Human Rights

Question 1

Step 1: Is fundamental right affected?

Answer 1

i. Is a fundamental right affected?
ii. Which is the legal basis of the fundemental right (National or International Law?
iii. Is the scope of application of the fundamental right affected?
iv. Is the victim a beneficiary of the fundamental right?
v. Is the claim filed against an addressee of the fundamental right?

Question 2

Step 2: Is the restriction of the fundamental right lawful?

Answer 2

1. There must be a legal basis for the restriction according to Art. 36 para. 1 Cst
2. The restriction must be justified by a public interest or by the need to protect fundamental rights of others according to Art. 36 para. 2 Cst
3. The restriction must be proportionate to the goal pursued according to Art. 36 para. 3 Cst
4. The essence of the fundamental right at stake must be respected according to Art. 36 para. 4 Cst)

Question 3

What is the Scope of Economic Freedom according to Art. 27 Cst.?

Answer 3

Economic freedom protects all private economic activities which have as their
objective to gain profit or income. Art. 27 para. 2 Cst guarantees the *free exercise *of any such private economic activity. Therefore, economic freedom allows individuals to freely choose the means for the exercise of the economic activity. In particular, economic freedom includes the right to employ workers and to decide freely about their salary.

Question 4

Who are the beneficiaries of fundamental rights (usually)?

Answer 4

All Swiss citizens and legal persons constituted under Swiss private law are beneficiaries of the fundamental right.

Question 5

Specific beneficiaries of Economic Freedom Art. 27 Cst…

Answer 5

All Swiss citizens and legal persons constituted under Swiss private law are beneficiaries of the fundamental right.
Foreign nationals with a permanent residency permit and also those who are entitled to renew their temporary residency permit have a right to enjoy economic freedom.
Foreign legal persons are beneficiaries of economic freedom if they have a treaty-based right to exercise a private economic activity on Swiss territory .

Question 6

Is the restriction of Economic Freedom (Art. 37 Cst) lawful?-State measure is compatible with Economic Freedom (Art. 94 para. 1 Cst).

–>see schema

Answer 6

• Are the preconditions of Art. 36 Cst fulfilled? (go through every step)
• Is the equal treatment of competitors guaranteed?
• Measure is lawful

Question 7

Is the restriction of Economic Freedom (Art. 37 Cst) lawful?-State measure deviates from Economic Freedom (Art. 94 para. 1 Cst).

Answer 7

• Is there a legal provision in the Cst. of the cantonal monopoly rights (Art. 94 para. 4 Cst)
  –> Yes. Are the preconditions of Art. 36 Cst and the equal treatment of competitors fullfilled? (go through every step)
  –> No. measure is unlawful

Question 8

Focus: Is it a state measure deviating from the principle of economic freedom or compatible with
it (Art. 94 para. 1 Cst)? (Elaborate answer)

Answer 8

State measures deviating from the principle of economic freedom, and, in particular,
measures designed to restrain competition, are permitted only if they are provided for in the
Constitution or based on cantonal monopoly rights (Art. 94 para. 4 Cst).

Question 9

Focus: Is the equal treatment of competitors guaranteed? (Elaborate answer)

Answer 9

This principle demands that state regulations in economic matters are neutral and may not
favor one direct competitor over another. Direct competitors are members of the same
branch of business offering the same products to the same group of consumers in order to
satisfy the demand of that consumer group.

Question 10

Essence of Economic Freedom

Answer 10

The right to choose a profession or occupation constitutes the essence of the economic free-
dom in its individual function. In addition, the essence of economic freedom may be violated
in cases of forced labor (Art. 4 ECHR), Art. 8 ICCPR). In its institutional function, the essence of
the economic freedom lies in the free market economic system as an institution.

Question 11

When is International humanitarian Law applicable?

Answer 11

• International humanitarian law is the law applicable in cases of armed conflicts. The important element is the resort to armed force, whether that conflict is an armed confrontation between states or between governmental forces and armed groups
  within the territory of a state.

