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- Art. 8 CCC (Convention on Cybercrime)
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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. History of origins
- II. Context
- III. Guarantee of Freedom of Assembly
- IV. Future of freedom of assembly
- Recommended further reading
- Bibliography
I. History of origins
1 Freedom of assembly was not one of the few fundamental rights explicitly enshrined in the federal constitutions of 1848 and 1874. On the other hand, freedom of worship for the recognized Christian denominations - and accordingly the protection of their meetings - had been affirmed since 1848. Likewise, the Federal Court ruling of 1889, in which the highest court for the first time protected freedom of assembly as an element of freedom of association, had a religious background. It was not until 1970 that freedom of assembly was recognized as an independent, unwritten fundamental right by federal court jurisprudence.
2 According to the practice of the highest court, assemblies with the purpose of expressing an idealistic concern to the public are not protected by an independent guarantee of freedom of demonstration. The decision not to explicitly address demonstrations as a special form of assembly is reflected in the history of the last total revision of the Federal Constitution. The paragraph proposed by the Federal Council as late as 1996 on the obligation to obtain a permit for demonstrations on public property did not find a majority in the Federal Assembly. The two remaining paragraphs - in the form of the draft mentioned above - have been in force unchanged as Art. 22 BV since 2000.
II. Context
A. Concept of an Assembly
3 By definition, an assembly comprises more than one person. The coming together of these two or more persons need not be legally organized. Only random gatherings of individuals are excluded. Furthermore, the number of persons gathering is not relevant.
4 In terms of time, the gathering is limited, although the exact duration is irrelevant. Figuratively speaking, both a flash mob of a few minutes and a protest camp that extends over several days qualify as an assembly. Fundamental rights protection begins with the preparations and ends after the complete dissolution of the assembly.
5 Equally flexible is the spatial extent-assemblies may occur on private or public property and may be static or in motion.
6 In substance, an assembly serves "a broadly understood mutually opinion-forming or opinion-expressing purpose." Such an idealistic purpose may also consist in a loose gathering with friendly or entertaining intent.
B. Freedom of Assembly as a Basic Right of Communication
7 According to what has been said, assemblies can serve very different purposes, whereby freedom of assembly as a fundamental right of communication is primarily directed at the collective formation and expression of opinion. This appeal function is especially typical for a demonstration, understood as an assembly with political expression of opinion in public.
8 For minorities in particular, an assembly can be one of the few means of drawing the attention of the majority society to their concerns, either directly or through media coverage. Assemblies and especially demonstrations thus make an important contribution to free discourse in society, which is one of the core concerns of fundamental rights of communication.
III. Guarantee of Freedom of Assembly
A. Anchoring
9 According to what has been said, Art. 22 BV guarantees the freedom of assembly in a general way (para. 1), while explicitly mentioning individual aspects of this freedom (para. 2).
10 Since the second paragraph mentions the right to "stay away from assemblies" as well as the right to participate in assemblies, it is already clear from the wording that the fundamental right from Art. 22 BV includes a positive freedom and a negative freedom. Insofar as the assembly takes the form of a demonstration, it is under the joint protection of freedom of assembly and freedom of expression (Art. 22 and Art. 16 BV).
11 This shows a parallel to the anchoring of freedom of assembly in international law. This is also guaranteed by Art. 11 ECHR and Art. 21 UN Covenant II. In principle, these guarantees, as more specific fundamental rights, take precedence over freedom of expression as enshrined in Art. 10 ECHR and Art. 19 UN Covenant II. However, the case law of the ECtHR applies to rallies, according to which Art. 11 must be understood in light of Art. 10 ECHR. The Federal Supreme Court has ruled that these international human rights guarantees do not establish more extensive protection than the BV. At the same time, when interpreting the guarantees of the ECHR, it regularly relies on the case law of the ECtHR.
12 In practice, less attention has been paid so far to the specific guarantees of freedom of association in Art. 5 lit. d item ix of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and Art. 15 of the Convention on the Rights of the Child (CRC). This is despite the fact that Switzerland recognizes the respective individual complaints mechanism for both the RDÜ and the CRC. In this context, the student protests in the context of climate change in particular have shown that there is certainly potential here for the further development of freedom of assembly. Indeed, the CRC recognizes, on the one hand, children as independent legal subjects whose (political) concerns are to be heard and, on the other hand, the special need for protection of minors. This need for protection must be taken into account in various respects: Children are to be supported in any authorization procedure, direct coercion at meetings may only be used with extreme restraint, and likewise, consequences in terms of costs should be refrained from as far as possible.
B. Fundamental Rights
1. Persons entitled to fundamental rights
13 All natural persons, regardless of their nationality and any existing special status relationship, may invoke the freedom of assembly.
14 The same applies to spontaneous organizing committees and legal entities if they are organizers of an assembly.
15 The authorities may not invoke the freedom of assembly, in particular foreign state organs that wish to hold an event in Switzerland in front of their foreign citizens.
