constitutional law Flashcards
(22 cards)
What is the key focus and typical form of a constitution in the formal sense?
The constitution in the formal sense focuses on the form, or the special enactment procedure, by which legal norms are enacted. This procedure is different from that for ordinary legislation and guarantees a certain constitutional stability. Legal provisions enacted through this qualified procedure take precedence over all other legal norms in the system. Typically, these provisions are incorporated into one single written document, referred to as the constitution, basic law, or charter. In Switzerland (CH), the Constitution in the formal sense is incorporated into a single written document. Amendments to the CH Constitution in the formal sense require a compulsory referendum and must be passed by both a majority of citizens and a majority of the cantons.
What is the key focus and what kind of rules does a constitution in the substantive sense encompass?
The constitution in the substantive sense focuses on the content of legal norms, rather than their form. It encompasses the essential rules and principles concerning the nature of the state and its relation to individuals. These fundamental rules can be written or unwritten and may be found within the formal constitutional document or in other documents. Fundamental principles included in the substantive sense are rules on the organization and powers of the highest state authorities, fundamental rights, procedures for the enactment of the Constitution and Statutes, and competencies of federal entities in a federal state. This notion reflects a substantive conception, defining the core values of the state, outlining fundamental aims, and seeking to define the relationship between individuals and the state by guaranteeing fundamental rights.
What are the three main functions aligned with the substantive sense of a constitution?
The sources identify three main functions aligned with the substantive sense:
1. Order and organization: Creating state organs, defining their powers and functions, allocating powers, and regulating the relationships between individual state organs. This specifies how the state is constituted and what the legislature, executive, and judiciary may or may not do.
2. Limits of Power and Guarantees of Freedom: Delimiting state power, guaranteeing fundamental freedoms for individuals, and restricting the possibility of abuse of power, often through fundamental rights. Fundamental rights, particularly those in Chapter One of Title Two of the CH Constitution, fulfill this essential function.
3. Creation and Direction: Describing the basic substantive goals of the state and setting the main direction for future state action for the legislature, executive, and judiciary, serving as a blueprint. For example, Art. 2 para. 1 Cst of the CH Constitution mentions the protection of liberty and rights of people and safeguarding the country’s independence and security as basic aims.
What is the relationship between the formal and substantive senses of a constitution?
In most states, the constitution in the formal sense corresponds with the constitution in the substantive sense. However, they are not always fully congruent and can overlap. The formal sense might include provisions that are obsolete or no longer substantively important. Conversely, the substantive sense might include fundamental principles not written in the formal document due to political or historical developments. For instance, under the Swiss Constitution of 1874, the formal sense did not reflect all rights and principles recognized by the Federal Supreme Court in its case law, which were part of the substantive sense. A major aim of the 1999 Swiss Constitution revision (“Nachführung”) was to include essential but previously unwritten principles, especially fundamental rights, into the formal text, aiming to make the formal and substantive senses coincide on essential points.
Briefly outline the key periods in the historical development of the Swiss Constitution from 1291 to 1999.
- Old Confederation (1291-1798): Started as an alliance of independent territories, expanding to thirteen cantons by 1513. It was a league of sovereign states bound by treaties, primarily for defense and arbitration. The Diet was a central council of ambassadors.
- Helvetic Republic (1798-1803): Ended the Old Confederation with the French invasion. Transformed Switzerland into a unitary state with administrative cantons having little autonomy. This unitary structure disintegrated due to civil war, but French revolutionary ideals had a lasting impact.
- Mediation Act (1803-1813): Restored the original thirteen cantons and created six new ones, re-establishing cantons as largely sovereign entities in a less centralized system.
- Restoration (1814-1830): Saw a return to pre-revolutionary institutions after France’s defeat. Progress towards democracy and rule of law was undone. The Confederate Treaty of 1815 loosely held together twenty-two sovereign cantons, recognized internationally for securing their freedom, independence, and safety.
- Regeneration (1830-1848): Tensions between conservatives and liberals led to a civil war in 1847.
- Federal Constitution of 1848: Adopted as a compromise after the civil war. Established Switzerland as a federal state. Combined cantonal experience with French revolutionary ideas and elements from the US Constitution. Based on a balance of self and shared-rule. Gave the central state its own authorities and revenue but initially limited federal legislative powers, with residual powers retained by cantons.
