1. NECESSITY OF ISSUING AN ADMINISTRATIVE DECISION: IWB 48
X was a tenant in a Basel property. For two years, its owner has not paid the bills for the general electricity supply of the building issued by the canton of Basel-Stadt industrial works (Industrielle Werke des Kantons Basel-Stadt, IWB). In a letter of formal notice to the owner, IWB announced that it would stop electricity supply should the outstanding amount not be paid in a certain period of notice. The owner allowed the period to expire without paying. Then, IWB informed the tenants of the property about the upcoming supply stop via ordinary (i.e. non-registered) mail dated 9 April 2008. Energy supply was then stopped between 23 April and 30 May 2008, for the elevator and hot water boiler. After IWB was informed about a pregnant woman living in the property, it resumed electricity supply.
Acting on behalf of X, the Basel tenants’ association appealed before the superior administrative body (the Building Department) on 29 May 2008. On 14 July 2008, the Department dismissed – i.e. it did not consider on the merits – the request to resume supply since the stop was already rescinded and rejected the prayer for compensatory relief. X unsuccessfully challenged this decision before the cantonal government (the Regierungsrat of the canton of Basel-Stadt) and, subsequently, before the Appellate Court of the canton of Basel-Stadt.
X brought the case before the Swiss Federal Supreme Court, claiming that his constitutional right to be heard was violated because the supply stop was not issued in the form of an administrative act and he was not granted the right to take position on the planned measure beforehand although being tenant of the property.
The Court emphasized that IWB is legally obliged to supply electricity. According to the statutory law, supply may only be refused contingent, inter alia, if it does not constitute unreasonable hardship for third parties such as the owner’s tenants. Hence, the Court reasoned that ordering such refusal interferes with the tenants’ rights. The order thus qualifies as administrative act and must be issued as such rather than as real act. Consequently, not only property owners but also tenants and other affected persons must be heard beforehand and be granted the right to express their objections against the admissibility of the planned supply stop (in particular with respect to the unreasonable hardship imposed on them). With respect to the information letter of 9 April 2008, the Court held that it was no sufficient basis for laypersons to exercise their rights. Hence, the Court found that X’s right to be heard was violated.
2. PROCEDURAL FAIRNESS: NATURALISATION49
Spouses A and B as well as their children C and D applied for citizenship in the municipality of Weiningen (canton of Zurich). With letter dated 8 October 2012, the municipal Naturalization Commission invited the family for a conversation which, according to the invitation letter, should serve the purpose of getting to know the applicants and their motivation for the naturalization process. In reality, however, the Commission assessed the suitability of the applicants for citizenship. In the following, the municipality rejected their application on the grounds that they are not well integrated into Swiss lifestyle; lacked command of the German language; and could not answer simple geographical and civic questions. A, B, C, and D unsuccessfully challenged this decision before the District Council (Bezirksrat), i.e. the hierarchically higher administrative body, and, subsequently, the Administrative Court of the canton of Zurich.
Before the Swiss Federal Supreme Court, A, B, C, and D argued that their right to fair treatment (Article 29 I Constitution) was violated by being invited to a personal interview and, instead, unexpectedly being examined.
The Court found that procedural guarantees of the Constitution apply in the naturalization process, namely the right to be heard (Article 29 I Constitution) as one aspect of procedural fairness, which also entails the right to receive information on the formal and substantive prerequisites of the naturalization process. The Court also stated that according to the principle of good faith (Article 5 III Constitution), parties could expect the state not to deviate from the announced course of proceedings without prior notice.
Further, the Court stated that it is within the municipal discretion to ask questions on general knowledge at some point during the naturalization process; however, because of the early stage of the proceedings and the invitation letter, A, B, C, and D could legitimately expect that such examination would take place later on rather than during the (early) personal interview and that they could prepare beforehand. Consequently, the Court held that the municipality violated the right to fair proceedings and to be heard, respectively, as well as the principle of good faith.
Due to the formal nature of the right to be heard, the Court repealed the challenged decision and referred the case back to the municipality for further fact finding and in order to adopt the required procedural steps.
As already stated above, 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 unfair administrative process and that is not restricted to certain case groups. It is important to note that Article 29 Constitution applies to all state proceedings in civil, penal, and public law within which a decision on individual rights and duties is rendered, be it before Courts or non-judicial bodies including the government and parliament.50
3. DIRECT CHALLENGE OF LEGISLATION: POLICE ACT OF ZURICH51
On 5 July 2006, the Parliament of the canton of Zurich adopted the Police Act (Polizeigesetz), a cantonal law which was subsequently approved by the voters. The adoption of the Police Act should create statutory bases for the performance of the duties and measures of the police force in order to maintain public order and safety. Private persons, a lawyer’s association, and political parties challenged the Police Act directly before the Swiss Federal Supreme Court (abstrakte, direkte Normenkontrolle), claiming that various provisions violate the Federal Constitution, the European Convention on Human Rights (ECHR), and the International Covenant on Civil and Political rights (ICCPR).