2. Factual scope of protection in general
16 Meetings serve a broadly understood opinion-forming or opinion-expressing purpose. The quality of the content expressed is irrelevant; even untrue, provocative and shocking opinions are protected by fundamental rights. Without the necessary tolerance and openness, there can be no democratic society, as the ECtHR rightly emphasizes.
17 On the other hand, the exercise of violence must not be the purpose of a fundamentally protected assembly, as expressed in Article 11 ECHR and Article 21 UN Covenant II, in that they only protect the right to assemble "peacefully." However, the requirement of peacefulness must not lead to a restrictive understanding of the scope of protection of Art. 22 BV. Therefore, neither the abstract danger that it could come to an unpeaceful course, nor violent actions by individual participants and certainly not by outside disruptors, are sufficient to make the fundamental rights protection void. Unlawfulness is not to be equated with unpeacefulness; for example, the absence of a permit does not imply a non-peaceful assembly. Only if violent activities can be attributed to the assembly as a whole, or if their exercise was even the purpose pursued from the beginning, is it justified to exclude such gatherings from the factual scope of protection of Art. 22 BV. Other acts of violence, on the other hand, must be assessed at the level of justification of a restriction of fundamental rights.
18 The scope of protection of freedom of assembly may also be contoured by Art. 17 ECHR and Art. 5 UN Covenant II. According to these provisions, anyone who wishes to destroy the rights and freedoms guaranteed in international treaties through their actions cannot invoke these rights in order to do so. Such an abuse, according to the margin of Art. 17 ECHR, can only be assumed in exceptional cases according to the case law of the ECtHR. The Court affirms this above all in the case of glorification or trivialization of National Socialism. The BV knows no such constitutionally inherent limitation of the areas of protection of Art. 22 or 16 BV. The question of a prohibition of such statements must be answered under Swiss constitutional law at the level of the restriction of these fundamental rights. The ECtHR also decided in favor of this approach in the Vona case: The dissolution of an association which called for the defense of the "Hungarian race" against "Gypsy criminality" and carried out corresponding demonstrations was a justified interference with Art. 11 ECHR by the Hungarian authorities. Accordingly, it must generally be examined on a case-by-case basis whether dissolutions of meetings and bans on events against neo-Nazi groups can be justified in order to protect public safety and order as well as the fundamental rights of third parties.
19 Finally, cases of fundamental rights competition can influence the applicability of Article 22 BV. A genuine competition of fundamental rights, an accumulation of fundamental rights, is regularly present in the case of demonstrations, which are also protected by freedom of expression. Furthermore, such a cumulation is conceivable in particular with the prohibition of discrimination (Art. 8 para. 2 BV; Art. 11 in conjunction with Art. 14 ECHR), since assemblies can represent an attractive form of communication, especially for minorities. For example, a mayor's stance on homosexuality may not play a role in assessing the permissibility of a demonstration. For the proscribed connecting factor of race, the already mentioned Art. 5 lit. d item ix RDÜ exists.
20 There is unreal competition between fundamental rights, in particular with economic freedom within the meaning of Art. 27 BV. Assemblies that do not pursue an idealistic but a commercial purpose are protected under Swiss law solely by economic freedom and not by Art. 22 BV. This is different at the level of international law: the ECHR and the UN Covenant II do not recognize economic freedom. Assemblies with a commercial purpose are covered by Art. 11 ECHR and Art. 21 UN Covenant II.
3. Defense claims against the state in particular
21 Freedom of assembly is a right of liberty and therefore conveys primarily defensive claims to those entitled to fundamental rights. As a matter of principle, the state must refrain from imposing restrictions on the convening, organization, holding of and participation in assemblies. This positive freedom is contrasted with the negative freedom not to participate in assemblies, not to have to organize them or to be able to cancel them again - in this respect, too, state restrictions must in principle be refrained from.
22 The participants in an assembly are free to choose the forms and means of their communication: It is possible to express oneself verbally, in writing, visually or purely symbolically - for example in a sit-in or a silent march - but also through the use of loudspeaker systems. Finally, the assembly is in itself an expression of opinion. The case law of the Federal Supreme Court, according to which only all permissible means are covered by the scope of protection, must be viewed critically. As in the case of the peacefulness of the assembly, it must be demanded that any violation of the law in the use of the chosen means be taken into account not in the scope of protection, but in the context of justification.
23 The contents communicated by an assembly can meet with resistance and in turn provoke a second assembly directed against it - such as a counter-demonstration. In principle, the state must also tolerate the holding of such a counter-demonstration, since freedom of assembly is also about enabling discourse.