- Revision of 1874: Driven by industrialization and economic growth, this revision strengthened the central government and broadened political rights. Established the Federal Supreme Court as a permanent institution with substantive jurisdiction, introducing the “Public Law Appeal”. However, the formal 1874 Constitution did not fully reflect all constitutional rights, leading to divergence between formal and substantive senses. The 1874 Constitution was amended numerous times until 1999.
- Federal Constitution of 1999: Came into force on January 1, 2000. Result of a formal revision (“Nachführung”). Consolidated 150 years of constitutional development into a comprehensive, clear, single document. Aimed to eliminate minor provisions and include essential unwritten principles, especially fundamental rights, to align the formal and substantive senses on essential points. Unlike the 1815 treaty, it can be amended by a majority of the people and cantons.
What are the main sources of Swiss Constitutional Law as identified in the sources?
The main sources of Swiss Constitutional Law are:
1. The Federal Constitution of 1999: The most important source. It is a comprehensive text consolidating constitutional development and serves as the basic legal order and legal basis for all legislation. It takes precedence over all other legal norms.
2. Public International Law: Governs relationships between states and international entities. Sources include treaties, international customs, and general principles. Can contain rules of constitutional significance like international human rights law. Switzerland generally follows a monistic approach, integrating binding international obligations into the national system without needing implementing legislation. Mandatory provisions (ius cogens) are particularly important and always overrule conflicting national law.
3. Federal Statutes: Laws passed by the Swiss parliament (Federal Assembly). Address matters of constitutional importance. Provide more detailed rules within the constitutional framework and cannot contradict the Constitution. Subject to optional referendum.
4. Customary Law: Can be applied if there is no specific legislative provision. Requires continuous practice, opinio iuris (belief in legal obligation), and a gap in written law. Under earlier constitutions, the Federal Supreme Court recognized unwritten principles as customary law. The 1999 Constitution incorporated most previously recognized customary provisions.
5. Case Law: Particularly from the Federal Supreme Court, is highly important although not a formal source. Through interpretation, the Court significantly contributes to constitutional law development, especially regarding fundamental rights. The Court’s case law helps establish a consistent interpretation of statutes and the Constitution.
How can one recognize a legal provision based on its source within the Swiss legal system?
One can recognize legal provisions by understanding their different forms, enactment procedures, content, and hierarchy.
* Federal Constitution of 1999: Recognized by its special enactment procedure (mandatory referendum requiring majority of people and cantons), its incorporation into a single written document, and its status as the most important source. Its content includes fundamental principles, state organization, fundamental rights, and procedures. It takes precedence over all other legal norms.
* Public International Law: Recognized by its sources (treaties, custom, general principles). Integrated via a monistic approach. Content includes international human rights law and mandatory provisions (ius cogens). Ius cogens always overrule conflicting national law; hierarchy of non-peremptory international law and federal statutes has been debated.
* Federal Statutes: Recognized as legally binding rules enacted by the Federal Assembly. Require the form of a federal statute for important matters (Art. 164 para. 1 Cst) and are typically subject to optional referendum. Their content covers matters like citizenship, political rights, and federal authorities’ activities.
* Customary Law: Recognized by a continuous practice, opinio iuris, and a lacuna (gap) in written law. Most previously recognized customary provisions are now in the 1999 Constitution.
* Case Law: Recognized by its origin from the Federal Supreme Court and its role in interpreting and developing constitutional law. It provides consistent interpretation.
What are the main methods used for constitutional interpretation in Switzerland?
Swiss courts typically use a combination of methods:
1. Grammatical Approach: Focuses on the ordinary meaning of language, grammar, and syntax. It’s the starting point. Official texts are in German, French, and Italian, all having equal normative weight.
2. Systematic Approach: Interprets a norm in light of its systematic context, including other provisions in the Constitution and its overall structure. Important under the 1999 Constitution due to its clear structure.
3. Historical Approach: Aims to establish the meaning of a norm at the time of its creation. Can be subjective (drafters’ intent) or objective (meaning attributed by civil society at the time). More robust for newer provisions and institutional/process norms; less convincing over time for evolving standards.
