II.Procedural Rights and Principles
1. ADMINISTRATIVE ACTION
In Switzerland, legal protection from administrative action is traditionally linked to the nature of the administrative action. Administrative action carried out in the form of administrative decisions, also called rulings (Verfügungen, decisions, decisioni), typically trigger legal protection, either from the administration or the courts, or sometimes from both.13 Under federal law, an administrative decision must be notified to the parties in writing. It “must state the grounds on which [it is] based and contain instructions on legal remedies” (Article 35 I Administrative Procedure Act).
This leads to the question of what kind of administrative action must be clothed in the form of an administrative decision. The answer is that administrative decisions must be issued where the administration’s actions determine the rights and obligations of private individuals. This was explained in the chapter on Administrative Law.14
Article 5 Administrative Procedure Act is the relevant provision for the definition of administrative decisions. This Article also specifies that enforcement measures, interim orders, decisions on objections, appeal decisions etc. fall under the scope of this clause. It may be that an administrative decision is simply declaratory, clarifying the extent, existence, or non-existence of public law rights or obligations (e.g. confirming that a certain business practice is within the boundaries of the laws on environmental protection). Such a declaratory ruling must be issued if the applicant has an interest that is worthy of protection.15
The link between administrative decisions and legal protection for individuals illustrates why private parties are looking for – or in the words of one scholar, “hunting for”16 – this specific form of administrative action. Other types of state action not clothed in the form administrative decisions are real acts (Realakte, actes matériels, atti materiali). They encompass acts such as teaching in schools, treatments in hospitals, police action, public information etc. Legal protection against such acts was traditionally weak. People could rely on state liability claims but this presented disadvantages.17 Thus, the federal legislator introduced Article 25a Administrative Procedure Act in order to improve legal protection: this provision establishes that everyone with an “interest worthy of protection”18 may require that an administrative decision is taken on real acts.
The Swiss cantons are not bound by the new Article 25a Administrative Procedure Act within their own domain. In practice, cantons have taken a variety of responses to the introduction of this Article. In some cases, they have copied the provision; in others they have either opted to enact their own independent solutions (such as allowing for a direct appeal against real acts) or made no change at all. It is disputed whether the latter is still permissible under Article 29a Constitution: this provision guarantees judicial protection in any legal dispute and arguably, in those cantons which have still introduced no change, there is currently only limited legal protection available against real acts. The Swiss Federal Supreme Court has not yet made a ruling on this issue.
2. RIGHT TO BE HEARD
As explained above, when administrative bodies act through an administrative decision, a number of procedural rights are triggered.19 The most important guarantee is the right to be heard.20 It applies in administrative and court proceedings.
The right to be heard encompasses the right to access relevant documents, the possibility to propose witnesses and other means of evidence, and the right to be informed of the possible administrative decision beforehand etc. As mentioned before, the right to be heard is granted by the Swiss Constitution. Procedural law and court practice further concretize the right in specific situations, as well as providing for restrictions on the right in cases which involve relevant third party interests (e.g. business secrets) or state interests (e.g. state security). The imposition of such restrictions often necessitates the striking of a fair balance between differing interests. If a restriction is necessary, courts will try to summarize the content of the document for the relevant party in order to allow a fair discussion on the relevant facts of the case. The court itself usually has access to all documents – cases where documents have not been released to the courts are extremely rare.21
Although access to documents is probably the most important aspect of the right to be heard, it should be noted that the scope of this right goes much further. The right may also be violated if relevant evidence is rejected by the court, for example the refusal to hear witnesses (although note that witness hearings are relatively rare in administrative cases) or the refusal to admit expert evidence. The court must also effectively take the private parties’ arguments into account. If a decision has already been taken before considering the parties’ arguments, the right to be heard is clearly violated. Further, only when the authorities give oral or written reasons for their decisions can the person concerned determine whether his or her argument has been heard or taken into account. In the authority’s decision, it must also deal with the private parties’ arguments, although this may be done briefly. The reason for the decision must also be sufficiently clear in order to allow an appeal.