4. Claims to State Action in Particular
24 In addition to its negative function, the freedom of assembly also gives rise to positive state obligations to act.
a. Place of Assembly
25 Under the positive obligations, the doctrine subsumes in particular that the public space may be used for the purpose of assemblies, even if this regularly constitutes increased public use, i.e., restricts the similar use by third parties. Public space means an unenclosed area that is accessible to an indefinite number of people at any time and without preconditions. Community halls shall be treated as public space to the extent that they may be used for meetings. For the qualification as public, it should not matter in whose civil law ownership the space in question is. This is understandable in the case of spaces that are freely accessible at all times, even if they are privately owned (such as the arcades in Bern's old town). As soon as this free accessibility ceases to apply or applies only to a limited extent (for example, in the customer area of a bank), it becomes obvious that there is a tension here with the authority of a property owner under civil law to prohibit assemblies on his property out of his right of ownership. The resolution of this tension does not have to take place via a direct horizontal effect of the freedom of assembly, as Errass rightly states; rather, it is up to the community in question to provide the necessary infrastructure and thus sufficient public space. As long as sufficient alternatives are available, no sufficient reasons are apparent to enforce a claim to use under fundamental rights against the will of the owner under civil law, which is also protected by fundamental rights (Art. 26 BV).
26 In any case, however, it must be taken into account that the available location takes into account "the publicity needs of the organizers". Figuratively speaking: An intended appeal function cannot be performed by an assembly if it is to take place on a less busy edge of a place. At the same time, however, there is no right to hold an assembly at a certain place, at a certain time and under boundary conditions determined by the holders of fundamental rights. It would be inadmissible, however, if the authorities required a special relationship to a place in order to be able to hold an assembly. On the other hand, a fundamental right holder can assert such a relationship in order to justify the use of a very specific place - if necessary also on a specific date.
27 The presented fundamental right claim is commonly referred to as a conditional right to the use of public ground. Moeckli, however, rightly points out that the mere making available of public space does not constitute a state service, but corresponds to a state duty to refrain. According to the view expressed here, however, in the vast majority of cases the granting of use is not a mere omission. Rather, other interests directed at the public space must be taken into account by the authorities at the same time. The coordination of these claims and the creation of an order of priorities as well as the individual concrete allocation of public space - usually by means of a permit - constitute state services, which is why the characterization is accurate after all.
28 According to the practice of the supreme courts, the conditionality of this entitlement to benefits results from three elements: First, the claim under fundamental rights refers only to existing infrastructure. There is no entitlement for the state to create new facilities. Second, there is in principle no right to use a particular place at a particular time. Finally, thirdly, a comprehensive balancing of interests must be carried out when public space is used in an increased form. In this regard, Moeckli is basically to be agreed that the formulation of "conditionality" hardly yields any insight. An unconditional claim to assemblies, which represent simple public use or take place in private, does not exist. Rather, these assemblies are also subject to the constitutional regulation of limits, on the basis of which a weighing of interests must be carried out in individual cases. However, since the three aforementioned elements of case law can be summarized under this term, it makes sense to adhere to this terminology as well.
b. Participants in an assembly
29 Furthermore, the state is obligated to "ensure by appropriate measures, such as the granting of sufficient police protection, that public rallies can actually take place and are not disturbed or prevented by opposing circles." The same follows from the police law principle of "Störerprinzip". This task can be "certainly burdensome", but it is of great importance. Otherwise, violent groups could decide who can actually hold meetings and who cannot - an untenable state of affairs in a constitutional state. This fact had to be pointed out to the city council of Zurich recently. It wanted to take into account, to the detriment of a peaceful demonstration, that it might have triggered a violent counter-demonstration. The Administrative Court corrected this and held: "Rather, such rallies are to be authorized as far as possible, and the danger of disturbances is to be counteracted, for example, with sufficient police protection and a careful choice of route, regardless of how unpopular and controversial their views are".
30 Confrontation with other views - possibly provocative and outlandish for the vast majority of society - can thus be burdensome not only for the authorities but also for private third parties. The vehement rejection of an expressed opinion does not, of course, justify resorting to violence or otherwise behaving as "discourse police". It is very alarming, for example, when events at universities are prevented or disrupted to such an extent that they have to be broken off.
31 Where violence against an assembly occurs despite state protection, the authorities are obliged to investigate it and, if necessary, to punish those responsible. This also applies if the authorities themselves have exercised excessive coercion.
32 Additional claims for protection may arise if participants in an assembly can invoke other fundamental rights in addition to freedom of assembly. This applies, for example, to persons who are particularly vulnerable due to a physical disability (Art. 8 para. 4 BV; Art. 1 Convention on the Rights of Persons with Disabilities [BehiK]).
C. Limitability of freedom of assembly
33 The fundamental rights of communication have in common that they have not only an individual-legal, but also a democratic-functional significance. Freedom of assembly therefore carries particular weight. This is especially true when the collective expression of opinion concerns issues of social interest, as is the case with demonstrations.
34 Nevertheless, freedom of assembly can be restricted as a classic right of freedom under Article 36 BV. The restriction regulation in Art. 11 para. 2 ECHR is largely identical to this, which is why it is presented together.