4. Teleological Approach: Searches for the purpose (“telos”) of a norm, interpreting it in light of the goals (legal, social, economic) it aims to achieve. Can be combined with historical aims or contemporary developments.
5. Pluralism of Methods: Courts use a balanced approach, considering and combining the grammatical, systematic, historical, and teleological methods. There is no hierarchy of methods. The best approach or combination is decided on a case-by-case basis and should be discussed transparently. Vaguely worded norms require combining the grammatical approach with others, which may even lead to a deviation from literal wording.
6. Interpretation in Conformity with the Constitution: When interpreting statutes or ordinances, courts prefer interpretations that align with the values of the Constitution. This stems from the hierarchy of norms.
7. Interpretation in Conformity with International Law: The Federal Supreme Court uses a harmonizing method, interpreting domestic law to conform with Switzerland’s international obligations, especially treaties like the ECHR or agreements with the EU.
What is the Principle of Rechtsstaat (Rule of Law) in the Swiss constitutional system and how is it understood in its formal and substantive senses?
The Principle of Rechtsstaat is a fundamental structural principle aimed at limiting state power by law to protect individuals from arbitrary exercise of authority and safeguard individual liberty.
- Formal Rechtsstaat: Describes a state system where all power is created and limited by law. It includes mechanisms like division of powers and control to curb power politics and avoid arbitrariness. Key formal elements are:
◦ Principle of legality: State action must be based on and limited by law, which must be sufficiently precise, accessible, and understandable.
◦ Division of Powers: An unwritten but essential principle dividing state power into legislative, executive, and judiciary branches with checks and balances.
◦ Independent Judiciary: Guaranteed by Art. 191c Cst, serving as an effective control mechanism over state actions. However, judicial review of federal statutes is limited by Art. 190 Cst, requiring courts to apply them even if they conflict with the Constitution. - Substantive Rechtsstaat: Complements the formal sense with principles to which all state activity must conform. It embodies respect for individual freedom and equality and a commitment to a liberal and just constitutional order. Key substantive elements include:
◦ Fundamental rights: A comprehensive list guaranteed in Title 2 of the Constitution.
◦ Protection of Individual Dignity (Art. 7 Cst): Recognized as the supreme value.
◦ Basic Social Rights: Some rights guaranteed (e.g., Art. 12, 19 Cst).
◦ Essence of Fundamental Rights: May not be encroached upon (Art. 36 para. 4 Cst).
◦ Aims of the Swiss Confederation (Art. 2 Cst): Describe basic goals.
◦ Social objectives (Art. 41 Cst): Serve as guidelines for authorities.
Explain the concept and characteristics of the Principle of Federalism in Switzerland.
Federalism is a political concept describing the balance of unity and diversity. It creates a composite structure of two or more orders of government, combining federal shared rule and self-rule of constituent units. This structure is laid down in the constitution. Switzerland is a federal state composed of three levels of government: the Federation, cantons, and communes (municipalities). Cantons are self-organizing governmental units with their own constitutions and laws (which must not conflict with federal law), parliaments, governments, and courts. Main elements of cantonal autonomy include sufficient own tasks, organizational autonomy, and financial autonomy. The Federal Constitution explicitly lists federal competencies, and cantons retain all residual powers (Art. 3, Art. 42 Cst). Federalism is well-suited to accommodate plurality and complexity (geography, language, religion, culture) while having an overarching national identity. It promotes internal cohesion and cultural diversity and protects minorities through the vertical distribution of powers. It also allows constituent units to realize their own ideas and policies, limiting the power of the federal state as a whole. The principle of subsidiarity (Art. 5a, 43a para. 1 Cst), which suggests smaller units act autonomously unless tasks require a higher level, is closely linked to federalism.
How is the Principle of Federalism implemented in Switzerland?
Federalism is implemented through various forms and mechanisms:
* Distribution of Competencies: The Constitution assigns competencies. Federal competencies are explicitly listed, with residual powers remaining with the cantons (Art. 3, Art. 42 Cst). Federal competencies can be comprehensive, fragmentary, framework, or promotion. Federal competency can have subsequently derogating, originally derogating, or parallel effects on cantonal jurisdiction.