The right to be heard also demands that the administrative process is sufficiently transparent. The authority must make it very clear when it is acting through the form of an administrative act. This means that the private parties know when the process has ended; and if no administrative act has been issued they will also know that the process is still ongoing. This obligation goes hand in hand with the duty of the authority to be transparent about the process and the possible measures it intends to use. The authority is not permitted to be unduly vague about its actions nor may it “surprise” the private parties with the procedure it follows. The latter point is illustrated by a recent decision of the Swiss Federal Supreme Court: The local authorities had invited individuals who had applied to be naturalised to an informal “get-to-know” session. They had not made it clear that they planned to test the applicants on their knowledge of Swiss culture, history, and more at this meeting. The Federal Supreme Court considered that although it is acceptable to expect naturalization applicants to have a basic knowledge of Switzerland, it is not acceptable to test that knowledge without first giving them proper notice.22 This case also shows that the right to be heard is a flexible instrument that the courts can utilise to intervene against any form of administrative process that does not appear fair.
3. RIGHT TO A DECISION WITHIN REASONABLE TIME
A fair process also includes the right to have a decision taken within a reasonable time (Article 29 Constitution). If the authority does not act within a reasonable time, an appeal may be filed at any point. The reasonableness must be determined in light of all circumstances of the case. The authority may consider the complexity of the case, the urgency of the matter, and the behaviour of the parties. However, any internal issues of the relevant authority, i.e. shortage of personell, are certainly not valid grounds for delay.
4. RIGHT TO LEGAL AID AND TO COUNSEL
A last important aspect of the overall fairness of the procedure is the right to legal aid.23 The right to legal aid and to the assistance of a legal counsel if necessary is clearly guaranteed by Article 29 III Constitution:
“Any person who does not have sufficient means has the right to free legal advice and assistance unless their case appears to have no prospect of success. If it is necessary in order to safeguard their rights, they also have the right to free legal representation.”
The aid can only be granted if a reasonable person would consider the case to have a sufficient chance of success. The need for legal counsel depends on the complexity of the matter and the abilities of the private party: if that person may represent him or herself without great difficulties before the relevant authority, the request for free legal representation will be denied. If the parties are covering the costs of legal representation themselves, it is possible to be represented. However, there is no obligation to employ a lawyer or another specialist. Generally, there are no procedures in Swiss administrative law in which legal representation is compulsory. There are very few exceptions, where the respective authority may order that the parties must appoint one or more representatives (e.g. Article 11a Administrative Procedure Act). In cases involving administrative and constitutional law, parties may (even before the Swiss Federal Supreme Court) be represented by anybody with capacity to act.
5. RIGHT TO APPEAL
As previously discussed,24 the form of an administrative decision implies that there is a legal remedy available against that decision. The administrative decision must contain instructions on the available legal remedies. Depending on the relevant administrative procedure, the appeal may go directly to a court or instead first to a higher administrative authority and then to a court. Exceptions from legal recourse must be clearly stated in the law and are restricted to exceptional cases. In practice, these exceptions concern highly political matters, for example the issuing of a permit to build a nuclear power station or matters of national security (Article 32 I lit. a and e Administrative Court Act). Some other exceptions concern technical matters or matters that seem little suited for court decisions such as financial bonuses for civil servants (Article 32 I lit. c Administrative Court Act). Overall, the exceptions are narrowly circumscribed by the legislator, as demanded by the Swiss Constitution.
Matters are more complicated if third parties intervene. Whether they are granted a right to appeal largely depends on the way the term “party” is defined. Any party to the procedure may launch an appeal (and has the right to participate in the proceedings from the very beginning). The Administrative Procedure Act defines parties, i.e. the holders of the procedural rights, in terms of their material interest in participating: “Parties are persons whose rights or obligations are intended to be affected by the ruling.”25 A similar wording is used for the definition of locus standi in an appeal. The right to appeal is granted to anyone that is “specifically affected by the contested ruling” and “has an interest that is worthy of protection in the revocation or amendment of the ruling” (Article 48 I Administrative Procedure Act). Participation in the first-instance proceedings is generally a requirement for a party to possess the legal standing to lodge an appeal. Typical third parties are neighbours and – more restricted – competitors.
