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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Introduction and history of origins
- II. Context of international law
- III. Personal scope of protection
- IV. Paragraph 1: The right to life and the prohibition of the death penalty
- V. Paragraph 2: The right to personal liberty
- VI. Paragraph 3: The prohibition of torture
- VII. The prohibition of trafficking in human beings, forced labour and slavery
- Recommended further reading
- About the author
- Bibliography
I. Introduction and history of origins
1 Art. 10 FC protects elementary aspects of the development of personality and physical and mental integrity: the right to life, the right to personal freedom and the prohibition of torture. Fundamental aspects of human existence are affected, which means that this provision is understood as a "basic guarantee for the protection of personality".
2 With Art. 10 FC, the constitutional legislator incorporated international law claims and unwritten constitutional law into the FC 1999. In particular, human rights guarantees and the fundamental rights to life and personal freedom (recognised as unwritten constitutional rights in previous Federal Supreme Court case law) were codified. The fact that these rights were codified in a single constitutional provision (Art. 10 FC) emphasises the interrelationships between the partial rights. Thus, the right to life and the prohibition of torture protect fundamental aspects of bodily integrity and thus personal freedom. The prohibition of the death penalty (Art. 10 para. 1 sentence 2 FC) and the prohibition of torture and any other form of cruel, inhuman or degrading treatment or punishment (Art. 10 para. 3 FC) constitute the core content of the right to personal freedom.
3 In the FC 1848 and 1874 there was no precursor provision to today's Art. 10 FC. However, this provision implicitly continued the previous prohibitions of the offence of debt (Art. 59 para. 2 FC 1874) and corporal punishment (Art. 65 para. 2 FC 1874). Furthermore, the first Federal Constitution already prohibited the death penalty for political offences (Art. 54 FC 1848).
4 Certain elements of the right to personal freedom are not reflected in Art. 10 FC, but in other constitutional provisions. Art. 10 FC accordingly overlaps with these provisions. Children and adolescents, for example, are entitled to special protection of their integrity under Article 11 FC. Further partial content has been codified in the protection of privacy in Art. 13 FC, human dignity in Art. 7 FC and guarantees regarding the deprivation of liberty in Art. 31 FC.
II. Context of international law
5 The right to personal freedom is related to various international treaties, in particular to human rights treaties. With its various components, Art. 10 FC combines several independent human rights. For example, the ECHR protects the right to life (Art. 2 ECHR), the prohibitions of torture (Art. 3 ECHR) and of slavery and forced or compulsory labour (Art. 4 ECHR) and the right to liberty and security (Art. 5 ECHR), each separately. Furthermore, Art. 8 ECHR (the right to respect for private and family life) protects various elements of the constitutional right to personal freedom, e.g. physical and mental integrity, self-determination, social relations and the desire to have children or to remain childless.
6 Not covered by the original text of the ECHR is the prohibition of the death penalty. When the ECHR was opened for signature on 4 November 1950, the death penalty was not yet generally considered problematic under international law. With the 6th Additional Protocol to the ECHR, which entered into force in 1985, the signatory states subsequently undertook to abolish the death penalty in peacetime. With the 13th Additional Protocol to the ECHR, which entered into force in 2003, this prohibition was also extended to wartime. Today, the 6th Additional Protocol applies to all 46 member states of the Council of Europe; Switzerland also ratified it in 1987. Apart from Armenia and Azerbaijan, all current Council of Europe member states have ratified the 13th Additional Protocol, including Switzerland. In view of these developments, the prohibition of the death penalty is regarded in doctrine as mandatory regional international law, which would continue to apply, for example, after a denunciation of the ECHR or in the event of an armed conflict.
7 The UN Covenant II also contains various provisions for the protection of personal freedom. Relevant provisions include the right to life (Art. 6), the prohibition of torture (Art. 7), the prohibition of slavery and forced or compulsory labour (Art. 8), the right to personal liberty and security (Art. 9), the right to humane treatment in the event of deprivation of liberty (Art. 10), the prohibition of debtor's imprisonment (Art. 11) and freedom of movement (Art. 12). Although the UN Covenant II does not prohibit the death penalty in its entirety, its possible applications are limited (Art. 6 para. 2-6). In addition, there is also an optional protocol on the abolition of the death penalty within the framework of this convention, which Switzerland ratified in 1994. Furthermore, according to the UN Human Rights Committee, the death penalty is prohibited from being reintroduced; its abolition cannot therefore be reversed.
8 Various parts of Art. 10 FC refer to other regional and international agreements. The UN Convention against Torture of 1984, the European Convention against Torture of 1987, the Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence of 2011 and the European Prison Rules of the Council of Europe are particularly relevant.
III. Personal scope of protection
9 Protection under Article 10 FC is available to all living natural persons, regardless of their nationality. The delimitation of this scope of protection, in particular with regard to the beginning and end of human life, raises various and sometimes controversial questions.
10 The time of the beginning of life is not defined under constitutional and human rights law. The ECtHR has left this decision to state discretion. The Federal Supreme Court has also not yet conclusively answered this question, which leads to divergent doctrinal opinions. There is fundamental acceptance of the idea that the constitutional rights of the future child can already have a certain (pre-)effect before birth and that these apply at the latest from the moment of birth. This is discussed in more detail below under n. 16-17.
11 The personal freedom in Art. 10 para. 2 FC can still have an effect after death. It is not a question of an actual "post-mortem fundamental right", but rather of a protection of self-determination and specifically of the decisions made during one's lifetime about the fate of one's own body, which has a temporal effect beyond death. The protection of these decisions takes precedence over the wishes of the relatives and is related to the protection of human dignity (Art. 7 FC). If there are no express instructions from the deceased person, the wishes of the relatives must be taken into account as a subsidiary measure. Their wishes enjoy the protection of Art. 10 para. 1 FC as well as a certain protection under human rights law through Art. 8 FC (right to private and family life) and Art. 9 ECHR (freedom of thought, conscience and religion). A balancing of interests is required in individual cases.
12 Self-determination over the fate of one's own body also includes decisions regarding possible organ donation. In the referendum of 15 May 2022, an "objection solution" was adopted in this context. In future, the organs and tissues of any person may in principle be removed for transplantation purposes after death, provided the deceased person did not record their objection during their lifetime and the relatives also do not know or suspect that such an objection exists. Express consent to organ removal is therefore no longer required. This "extended" objection solution should continue to provide post-mortem protection of the personal freedom of the deceased person. However, it does not include the relatives' own wishes.
13 Legal persons are in principle not bearers of the fundamental rights enshrined in Art. 10 FC. Baldegger criticises this dismissive attitude of the prevailing doctrine. The Federal Supreme Court has recognised the fundamental rights of legal persons with regard to the protection of good reputation or honour, which at present, however, is rather a case of application of the right to protection of privacy pursuant to Art. 13 FC. Furthermore, associations of persons can also invoke personal freedom.
14 It appears questionable whether animals can also be fundamental rights bearers of personal freedom. Although it is clear today that animals have certain abilities that were once considered exclusively part of being human (e.g. feelings of empathy), animals are not considered to be bearers of fundamental rights under constitutional law. However, the cantons are allowed to go beyond the minimum fundamental and human rights standards of the FC and the ECHR. Thus, they may also grant non-human primates their own right to life and to physical and mental integrity. In contrast, artificial intelligence systems, e.g. humanoid robots, do not qualify for fundamental rights, as they lack - at least at present - the necessary human emotions. The non-existence of human-like vulnerability and mortality may also speak against the fundamental right's applicability here. Thus, applicability to such systems appears to be neither meaningful nor necessary.
IV. Paragraph 1: The right to life and the prohibition of the death penalty
A. Material scope of protection
15 The right to life is the starting point and prerequisite for all other fundamental rights. It is a fundamental right which covers "the totality of the biological and psychological functions which characterise the human being as a living being". This right is one of the peremptory norms of international law and one of the guarantees of the ECHR that is firm in a state of emergency.
16 As discussed in n. 10, the FC and the ECHR leave open the point in time at which life begins (and thus the point in time at which the constitutional protection afforded by the right to life begins). The point in time at which the protection of the expectant life under fundamental rights begins is disputed. This point in time can be of great importance, especially with regard to abortions and for questions of reproductive medicine and genetic engineering. The prevailing doctrine today holds that prenatal life is entitled to a certain constitutional protection, although the nature of this protection has not been clarified. In this sense, there is a departure from the private law approach that life or personhood begins with completed birth. According to Biaggini, actual individual rights do not exist until birth, but the state's duties to protect can already take effect before birth and the legislature has considerable leeway here. Hertig Randall/Marquis share this view and note that the expectant life may not be equated with a thing. Tschentscher sees it somewhat differently: according to his view, prenatal life protection "grows steadily from conception to the fully developed scope of protection from birth"; however, there is no entitlement to "the courses of action leading to the state of being alive (procreation, being born)".