1. Direct restriction of the freedom of assembly
35 The extensive case law on freedom of assembly shows that its restriction can take very different forms. In particular, it can take the form of an injunction, a rule of law or a real act. For a better overview, possible restrictions can be divided temporally into measures before, during and after an assembly. Abridgements of the freedom of assembly can be seen, for example, in the imposition of a general-abstract permit requirement for assemblies in public spaces, the individual-specific granting of permits subject to conditions and requirements, police expulsion and detention, and the imposition of costs and sanctions at the expense of participants.
36 It must be assessed in each individual case whether these restrictions are to be qualified as serious. However, in case law and doctrine, rules of thumb have emerged for individual direct restrictions on freedom of assembly with regard to their intensity:
37 Preventive prohibition and repressive dissolution of an assembly are particularly severe restrictions, as these measures completely prohibit or end the exercise of fundamental rights. In particular, as a rule, the mere announcement or holding of a counter-demonstration may not lead to the original rally being banned. Even in the case of an unauthorized demonstration, dissolution is only permissible after careful consideration of all interests. If direct coercion is used, this must be announced in advance.
38 However, it is not only assemblies aimed at the public that are specially protected. This also applies to private assemblies; they can only be restricted for serious reasons. For example, in the Corona pandemic, private events and gatherings of more than five people were temporarily prohibited in order to protect public health and the fundamental rights of third parties.
39 In my opinion, a general ban on gatherings by establishing a "ban mile" also qualifies as a serious restriction. It is not inadmissible from the outset to deprive certain public places of general use. However, such an approach is problematic: First, because an absolute ban leaves no room for exceptions, even if this would be appropriate. Second, because public space serves the purpose of communication; its use for the exercise of basic communication rights is precisely in accordance with its purpose. Third, the exclusion of certain uses is regularly based on their content, which, however, should not play a role.
40 Furthermore, in a whole series of judgments that have been included in the official collection, the Federal Supreme Court has described restrictions on the number of people at meetings during the Corona pandemic as serious restrictions on fundamental rights. In particular, it stated: "In connection with demonstrations, the Federal Supreme Court has always emphasized the great importance attached to the freedom of assembly due to its central significance for the formation of opinion in a free democratic state governed by the rule of law, especially in times of political unrest. The highest court subsequently judged a general restriction of rallies to 15 people to be too far-reaching. Moreover, due to Art. 189 para. 4 of the Federal Constitution, the measures that the Federal Council enshrined in its ordinances were exempt from abstract review. It was precisely this lack of reviewability that led one chamber of the ECtHR to find a violation of Art. 11 ECHR in the absolute ban on events between March 17, 2020 and May 30, 2020. At Switzerland's request, the Grand Chamber of the Court will make a final decision on the matter - the relevant judgment is still pending.
41 Finally, sanctions in the aftermath of an assembly are generally to be regarded as a serious restriction of freedom of assembly. It is inadmissible to punish mere participation in an assembly that has not been prohibited, even if violence occurs. What is required is individually reproachable behavior.
2. Indirect restriction of the freedom of assembly
42 In addition to the aforementioned measures directly restricting fundamental rights, indirect impairments of fundamental rights are also possible. One such indirect consequence of state action can be the deterrent effect, also known as the chilling effect. In this case, a measure by the state has such an effect via a psychological chain of motivation that the exercise of fundamental rights is refrained from in the future, which makes the figure difficult to grasp. However, such a deterrent effect has been stipulated for freedom of assembly in a number of constellations:
43 The doctrine advocates this in particular for the area-wide observation and registration of the participants of an assembly. However, it must be taken into account that video surveillance can also be in the interest of an assembly; for example, if it is necessary to ensure crowd management in a large crowd.
44 In addition, the Federal Supreme Court has recognized that the passing on of costs incurred as a result of a police operation triggered by the assembly may have a chilling effect. "The cost claims must consequently be moderately structured so that the effective exercise of fundamental rights actually remains possible." However, in the opinion of the highest court, it is permissible to pass on police costs of up to CHF 30,000.00 to organizers who have acted in breach of duty.
45 In a similar way as the costs, a criminal prosecution in the aftermath of an assembly can have a chilling effect, as the ECtHR has repeatedly stated.
46 Finally, it should be mentioned that a lack of protection of demonstrations can also create a fear of disturbance for future rallies and thus have a chilling effect.
3. Justification of Restrictions
a. Legal Basis
47 According to Art. 36 para. 1 sentences 1 and 2 BV, serious restrictions require a basis in a law in the formal sense, while less far-reaching restrictions can also be anchored at a lower normative level. It is therefore insufficient, in particular, if the possibility of using water cannons and adding irritants to the water are only anchored at the level of an ordinance and not in the law in the formal sense.
48 According to Art. 36 Para. 1 Sentence 3 BV, in cases of serious, immediate danger that cannot be averted in any other way, the general police clause can be used instead of a legal basis. However, this is excluded if the legislature would have had the opportunity to legislate - for example, due to regularly recurring threats to public safety and order. The criterion of foreseeability is examined in the context of proportionality.