* Participation of Cantons (Shared Rule): Constituent units participate in federal decision-making. This is seen in the bicameral Federal Assembly (National Council representing people, Council of States representing cantons equally - Art. 148 para. 2 Cst). Cantons also participate through referenda and initiatives involving the cantonal vote. Constitutional amendments require a double majority (majority of people and cantons - Art. 142 para. 2, Art. 195 Cst).
* Implementation of Federal Law: Cantons are generally responsible for implementing federal law, and the Federation must allow them discretion and consider particularities and financial burden (Art. 46 para. 3, Art. 47 para. 2 Cst).
* Intergovernmental Cooperation: Mechanisms exist for cooperation and dispute resolution (intercantonal treaties, conferences).
* Federal Guarantees for Cantons: The Constitution explicitly guarantees cantonal constitutions (Art. 51 Cst), protection of their constitutional order (Art. 52 Cst), and their existence and territory (Art. 53 Cst).
* Primacy of Federal Law (Art. 49 para. 1 Cst): Federal law (including statutes, ordinances, and binding international law) takes precedence over conflicting cantonal law.
Describe the concept and implementation of the Principle of Democracy in Switzerland.
The Principle of Democracy involves popular self-determination and equality of all citizens participating in the political and legal system. It requires governmental responsibility and provides public control of political power. Switzerland is a semi-direct democracy, combining elements of representative democracy with direct democracy instruments. The Federal Assembly is the supreme authority, subject to the rights of the people and cantons (Art. 148 para. 1 Cst). Democracy ensures citizens can participate effectively and provides mechanisms for public control and accountability. It guarantees freedom of citizens to form opinions and express their will, with freedom of expression and information considered cornerstones for realizing political rights. Implementation includes various forms and instruments:
- Forms: Representative, direct, and semi-direct democracy (Switzerland is semi-direct).
- Instruments of Semi-Direct Democracy:
◦ Referendum: Mandatory (for constitutional provisions, certain international matters) and optional (for federal statutes, legal acts, treaties).
◦ Popular Initiative: Allows 100,000 voters to request a partial constitutional revision within 18 months (Art. 139 para. 1 Cst). Initiatives must respect consistency of form and subject matter and mandatory international law. - Political Rights: Guaranteed by the Constitution (Art. 34 Cst), including the right to vote and petition (Art. 33 Cst). Swiss citizenship involves a three-level system (Swiss, Cantonal, Communal - Art. 37 para. 1 Cst).
What is the Principle of Social Justice and how is it reflected in the Swiss Constitution?
The Principle of Social Justice aims to establish just and equal conditions within society, particularly between different social classes. It involves the state using legal and policy instruments to ensure everyone can effectively exercise their rights and participate equally in the legal and social system. It is a key principle underlying the Federal Constitution. It provides guidance for state authorities, ensures a decent standard of living for persons in need, protects vulnerable groups, and supports access to basic education. It is reflected in the Constitution through:
* Social objectives (Art. 41 Cst): Serve as guidelines for authorities but are often programmatic. The Preamble also mentions the strength of the community measured by the welfare of the weakest.
* Federal Competencies: The Constitution assigns competencies to the Federation in social matters like employment and social security (e.g., Art. 110, 114 Cst).
* Social Rights: The Constitution guarantees a few basic social rights that are directly enforceable before courts. These rights aim to give individuals access to resources and oblige the state to take positive action (e.g., Right to assistance when in need - Art. 12 Cst, Right to primary school education - Art. 19 Cst, Protection of children and young people - Art. 11 Cst).
Explain the procedure for a TOTAL Revision of the Swiss Constitution.
A total revision replaces the entire existing constitution. It can be initiated in two ways:
* Initiative by the People: Any 100,000 voters can request a complete revision in the form of a general proposal. Signatures must be collected within 18 months. If the people vote in favor of the total revision, the Federal Assembly is dissolved, and new elections for both chambers and the Federal Council are scheduled. The newly elected parliament drafts the new Constitution. The proposed new Constitution comes into force after being approved by a double majority (majority of people and majority of cantons). If the people vote against, the proposal is dropped.
