Do minorities have real rights in a democracy

Institutional issues

Swiss democracy and its ties to the rights of individuals

A look at the history of Switzerland and how it was shaped by democracy, federalism, the rule of law and the welfare state reveals a strong bond between the country and the rights of individuals, which is deeply anchored in tradition and national self-perception. The fact that numerous foreign and international developments have also contributed to the strengthening and further development of human rights in Switzerland does not contradict this close relationship. The Swiss, often cantonal and communal origins of fundamental rights and the foreign ideas and concepts that have taken root here have rather developed into a powerful system that reliably guarantees the rights and freedoms of individuals and groups and forms part of a European and international human rights system .

Early anchoring in the Swiss Confederation

Like all other countries, Switzerland can look back on an eventful history of human rights. In the area that makes up the Swiss Confederation today, many fundamental rights of individuals and the community played a central role very early on, such as the right to self-determination and co-determination, the endeavor to protect and fairly resolve conflicts and to rebel against oppression of any kind. Other claims had to be won and expanded in lengthy disputes and made accessible to those people who were initially excluded from general rights or who had to accept further restrictions.

Security inside, freedom against the outside

In addition to many other traditions, cooperative customs and ideals of republican participation determined the coexistence of the Confederates: After that, freedom arose through the participation of the individual in the state and was secured by this. The public was administered jointly and took precedence over the private in the event of a conflict. The first priority of the political order was not equality for all, but internal security and freedom from foreign rule and interference from outside. These goals called for loyalty and solidarity within.

Diverse Switzerland, which was unable to base its identity on either language or religion in common, or on homogeneous geographical and socio-economic conditions, was particularly dependent on harmonizing coexistence in the area of ​​political culture and the unity that was supposed to complement and limit diversity to be based on the consent of the state. The defensive republic promised all members to be able to participate equally in state decisions and the shaping of the future and to give them fair opportunities to develop in the state; To put the state in its place and to protect the individual from it did not appear to be an urgent task. At the same time, as a nation of will, the country was tempted to strengthen its initially fragile unity by isolating itself from the outside world.

Liberal elements in the state

With the establishment of the federal state in 1848, Switzerland received a liberal constitution and established a representative democracy that allowed Swiss men (at least those who had paid the taxes and were available on the election date) to choose their representatives in the new Federal Assembly.

The first constitution not only incorporated republican elements, but also contained liberal ideas that had gained a foothold in those circles that had prevailed in the Sonderbund War and shaped the young federal state. State and society were increasingly differentiated, the public was separated from the private, and the individual was promised not only participation in the state, but also freedom from the state. Even before that, it had become clear in the liberal cantons of Switzerland that the revolutionary ideas from the USA and France, which had initially been rejected by the advocates of the old order, should now be adopted, albeit selectively and cautiously.

The first basic rights ...

The young federal state ensured cohesion by banning certain cantonal norms and behavior. From now on, the cantons should not only refrain from preventing the establishment of the Swiss internal market through customs duties or other protectionist measures, but should also be obliged to respect and protect all federal fundamental rights in the interests of peaceful and just coexistence.

The constitution therefore contained the first basic rights, namely legal equality, freedom of worship and freedom of establishment, which both protected the individual from unjust treatment by the state and from encroachment on freedoms, and the Confederation and cantons, although democratically legitimized, with the duty of respect to set barriers to the rights of individuals. Individuals could then be outvoted in the political process or disappointed by their representatives, but not lose their right to be equal before the (unpleasant) law, to practice their (undesirable) religion or to move their domicile from one community to another, that was more favorable to him.

…with restrictions

However, the young federal state took these steps only hesitantly, allowing restrictions on general rights or introducing such restrictions itself. The right to participate in elections appeared more as an expression of belonging to the political community than as a right that arises from the right to participate in the state to which one belongs and which is closely linked to the autonomy and dignity of the individual. Participation in elections and votes in the cantons and communes was reserved for those who had proven themselves to be reliable and honorable members of this community; it was a privilege, not a right. The federal government reserved the political rights of men and initially tolerated cantonal experiments with census voting rights. The other basic rights secured by the federal government were also reserved for Swiss people and only applied to members of the Christian religions. With the Jesuit ban, the federal constitution also contained a special religious norm directed against Catholicism.

Introduction of the popular initiative

In 1874, with the introduction of the optional referendum, which was also applied to long-term international treaties from 1921, on the one hand direct democracy was strengthened, on the other hand, in the course of the Kulturkampf, another special standard directed against a minority was included in the completely revised federal constitution. The so-called diocesan article made the establishment of Catholic dioceses dependent on federal approval and was intended to secure religious peace in Switzerland by putting the Pope and his followers in their place.

Due to pressure from France in 1866 an improvement in the basic rights situation of the Jewish population was achieved, which could now also enjoy legal equality and freedom of settlement and was no longer required to reside in the two communities of Endingen and Lengnau.

