1. HISTORICAL DEVELOPMENTS
The Swiss Constitution of 1874 guaranteed only a limited range of procedural rights (for example, the right to be sued at one’s home court). It should be noted that it also guaranteed a narrow range of substantive fundamental rights. However, over the course of the 20th century, the Swiss Federal Supreme Court developed many procedural guarantees, such as the right to be heard and other principles of effective legal protection.2 The legal basis which the court relied on to develop these rights was the equal protection clause.3
Shortcomings of legal procedure at that time typically involved a deficit in independent judicial control. Many Swiss cantonal and federal rules only granted limited access to courts in administrative matters. The typical legal recourse involved an appeal to the hierarchically higher administrative body, including the Federal Council or the executive of the cantons.4 Appeals to the Swiss Federal Supreme Court were possible in some cases and excluded or reduced to a review with very limited scrutiny in others. The Swiss system which did not permit access to independent and full judicial review in administrative matters was incompatible with the European Convention of Human Rights (ECHR) as far as its protection of “civil rights” was concerned. Such civil rights included matters that were considered “administrative” under Swiss law such as disputes concerning bar exams; the withdrawal of a professional licence; disputes on the use of public grounds by private parties for economic aims; or claims for damages and satisfaction based on state liability. Switzerland therefore had to extend judicial control. Such developments, among other factors, led to the framework of the current Swiss Constitution and to a reform of the Swiss judicial process.5
2. CONSTITUTIONAL FRAMEWORK
The Swiss Constitution6 dedicates three Articles to the codification of procedural rights: Articles 29, 29a, and 30. Articles 29 and 30 Constitution concern rights within a certain procedure and Article 29a Constitution that was introduced later on and has been in force since 1 January 2007 stipulates a right to (judicial) proceedings. Together, these provisions are the cornerstone of legal protection of due process in Switzerland. They are part of the framework of fundamental rights guaranteed by the Swiss Constitution.
Article 29 Constitution sets out the general procedural guarantees which apply in Switzerland:
“Every person has the right to equal and fair treatment in judicial and administrative proceedings and to have their case decided within a reasonable time.”
These guarantees apply in any proceedings, whether they are administrative or in court, concerning civil, criminal, constitutional, or administrative matters. Article 29 Constitution also explicitly establishes that these procedural guarantees encompass fundamental rights such as the right be heard (II) or the right to legal aid (III). It also includes the term “fair treatment” that allows the courts to further develop procedural rights.
Article 30 Constitution requires that specific additional guarantees must be met in judicial proceedings. According to this provision, a court must be legally constituted, competent, independent, and impartial. Its hearings must be open to the public and judgements shall be made public7.
Article 29a Constitution sets out the conditions for access to court:
“In a legal dispute, every person has the right to have their case determined by a judicial authority. The Confederation and the Cantons may by law preclude the determination by the courts of certain exceptional categories of case.”
The term “legal dispute” must be defined by relevant procedural law and constitutional practice. Only the law itself may restrict access to court. The Constitution establishes that this may only be done in exceptional circumstances. Article 29a Constitution was clearly inspired by Article 19 IV of the German Grundgesetz (Rechtsweggarantie).8
The Constitution remains silent on the question of the scope of judicial review. Article 29a Constitution is generally understood as guaranteeing only a single, first instance review of the facts and of the law by a court. The right to appeal, especially the right to appeal to the Swiss Federal Supreme Court, cannot be deduced from Article 29a Constitution. However, this right is often guaranteed by more specific provisions of the Constitution such as the right to appeal in penal matters (Article 32 Constitution) or the general (but not universal) right to access the Swiss Federal Supreme Court (Article 191 Constitution). It is also unequivocal that an (administrative) court may not review questions of administrative discretion;9 this is not a matter that comes under Article 29a Constitution’s guarantee of a review of the facts and the law.
3. FEDERAL ACT ON ADMINISTRATIVE PROCEDURE AND CANTONAL LAWS
Specific regulation on administrative procedure is laid down in federal and cantonal legislation. The Administrative Procedure Act10 is relevant for administrative decisions of the federal authorities. It is also relevant in part for the Swiss Federal Administrative Court. There are also acts on the Swiss Federal Administrative Court11 and the Swiss Federal Supreme Court.12
The Swiss cantons have their own codes of administrative procedure. These codes are applicable not only to cantonal acts based on cantonal law but also to cantonal acts which apply federal law (or which apply both cantonal and federal law). Many federal laws are implemented by the cantons (e.g. spatial planning, traffic safety, migration). Although the cantons are not legally required to adhere to definitions in federal law such as the definition of an administrative act (or the consequences for legal protection that follow from the federal approach), there are no noticeable definitional differences of an administrative act in cantonal law. Hence, the definition of administrative acts is virtually the same in both federal and cantonal procedures. In many other aspects, federal and cantonal acts on administrative procedure are quite likewise.
2REGINA KIENER/BERNHARD RÜTSCHE/MATHIAS KUHN, Öffentliches Verfahrensrecht, 2nd edition, Zurich/St. Gallen 2015, n. 35.
3ULRICH HÄFELIN/GEORG MÜLLER/FELIX UHLMANN, Allgemeines Verwaltungsrecht, 7th edition, Zurich/St. Gallen 2016, n. 576; BGE 134 I 23, consideration 9.1.
4RENÉ RHINOW/HEINRICH KOLLER/CHRISTINA KISS/DANIELA THURNHERR/DENISE BRÜHL-MOSER, Öffentliches Prozessrecht, Grundlagen und Bundesrechtspflege, 3rd edition, Basel 2014, n. 412.
5RHINOW et al., n. 419; see also THOMAS FLEINER/ALEXANDER MISIC/NICOLE TÖPPERWIEN, Constitutional Law in Switzerland, Alphen aan den Rijn 2012, p. 107.
6Federal Constitution of the Swiss Confederation of 18 April 1999, SR 101; see for an English version of the Constitution www.admin.ch (https://perma.cc/M8UJ-S369).
7The law may restrict this guarantee and does particularly so in administrative matters. Hence, parties requesting hearings typically rely on Article ٦ ECHR.
8Article 19 IV Grundgesetz reads, in its English translation, as follows: “Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts. […].”
9RHINOW et al., n. 1120.
10Federal Act on Administrative Procedure of 20 December 1968, SR 172.021.
11Federal Administrative Court Act of 17 June 2005, SR 173.32.
12Federal Supreme Court Act of 17 June 2005, SR 173.110.