In general, the Court reasoned that it is crucial for the constitutionality of cantonal legislation whether it is possible to interpret the cantonal provision in a way that is consistent with the constitutional guarantees invoked.
It is important to note that whereas the Court can only decide on whether to rescind or uphold the challenged legislation, its considerations predetermine the future (constitutional) application of the Police Act: The authorities must act according to the restrictions set out in the considerations of the Court when applying the Police Act in the future, otherwise administrative acts or real acts based on the Police Act will be quashed if challenged.
The Court then examined the procedural aspects of the police custody-regime in relation to the provisions concerning the requirements for taking a person into police custody. As the Police Act did not entail any provisions on the legal protection, the general rules of legal protection in the canton of Zurich applied, i.e. the affected person had to challenge the custody before the superior administrative body. Only after having exhausted these administrative remedies an appeal to the Administrative Court of the canton of Zurich, i.e. a judicial body, was possible. The Court reasoned that Article 5 IV ECHR52 does not bar the member states from implementing administrative control before granting access to judicial proceedings, contingent a judicial decision is rendered “speedily”. However, Article 31 IV Constitution states that any person who has been deprived of their liberty by a body other than a court has the right to have recourse to a court at any time which shall then decide as quickly as possible on the legality of their detention. The Court reasoned that the notion “at any time” means the Court can be invoked directly without prior proceedings before administrative bodies. Thus, Article 30 IV Constitution goes beyond the general right to judicial proceedings according to Article 29a Constitution. As a result, the Court held that the Police Act violates Article 31 IV Constitution and requested the cantonal legislator to enact provisions on the legal protections that suffice under the constitutional guarantees.53
4. “LEGAL SAUSAGE SALAD” OR THE IMPORTANCE OF THE ECHR54
On 24 February 1998, attorney-at-law R appealed against a civil law decision of a court of first instance to the High Court of the canton of Zurich. His appeal described the proceedings, the challenged decision, the opposing party, and its counsel by various improper expressions. Inter alia, he called the proceedings a “charade” (literally “monkey theatre”, Affentheater) and a “legal sausage salad”; described the statement of claim as “ludicrous” and “mad-brained”; designated the decision as “sheer nonsense”; called the court of first instance a “body of a rogue state”; and stated that the opposing counsel was “blathering of the law”. The High Court filed a complaint to the Supervisory Commission for Attorneys-at-Law (Aufsichtskommission über die Anwältinnen und Anwälte) which initiated a proceeding against R. Later, the (then existing) Court of Cassation of the canton of Zurich held that the High Court’s decision violated the right to be heard of the party represented by R.
On 4 November 1999, the Commission imposed a fine on R and barred him from exercising his profession for three months because the expressions used in his first file were inadmissible under professional ethics and practice rules. R’s appeal to the High Court was not successful. He brought the case before the Swiss Federal Supreme Court, claiming that the High Court violated Article 6 I ECHR by not carrying out a public hearing despite a corresponding request made by him. He argued that the Commission (which carried out such public hearing) did not constitute an independent court as required by Article 6 I ECHR.
Article 6 I ECHR entitles everyone in the determination of his civil rights and obligations or of any criminal charge against him to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Court held that disciplinary proceedings leading to professional bans concern “civil rights” within the meaning of Article 6 I ECHR.
The Court considered the Commission to be closer to an administrative body than to a court. Such finding is also supported by the case law of the ECHR that focuses on the appearance of the body. Consequently, the Court reasoned that the Commission acted as non-judicial body here and that a public hearing held only by such body does not meet the requirements imposed by Article 6 I ECHR and Article 30 Constitution, respectively. It referred the case back to the High Court to hold a public hearing in accordance with Article 6 I ECHR and decide again.
48BGE 137 I 120.
49BGE 140 I 99.
50See also GIOVANNI BIAGGINI, Kommentar Bundesverfassung der Schweizerischen Eidgenossenschaft, 2nd edition, Zurich 2017, Article 29 n. 3.
51BGE 136 I 87.
52Article ٥ IV ECHR states that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
53The Police Act was then amended by the Parliament of the canton of Zurich. Nowadays, an appeal to the Compulsory Measures Court is available.
54BGE 126 I 228.