The strengthening of direct democracy, which began in many cantons during the second half of the 19th century, led in 1891 to the introduction of the popular initiative for a partial revision of the federal constitution. Ironically, the first initiative, which was successful despite recommendations to the contrary by the Federal Council and the Federal Assembly, gave the Federal Constitution another special religious norm, the ban on slaughter, now directed against the Jewish minority.

Lack of verifiability of federal laws

A consensus was soon found at the cantonal level to put the state, which is developing rapidly in many areas, in its place and to ensure the functioning of democracy in the cantons and municipalities by ensuring that losers of a vote had to obey an undesirable law, but this was not allowed to intervene arbitrarily or at will in their rights and freedoms.

At the federal level, it did not seem necessary to expand the protection of fundamental rights in equal measure and to refuse the application of laws that violate the constitution. It was hoped that, in time, the Federal Assembly would respond to the desire for closer cooperation and pass harmonizing laws that might even go beyond the minimum competencies of the Federal Constitution.

Because a dynamic development of this kind was quite desirable and it was believed that a strong Council of States would adequately protect the cantons from unjustified tendencies towards centralization, it was not considered sensible to anchor constitutional control of federal laws institutionally. Should the national councils and the councils of states succeed in creating common rules in further areas than initially envisaged, and these should have the express or tacit approval of the people, the courts should be prevented from preventing the harmonization step due to a possible unconstitutionality. A rejection of constitutional jurisdiction over federal law seemed to fit the dynamics of the developing state.

New starting position after the Second World War

Indeed, the state and the way it worked changed fundamentally over the course of the 20th century. At all levels, he took on more and more varied and demanding tasks in order to enable the individual to develop freely, to secure social risks, to promote cohesion and to protect the environment. The horrors of the Second World War and the awareness that even democratic states were not immune from falling into barbarism and that a state based on constitution and law had failed to prevent the exclusion of minorities from the legal system and their annihilation led to fundamental issues Innovations in national and international law. It seemed obvious that a denser and more reliable system of power restraints and controls was necessary to prevent similar developments in the future. In the second half of the 20th century, the protection of human rights was expanded at the national and international level (cf. the article “The ECHR - a catalyst for freedom in Europe” in the SKMR newsletter of Nov. 24, 2014).

Legal development in Switzerland

This also applied to Switzerland, which was not only influenced by foreign and international trends, but also actively contributed to them. At the same time, the country responded to new domestic challenges brought about by the rapid changes of the post-war period, the economic boom and the Cold War.

In their legal practice, the cantons increasingly recognized basic rights, some of which they wrote down in cantonal constitutions or recognized as unwritten basic rights. For example, they established the right to a guarantee of property, personal freedom, freedom of expression and freedom of language.

Over time, these fundamental rights have also been recognized at the federal level. What was special about this development was that a fundamental change in constitutional law took place essentially without revisions to the Federal Constitution, and the Federal Supreme Court reacted to the signs of the times as part of a dynamic case law and recognized those fundamental rights as unwritten fundamental rights of the Federal Constitution that already existed in most cantons were anchored and protected and could be considered part of the Swiss legal system.

The recognition as unwritten fundamental rights of the Federal Constitution originally made cantonal fundamental rights binding on the other cantons as well. The consolidation of human rights in Switzerland thus took place in an interplay between the Confederation and the cantons, which over time was additionally fertilized and influenced by international and European developments.

The cantons and federalism played anything but the role of a brake or an obstacle. On the contrary, it was those cantons that were hardest hit by new social developments that were the first to expand the protection of fundamental rights and, with innovative changes, provided a wealth of experience for developments at the federal level (cf. the article “The ECHR and the Cantons »In the SKMR newsletter of Nov. 24, 2014).

Tensions between democracy and the rule of law accompanied the development, especially when cantonal laws or constitutional norms were refused to apply due to a violation of federal fundamental rights or were given a new meaning in accordance with fundamental rights, as was the case with the Appenzell women's suffrage decision.

Ratification of the ECHR

When the ratification of the ECHR was under discussion in Switzerland, the legal situation in Switzerland largely corresponded to the guarantees guaranteed at European level. However, the special religious norms were considered incompatible with the rights of the ECHR and the lack of women's rights to vote and suffrage obviously contradicted the spirit of the Convention and the human rights standard that had prevailed in the other member states of the Council of Europe.

With the introduction of women's suffrage at federal level in 1971 and the abolition of the Jesuit article and the ban on monasteries shortly afterwards, the way was clear in 1974 for Switzerland to join the ECHR. According to the best practice in Switzerland, international law ratification only took place after the national law had been brought into conformity with international law in all essential points and reservations and interpretative declarations were sufficient to settle any remaining contradictions or ambiguities.

Effects of the ECHR on Swiss law

It soon became clear, however, that the ECHR was not only conceived as a dynamic instrument for European cooperation, but, thanks to the Strasbourg institutions, was also able to function as such. Reservations and interpretative declarations by Switzerland soon proved to be inadmissible and Switzerland felt compelled to make selective changes to its legal system in order to bring it into line with the ECHR.