Question 12

What are the main principles of international humanitarian law?

Answer 12

• The principle of proportionality states that force used to achieve a certain
  legitimate goal must be proportionate to the military importance of that goal. In other words, attacks are prohibited when the expected losses or destruction would be
  excessive in relation to the concrete and direct military advantage anticipated
• The principle of distinction enjoins belligerents to distinguish between the
  civilian population and combatants and between civilian and military objects at all times in order to spare the civilian population and civilian property.
• The prohibition of the use of weapons which uselessly aggravate the suffering
  prohibits weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering

Question 13

What is the Scope of the freedom of the press according to Art. 16 para.1 Cst?

Answer 13

The freedom of the press in particular protects print products for public dissemination. Art. 17 para. 1 Cst thus covers, for example, newspapers, journals, books or leaflets. However, the print products must have a non-material content. Regarding the content of the print material, the Federal Supreme Court defines the term opinion in a very extensive way. All means of expressions are protected in general, irrespective of their content. Freedom of the press thus even protects ideas that offend, disturb or shock.

Question 14

Answer scheme: 1. There must be a legal basis for the restriction according to Art. 36 para. 1 Cst

Answer 14

• The restriction must be determined by a legal rule (Art. 36 para. 1 sentence 1 Cst).
• Every restriction must be described in a general (indefinite number of individuals) and abstract (indefinite number of cases) legal provision.
• In addition, the legal rule must be formulated with sufficient precision.
• The legal rule must conform to a certain legal form depending on the significance of the restriction [0.5 Points] (Art. 36 para. 1 sentence 2 Cst). Significant restrictions must have their basis in a legal statute enacted by the legislature on either the federal or the cantonal level.
  However, according to the last sentence of Art. 36 para. 1 Cst, a restriction of fundamental rights does not have to be based on a legal rule in cases of serious and immediate danger where no other course of action is possible.
• In such cases, the so-called general police clause may temporarily replace a legal basis for the restriction.

This so-called general police clause can only be applied to subsidize a legal basis if the following conditions are met:
1. There are very important public interests or interests of individuals endangered.
2. There must be a serious danger to these interests or these interests have already been disrupted.
3. The situation calls for immediate action.
4. There are no adequate legal measures provided for.

Question 15

Answer scheme: 2. The restriction must be justified by a public interest or by the need to protect fundamental rights of others according to Art. 36 para. 2 Cst.

Answer 15

In general, public interests embrace all measures available to the state for the promotion of the common good . Police interests are an important category of the public interests (protection of public order, safety, peace, health, morals, and good faith in business dealings [0.5 Points]).

Question 16

Answer scheme: 3. The restriction must be proportionate to the goal pursued according to Art. 36 para. 3 Cst.

Answer 16

• Is the measure adequate? The regulatory measure must be adequate to achieve a legitimate public purpose.
• Is the measure necessary? Where less restrictive measures would achieve the same goal, the restriction will be deemed disproportionate.
• Is the measure proportionate in relation to the public purpose pursued? If the negative effects of a measure outweigh the public interests and the need to protect fundamental rights of others, the measure must be considered as disproportionate.

Question 17

Answer scheme: 4. The essence of the fundamental right at stake must be respected
according to Art. 36 para. 4 Cst)

Answer 17

If a restriction disregards the essence of a fundamental right, the restriction is per se a violation of the constitution.

Question 18

What is the Essence of Freedom of Press according to Art. 17 Cst.?

Answer 18

The essence of the fundamental right at stake is mentioned in Art. 17 para. 2 Cst. Censorship in the sense of prior systematic control and restraint of communications affects the very essence of all fundamental rights guaranteeing free expression [0.5 Points]. It is therefore absolutely prohibited (Art. 17 para. 2 Cst). In the case at hand, the restriction is not censorship, as it is a single measure.

Question 19

What is the Scope of the right of informational self-determination (Art. 13 para. 2 Cst)?

Answer 19

The so-called right to informational self-determination protects an individual against the unlimited collection, processing, storage and spreading of personal data.