* Initiative by the Federal Assembly (Disagreement): If the two councils of the Federal Assembly disagree on whether to carry out a total revision, the question is put to a mandatory referendum requiring a simple majority of the people. If the people vote in favor, the process continues as described above (new elections, drafting by the new parliament, double majority vote).
Explain the procedure for a PARTIAL Revision of the Swiss Constitution.
A partial revision amends specific parts of the existing Constitution. It can be initiated by the people or the Federal Assembly:
* Initiative by the People: Any 100,000 voters can request a partial revision. Signatures (100,000) must be collected within 18 months. The initiative can be a general proposal or a specific draft (more common). It undergoes a validity check by the federal parliament, ensuring consistency of form/subject matter and respect for mandatory international law and the essence of fundamental rights. If valid, the Federal Assembly recommends acceptance or rejection.
◦ If the Federal Assembly approves a specific draft, it goes directly to a popular vote.
◦ If the Federal Assembly approves a general proposal, it must draft the revision and submit it to a double majority vote.
◦ If the Federal Assembly rejects the initiative (specific draft or general proposal), it must still submit it to a vote of the people. If the people vote in favor of a rejected specific draft, it proceeds to the double majority vote. If the people vote in favor of a rejected general proposal, the Federal Assembly must then draft the corresponding bill and submit it to a double majority vote.
◦ Adoption requires a double majority (majority of people and cantons).
* Initiative by the Federal Assembly: The Federal Assembly (both councils) can draft proposals for partial amendments. These debated proposals are subject to a mandatory referendum requiring a double majority (majority of people and cantons) for adoption. This is also triggered when the Federation is accorded a new power requiring a constitutional basis.
Unless specified otherwise, amendments come into force upon adoption by the people and cantons.
Describe the Principle of Division of Powers in the Swiss constitutional system and how it is implemented.
The Principle of Division of Powers is an unwritten, essential principle in Switzerland. It involves dividing state power into branches (legislative, executive, judiciary), each with separate responsibilities, to organize state governance. Implementation primarily involves:
1. Implementation through Federal Authorities: The Constitution defines the main federal authorities and their powers:
◦ Federal Assembly: The legislative branch and defined as the highest authority of the Federation (subject to rights of people/cantons). It’s a bicameral parliament (National Council representing people, Council of States representing cantons), reflecting both democratic and federalist principles. Its powers include legislation, finances, elections (Federal Council, federal judges), supervision, and foreign policy.
◦ Federal Council: The executive branch, described as a collegial body and the highest governing and executive authority.
◦ Federal Supreme Court: The highest federal judicial authority. Judicial independence is guaranteed (Art. 191c Cst). It oversees the application of federal laws and verifies the conformity of cantonal/federal acts with federal law.
2. Personnel Division: Implemented through the principle of incompatibility, where offices in different federal authorities are mutually exclusive.
3. Functional Division and Cooperation: While branches have primary functions, the system includes forms of cooperation.
4. Checks and Balances: Mechanisms exist between branches. In Switzerland, these often involve checks by the people (referendum, initiative) and cantons, sometimes more so than purely institutional checks between federal branches.
5. Limitations on Judicial Review (Art. 190 Cst): A significant aspect is the limitation on judicial review of federal statutes. The Federal Supreme Court and other judicial authorities must apply federal statutes even if they conflict with the Constitution. This highlights the supremacy of the democratic principle (parliamentary legislation) over the Rechtsstaat principle in this context. This limitation does not apply to federal ordinances or cantonal laws.
What are Fundamental Rights in Switzerland and what are their main sources and categories?
Fundamental rights in Switzerland are legally guaranteed entitlements of individuals in their relationship with the state. They protect essential aspects of every person and are recognized as safeguarding fundamental individual freedoms necessary for human dignity and personal development. The main sources are the Federal Constitution of 1999 (Art. 7-34 Cst) and international human rights treaties, particularly the ECHR and ICCPR. Fundamental rights are categorized into:
* Civil liberties and freedoms: Historically defensive rights, now also guiding principles. Examples: right to life/personal liberty, privacy, freedom of religion/expression/assembly, right to property, economic freedom. Human dignity (Art. 7 Cst) is the foundation.
