reservation to the Convention (which was withdrawn in
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1982), it entailed also an amendment to its domestic legislation concerning military criminal procedures ; there had not been a judicial instance to decide on the lawfulness of close arrest ("scharfer Arrest") in military service at the time of adherence.[34] The Court found also violations of Article 5 by Switzerland with respect to the right to a decision by a court on the lawfulness of detention.[35] Further problems in this field are caused by the aforementioned constitutional provision on lifelong imprisonment of extremely dangerous and untreatable offenders and sexual offenders.[36]
b) Right to an independent and impartial tribunal (Article 6 § 1)
Swiss procedural laws concerning civil rights and criminal charges caused several problems of compatibility with Article 6 § 1 and 3. A problem to some extent typical for Switzerland in this field was that the functions of the general prosecutor ("Untersuchungsrichter") and the trial judge ("Sachrichter") were exercised in several cantons by the same person for practical reasons. Under the influence of the Court's judgements in the cases Piersack v. Belgium (1982) and De Cubber v. Belgium (1984), the Swiss Federal Court ruled that this was not compatible Article 6 § 1.[37] - The Court found violations of Article 6 on several occasions.[38] ■
NOTES
[1] For details see Michel Hottelier/Hanspeter Mock/ Michel Puéchavy, La Suisse devant la Cour Européenne des droits de l'homme, Bruxelles 2005; Helen Keller, Reception of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in Poland and Switzerland, ZaöRV 65 (2005), 283 et seq.; Arthur Haefliger/Frank Schürmann, Die Europäische Menschenrechtskonvention und die Schweiz. Die Bedeutung der Konvention für die schweizerische Rechtspraxis, Bern 1999; Mark Villiger, Handbuch der Europäischen Menschenrechtskonvention (EMRK) unter besonderer Berücksichtigung der schweizerischen Rechtslage, Zürich 1999
[2] Protocol No. 1 was signed in 1976, but never ratified. Protocol No. 4 was not even signed.
[3] In the first decade of the Council's existence, it was not entirely clear whether it would keep its original character or whether it would develop a more "political" character. The Soviet Union regarded the Council of Europe as instrument of the Cold War: Villiger, 21 (with further references).
[4] The existence of popular assemblies ("Landsgemeinden") in some mountain cantons also contradicted Protocol 1. These institutions do not play a major role in political practice in Switzerland nowadays, but they nevertheless symbolize the direct-democratic spirit of Switzerland.
[5] So-called "exceptional religious articles", e.g. concerning the requirement of authorisation for the foundation of new monasteries. These articles are strongly connected to Swiss history, in which tensions between the confessions had been a threat to national cohesion on several occasion.
[6] For details see infra 2: reservations and interpretative declarations.
[7] Luzius Wildhaber, Rund um Belilos. Die schweizerischen Vorbehalte und auslegenden Erklärungen zur Europäischen Menschenrechtskonvention im Verlauf der Zeit und im Licht der Rechtsprechung [1993], in: ders., Wechselspiel zwischen innen und aussen, Basel/Frankfurt a.M. 1996, at 416 et seq.
[8] It is difficult or even impossible to say to what extent this (overdue) step was influenced by the debate on adherence to the Convention.
[9] Weber v. Switzerland, Judgment, 22 May 1990, Series A/177.
[10] See Belilos v. Switzerland, Judgment, 29 April 1988, Series A/132.
[11] Wildhaber, 423 et seq.
[12] Amtl. Bull. StRat 1988 554.
[13] BGE 118 Ia 473 et subs. (F. c. R. und Thurgau).
[14] In 1984, the declaration seems to have been accepted by the Commission. See Temeltasch v. Switzerland, Report by the Commission on Human Rights, 5 May 1982, No 9116/80, DR 31, 120.
[15] Judgment, 17 December 1991, G.F. c. Genève, 17 December 1991, SZIER 1992 486.