Question 20

Do the cantons have the competency to provide for fundamental rights, which are
either not guaranteed in the Federal Constitution or which offer greater protection
than the Federal Constitution?

Answer 20

Yes, cantonal constitutions are sources of fundamental rights. The cantonal constitutions can
guarantee fundamental rights which are not guaranteed in the Federal Constitution. Yet, according to the case law of the Federal Supreme Court, they are only relevant in practice if they offer the individual greater protection than the Federal Constitution. In view of the extensive catalogue of fundamental rights outlined in the Federal Constitution, this is rarely the case

Question 21

Who are beneficiaries of fundamental rights?

Answer 21

Beneficiaries of fundamental rights are natural persons, i.e. human beings.
Additionally, legal persons can invoke those fundamental rights not exclusively targeted to
the protection of an aspect of human existence

Question 22

Will the amendment of the
Constitution of the Canton of X be guaranteed by the Federal Assembly?

Answer 22

According to Art. 51 para. 2 Cst, the Federation shall
guarantee a cantonal constitution provided it is not contrary to federal law.
This requirement is met when the cantonal constitution is consistent with federal law on all levels, including international treaties ratified by Switzerland

Question 23

Scope and Application of Freedom of Assembly

Answer 23

The freedom of assembly protects the right to organize meetings and to participate or not to participate in meetings.

The term “assembly” comprises all possible forms of people coming together for a specific common opinion forming purpose for a certain time. However, only peaceful assemblies are protected.

The freedom of assembly protects meetings in enclosed spaces and outdoors, as well as in private and public places.

Demonstrations are a specific form of assembly, falling in the scope of application of the freedom of assembly.

Question 24

Scope of Application of the Freedom of Expression

Answer 24

According to the right to free expression, individuals have the right freely to form, express, and impart their opinions.

Opinions are results of thoughts and rationally comprehensible and communicable beliefs such as statements, assessments or views, whereas the form, means and content of communication are irrelevant. However, only opinions relating to non-material matters (i.e. those not relating to commercial interests) are protected.

The right is also applicable to demonstrations, as the purpose of a demonstration is to collectively manifest a certain opinion on an issue.

Question 25

Beneficiaries and Addressee of both the freedom of Assembly and the Freedom of Expression

Answer 25

→The beneficiaries of the freedom of assembly are natural persons. Legal persons are beneficiaries of those aspects of the right not exclusively aimed at protecting human beings.

→The beneficiaries of the freedom of expression are natural persons. Legal persons are beneficiaries of those aspects of the right not exclusively aimed at protecting human beings.

→The state and all state authorities are addressees of the freedom of assembly and the freedom of expression.

Question 26

What does the Protection of Communication have for functions

Answer 26

Democratic function: Fundamental rights guaranteeing communication are essential for a democratic liberations.
Individual Function: Fundamental rights guaranteeing commmunication safeguard the basic human need to freely express opinions and information with other human beings.

Question 27

Scope of Application Right to Property (Art. 26 Cst)

Answer 27

Institutional guarantee: Preservations of the essential rights of an owner to dispose and make use of its property
Individual guarantee: Protection of the individual in given situation form state intrusion
Compensation guarantee: Full compensation in cases of expropriation and restrictions of ownerships equivalent to expropriation

Question 28

What does Formal Expropriation mean?

Answer 28

→Formal expropriation means the compulsory purchase of private property for
public purposes. The ownership is transferred from the individual to the state.

→Based on Art. 26 para. 2 Cst, full compensation is guaranteed.

Question 29

What about Substantive Expropriation?

Answer 29

→The previous or foreseeable future use of property rights is prohibited or limited in a serious manner, i.e. the owner is deprived of an essential right following from property.
→Based on Art. 26 para. 2 Cst, full compensation is guaranteed.

→An owner is affected by a restriction on property in such a specific manner that it would be unacceptable not to pay a compensation (special sacrifice).
→Based on Art. 26 para. 2 Cst, full compensation is guaranteed.