17 The idea of a certain advance effect of the rights of the future child on the prenatal phase, without thereby granting the unborn an actual right to life, allows the legislature to take into account the complexity of these issues and the necessary balancing of interests. Thus, in the area of abortion, the pregnant person's right to self-determination, among other things, is complied with by providing for a time limit solution. The Federal Supreme Court is obliged to apply this (criminal law) regulation of abortion.
18 The FC also does not specify the time of the end of life. In this regard, federal court jurisprudence refers to "brain death". As early as the 1970s, the Federal Supreme Court recognised that there is no human life unworthy of life, but that a person must be considered dead as soon as vital bodily functions cease completely and irreversibly. The relevant criteria of demarcation are to be determined by medical science, which is unambiguously based on brain death. A corresponding provision was included in the Transplantation Act in 2004: According to Art. 9 para. 1 of this law, death occurs when human brain functions, including those of the brain stem, have "irreversibly ceased". However, certain aspects of the right to life still have an effect after death. For example, in the case of suspicious deaths, there is a fundamental and human rights entitlement to a state investigation even after death.
19 According to the Dispatch on the Federal Constitution, Art. 10 para. 1 sentence 1 "absolutely" protects against intentional attacks on life. However, this view is questionable. According to Biaggini, for example, this right cannot be understood as absolute - contrary to the Federal Council's view in the Dispatch on the Federal Constitution - since killings are permissible under certain circumstances, e.g. (and under certain conditions) in the context of police operations and war situations. Federal court practice seems to confirm this view. Not every intentional killing constitutes a fundamental or human rights violation. The right to life has exceptions for lawful acts of war, an exception - to be understood narrowly - to the state's monopoly on the use of force for self-defence (Art. 15 StGB), and a provision for exceptionally permissible killing by the police or military in extreme situations. Furthermore, there are intentional killings by private individuals that do not involve any state violation of fundamental or human rights, since the state's duties of protection, investigation and punishment have been complied with.
20 The question of the absolute validity of a right occurs independently of the determination of its factual scope of protection. The right to life does not claim absolute validity insofar as it allows for balancing of interests. However, the position sometimes advocated in doctrine that restrictions on the right to life should be assessed in accordance with Article 36 FC is problematic. An analogous application of this provision is conceivable, whereby the view of Hertig Randall and Marquis is to be agreed that in particular the requirements of the justifying public interest and proportionality cannot be applied without further ado. These requirements must be interpreted restrictively in view of the fundamental importance of the right to life, or particularly high demands must be placed on them. Thus, not every public interest may justify a killing, and the corresponding act must be absolutely necessary.
21 Furthermore, certain elements of the right to life unambiguously claim absolute validity. This applies, for example, to the prohibition of the death penalty. The concept of the death penalty refers to death sentences pronounced as a sanction in the course of criminal proceedings. These are absolutely prohibited within the Council of Europe (cf. n. 6), and their prohibition constitutes part of the core content of the right to life. In Switzerland, the prohibition of the death penalty also constitutes a material barrier to constitutional revision. The justification for this is the mandatory nature of the prohibition, which is sometimes also referred to in doctrine as "regional" mandatory international law or European ius cogens. It is therefore inadmissible to reintroduce the death penalty by way of constitutional revision. This prohibition would also have prevented the validation of the 2010 initiative (which had already failed at the collection stage) for the introduction of the "death penalty for murder with sexual abuse".
B. Mediated claims
1. Defence claims
22 The right to life guarantees a defensive claim against lethal state violence. This does not mean that every use of state force resulting in death is a violation of this right. Use of force by the police or military, including the use of firearms, is permissible under strict conditions, even if it involves a risk of death.
23 At federal level, the Use of Force Act (ZAG) sets out the principles of the permissible use of police coercion. Use of coercion is only permissible after special training and only to maintain or restore a lawful state of affairs and must be subject to a strict proportionality test. The use of weapons must always be an ultima ratio, which must meet the requirements of the warning call and shot. The Federal Supreme Court has concretised the applicable principles with reference to fugitives suspected of serious crimes. The use of firearms in these cases must always be appropriate and proportionate to the circumstances. This means that the fleeing person must be particularly dangerous or violent. These requirements are specified in more detail in the cantonal legislation. It follows that firearms may only be used to prevent flight if the fleeing person is armed or if he or she is suspected of a criminal offence that has injured or endangered other people to life, limb or health and if it is feared that this potential for violence will also be realised during the flight.
24 The requirements described in the previous paragraph also follow from Art. 2 ECHR (or from the corresponding case law of the ECtHR). The Convention states are required to have an appropriate (administrative) legal framework that describes the circumstances in which the use of force and especially firearms by law enforcement authorities is permissible. A proportionality test is required in each individual case, which must be based on the nature of the alleged offence and the dangerousness of the person concerned. Furthermore, national law must provide for a system of adequate and effective safeguards against arbitrariness, abuse of force and avoidable accidents in police operations.
25 Unlike the so-called "rescue torture" (see n. 71), the controversial so-called "final rescue shot" or "death shot" is considered permissible under certain circumstances in the case law. The issue here is intentional killing by the security forces. The case of the Chur amok shooter, in which the Cantonal Court of Graubünden acquitted the police commander responsible, is used here as a prime example. However, the criminal acquittal of the person involved does not necessarily mean that no fundamental or human rights violation has taken place. Such violations may have occurred, for example, due to an insufficient investigation or an inadequate legal framework. Requirements also apply to the planning of the operation in question. The security forces must be adequately informed and instructed so that sufficient account can be taken of the right to life of the persons concerned, because this is a serious interference with the right to life, which is only permissible as ultima ratio and in acute danger situations. Hertig Randall and Marquis rule out an abstract definition of when intentional killing by the security forces is permissible. This is not compatible with the philosophical orientation of this provision or its fundamental nature. On the other hand, they consider it permissible to deal abstractly with those situations in which force is permitted that could cause death. This view is convincing: it prevents a normalisation of killings and treats lethal force as ultima ratio.
26 According to Moeckli, the constellation of the rescue shot must be distinguished from the question of whether the provision regarding the use of weapons against aircraft in Art. 92a Military Code would permit the shooting down of a hijacked civilian aircraft (a so-called "renegade" flight). In such a case (so far theoretical in Switzerland), third parties would also be sacrificed, which means that the permissibility must be denied. Tschentscher agrees with this view, since the lives of passengers and crew members would otherwise become part of a "utilitarian calculation" that would not be compatible with human dignity. The Federal Council's message on Art. 92a of the Military Act is noteworthy in this regard. It states: "Such a shooting down of an aircraft not only violates the core content of the right to life (Art. 10 FC). A balancing of 'life against life', in which the state sacrifices people in order to possibly save a larger number of innocent people, at the same time degrades the aircraft passengers to objects of state action and thus also violates human dignity".
2. Positive duties to protect
27 The right to life also includes state duties to protect. According to these so-called positive obligations, the state must take preventive protective measures if there is a danger to human life. This obligation applies to all sources of danger. It includes, inter alia, threats by individuals (ECtHR, Osman v. United Kingdom, injury to a minor pupil and killing of his father by a former teacher), in the context of the health system (ECtHR, Lopes de Sousa Fernandes v. Portugal, death of a patient as a result of medical negligence following an operation), in institutional settings (ECtHR, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, death of a severely mentally disabled and HIV-positive young Roma man in state custody) or by natural disasters (ECtHR, Budayeva and others v. Russia, failure of the authorities to implement the necessary protective measures in the face of the foreseeable risk of a deadly mudslide).
28 This obligation has limits: The state is "neither obliged nor able to wholly prevent acts of violence among private persons." This is a state duty to act, i.e. a duty to take action, and not a duty to effectively achieve a certain result. Moreover, not every conceivable danger to life can oblige the state to take action. Furthermore, the authorities have discretion in the choice of concrete measures and the assessment is based on the circumstances of the individual case. Moreover, Art. 10 para. 1 FC does not rule out the possibility that fundamental rights holders who are capable of acting and are fully informed may voluntarily consent to risks to life or health, for example to high-risk medical interventions.