[16] For details see Keller, 283 et seq.
[17] Rules of international law - and of the Convention in particular - are directly applicable by Swiss courts and authorities if they are formulated clearly and unconditionally enough to be applied in a specific case.
[18] Article 113 § 3 of the old Constitution, Article 191 of the revised constitution.
[19] Article 5 § 4 of the revised constitution.
[20] The decision is implied in the requirement that popular initiatives be compatible with compulsory international law (Article 139 § 3). Its introduction into the new constitution was influenced by the decision of the Federal Assembly in 1996 to outlaw a popular initiative that was considered contrary to the principle of "non-refoulement" generally considered being part of international ius cogens. See Botschaft über die Volksinitiativen "Für eine vernünftige Asylpolitik" und "Gegen die illegale Einwanderung" vom 22. Juni 1994, BBl 1994 III 1486 ff.
[21] See, for example, BGE 125 II 417.
[22] E.g. BGE 117 IV 124.
[23] Most Swiss authors claim that the Swiss Federal Court adheres to the principle of the predominance of international law. This view tends to ignore the second strand of the Swiss Federal Court's case law, which, in this writer's opinion, does not allow for such a categorical conclusion.
[24] Article 5 § 4 guarantees that the lawfulness of detention is decided "speedily" by a Court. Except in cases of criminal conviction, this implies a right to regular judicial review of the lawfulness of the detention and to release if the principle of proportionality is not respected.
[25] Botschaft zur Änderung des Schweizerischen Strafgesetzbuches in der Fassung vom 13. Dezember 2002, BBl 2006 898 et seq.; Neue Zürcher Zeitung, 21 June 2006, 13.
[26] The important role of the Swiss Federal Court in the reception process contrasted to some extent with the restraint attitude of the political authorities in this field. It is remarkable also with respect to the fact that the judiciary traditionally has a rather weak and restrained role in Switzerland.
[27] Since 1971 (BGE 97 I 45, 51).
[28] BGE 98 Ia 226, 235.
[29] BGE 109 Ia 273; Klass and others v. Germany, Judgment, 6 September 1978, Series A/28.
[30] BGE 101 Ia 67, 69.
[31] The Convention and the Constitution guarantee essentially the same rights, but the formal status of these guarantees is in principle different.
[32] At the same time, it was a measure against the increasing workload of the Swiss Federal Court.
[33] Hottelier/Mock/Puéchavy, 79 et seq., 101 et seq.
[34] The legislation was influenced by the jurisprudence of the Court in Engel v. Netherlands (1976). The amendment of Swiss legislation was necessary as there was already a case pending before the Commission that concerned Switzerland (Eggs v. Switzerland, 1978).
[35] In Sanchez-Reisse v. Switzerland, the Court found that the Swiss procedural law concerning extradition was not compatible with the requirement of a "contradictory" procedure as required by Article 5 § 4. See Sanchez-Reisse v. Switzerland, Judgment, 21 October 1986, Series A/107.
[36] See supra 3. - A violation of Article 5 § 4 by Switzerland has also been found, for example, in: R.M.D. v. Switzerland,
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Judgment, 26 October 1996, Rec. 1997-VI, at 2003: G.B. v. Switzerland, Judgment, 30 November 2000, M.B. v. Switzerland, Judgment, 30 November 2000
[37] BGE 112 Ia 290.
[38] For example: Minelli v. Switzerland, Judgment, 25 March 1983, Series A/62; Zimmermann & Steinerv. Switzerland, Judgement, 13 July 1983, Series A/66; Belilos v. Switzerland, Judgment, 29 April 1988, Series A/132; Ludi v. Switzerland, Judgment, 15 June 1992, Series A/254-A; Zieglerv. Switzerland, Judgment, 21 February 2002
Lábjegyzetek:
[1] The Author is a Prof. Dr. iur., LL.M. (Cambridge) Andràssy University Budapest.
Visszaugrás