6. RIGHT TO CHALLENGE LEGISLATION
Most legislation can be challenged in a concrete case before a court (or before an administrative body). A court will then proceed to conduct a two-tier review. First, it will examine whether the normative basis is legal (vorfrageweise, inzidente, konkrete Normenkontrolle). If this test is met, the court further examines whether the law was applied correctly.26
Article 190 Constitution noticeably prevents judicial review of legislation, requiring that federal laws be applied even in the case that the court finds the law unconstitutional.
A direct challenge of legislation (abstrakte, direkte Normenkontrolle) is possible where cantonal laws and ordinances are at issue. The latter includes internal normative acts (Verwaltungsverordnungen) if these affect private parties and their review proves to be impossible or impractical in a concrete case.27 The cases that challenge cantonal laws are typically decided directly by the Swiss Federal Supreme Court if there is no legal remedy at the cantonal level. The Swiss Federal Supreme Court may quash cantonal laws, thus rendering them fully or partially invalid. Even if the court does not invalidate cantonal legislation, it may give important guidelines for the cantonal authorities how to apply the law in order to stay within the constitutional boundaries. This was e.g. the case for police legislation from Zurich. Cantonal constitutions are not subjet to judicial control as they must be approved in a procedure by the Swiss Parliament (Article 51 II and 172 II Constitution).28 There is no direct challenge against federal laws and ordinances.
The legal standing for challenging cantonal legislation exists in a far broader manner than in cases concerning administrative decisions. A person may challenge legislation if she or he can claim that there is a possibility – even if a remote one – that she or he will be affected by the act (virtuelles Betroffensein).29 An appeal against legislation itself does not preclude an individual from later invoking a legal remedy against an individual administrative decision, which applies the law. In this respect, a cantonal law may be challenged twice: first in abstract terms regarding how the act could be applied and later regarding how the act was actually applied in a concrete case.
13KIENER/RÜTSCHE/KUHN, n. 1245; see FLEINER/MISIC/TÖPPERWIEN, p. 284.
14See pp. 204.
15See Article 25 II Administrative Procedure Act.
16SERGIO GIACOMINI, Vom „Jagdmachen auf die Verfügung“ – Ein Diskussionsbeitrag, Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 1993, p. 237, p. 239.
17UHLMANN, p. 307.
18See BGE 121 I 87, consideration ١b.
19For simplicity, the following quotations only contain constitutional federal law. The legal situation in the cantons is very similar, partly because of the compulsory nature of constitutional law, partly because of the example set out by federal law.
20FLEINER/MISIC/TÖPPERWIEN, p. 255.
21A notorious example involved constructions plans on nuclear weapons that the Federal Council, i.e. the federal government, ordered to be destroyed during ongoing criminal proceedings; see the investigation of the Swiss Parliament (Fall Tinner, Rechtmässigkeit der Beschlüsse des Bundesrats und Zweckmässigkeit seiner Führung, Bericht der Geschäftsprüfungsdelegation der Eidgenössischen Räte vom 19. Januar 2009 [Federal Gazette No 27 of 19 January 2009, p. 5007]).
22BGE 140 I 99, considerations 2 and 3.
23FLEINER/MISIC/TÖPPERWIEN, p. 256.
24See pp. 225.
25Article ٦ Administrative Procedure Act also states that “other persons, organizations or authorities who have a legal remedy against the ruling” are parties.
26Rhinow et al., n. 707 et seq.
27BGE 128 I 167, consideration 4.3; BGE 122 I 44, consideration 2a.
28KIENER/RÜTSCHE/KUHN, n. 1780.
29KIENER/RÜTSCHE/KUHN, n. 1740.