* Equality before the law: Every person is equal before the law and entitled to equal treatment, including protection against discrimination (Art. 8 Cst).
* Basic social rights: Aim at securing human subsistence and providing access to resources, often requiring state action. Examples: protection of children/young people (Art. 11 Cst), right to assistance when in need (Art. 12 Cst), right to primary education (Art. 19 Cst). These are directly enforceable, unlike social objectives.
* Basic procedural rights: Guarantee fair procedures before state authorities. Examples: right to equal/fair treatment in proceedings, right to be heard, right to free legal counsel (Art. 29 Cst), access to courts, judicial proceedings, deprivation of liberty, criminal proceedings.
* Political Rights: Enable individuals to participate directly in elections and policy decisions (Art. 33-34 Cst). Generally limited to citizens.
How are fundamental rights protected in Switzerland, especially before the Federal Supreme Court? What are the limits of these procedures?
Protection of fundamental rights is a key purpose of constitutional jurisdiction. The primary domestic mechanisms for individuals to claim a violation before the Federal Supreme Court are:
1. An appeal in public law matters: An ordinary appeal for complaints about misapplication of law and violation of fundamental rights. Can challenge decisions in public law matters, cantonal legislative acts, or voting rights. Possible against decisions of the Federal Administrative Court or highest cantonal instances. Allows invoking violations of federal law (including Constitution), public international law, or cantonal constitutional rights.
2. Subsidiary constitutional appeal: A subsidiary appeal used only against decisions of highest cantonal authorities when no other appeal (like the public law appeal) is available. Can only contend a violation of constitutional rights (federal, cantonal, international). Requires exhausting cantonal remedies.
For both appeals, the appellant must explicitly state the violated law and substantiate their claim. Admissibility criteria (object, lower instance, reasons, right to appeal, time limit) must be met. The general time limit is 30 days.
Limits of Procedures: The procedures are limited by the democratic principle, specifically Art. 190 Cst. The Federal Supreme Court and other judicial authorities must apply federal statutes, even if they conflict with the Constitution. Courts cannot declare federal statutes null and void or refuse to apply them based on unconstitutionality. While the Court may state a federal statute is unconstitutional, it is up to the legislature to change it. This limitation applies only to federal statutes, not federal ordinances or cantonal laws, which can be challenged.
What are the four conditions that must be met for a restriction of a fundamental right to be lawful in Switzerland, according to Art. 36 Cst?
Restrictions on fundamental rights are lawful only if specific conditions stipulated in Art. 36 Cst are met. If even one condition is not fulfilled, the restriction is unlawful. The four conditions are:
1. Legal Basis (Art. 36 para. 1 Cst): Restrictions must generally have a legal basis. Significant restrictions must be based on a federal statute. An exception exists for cases of serious and immediate danger (“general police clause”) where no other course is possible and very important public or individual interests are endangered.
2. Justification by Public Interest or Protection of Others’ Fundamental Rights (Art. 36 para. 2 Cst): The restriction must be justified by a legitimate reason, either a public interest (measures promoting common good, police interests like public order/safety) or the protection of fundamental rights of others.
3. Proportionality (Art. 36 para. 3 Cst): Any restriction must be proportionate to the goal pursued. It should not go further than necessary to achieve the public interest or protect other rights. This involves striking a fair balance between competing interests. The measure must be adequate to achieve the legitimate purpose.
4. Respecting the Essence of Fundamental Rights (Art. 36 para. 4 Cst): The essence (core content) of the fundamental right at stake must be respected. Some rights are per se inviolable (e.g., human dignity, prohibition of death penalty, prohibition of torture/inhuman treatment, protection of citizens against expulsion/extradition, protection against deportation to face torture/inhuman treatment). The essence of other rights may be determined through case law.
Outline the two steps for solving a specific case related to the restriction of a fundamental right according to the procedure described in the sources.
To analyze a case involving a potential fundamental right restriction: Step 1: Is there a case of fundamental rights? Determine if and which fundamental right is affected by asking:
* What is the legal basis of the affected right? (Must be a guaranteed entitlement on national or international level).