49 Furthermore, in the case of assemblies, it is relevant that, according to federal court case law, the requirements for the definiteness of the legal basis in police law are lowered. This has rightly met with criticism in the doctrine, because it is very well possible to regulate the typical situations of police activity and the means of coercion that are permissible in this context; otherwise, no internal directives could exist in this regard.
50 Similarly, lowered requirements apply to the legal basis in the special status relationship, which is reflected in Art. 11 Para. 2 Sentence 2 ECHR. According to the view expressed here, however, a lower normative level is only permissible insofar as it concerns restrictions that clearly result from the purpose of the special status relationship. In contrast, a particular density of norms is required if the bases in question are applied by legal laypersons, as is likely to be the rule in the case of prison regulations, for example.
51 According to the applicable case law of the Federal Supreme Court, a community may also introduce a permit requirement for increased public use as a consequence of its material dominion over the public space without a special legal basis. In this case, the rule of fact is to take the place of the legal basis. The - as far as can be seen - unanimous doctrine rejects this with good reasons: First, neither Art. 36 para. 1 BV nor Art. 5 para. 1 BV give any indication that such an exception to the principle of legality would be permissible in this area. Rather, secondly, legal certainty and equality of rights speak in favor of creating a sufficient legal norm here as well. Thirdly, as far as fundamental rights are concerned, it must be emphasized that the introduction of a licensing requirement already constitutes a restriction of these fundamental rights, which must be justified under Article 36 of the Federal Constitution. Fourthly, the case law of the Federal Supreme Court is based on the misunderstanding that the state can dispose of "its" land like a private person. Correctly, however, its position is to be understood as a fiduciary one: The authorities coordinate the scarce resource of land so that all those subject to the law can realize their interests and claims there in the best possible way. Despite this criticism, the Federal Supreme Court has not yet revoked its corresponding practice.
b. Justifying interest
52 In the case of restrictions on the freedom of assembly, the classical police interests and the orderly use of public space are in the foreground as public interests. In this regard, the weighty interest of public health was given a prominent role in the Corona pandemic.
53 It is confusing to find the formulation in federal court jurisprudence that more far-reaching restrictions are permissible in the case of assemblies in public space. The only correct thing to say about this is that, as a rule, there are more interests and claims in the public sphere that have to be taken into account than is the case in the private sphere. However, it must be emphasized once again that the public space serves precisely as a forum for the exchange of opinions.
54 Another frequent intervention interest in assemblies is the protection of the fundamental rights of third parties. At least this is true in the public sphere, where assemblies typically involve various (fundamental rights) claims. Then one also speaks of multipolar fundamental rights relationships. If the interests involved are contrary, the realization of one fundamental right inevitably leads to a restriction for another fundamental right holder. The state, as the addressee of fundamental rights, must mediate between these poles. However, freedom of assembly does not have a direct effect between private individuals, a direct horizontal effect.
55 Finally, the ECtHR flatly denied the existence of a justifiable interest in restricting freedom of assembly in various incidents involving the Russian opposition activist Aleksey Navalnyy. On the contrary, the ECtHR exceptionally relied on Art. 18 ECHR and held that the state restrictions of Art. 11 ECHR pursued an inadmissible purpose. The authorities were in fact concerned with suppressing political pluralism, which is an indispensable component of a democratic state governed by the rule of law.
c. Proportionality
56 The proportionality test required by Article 36(3) BV is based on the interest that the state invokes as justification for the restriction of fundamental rights and is composed of the elements of suitability, necessity and reasonableness.
57 Of the above-mentioned typical restrictions on the freedom of assembly, part of the doctrine argues that a permit requirement is not necessary, but that a milder means would be available in the form of the notification requirement. At first glance, this is understandable, because the obligation to register does not trigger an administrative procedure that is concluded with the granting of a permit. The legality of private action depends solely on prior notification to the authorities. However, a notification requirement is not as suitable as a permit requirement for striking a balance between the interests involved: First, in the case of assemblies, a balance must regularly be found between numerous private and public interests. The actual situation is complex. Therefore, it cannot be said that there is no need for intensive state monitoring and that mere spot checks would suffice, as would be typical for a notification requirement. Second, the state must make its weighing of interests transparent in the justification for the permit (or its refusal), which leads to a comprehensible and verifiable practice. Thirdly, the authorization signals to all other affected persons that the authorized assembly has the necessary legal legitimacy and will be protected by the state if necessary. Fourth, the requirement of prior authorization must not be applied in an absolute manner. Spontaneous assemblies must continue to be permissible. A sudden event, such as the result of a referendum, can lead to a justified desire for an immediate reaction in the form of a demonstration, in which case there is no time to comply with the relevant deadlines of the authorization procedure.