29 The state's duties to protect become applicable as soon as the authorities know or should have known that there is a real and imminent risk to the life of specific (or identified) persons due to criminal acts of third parties. If such a risk exists, the authorities must take those measures within the scope of their powers that can reasonably be expected to lead to the avoidance of the risk. This also means that the state must establish an appropriate regulatory framework and take preventive operational measures to protect the right to life. Art. 2 ECHR also imposes requirements on state risk analyses, requires contextual engagement and sets minimum requirements for the protection of vulnerable persons in particular. Vulnerable persons are, for example, detainees or victims of domestic violence. These preventive protection requirements go hand in hand with state obligations to investigate (see below).
30 Currently, with regard to the effects of climate change, there is increasing reference to the duties to protect contained in the right to life. In the KlimaSeniorinnen case, the Federal Supreme Court found that the complainants' right to life was not yet threatened by the alleged omissions in climate policy to such an extent that it could be said to be sufficiently affected within the meaning of Art. 25a VwVG. The question of the state's duty to protect older women who are particularly at risk from heat waves was brought before the ECtHR. The ECtHR has already applied the duties to protect with regard to the right to life (Art. 2 ECHR) and the right to physical and mental integrity (Art. 8 ECHR) in previous environmental law cases, e.g. with regard to industrial disasters. Complex questions arise here, including causality, attribution to the state, the extraterritorial application of fundamental and human rights, and the evidence regarding the immediacy of the danger. However, there are more and more voices that see the health consequences of climate change and the effects of the resulting natural disasters as a violation of the right to life. This opinion is also held here because of the serious and irreversible risks to human life that arise in this regard. However, the UN Human Rights Committee, which made the first international climate decisions in this context, placed high demands on the immediacy of the danger. For example, this Committee placed a high burden of proof on the complainant in the Teitiota case (which concerned the possible climate-related displacement of the complainant from the Pacific island nation of Kiribati). At the same time, the Committee has recognised in principle that serious environmental damage can affect the right to life. This was confirmed in the 2022 case of Billy v. Australia. Here too, however, the Committee came to the controversial conclusion that there was not yet a sufficiently urgent threat to the complainants' lives. The climate cases pending before the ECtHR may reveal whether the Court will find a violation of the right to life or the lower-level right to private and family life (Art. 8 ECHR); these cases are likely to set the course for subsequent climate cases - and thus for the corresponding interpretation of the right to life.
31 The right to life is also currently relevant in the context of pandemics and epidemics. In this context, too, state measures to protect life may be necessary. In the context of the COVID-19 pandemic, for example, Kiener and Moeckli argued that the right to life and the right to bodily integrity obligate the state to protect the population - and especially vulnerable persons - from the virus and to prevent the overloading of the health care system. However, the proportionality of the fundamental rights implications of the protective measures taken accordingly is assessed differently in the doctrine. According to Moeckli, this is an "almost textbook example of a fundamental rights collision" between the rights to freedom and the right to life and physical integrity.
32 The right to life does not include a duty to live. The state's duty to protect under Art. 10 para. 1 FC finds its limits in the right to self-determination; the right to personal freedom (Art. 10 para. 2 FC) thus also protects a right to die or to suicide. At the same time, however, the state is obliged to protect vulnerable persons from life-threatening risks emanating from themselves. This means that the authorities are obliged to prevent suicides if the decision to do so was not taken freely and in full knowledge of the consequences. Suicides for which consent has not been given clearly and with the capacity to judge, as well as public suicides that could affect third parties, are to be prevented by the state.
33 Incarcerated persons who are capable of judgement also have the right to self-determined death. Imprisonment establishes a special status relationship in which special duties of protection and care on the part of the state apply. If detainees attempt to take their own lives out of despair over their imprisonment - and not on the basis of autonomous motives for action - the duty to protect applies. This duty to protect is particularly acute in the case of vulnerable detainees. In the case of S.F. v. Switzerland, for example, the ECtHR found a violation of the right to life (Art. 2 ECHR) after a vulnerable detainee had been held in a police cell for forty minutes without supervision and had taken his own life during this time. If, on the other hand, an incarcerated person with the capacity to judge decides to take his or her own life for reasons of self-determination, there are indications in the case law of the Federal Supreme Court that correctional institutions - like any other non-profit, state-subsidised institution - must tolerate assisted suicide on their premises, although they do not have to provide actual euthanasia. Some scholars argue that the right to die could compete with various public interests that could temporarily outweigh the right to self-determination. Urwyler and Noll, for example, warn that assisted suicide could be perceived as a disguised death penalty for prisoners who are tired of being in prison. They advocate a division into two groups of cases. Terminally ill prisoners should have access to assisted suicide under the same conditions as the general population; this view is also held here. On the other hand, in the case of detainees whose wish to die is related to the psychological effects of deprivation of liberty, barring periods, sufficient therapeutic care and strict procedural conditions should come into play. The view here is that the state's special duties to protect vulnerable detainees - but not the idea of atonement or the purpose of punishment - must be decisive in this context.
34 Special questions arise in connection with detainees on hunger strike. In the case of persons incapable of judgement, measures such as force-feeding can be carried out in order to protect their life or health. According to the case law of the Federal Supreme Court, however, force-feeding may also be necessary in the case of convinced hunger strikers who have the capacity to judge. Some scholars are vehemently critical of this case law because it disregards the will of the hunger strikers. However, the ECtHR has deemed the force-feeding of hunger strikers who are capable of judgement to be permissible under certain conditions. It requires that the force-feeding is medically necessary, that the relevant procedural guarantees are respected and that the type of force-feeding does not violate Article 3 of the ECHR. At the same time, according to recent case law, there is no state obligation to force-feed if the persons concerned carry out their hunger strike of their own free will and are sufficiently informed about the risks and the available forms of treatment.
35 Unlike active euthanasia, assisted suicide (or "passive euthanasia") is unpunishable in Switzerland - provided there are no "selfish motives" (Art. 115 StGB). The regulatory gaps in this area, especially for organised assisted suicide by assisted suicide organisations and for those willing to die without terminal illnesses, must be critically assessed. A chamber of the ECtHR criticised this situation as early as 2013 in the Gross case. The corresponding judgement was overturned by the Grand Chamber because the complainant's death in the meantime had been concealed from the Court, which was considered an abuse of the right of individual appeal. In general, the ECtHR has held that the ECHR does not guarantee a right to euthanasia.
3. Obligations to investigate
36 The right to life obliges the state to ensure the effective investigation and prosecution of homicides. To protect this right, the state must respond to suspicions that an unlawful killing has taken place. In the criminal law context, this duty to investigate means that if there is a suspicion that a violation of the prohibition of killing has occurred, there is an obligation to prosecute.
37 The ECHR places high demands on domestic investigation in this context. Originally formulated for deaths under state violence, these obligations now also apply to other situations where a person suffers life-threatening injuries or dies or disappears in violent or suspicious circumstances. What is required is an ex officio investigation, which must be independent. This investigation must be capable of (a) determining whether the violence in question was justified, (b) identifying those responsible, and (c) leading to punishment, if appropriate. The authorities must take all proportionate steps to secure evidence and their conclusions must be based on a full, objective and impartial analysis of all relevant elements. Furthermore, the investigation must be accessible to the victim's family to the extent necessary to safeguard their interests. If the events in question are wholly or largely within the control of the authorities, e.g. because the person concerned was deprived of liberty at the relevant time, the burden of proof is reversed. In such cases, the authorities are required to provide an explanation for injuries and deaths that occurred in custody.
38 The state's investigative duties generally require action and do not constitute a duty to achieve a certain result or conviction. Furthermore, the duty to prosecute and punish does not apply absolutely. For factual reasons, such as state or criminal policy interests, it can also be waived. For example, amnesty laws may be permissible for special reasons, even if they result in homicides going unpunished.
39 According to the case law of the Federal Supreme Court, in the case of unintentional homicide or negligent endangerment of life by the authorities, it is sufficient if the victims or their relatives do not have a criminal procedure at their disposal, but an administrative procedure. Such proceedings must be able to establish possible state liability and be able to award appropriate compensation. According to the case law of the ECtHR, non-criminal proceedings can also satisfy the investigative obligations under Art. 2 ECHR. This approach is welcome insofar as it creates convincing alternatives to a human rights "sentencing culture" that favours criminal law as a means of human rights protection. In Switzerland, however, this has the unfortunate effect of denying private plaintiffs the legitimacy to appeal in criminal cases in the context of criminal proceedings against public officials, according to the "Star Practice" of the Federal Supreme Court.