* What is the scope of application of the affected right? (Identify the protected sphere and if it’s restricted, e.g., informational self-determination, economic freedom, freedom of assembly, right to family).
* Who are the beneficiaries of the affected right? (Person must be a victim; natural persons usually invoke all rights, with some exceptions for foreigners; legal persons can be beneficiaries for certain rights).
* Who is the addressee of the affected right? (The claim must be against the state or a state authority).
* Conclusion: If all requirements are fulfilled, conclude that there is a case of fundamental rights.
Step 2: Is the restriction of the fundamental right lawful (admissible)? If a fundamental right is affected, assess the lawfulness of the restriction by checking the four conditions prescribed in Art. 36 Cst:
1. Legal Basis (Art. 36 para. 1 Cst): Is the restriction based on a legal rule? (General/abstract, sufficiently precise). If significant, is it based on a statute enacted by the legislature?. Is there an exception for serious/immediate danger?.
2. Justification (Art. 36 para. 2 Cst): Is the restriction justified by a public interest (common good, police interests) or protection of others’ rights?.
3. Proportionality (Art. 36 para. 3 Cst): Is the restriction proportionate to the goal? Does it go further than required? Is there a fair balance? Is the measure adequate?.
4. Respect the Essence (Art. 36 para. 4 Cst): Does the restriction respect the core content? Is it one of the per se inviolable rights? If not, is its essence still respected based on case law?.
* Conclusion: Only if all four requirements are fulfilled is the restriction considered lawful
What is the enforcement mechanism of the European Court of Human Rights (ECtHR) described in the sources, focusing on individual applications?
The European Convention on Human Rights (ECHR) established an enforcement mechanism considered very effective. It was significantly enhanced by Protocol No. 11, allowing individuals direct access to the Court. The ECtHR can handle inter-state applications (Art. 33 ECHR) and individual applications (Art. 34 ECHR). Individual applications are much more important in practice. They are lodged by private persons who disagree with a decision of the highest domestic court. The right of individual application is considered the hallmark of the ECHR. To understand the mechanism, one must know the procedure for individual applications (Art. 34 ECHR) and the admissibility criteria (Art. 35 ECHR). Any person, NGO, or group claiming to be a victim of a violation by a contracting state can apply. The application must be brought against a state that has ratified the ECHR.
List and briefly explain the admissibility criteria for an individual application to the ECtHR.
The ECtHR may only deal with an application if several admissibility criteria are met (Art. 35 ECHR):
1. Exhaustion of Domestic Remedies: All domestic remedies must have been exhausted up to the highest possible level in the country concerned. This allows the state to provide redress nationally first.
2. Time limit: The application must be lodged within 6 months from the final domestic decision. (This will be reduced to 4 months by Protocol No. 15 when it enters force).
3. Applicant Must Be Identifiable: The application must not be anonymous.
4. Not Substantially the same: The application must not be substantially the same as a matter already examined by the ECtHR or submitted to another international procedure, and contain no relevant new information.
5. Compatibility with ECHR provisions: The application must be compatible with the Convention and Protocols, considering:
◦ Ratione temporis: Alleged violation must have occurred after the ECHR entered into force for the respondent state.
◦ Ratione loci: Alleged violation must have taken place within the jurisdiction of the respondent state.
◦ Ratione personae: Application must be against a state that ratified the ECHR, and the applicant must be a victim (direct or indirect).
◦ Ratione materiae: Complaints must relate to rights guaranteed by the ECHR or its Protocols that are in force.
6. Not Manifestly ill-Founded: The applicant must have substantiated their allegations, and a preliminary examination must disclose an appearance of a violation.
7. Not an Abuse of Right of Petition: Conduct clearly contrary to the purpose of individual application or impeding the Court’s functioning constitutes abuse. (Rare cases).
8. Suffered a significant Disadvantage: The applicant must have suffered a significant disadvantage. This means the violation should reach a minimum level of severity. Safeguard clauses may allow examination even without significant disadvantage if human rights respect requires it, or if the case wasn’t duly considered domestically (the second clause will be deleted by Protocol No. 15).
The sources note that the overwhelming majority (>95%) of individual applications are rejected due to failure to satisfy these criteria