58 Finally, it should be noted that the balance in multipolar fundamental rights relationships is also described as the establishment of practical concordance. This means that all the fundamental rights interests involved are realized as optimally as possible. Unlike a violent disturbance, from which an assembly must be protected, a peaceful counter-demonstration, for example, is permissible in principle. If a request is made to hold such a counter-demonstration, the focus is on spatial and temporal restrictions in order to allow both assemblies to take place. A complete ban on both assemblies must remain ultima ratio.
d. Core Content
59 What belongs to the inviolable core content of freedom of assembly according to Art. 36 para. 4 BV has hardly been clarified by federal court jurisprudence so far. The highest court has merely stated that a ban on mummery, from which exceptions can be granted, does not affect the core content of freedom of expression and assembly. From this, Errass rightly concludes that an absolute ban on masking would be contrary to the core content - it is conceivable that assemblies could be held at which disguising oneself is precisely the decisive part of the expression of opinion and for which exceptions must therefore be possible.
60 Likewise, according to the opinion represented here, it is part of the core content of Art. 22 BV that a permit requirement for assemblies in private or for spontaneous demonstrations would be inadmissible. The former would de facto deprive the private sphere of its content. The latter would make spontaneous demonstrations virtually impossible. Assemblies in response to a sudden event, however, must remain possible.
61 An indefinite and complete ban on assemblies per se would also be contrary to core content.
62 The prohibition of censorship within the meaning of Article 17 (2) BV is, according to the predominant opinion in the doctrine, a core content of all fundamental rights of communication. This can be followed for the freedom of assembly insofar as the preventive and systematic control of the content of opinions expressed at meetings is prohibited. However, it is permissible to inquire about the topic of an assembly, especially a demonstration, so that the authorities can conduct a risk analysis. In order to distinguish this from precise information on the content, the legislature must define the scope of the information to be provided in advance.
63 Core content guarantees are alien to the ECHR system, but the ius cogens under international law and the emergency-proof guarantees of the ECHR have parallels with core content. With regard to freedom of assembly, however, it should be noted that this is not part of ius cogens and that Article 11 of the ECHR can be derogated by states in a state of emergency (Article 15 ECHR).
D. Realization of Freedom of Assembly
64 Irrespective of individual-legally enforceable claims, the state is obliged to contribute to the realization of fundamental rights and thus also freedom of assembly (Art. 35 BV). The comprehensive effect of the fundamental rights of communication in the legal order is intended to secure the foundations for the democratic formation of wills - and thus democratically legitimate decisions.
65 This objective-legal dimension binds all state powers, but is primarily directed at the legislature.
66 With regard to the regulation of the use of public space, it is mainly the cantons and municipalities that are responsible; they must ensure that all concerns directed at public space are taken into account.
67 In addition, the federal legislature can also take action to realize freedom of assembly. For example, when it stipulates in Art. 336 para. 1 lit. b CO that a dismissal is abusive if one party issues it because the other party is exercising a constitutional right, unless this violates an obligation arising from the employment relationship or significantly impairs cooperation within the company. Employees therefore have the fundamental right to demonstrate against conditions in the employer's area of responsibility. Finally, the draft of nArt. 332a para. 2 lit. g StGB (violation of the ban on covering the face) must also be viewed positively from a fundamental rights perspective. In it, the Federal Council proposes that criminal liability be waived in the case of an "assembly in a public space if the covering of the face is necessary for the exercise of the fundamental rights of freedom of expression or freedom of assembly or if it is a pictorial expression of opinion that does not impair public safety and order".
68 In addition, there is the interpretation of legal norms by the executive and judiciary in conformity with fundamental rights. In the context of freedom of assembly and expression, the focus is particularly on Art. 260 SCC (breach of the peace), Art. 181 SCC (coercion) and Art. 261bis SCC (discrimination and incitement to hatred).
E. New technologies and freedom of assembly
69 Digitalization is changing many areas of life and, above all, the way we communicate with each other. Accordingly, fundamental rights of communication must also respond to this phenomenon. However, the question of whether virtual assemblies - e.g., via videoconferencing - also fall under the concept of assembly is already unresolved in case law and disputed in doctrine. According to the view expressed here, it is to be answered in the affirmative for the following reasons: First, virtual gatherings can also serve "a broadly understood mutually opinion-forming or opinion-expressing purpose." Second, the traditionally understood fundamental right protects gatherings in private as well as public gatherings that take place on private property. Therefore, it must be fundamentally irrelevant that the Internet and especially social media are essentially made available by private parties. Finally, thirdly, preparations for an assembly are already protected by fundamental rights. This protection must not lapse just because, for example, a meeting for the purpose of organizing a demonstration takes place online.