4. The prohibition of the death penalty
40 As explained above under n. 6, the prohibition of the death penalty is considered mandatory regional international law.
41 The prohibition of the death penalty also includes a prohibition on extradition or deportation to third countries where there is a possibility that the death penalty could be sought, pronounced or imposed. If there are sufficient indications (according to the Federal Supreme Court, "toute risque" is sufficient; according to the ECHR, there must be a "real risk") that the person concerned could be threatened with the death penalty, e.g. after extradition within the framework of international cooperation in criminal matters, he or she may not be extradited. Extradition or deportation is only possible once an assurance has been obtained that the death penalty will not be requested, pronounced or imposed on the person concerned. A similar regulation applies in the context of the prohibition of torture: the non-refoulement principle prohibits deportation to states where there is a threat of torture or any other kind of cruel and inhuman treatment or punishment. These two prohibitions overlap in that waiting to implement a death sentence may constitute a violation of the prohibition on torture.
V. Paragraph 2: The right to personal liberty
A. Fundamentals
42 The right to personal liberty constitutes "the fundamental right of freedom" and a "basic guarantee for the protection of personality" even after its codification in Article 10 para. 2 FC and the inclusion of certain partial aspects of this right in other constitutional provisions. This right is intended to guarantee legal entities a minimum of personal development opportunities and thus constitutes "the fundamental right of freedom" according to Federal Supreme Court case law. This protects the conditions for the effective exercise of other freedoms.
43 Art. 10 para. 2 FC explicitly names three protected sub-areas of personal freedom: physical integrity, mental integrity and freedom of movement. However, this list is not exhaustive. Art. 10 para. 2 FC, as a catch-all fundamental right, also includes all other elementary freedoms that are necessary for the development of the personality and the protection of human dignity. The scope of protection of personal freedom is delimited on the basis of the circumstances of the individual case and the nature and intensity of the impairment. The Federal Supreme Court thus defines the individual components of personal freedom on a case-by-case basis, applying a de minimis proviso that limits the applicability of this provision to elementary aspects of the development of personality. This means that in Switzerland "not every human choice or activity, no matter how marginal", is protected; Art. 10 para. 2 does not offer fundamental rights protection of a "general freedom of action" that can be invoked against every state act that affects the personal development of life. Nor does personal freedom "protect against any physical or psychological discomfort". In this sense, the Federal Supreme Court has excluded, for example, the bans on windsurfing on Lake Sihl or on navigating a part of Lake Zurich from the scope of protection of personal freedom.
44 Certain elements of the former, unwritten protection of personal freedom were not codified in Art. 10 FC, but in other constitutional provisions. Thus, overlaps may occur between Art. 10 FC and Art. 11 FC (protection of children and adolescents), Art. 13 FC (protection of privacy), Art. 7 FC (human dignity) or Art. 31 FC (procedural guarantees in the case of deprivation of liberty). According to Schweizer, Art. 10 para. 2 FC plays the role of a (subsidiary) catch-all fundamental right. According to Biaggini, however, this should not mean that this provision is completely displaced if there is competition between fundamental rights. In this sense, Baumann disputes the subsidiarity of the partial rights explicitly mentioned in Art. 10 para. 2 FC. With regard to the delimitation of Art. 10 para. 2 and Art. 13 para. 1 FC, the Federal Court has acknowledged that a clear separation of the areas of protection is difficult and that the doctrine "does not strive for a clear delimitation". At the same time, it has emphasised that Art. 10 para. 2 FC "concerns more directly the integrity of the individual in its various manifestations" than does the protection of privacy in Art. 13 para. 1 FC. In recent case law regarding the acquisition and disclosure of personal data, the Federal Supreme Court has omitted to draw a precise line of demarcation and has instead held that the two areas of protection overlap.
45 The Federal Court left open the demarcation between Art. 10 para. 2 FC and the protection of the integrity of children and adolescents under Art. 11 FC. What is clear is that these two provisions overlap and that the enshrinement in fundamental law of the protection of the integrity of children and adolescents is intended to declare this concern to be of constitutional priority. Accordingly, Art. 11 FC contains a "specification on personal freedom" which places particular emphasis on the best interests of the child and can influence the assessment of the intensity or proportionality of an encroachment on fundamental rights (Art. 36 para. 1 and 3 FC).
46 The system of the ECHR is structured differently. There, Art. 8 ECHR (protection of private and family life), the counterpart to Art. 13 FC, includes the protection of physical and bodily integrity in the protection of private life. In the context of the ECHR, the protection of private and family life plays the role of the catch-all fundamental right vis-à-vis various Convention rights, e.g. Art. 2 ECHR (right to life) and Art. 12 ECHR (right to marriage).
B. Substantive scope of protection
1. Right to bodily integrity
47 The right to bodily integrity (or physical integrity) is a central element of human dignity and fundamentally protects the human body from any interference. In order to be covered by Art. 10 para. 2 FC, physical impacts do not have to reach a minimum level of harm or pain. As Malinverni, Hottelier, Hertig Randall and Flückiger rightly point out, no state action on the body is conceivable that does not affect personal freedom in some way. Even painless or medically justified interventions thus encroach on personal freedom, whereby the consent of the person concerned plays a central role in the assessment of conformity with fundamental rights (see below).
48 According to Hertig Randall and Marquis, the term "body" also includes objects that are attached to the body, such as prostheses. Clothing, on the other hand, does not constitute part of the body and it is disputed in the doctrine whether the palpation of the body is covered by clothing. The view here is that such touching must also fall within the scope of protection of Art. 10 para. 2 FC, and not only if it concerns the intimate area. The same must apply to contacts with gloves, for example, if the protection of bodily integrity is not to be undermined. Finally, there is no minimum threshold in this context with regard to the nature or intensity of the contact.
49 According to the case law of the Federal Supreme Court, the scope of protection of the right to bodily integrity includes state measures such as blood sampling, compulsory vaccinations, fluoridation of tap water, compulsory feeding, cheek swabs to record DNA profiles, compulsory shaving, the taking of fingerprints or photographs and also the removal of a few hairs from the head for the purpose of drug or alcohol testing. On the other hand, the Federal Supreme Court left open the question of whether ordering a urine sample falls within the scope of protection of personal freedom, since this measure merely obliges the person concerned to "hand over a small amount of a substance excreted by the body anyway for examination". Some scholars argue that such measures must also fall within the scope of protection of Article 10 para. 2 FC, since they circumvent the self-determined will of the person concerned. This opinion is again supported by the fact that no minimum level of damage or infliction of pain is required for the right to physical integrity to be affected. At the same time, it should be noted that there are overlaps here with the protection of informational self-determination as a partial content of Art. 13 para. 2 FC when it comes to the information obtained by means of the urine sample.
50 According to Schweizer, annoying but non-contacting impacts, such as those caused by noise or smoke, are also covered by the protection of bodily integrity. Actual contact with the human body is not required for this, which means that environmental impairments such as smoke or noise emissions can also fall within the scope of protection of Art. 10 para. 2 FC. Tschentscher makes a slightly different distinction: he argues that any touching already falls within the scope of protection of the right to bodily integrity; in contrast, non-contact measures such as photographs would fall under the protection of privacy under Article 13 FC.
51 According to the case law of the Federal Supreme Court, slight interferences with bodily integrity in which no pain or injury is inflicted (cf. n. 47 - no minimum degree of harm or pain) can at the same time constitute serious interferences with informational self-determination as a partial content of Art. 13 para. 2 FC. This applies, for example, to the taking of a cheek swab or the taking of fingerprints. The Federal Supreme Court has recognised this, taking into account the "control potential" of DNA profiles.
52 Important for the assessment of medical interventions such as a blood sample is whether the consent of the person concerned has been obtained. In order for consent to be valid, patients must have received complete and comprehensible information about the decision in question and about their personal situation. If consent is not obtained, there is always a serious interference with personal freedom.
53 In the case of compulsory medical treatment, such as compulsory vaccinations, compulsory dental examinations or compulsory X-rays, physical integrity is always impaired in principle. This also applies if the treatment is intended to restore physical or mental integrity. Patients have a right to be fully informed about medical interventions and must be able to freely decide for themselves whether they wish to undergo treatment. Patients who are incapable of acting also have this right, provided they have the capacity to judge the treatment in question. The will of minors capable of judgement must also be respected in this context.