By far the greatest importance was attached to the procedural guarantees, which initially led to significant legal and institutional innovations in criminal proceedings and later also in public-law proceedings. In particular, the ECHR had a considerable influence on the expansion of the control of administrative acts and on the creation or consolidation of independent administrative courts at cantonal and federal level and thus not only shapes the legal system, but also the institutions that are entrusted with their enforcement.

ECHR as part of the Swiss legal system

The ECHR soon became an integral part of the Swiss legal system as it was applied by administrative authorities, invoked by private individuals and their lawyers, applied by courts, taught at universities and taken into account by legislators. There is hardly a field of law that is not in one way or another affected by the rights of the ECHR.

While some adjustments were quick and painless (such as the abolition of the temporary marriage bans after the divorce), others required a long struggle to find a solution that was in accordance with fundamental rights and capable of a majority (such as the regulation of family names). It also showed that the basic jurisprudence of the courts was able to protect private individuals from unjustified violations of their claims in individual cases, but was unable to replace legislative decisions. The constitution of the legal system in accordance with fundamental rights remained the task of parliaments and governments, which have to take into account social needs and legal framework conditions, to which the ECHR belongs.

The fundamental rights of the revised Federal Constitution

During the forty years of validity of the ECHR in Switzerland, it has grown very closely with the national legal system. The catalog of fundamental rights of the Federal Constitution, which came into force in 2000, is symptomatic of this: It took up ideas and formulations from the ECHR, but weighted and systematized the individual fundamental rights differently and supplemented them - in accordance with the Swiss context and found a majority of people and classes in the mandatory referendum.

The new Adult Protection Act, the Federal Code of Civil and Criminal Procedure and numerous other legal innovations are on the one hand inspired and shaped by the ECHR and the jurisprudence of the Strasbourg authorities, but on the other hand go far beyond these in that they incorporate Swiss needs and priorities, the institutional context take into account and provide innovative innovations.

Switzerland is thus providing the other member states and the Strasbourg authorities with a wealth of experience and tried-and-tested ideas which, as Switzerland's contribution to the common fundamental rights framework, influence legal developments in Europe.

Fundamental rights and the will of the people

This does not eliminate tensions between democratic decisions and considerations of fundamental rights. Rather, they belong to the constitutional state, which traces state decisions back to the will of the people, but attaches restrictions to basic rights to additional requirements: These must not only be provided for by law (and thus directly or indirectly democratically legitimized), but also be in the public interest and proportionate be.

Fundamental rights therefore not only provide the legislature with programmatic guidelines, but also set limits. Their implementation is also essential in the semi-direct democratic system in Switzerland, but involves special challenges.

Outsourcing of the protection of fundamental rights to the ECHR

If Switzerland allowed constitutional jurisdiction to the same extent as other constitutional states, the courts could review state acts for compliance with the constitution even if the interference with fundamental rights is provided for in a federal law. Because Art. 190 BV calls on the Federal Supreme Court to apply federal laws even if they violate the Federal Constitution (namely the jurisdiction or the fundamental rights), there is a tendency to address legal and political disputes and conflicts of norms between federal laws and fundamental rights to the constitution according to Art. 190 BV also delegate binding international law. With “constitutional jurisdiction through the back door”, federal laws are not applied if they violate the ECHR, and thus ultimately not even if they violate identical provisions of the federal constitution. As a result of this outsourcing, the ECHR has taken on a role in Switzerland that was not intended for it: it not only guarantees a minimum standard of human rights, but also acts as an arbiter between federal laws (and the federal legislature) and the constitution (and the constitution-maker).

Recently, the ECHR has even been assigned a further task: it should pull the barrier when it comes to the admissibility of popular initiatives or the interpretation of constitutional provisions and be the yardstick by which conflicts within the Swiss Federal Constitution are resolved. In view of this burden that is placed on the ECHR, it is not surprising that the tried and tested instrument of the European protection of fundamental rights is increasingly under pressure.

Balance between democracy and basic rights

In this situation, it is appropriate to recall Switzerland's close ties to the rights of individuals and to consider the interdependence of the Swiss legal system with the rights of the ECHR, as well as to call for open and controversial constitutional questions about admissibility and implementation from popular initiatives to resolve in accordance with constitutional jurisdiction and the hierarchy of norms where they arise, namely in the Swiss federal constitution.

The right balance between democratic decisions and the rights of individuals and minorities must be fought for and won over and over again. The ECHR serves as an important guide. A political campaign against the ECHR does not remove the fundamental problem of equalization, but only distracts from it (cf. the article “A difficult relationship: Switzerland and the European Court of Human Rights” in the SKMR newsletter from 24 Nov. . 2014). Due to its history, Switzerland knows that democracy only works well if it is based on consensus and takes minorities into account, especially those who, due to their language, religion, origin or other reasons, have little prospect of becoming a majority to become. Switzerland should remember this experience and not succumb to the temptation to equate democracy with rule that allows the majority to react at the expense of others.

24.11.2014