70 A question that must be separated from the applicability of freedom of assembly is whether and how the Internet and social media can and should be subject to state regulation. From the perspective of freedom of assembly, the following problems arise: At first glance, the range of digital information sources and exchange possibilities is very large. This leads to a real battle for the attention of users. The crowding-out process that goes hand in hand with this battle in turn means that the digital forums of our time are controlled by a few private individuals. For their part, these are primarily entitled to fundamental rights and, unlike the state, are not bound by fundamental rights to grant all persons indiscriminate access to their infrastructure. Moreover, any regulation faces the challenge that the digital space has become unbounded - as the smartphone impressively demonstrates. A set of regulations limited to a single state will therefore hardly have any effect.
71 Finally, the technology available today means that the state can intervene in freedom of assembly in new ways. Particularly worthy of mention are the use of facial image matching software and drones. Projects are already underway in Switzerland: the Federal Office of Police would like to automate the manual matching of facial images and cites pedocrime and ATM burglaries as areas of application. However, this technology can also be used to continuously or retrospectively identify people taking part in a gathering. This is associated with a considerable deterrent effect, since today no standard checks of persons are carried out at gatherings - not even at demonstrations in public spaces - but now potentially all participants in a gathering can be identified. This technology can therefore only be used on the basis of a formal legal foundation and a strict proportionality test in each individual case. The same applies to the reconnaissance drone system (ADS 15) of the Swiss Air Force. This device can fly at an altitude of more than 7 kilometers while providing better images than can be taken today by helicopter. The Ordinance on the Support of Civilian or Off-Duty Activities with Military Means (VUM) is therefore not sufficient as a basis if a canton or municipality wishes to use this means of the armed forces at meetings. There must be a separate - and sufficient - legal basis for this.
IV. Future of freedom of assembly
72 Given what has been said, will the freedom to assemble in the real world be relevant at all in the future? Or will people finally retreat into digital filter bubbles, in which they will at most exchange ideas with like-minded people? - According to the view expressed here, freedom of assembly will continue to be of great importance in the future. Technological development simplifies the organization of gatherings, but digital presence cannot replace a real gathering. On the one hand, this applies to the people gathering, who experience a real community and solidarity - and with all their senses. On the other hand, this also applies to the outside: When people visibly and audibly express a common concern, this is of a different quality than a "like" on social media. In the words of the Federal Supreme Court: "The significance of physical demonstrations as a means of democratic expression of opinion is thereby reduced, but not eliminated, since online actions generally meet with less resonance than events on public ground by name."
73 Even and especially in a digital world, not only virtual but also physical assemblies can be an effective means - especially for minorities - to draw the attention of the general public to their concerns. Technological possibilities may be expanding at a great pace, but what Jörg Paul Müller noted decades ago remains true: "There is no objective evidence that any one person or group knows better than any other what is good for everyone. In a democratic context, the equal worth of all forms the normative core of equality. It is therefore essential to the design of a legal order in which there is no fundamental primacy of individuals or groups that the concerns of all be mediated with one another."
About the author
Patrice Martin Zumsteg, Dr. iur., is a research associate and lecturer in constitutional and administrative law at the Zurich University of Applied Sciences ZHAW, Winterthur, and a lawyer with AAK Attorneys and Counselors AG, Zurich. He can be reached at zumg@zhaw.ch
The author would like to thank the editors, Stefan Schlegel and Odile Ammann, as well as the two anonymous persons who undertook the review, for valuable feedback on earlier versions of the text.
Recommended further reading
Bosshart Jürg, Demonstrationen auf öffentlichem Grund, Verfassungs- und verwaltungsrechtliche Aspekte zum Problem der Demonstrationsfreiheit, Diss., Zürich 1973.
Daly Aoife, A Commentary on the United Nations Convention on the Rights of the Child, Article 15, The Right to Freedom of Association and to Freedom of Peaceful Assembly, Leiden/Boston 2016.
Jaag Tobias, Gemeingebrauch und Sondernutzung öffentlicher Sachen, ZBl 93 (1992), S. 145 ff.
Jacquat Graziella, La liberté de réunion en droit suisse, Diss., Zürich 1982.
Kern Markus, Kommunikationsgrundrechte als Gefahrenvorgaben, Umgang mit kommunikationsbedingten Gefahren in den Rechtsordnungen der USA, Deutschlands und der Schweiz, Diss., Zürich/Basel/Genf 2012.
Malinverni Giorgio, La liberté de réunion, Etude de droit constitutionnel suisse, Genf 1981.
Moeckli Daniel, Exclusion from Public Space, A Comparative Constitutional Analysis, Habil., Cambridge 2016.
Moser André Werner, Der öffentliche Grund und seine Benützung, im Lichte der bundesgerichtlichen Rechtsprechung und unter besonderer Berücksichtigung der Rechtslage im Kanton Bern, Diss., Bern 2011.
Poledna Tomas, Staatliche Bewilligungen und Konzessionen, Habil., Bern 1994.
Rüesch Adrian, Die Versammlungsfreiheit nach schweizerischem Recht, Diss., Zürich 1983.
Salát Orsolya, The Right to Freedom of Assembly, A Comparative Study, Oxford und Portland (Oregon) 2015.