54 In the context of the COVID-19 pandemic, the admissibility of a general vaccination obligation under fundamental rights was discussed. A distinction must be made between disproportionate compulsory vaccinations enforced by physical coercion, permissible vaccination recommendations and possibly permissible compulsory vaccinations. Since compulsory vaccination constitutes an interference with personal freedom under Article 10 para. 2 FC, it must meet the requirements of Article 36 FC. The ECtHR also takes the view that compulsory vaccination can be justified in order to guarantee the protection of the health of the population and in particular of vulnerable persons; states enjoy a wide margin of discretion in health matters.
55 In the case of incapacitated patients, medical interventions may only be made with the consent of the legal representative and for the "direct benefit" of the person concerned. Thus, with regard to persons with severe mental disorders, interventions may also be carried out without their consent if the treatment is necessary to prevent serious harm to health and sufficient supervisory measures are taken. In the case of certain forms of intervention on patients who lack capacity, however, the question arises as to whether bodily self-determination constitutes a right that is absolutely supreme and thus hostile to representation. One can think here, for example, of genital operations on intersexual children. In this regard, the argument that such interventions may only take place when the child, in terms of age, could reasonably share responsibility for the decision, is convincing.
56 The right to self-determination with regard to bodily integrity includes the right to reproductive self-determination (see n. 75) and protects, inter alia, the rights of trans* and non-binary persons. Art. 8 ECHR is violated if the legal recognition of the name and gender of trans* persons requires that the person concerned has undergone certain surgical interventions. The Swiss courts were partly ahead of this relatively recent and welcome development of Strasbourg jurisprudence; however, a corresponding amendment to the Civil Code came later. Art. 8 ECHR is equally violated if gender reassignment surgery is made conditional on the final sterilisation of the person concerned.
57 The right to bodily self-determination refers not only to medically necessary interventions, but also to voluntary and aesthetic interventions such as tattoos, piercings or blood donations. Accordingly, prohibitions of such interventions constitute restrictions on the right to bodily integrity. Here, too, the importance of the consent of the persons concerned to bodily interventions emerges. Thus, involuntary interventions of this kind are likely to constitute a violation of Article 10(3) FC.
2. Freedom of movement
58 Also described as the "droit d'aller et de venir", freedom of movement - analogous to Art. 31 FC, Art. 5 ECHR, and Art. 9 and 11 UN Covenant II - primarily protects against unjustified restrictions on liberty and deprivations of liberty. This spatial aspect represents the oldest partial content of the right to personal freedom, and its origins can be traced back to the Magna Charta (1215). The distinction between deprivations of liberty and mere restrictions on freedom of movement is crucial in this context, as various procedural rights come into play in the case of deprivations of liberty.
59 Deprivation of liberty is understood as any state measure "by which someone is detained against or without his will in a specific, limited place for [a] certain duration". Various criteria are taken into account, including the manner in which the measure is carried out, the duration, extent and intensity of the measure and its effects on the person concerned. This definition applies to arrests, the penal system, detention and inpatient therapy measures, administrative detention (under aliens law) and compulsory institutionalisation. Asylum seekers who are detained for days in the transit area of an airport are also deprived of their liberty.
60 Art. 5 ECHR contains an exhaustive list of permissible grounds for deprivation of liberty. In order to prevent arbitrary state action, these grounds are to be interpreted narrowly. The starting point for the independent and gradual distinction between deprivations of liberty and restrictions of liberty under the Convention are the circumstances of the individual case. In order to distinguish deprivation of liberty from restriction of liberty, the ECtHR and the Federal Supreme Court take into account a number of factors, such as the nature, duration, effects and implementation modalities of the measure in question.
61 House arrest under Art. 23o of the Federal Act on Measures to Safeguard Internal Security (BWIS) is the subject of discussion in this context. This provision is applicable to so-called "terrorist threats" according to Art. 23e para. 1 BWIS, i.e. to persons for whom "it must be assumed on the basis of concrete and current indications that he or she [will] engage in terrorist activity". The legislative authorities were at pains to distinguish this provision from preventive detention or deprivation of liberty. Nevertheless, these measures are likely to be a deprivation of liberty and not a mere restriction of liberty. Thus, the corresponding procedural guarantees are also applicable in this context. This view is in line with the case law of the ECtHR, according to which house arrest (considered in terms of its extent and intensity) is considered a deprivation of liberty within the meaning of Art. 5 ECHR. It is also highly questionable whether a corresponding deprivation of liberty could be implemented in conformity with the ECHR. Art. 5 para. 1 lit. c ECHR allows for preventive deprivations of liberty, but according to the ECtHR this "does not permit a general policy of prevention against persons perceived by the authorities as dangerous (...)". The purpose of this provision is to prevent specific offences, and accordingly the deprivation of liberty may not last longer than a few hours.
62 Deprivation of liberty is always a serious interference with personal freedom and requires valid reasons. Accordingly, deprivations of liberty are only permissible as ultima ratio if no milder measure is available. This applies in particular to minors. Furthermore, such a measure must be provided for in a law in the formal sense pursuant to Art. 36 para. 1 sentence 2 FC. According to the ECtHR, an analogous application of legal provisions cannot close a legal loophole in this context. This applies at least if there is no established case law that can ensure legal certainty and protect against arbitrariness.
63 The procedural rights from Art. 31 FC, Art. 5 ECHR and Art. 9 UN Covenant II are always applicable to persons deprived of their liberty. Among other things, the reservation of the right to the law and the reservation of the right to a judge from Art. 31 para. 1 and 3 FC apply. Furthermore, the prohibition of torture pursuant to Art. 10 para. 3 FC, Art. 5 ECHR and Art. 7 UN Covenant II also provides protection against inhumane forms of treatment and punishment when deprived of liberty.
64 Restrictions on freedom of movement that do not amount to a deprivation of liberty (as per n. 59) may constitute a restriction of liberty. This term is applicable to restrictions of very short duration. In case law, placement in a cell for four hours is already regarded as a deprivation of liberty, whereas in the criminal law practice of the Federal Supreme Court, a deprivation of liberty requiring compensation can already exist after three hours. Switzerland has not ratified the 4th Additional Protocol to the ECHR, which protects freedom of movement.
65 A restriction of liberty can take different forms. This term includes, for example, measures of expulsion and detention, such as bans on entering a certain area, short-term police detentions or conditions under aliens law not to enter or leave a certain area. Alternatives to detention, such as the withdrawal of identity papers as a substitute measure for pre-trial detention, can also restrict freedom of movement. Questions also arise in the context of the implementation of UN sanctions, whose prohibitions on entry and exit can result in restrictions on freedom of movement.
66 An illustration of the distinction between deprivations of liberty and restrictions of liberty is a Federal Court ruling concerning the two-and-a-half-hour encirclement of May Day demonstrators. The Federal Court did not consider this encirclement alone to be a deprivation of liberty. On the other hand, when looking at it as a whole, together with the subsequent three-and-a-half-hour security police check in the police barracks, the threshold for deprivation of liberty was considered to have been reached.
67 For the distinction between a lawful and an unlawful interference with liberty, the consent of the person concerned can play a role. In analogy to consent under Art. 183 SCC, it is assumed that the person concerned has voluntarily consented to the intensity and duration of the measure. This can also be implicit. According to Baumann, anyone who participates in road traffic consents to the possibility of being stuck in a traffic jam. Likewise, a distinction must be made between a voluntarily undertaken flight and a prisoner transport via plane: Although the plane cannot be left during the flight in both cases, only the latter constitutes a deprivation of liberty.
68 In addition to protection against unjustified deprivations of liberty and restrictions of liberty, i.e. the "liberté d'aller et de venir", Art. 10 para. 2 FC also protects a more extensive "liberté de mouvement". Freedom of movement protects the ability to "reach a place accessible to the public on a public road by means of public transport". A minimum intensity threshold applies here. Thus, not every minimal restriction on coming, going or driving constitutes an interference with freedom of movement. Biaggini cites speed controls, for example, as an example of a restriction that does not reach the required intensity. A ban on navigation on certain parts of the lake also does not affect freedom of movement, since personal freedom does not guarantee the right "to navigate any lake at any point". The Federal Supreme Court took a similar view of a ban on staying at Bern railway station, which prohibited certain groups of people from collectively consuming alcohol at this location; here, it was not individual freedom of movement or access to trains that was affected, but the formation of groups, which is why freedom of assembly under Article 22 FC applied.
