Lecture 5&6: Fundamental Rights Flashcards
(35 cards)
What are fundamental rights?
Constitutionally and internationally guaranteed legal entitlements that protect essential freedoms of individuals in their relationship with the state.
How do fundamental rights differ from human rights?
Human rights: Inherent, pre-constitutional, inalienable, and independent of state law.
Fundamental rights: Written rights within a state’s legal system (positive law).
How do fundamental rights differ from constitutional rights?
Constitutional rights include all fundamental rights, plus procedural principles like legality in criminal law, tax law, municipal non-discrimination, federal law supremacy, etc.
What are the five categories of fundamental rights?
Civil liberties
Equality before the law
Social rights
Procedural rights
Political rights
What are the main legal sources of fundamental rights?
Swiss Federal Constitution
Cantonal constitutions
ECHR (European Convention on Human Rights)
UN Covenants (ICESCR, ICCPR)
Other international treaties
What are civil liberties?
Rights protecting individuals against unwanted state action; also guide state behavior overall.
Give examples of civil liberties in the Swiss Constitution.
Personal liberty (Art. 10 para 2 Cst)
Privacy (Art. 13 Cst)
Freedom of expression (Art. 16 Cst)
Freedom of media (Art. 17 Cst)
Property (Art. 26 para 1 Cst)
Marriage (Art. 14 Cst)
What does Art. 8 Cst guarantee?
Equal treatment by all state authorities.
What does Art. 9 Cst guarantee?
Good faith and non-arbitrary treatment.
What is the aim of social rights?
Guarantee access to essential resources/services and require state action.
Name examples of social rights.
Assistance when in need (Art. 12 Cst)
Basic education (Art. 19 Cst)
Protection of children and youth (Art. 11 Cst)
What are political rights?
Rights to participate in political processes (Art. 33–34 Cst).
Who are the beneficiaries of political rights?
Primarily citizens of the state.
Who can invoke fundamental rights?
All natural persons
Foreign nationals (in some cases)
Legal persons under private law
Legal persons under public law (only in rare, private law situations)
Against whom can fundamental rights be asserted?
The state or entities exercising state functions (not private persons).
What is “direct third-party applicability” (direkte Drittwirkung)?
Private persons must respect some rights (e.g. equal pay – Art. 8 para 3 Cst).
What is “indirect third-party applicability” (indirekte Drittwirkung)?
The state must ensure that fundamental rights influence private relations (Art. 35 para 3 Cst).
What are the 4 conditions under Art. 36 Cst for restricting fundamental rights?
Legal basis
Public interest or protection of others
Proportionality
Respect for the essence of the right
What is required for a legal basis under Art. 36?
General and abstract rule
Sufficient precision (legal certainty)
Proper legal form (statute if restriction is significant)
What is the general police clause (Art. 36 para 1 sentence 3)?
Temporary restrictions allowed without legal basis in urgent, serious, and unforeseen cases where no legal provision exists.
What qualifies as a “public interest”?
Common good promotion
Police interests (order, health, peace, safety, morals, etc.)
What are the three criteria for proportionality?
Adequacy
Necessity (no milder measure)
Reasonableness (benefit outweighs harm)
What does Art. 36 para 4 protect?
The core content of each fundamental right—violating this is automatically unconstitutional.
Exam Procedure for Restrictions on Fundamental Rights
Is a Fundamental Right Affected?
Is the right guaranteed nationally or internationally?
Is its scope affected?
Is the claimant a beneficiary?
Is the respondent the state (or equivalent)?
✅ → Conclusion: Fundamental right is affected