69 Freedom of movement finds its limits in the freedoms of others, in particular their right to property and to protection of their privacy. Nor does freedom of movement guarantee a right of access to certain public buildings, for example in the sense of a right to visit prisons. If freedom of movement were to guarantee a "right to linger", or a right to "move or linger at any time in any publicly accessible place", it would come too close to a general freedom of action. According to Baumann, however, freedom of movement guarantees a minimum amount of physical movement, which is particularly relevant for detainees. Here, freedom of movement overlaps with Art. 3 ECHR. However, this is not to say that freedom of movement protects a right to prison leave.
70 Freedom of movement has particular relevance for persons with physical disabilities. According to Kaufmann and Senn, physical, structural, mechanical or medical measures may particularly affect the freedom of movement of these persons. Freedom of movement can thus also include access to assistive devices such as wheelchairs. However, this right is only applicable if the corresponding aid is necessary for the exercise of freedom of movement and does not protect a general right to use certain vehicles and other aids.
71 Freedom of movement also includes various other guarantees. The freedom to choose one's own place of residence and stay is a specific form of freedom of movement, which is concretised in Art. 24 FC (freedom of establishment). The freedom of movement and the guarantee of human dignity in Art. 7 FC give rise to the prohibition of the contract of debt. The effects of life-long detention on the right to personal freedom, which in this context may overlap with the protection of Art. 10 para. 3 FC, are also disputed.
3. Right to mental integrity, self-determination and personal development
72 Personal freedom protects not only physical integrity and freedom of movement, but also mental integrity, which includes the right to self-determination, personal development and individual life. What is protected here is the right to self-organisation of the essential aspects of one's own life or, in other words, individual consciousness and the formation of one's will, i.e. the ability "to appreciate a certain actual occurrence and to act accordingly".
73 According to previous Federal Court jurisprudence, every person had the freedom "to decide on his way of life, in particular to organise his leisure time, to establish relationships with his fellow human beings and to acquire knowledge of what is happening in his immediate and wider environment." As Biaggini rightly points out, this paraphrase threatened to amount to a general freedom of action. Since 1975, the scope of protection of this right has been narrowed. Thus, the Federal Supreme Court specifies that personal freedom does not protect every decision regarding the personal organisation of life, but only "elementary possibilities which are essential for the development of personality and to which every person should be entitled". This right thus does not encompass every incidental choice or activity, nor does it exclude all discomfort. Unlike bodily integrity, Hertig Randall and Marquis apply a minimum intensity threshold in this context. At the same time, Häfelin, Haller, Keller and Thurnherr take the view that the factual scope of protection of personal freedom should be understood rather broadly, with the severity of the affectedness subsequently having to be included in the proportionality test (Art. 36 para. 3 FC). In view of the role of Art. 10 para. 2 FC as a catch-all fundamental right, this opinion is to be agreed with; according to the view represented here, a minimum threshold of impairment must be reached in the scope of application of Art. 10 para. 3 FC.
74 The delimitation of the scope of protection of this right results from extensive casuistry. It is recognised today that, for example, reproductive self-determination, begging, the right to determine the fate of one's own body during one's lifetime and the right to know one's own parentage fall within the scope of protection of personal freedom. The confiscation of a pet with which the owner has a close emotional relationship may also fall within the scope of protection. The right to personal development, which requires the opportunity to participate in social life and to establish interpersonal relationships, is also protected. Doctrine also includes health needs and sexual development among the fundamental aspects of this right. According to the Federal Supreme Court, "the physical and psychological development appropriate to a child" is also part of Article 10 FC, although in practice problems of demarcation from Article 11 FC (protection of children and young people) are likely to arise here. Furthermore, individuals enjoy the freedom to shape their appearance, e.g. by choosing clothing as they see fit. Whether this also results in a right to be naked in public or to walk naked was left open by the Federal Supreme Court. Both the general obligation to wear a medical mouth mask and the obligation to carry an identity card constitute encroachments on this right. However, these encroachments can be justified according to the requirements of Art. 36 FC, for example to prevent violence at sporting events or to limit the spread of the COVID-19 virus.
75 So-called "racial profiling", in which an identity check is carried out without objective reason and on the basis of external characteristics, such as the ascribed race or ethnicity, violates personal freedom, among other things. Possible racial motivations for identity checks must be adequately investigated.
76 Certain activities are excluded from the scope of protection of personal freedom. Not elementary for the development of personality and thus not protected are the right to play with slot machines for money, the right to consume narcotics or the right to keep dogs of a certain breed. The right to acquire weapons is also not protected. It is also questionable whether smoking in public places falls within the scope of protection of this right; the Federal Supreme Court does not consider it possible to answer this question in the abstract, but has stated that "il est douteux que le fait de fumer ressortisse de la liberté personnelle".
77 Art. 10 para. 2 FC plays a central role for reproductive self-determination. The desire of every person to decide freely whether they want to have children, and when and how many children they want to have, is protected. It protects a right of access to methods of artificial reproduction as well as to contraception, abortion and voluntary sterilisation. According to the Federal Supreme Court, an obligation to have an abortion would violate the core content of Art. 10 para. 2 FC and in this context pregnant women have the right to "decide themselves - freely - on an abortion". However, in view of the legally provided time limit solution and the punishability of an abortion after this time limit (n. 17), this does not mean that decisions in this area can be made self-determined at any time. Forced sterilisation - e.g. because of a mental disability or as a prerequisite for recognition of the gender identity of trans* persons - cannot be reconciled with the protection of personal freedom either. With regard to artificial procreation, this right is relativised by the fact that the state is not obliged to create corresponding offers and that Art. 119 para. 2 FC prohibits certain techniques - in particular embryo donation and surrogate motherhood.
78 Art. 10 para. 2 FC is also of central importance for persons willing to die. As explained above (n. 35), assisted suicide (or "passive euthanasia") is unpunished in Switzerland as long as there are no selfish motives. The actual will to end one's own life is an elementary phenomenon of personality and the corresponding decision of a highly personal nature. Accordingly, (attempted) suicide must remain unpunished. At the same time, there is a tension between the right to self-determined dying and the state's duty to protect the right to life pursuant to Art. 10 para. 1 FC. This conflict is resolved on the basis of the principle of self-determination, according to which the state's duty to protect is complied with if certain requirements for the formation of the will of those willing to die are met. To this end, the state must ensure that the person concerned is capable of judgement and has an independent and lasting wish to die that has arisen without pressure from third parties. The ECtHR has also recognised the right to decide on the time and manner of one's own end of life. However, the Court places the protection of vulnerable persons in particular in the foreground, which can mean that the state forces those who wish to die to continue living.
79 Compulsory medical treatment also constitutes a serious interference with personal freedom. In this regard, a balance must be struck between personal freedom and the state's duty of care, which arises from Article 12 FC (right to assistance in emergencies) and Article 7 FC (protection of human dignity). The boundary between state care and self-determination must be determined in each individual case and on the basis of a comprehensive weighing of interests.
80 Art. 10 para. 2 FC also plays an important role in the use of technical surveillance devices. Identification measures and the storage of the corresponding data can affect the right to informational self-determination. This right arises from Art. 10 para. 2 FC and Art. 13 FC, whose areas of protection overlap in this respect. According to the Federal Supreme Court, Art. 13 para. 2 FC is primarily relevant for the retention of identification data. However, Art. 10 para. 2 FC is also applicable and requires in this context that every person must be able to determine the processing and storage of their personal data by third parties. However, if technical surveillance devices are used in a proportionate manner, under judicial control and in compliance with the obligation to provide subsequent notification, the corresponding encroachment on the protected area of personal freedom can be justified.
81 The situation is different if statements are elicited from a person against his or her will or by circumventing his or her will, or if the formation of his or her will is completely eliminated. Such measures violate the core content of the right to mental integrity, namely "the mental space of the human being". This protection is of particular importance in the context of police custody. State interrogation methods that impair the consciousness of the witness, such as narcoanalysis and truth serums, are excluded, for example. The use of lie detectors also violates the core content of this right. Such methods may not be used even in exceptional cases, e.g. to combat terrorism.
C. Mediated claims
82 According to the constitutional legislator, the right to personal freedom is predominantly a defensive right. Accordingly, claims to state benefits only arise if there is a special relationship between the person concerned and the state, for example in the context of a deprivation of liberty. The right to personal freedom thus does not establish a general right of access to the necessary means to realise this freedom. For example, individuals have a right to reproductive self-determination; however, the state is not obliged to provide corresponding reproductive medical services. The ECtHR also held in the Haas case that Art. 8 ECHR was not violated if a person willing to die was not provided with over-the-counter access to a lethal dose of the drug sodium pentobarbital.
83 Like the right to life, the right to personal liberty includes a right to preventive state protection measures in the event of a serious and concrete threat from third parties. This means that the legal system must provide protection against violence between private individuals. The state's obligations to investigate and prosecute under Articles 3 and 8 ECHR are applicable to serious allegations of ill-treatment that may reach the threshold of inhuman or degrading treatment.
D. Restrictions
84 Like other freedoms, the right to personal liberty may be restricted in accordance with the requirements of Art. 36 FC. Severe interference - e.g. in the case of deprivation of liberty or forced medication - must be based on a law in the formal sense (Art. 36 para. 1 FC). Furthermore, interventions in this right must be proportionate, which means, for example, in the context of detention, that restrictions may not go beyond "what is necessary to guarantee the purpose of detention and to maintain the proper operation of an institution".
85 In previous case law, the right to personal liberty was circumscribed as an "inalienable and indispensable constitutional right". This description made it possible to sue for the unconstitutionality of decisions that seriously violated fundamental rights at any stage of the proceedings; however, it was only applicable to an exhaustive catalogue of fundamental rights. Today, this is no longer based on an exhaustive list of rights, but on the seriousness of the violations of fundamental rights at issue.
VI. Paragraph 3: The prohibition of torture
A. Foundations
86 Art. 10 para. 3 FC contains one of the most fundamental values of a democratic society: the prohibition of torture and cruel, inhuman or degrading treatment or punishment. This prohibition - like Art. 3 ECHR, Art. 7 UN Covenant II and the UN Convention against Torture - offers absolute protection, which may not be relativised even under exceptional circumstances. This provision thus standardises various core elements of physical and mental integrity. It also covers forms of treatment that are often discussed in the context of Art. 10 para. 2 FC, such as forced sterilisation, forced medication, or the use of lie detectors.
87 The prohibition of torture serves to protect human dignity, as set out in Art. 7 FC. This prohibition is part of mandatory international law (ius cogens), which means that it can play a role in the validity of popular initiatives and in the context of constitutional revision. For example, the so-called "enforcement initiative" was declared partially invalid by the Federal Assembly in 2013 because it contained too narrow a definition of mandatory international law. Due to the absolute nature of the prohibition of torture, encroachments on its scope of protection can never be justified. Thus, no one, not even e.g. terrorism suspects, may be subjected to such treatment. Accordingly, so-called "rescue torture" is prohibited for the protection of third parties.
88 The prohibition of torture and cruel, inhuman or degrading treatment or punishment has been codified in various provisions of national and international law. The interpretation of these terms is sometimes controversial; individual states seek to minimise their obligations in this regard. There is a basic convergence between the various regional and international instruments.
B. Scope
89 Article 10 para. 3 FC covers impacts that reach a minimum level of severity and involve intense physical or psychological suffering or physical injury. The situation is different with regard to the protection of bodily integrity pursuant to Art. 10 para. 2 FC, where no such minimum degree is required (n. 47). The threshold of Art. 10 para. 3 FC depends on the entire circumstances of the individual case and relates in particular to the duration of the treatment, its physical and psychological effects and the characteristics of the person concerned (e.g. his or her sex, age and state of health and other vulnerabilities). The purpose of the treatment and the underlying intention or motivation for it, as well as the context in which it occurs, must also be taken into account. Cruel, inhuman or degrading state action in any form ("treatment or punishment") is prohibited, although not every conceivable unpleasantness falls under this provision. Furthermore, the concepts of treatment and punishment are not always clearly distinguished in practice.
90 The concept of torture under Art. 10 para. 3 FC is distinguished from "inhuman", "cruel" and "degrading" treatment or punishment. Neither the FC, the ECHR nor the UN Covenant II contain a definition of torture, which is why in practice the four-part definition in Art. 1 para. 1 of the UN Convention against Torture can be used. This includes acts that (i) cause "great bodily or mental pain or suffering"; (ii) are inflicted intentionally; (iii) have a proscribed purpose, e.g. are aimed at obtaining a confession, punishing or discriminating against the person concerned, or intimidating or coercing him or a third party; and (iv) are inflicted or tolerated by a state official. Explicitly excluded from the definition of torture is pain or suffering associated with lawful sanctions. This so-called "lawful sanctions clause" is to be interpreted narrowly; it cannot legitimise corporal punishment or violations of minimum conditions of detention. This clause is intended to preclude detention per se from being described as torture because of the suffering necessarily involved.
91 Forms of treatment that meet the cumulative requirements of Art. 1 para. 1 of the UN Convention against Torture fall under the formal concept of torture (here: torture in the strict sense). This concept needs to be delimited, among other things, because of the tendency to refer to Art. 10 para. 3 FC or Art. 3 ECHR and all forms of action frowned upon therein, i.e. also inhuman and degrading treatment and punishment, as a whole as a "prohibition of torture" (here: torture in the broader sense).
92 The UN Convention against Torture does not define torture in the broad sense, i.e. the terms "inhuman" and "degrading". These terms refer to lower-threshold violations of the prohibition of torture (i.w.S.); Villiger describes these thresholds as a kind of "ladder". The rungs of this ladder - the concepts of torture in the strict sense, inhumanity and degradation - have been fleshed out by the ECtHR in the context of its extensive case law on the existence of Article 3 ECHR as a matter of necessity. Unlike in the FC and the UN Convention against Torture, the category of "cruel" treatment or punishment is not listed separately in Art. 3 ECHR.
93 There is a gradual demarcation between the various types of treatment and punishment that fall under the prohibition of torture in the broad sense. The lowest threshold is that of degrading treatment. This is the case when treatment "causes feelings of fear, anxiety and inferiority and is likely to humiliate, degrade and, if necessary, break physical or psychological resistance or induce someone to act against their will or conscience". Accordingly, even purely psychological suffering can constitute a violation of the prohibition of torture in the broad sense. Especially in the area of police violence, a development towards zero tolerance is emerging. In the case of Bouyid v. Belgium, for example, the ECtHR considered it humiliating that police officers had slapped a young man in the face.
94 Higher is the threshold for cruel and inhuman treatment or punishment. This term covers ill-treatment that causes severe mental or physical suffering. An example is the threat of unspeakable pain to make a suspect reveal the whereabouts of an abducted child. However, a clear demarcation of this category from humiliation does not take place in every case.
95 Compared to degrading or inhuman treatment, torture in the narrower sense is understood as a particularly grave wrong. Consequently, it is linked with a special stigma. In order to distinguish torture from degrading or inhuman treatment, the severity, the underlying intention and the aim of the act in question are taken into account. These criteria are not necessarily applied cumulatively. Thus, torture (in the strict sense) may be present even if the perpetrator did not intend to coerce or punish the victim. Under certain circumstances, no such distinction is made and the type of treatment or punishment is not specified. If such a delimitation nevertheless takes place, reference is often, but not always, made in practice to the severity of the suffering experienced.
96 Especially with regard to the conditions of detention, the prohibition of torture in the broad sense is of particular importance. Art. 10 para. 3 FC protects against inhumane conditions of detention, such as may exist in overcrowded prisons. Furthermore, detainees must be protected from violence. In general, unnecessary humiliation and degradation are inadmissible. For example, accused persons must not be put on display in a cage in the courtroom.
97 Prolonged incommunicado detention may violate the prohibition of torture in the broad sense. A practical example is the "Brian case", in which a young man was held incommunicado for years. The UN Special Rapporteur on Torture and other competent UN bodies have expressed concerns about compliance with the prohibition of torture in this regard. The UN Special Rapporteur on Torture referred to the so-called "Nelson Mandela Rules" of the UN, which prescribe a maximum duration of 15 days for incommunicado detention. Following this, the Federal Supreme Court also called on the enforcement authorities in this case to "seek alternatives to high-security detention and to order or maintain such detention only for the shortest possible duration". Solitary confinement is highly problematic, especially for young and particularly vulnerable detainees.
98 The contextual application of the prohibition of torture takes into account identity characteristics such as age, gender, state of health, group membership or the particular dependency of the person concerned, as well as various vulnerability grounds depending on the individual case. This contextuality means that the same treatment or punishment that would not constitute a violation of this provision in the case of an adult person would be inadmissible in the case of a child. Not only the age of the child, but also other factors play a role in this assessment. People with mental disorders are also particularly vulnerable in this context.
99 The human rights protection against torture in the broad sense has been developed more progressively over time. This applies in particular to the protection conveyed by Art. 3 ECHR: Like the ECHR as a whole, this "living" provision is interpreted in an evolutionary and dynamic manner. This means that it reflects societal developments, whereby over time, acts that were considered acceptable at an earlier time can be regarded as violating human rights. This evolutionary and dynamic approach was illustrated early on in the Tyrer case concerning a judicially ordered beating. In that case, the Court not only applied the doctrine of the living Convention to Article 3 ECHR, but also held that a certain type of treatment or punishment may violate that provision even if it is socially considered acceptable.
100 A partial content of the prohibition of torture has found expression in Art. 25 para. 3 FC. This is the prohibition of return or non-refoulement as a complementary element to the non-refoulement requirement under refugee law in Art. 25 para. 2 FC. According to this provision, extraditions and deportations to third countries are excluded if the person concerned would be threatened with torture or another kind of cruel and inhuman treatment or punishment there. Before an extradition or deportation can take place, the concrete risk situation of the person concerned must be clarified. Similar requirements arise from Article 3 of the ECHR. If there is a threat, extradition or deportation is generally excluded if no credible diplomatic assurances can be obtained that guarantee treatment in the receiving state that complies with human rights. The suitability of such diplomatic assurances is doubted in some doctrines.
C. Mediated claims
101 Various claims can be derived from the prohibition of torture in the broad sense. In this context, the state has duties to refrain, preventive duties to protect and reactive duties to perform and investigate. The state is not only obliged to refrain from ill-treatment, but must also investigate justifiable allegations of torture effectively and in depth and protect those affected from intimidation.
102 Positive state obligations to protect do not only exist with regard to dangers that emanate directly from members of the authorities. Rather, the state must also ensure that private individuals are effectively deterred from carrying out abuses. These obligations to protect are particularly intense in relation to vulnerable persons, including detainees. Admittedly, these obligations must not overburden the state and not every form of violence, especially between private individuals, can be prevented. However, the authorities are obliged to intervene if they know or should have known about a dangerous situation.
103 If there is a particular dependence on the state, the prohibition of torture in the broad sense can also justify claims for benefits. For example, the dependence of a detained person on the state in the context of the special status relationship gives rise to claims to adequate medical care and sufficient food. The ECtHR justifies these claims on the basis of the vulnerability of the persons concerned.
VII. The prohibition of trafficking in human beings, forced labour and slavery
A. Fundamentals
104 The FC does not contain an explicit prohibition of forced labour equivalent to the human rights entitlement to protection from human trafficking, forced labour, servitude and slavery. According to Schweizer, forced labour falls under the prohibitions of Art. 10 para. 3 FC. This opinion is also held here. This is supported by the particularly serious nature of the impairment of freedom of movement, self-determination and physical and psychological integrity that is present in these contexts. However, this prohibition also overlaps with other fundamental rights, e.g. human dignity (Art. 7 FC) and the right to protection of privacy (Art. 13 FC). Furthermore, Art. 27 FC (economic freedom) protects private autonomy and the free choice of profession.
105 The human rights foundations of this protection arise in particular from Art. 4 ECHR, the Council of Europe Convention on Action against Trafficking in Human Beings and the UN Palermo Protocol. Art. 8 para. 3 UN Covenant II and Art. 2 ILO Convention No. 29 also contain corresponding provisions; Art. 6 Women's Rights Convention (CEDAW) specifically protects against trafficking in women. With the prohibition of "labour exploitation" in Art. 182 StGB, the Swiss legal system knows a protection under criminal law.
106 The reports of the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) should also be noted in this context. This body is responsible for monitoring the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings. This group of experts has so far published two country reports on Switzerland. These reports assess national measures to combat trafficking in human beings and make concrete recommendations for better implementation of the Convention.
B. Material scope of protection
107 Art. 4 ECHR concerns domestic and transnational trafficking in human beings, irrespective of any possible connection with organised crime. The focus here is on the concept of human trafficking ("trafficking"). This concept is interpreted in an evolutionary manner; the Court does not examine whether a treatment specifically constitutes "slavery", "servitude" or "forced labour". The ECtHR has issued a not particularly extensive but significant jurisprudence on Art. 4 ECHR.
108 The concept of trafficking is interpreted on the basis of Art. 3(a) of the Palermo Protocol and Art. 4(a) of the Convention on Action against Trafficking in Human Beings. This definition describes various forms of behaviour, each of which leads to the exploitation of the victims. Alternatively, sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs are required.
109 According to Meriboute, there is a need for action to address the conceptual ambiguity of the Swiss legal system in this context. It must be ensured that the domestic definition of labour exploitation under Art. 182 SCC is broad enough to meet international standards for the prevention of human trafficking.
C. Mediated claims
110 The prohibition of trafficking, forced labour and slavery involves multi-layered state obligations. In order to meet these obligations, the Swiss legal system must be designed in such a way that it does not promote human trafficking, but protects against it. This dimension of state obligations is of central importance here, as human trafficking is in most cases committed by private individuals. In addition to this legislative dimension, there are three other obligation dimensions regarding trafficking in human beings. In cases of suspicion, among other things, investigations must be carried out ex officio and those responsible must be punished (procedural dimension); furthermore, the states concerned must cooperate (transnational dimension) and protective measures must be taken against persons who are specifically at risk (operational dimension).
Recommended further reading
Baumann Felix, Das Grundrecht der persönlichen Freiheit in der Bundesverfassung unter besonderer Berücksichtigung der geistigen Unversehrtheit, Zürich 2011.
Baumann Felix, Inhalt und Tragweite der Bewegungsfreiheit (Art. 10 Abs. 2 BV), ZBl 105/2004, S. 505 ff.
Biaggini Giovanni, Bundesverfassung der Schweizerischen Eidgenossenschaft, Kommentar, Art. 10 – Recht auf Leben und auf persönliche Freiheit, 2. Aufl., Zürich 2017.
Büchler Andrea, Reproduktive Autonomie und Selbstbestimmung, ZSR 2016 II, S. 349 ff.
Dubey Jacques, Droits fondamentaux : Volume II – Libertés, garanties de l’Etat de droit, droits sociaux et politiques, Basel 2017, S. 28 ff.
Häfelin Ulrich/Haller Walter/Keller Helen/Thurnherr Daniela, Schweizerisches Bundesstaatsrecht, 10. Aufl., Zürich 2020, S. 105 ff.
Malinverni Giorgio/Hottelier Michel/Hertig Randall Maya/Flückiger Alexandre, Droit constitutionnel suisse, Volume II : Les droits fondamentaux, 4. Aufl., Bern 2021, S. 141 ff.
Hertig Randall Maya/Marquis Julien, Kommentierung zu Art. 10 BV, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire Romand, Constitution fédérale, Basel 2021.
Gavillet Aurélie, Kommentierung zu Art. 11 BV, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire Romand, Constitution fédérale, Basel 2021.
Mavronicola Natasa, Torture, Inhumanity and Degradation under Article 3 ECHR: Absolute Rights and Absolute Wrongs, Hart 2021.
Moeckli Daniel, § 31 – Schutz von Person und Persönlichkeit, in: Biaggini Giovanni/Gächter Thomas/Kiener Regina (Hrsg.), Staatsrecht, 3. Aufl., Zürich 2021.
Schweizer Rainer J., Kommentierung zu Art. 10 BV, in: Ehrenzeller Bernhard/Schindler Benjamin/Schweizer Rainer J./Vallender Klaus A. (Hrsg.), St. Galler Kommentar, Die schweizerische Bundesverfassung, 3. Aufl., St. Gallen 2014.
Tschentscher Axel, Kommentierung zu Art. 10 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Villiger Mark E., Handbuch der Europäischen Menschenrechtskonvention (EMRK), mit besonderer Berücksichtigung der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte in Schweizer Fällen, 3. Aufl., Zürich et al. 2020.
Zumsteg Patrice Martin, Das Recht auf Leben als Schranke staatlichen Handelns, Sicherheit & Recht 1/2012, S. 11 ff.
About the author
Dr. iur. Corina Heri, LL.M., is a postdoctoral researcher at the Faculty of Law of the University of Zurich. She studied law in Zurich and London and received her doctorate from the University of Zurich in 2017 with a dissertation on the prohibition of torture and the theory of vulnerability before the ECtHR. From 2017 to 2019, she was a postdoctoral researcher at the University of Amsterdam. Since 2020, she has been leading the 'Climate Rights and Remedies Project' at the University of Zurich together with Prof. Dr Helen Keller, where she is writing a habilitation on strategic litigation.
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