Saxer Urs, Die Grundrechte und die Benutzung öffentlicher Strassen, Eine Untersuchung der Bundesgerichtspraxis unter Berücksichtigung deutscher Entscheidungen, Diss., Zürich 1988.
Siehr Angelika, Das Recht am öffentlichen Raum, Theorie des öffentlichen Raumes und die räumliche Dimension von Freiheit, Habil., Tübingen 2016.
Thurnheer Simon, Demonstrationsfreiheit in England und der Schweiz, Eine vergleichende Untersuchung und ein Beitrag zur Grundrechtsdogmatik, Diss., Zürich/Basel/Genf 2010.
Uebersax Peter, La liberté de manifestation, RDAF 2006, S. 25 ff.
Wyssmann Ursula, Nutzungskonflikte im öffentlichen Raum, Dargestellt am Beispiel des Bahnhofs Bern, Diss., Zürich/St. Gallen 2009.
Zumsteg Patrice Martin, Demonstrationen in der Stadt Zürich, Verwaltungsrecht und Behördenpraxis am Massstab der Versammlungs- und Meinungsfreiheit, Diss., Zürich/Basel/Genf 2020.
Bibliography
Arndt Felix/Engels Anja/von Oettingen Anna, in: Karpenstein Ulrich/Mayer Franz C. (Hrsg.), EMRK, Konvention zum Schutz der Menschenrechte und Grundfreiheiten, 3. Aufl., München und Basel 2022.
Baigger Katja, Neonazis treffen sich in Waldhütte, NZZ vom 20. Juni 2022, S. 11.
Biaggini Giovanni, BV Kommentar, Bundesverfassung der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2017.
Errass Christoph, in: Ehrenzeller Bernhard/Egli Patricia/Hettich Peter/Hongler Peter/Schindler Benjamin/Schmid Stefan G./Schweizer Rainer J. (Hrsg.), Bundesverfassung, St. Galler Kommentar, 4. Aufl., Zürich/St. Gallen und Zürich/Basel/Genf 2023.
Errass Christoph/Rechsteiner David, in: Ehrenzeller Bernhard/Egli Patricia/Hettich Peter/Hongler Peter/Schindler Benjamin/Schmid Stefan G./Schweizer Rainer J. (Hrsg.), Bundesverfassung, St. Galler Kommentar, 4. Aufl., Zürich/St. Gallen und Zürich/Basel/Genf 2023.
Gonin Luc, in: Gonin Luc/Bigler Olivier, Convention européenne des droits de l’homme (CEDH), Commentaire des articles 1 à 18 CEDH, Stämpflis Handkommentar, Bern 2018.
Grabenwarter Christoph/Pabel Katharina, Europäische Menschenrechtskonvention, 7. Aufl., München und Basel und Wien 2021.
Harris David/O’Boyle Michael/Bates Ed/Buckley Carla, Harris, O’Boyle, and Warbrick, Law of the European Convention on Human Rights, 4. Aufl., Oxford 2018.
Hertig Maya, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Kälin Walter/Epiney Astrid/Caroni Martina/Künzli Jörg/Pirker Benedikt, Völkerrecht, Eine Einführung, 5. Aufl., Bern 2022.
Kiener Regina/Kälin Walter/Wyttenbach Judith, Grundrechte, 3. Aufl., Bern 2018.
Magarian Gregory P., The Internet and Social Media, in: Stone Adrienne/Schauer Frederick (Hrsg.), The Oxford Handbook of Freedom of Speech, Oxford 2021, S. 350 ff.
Malinverni Giorgio, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire romand, Constitution fédérale, Basel 2021.
Moeckli Daniel, Politische Werbung auf öffentlichem Grund, recht 2013, S. 263 ff.
Mohler Markus, Grundzüge des Polizeirechts in der Schweiz, Basel 2012.
Moor Pierre/Bellanger François/Tanquerel Thierry, Droit administratif, Volume III: L’organisation des activités administratives, Les biens de l’Etat, 2. Aufl., Bern 2018.
Müller Jörg Paul, Demokratische Gerechtigkeit, Eine Studie zur Legitimität rechtlicher und politischer Ordnung, München 1993 (zit. Müller, Demokratische Gerechtigkeit).
Müller Jörg Paul, Verwirklichung der Grundrechte nach Art. 35 BV, Der Freiheit Chancen geben, Bern 2018 (zit. Müller, Verwirklichung).
Pariser Eli, The Filter Bubble, What the Internet is Hiding from You, New York 2011.
Schabas William A., Nowak’s CCPR Commentary, U.N. International Covenant on Civil and Political Rights, 3. Aufl., Kehl am Rhein 2019.
Schefer Markus, Die Beeinträchtigung von Grundrechten, Zur Dogmatik von Art. 36 BV, Bern 2006 (zit. Schefer, Beeinträchtigung).
Schefer Markus, Kommunikationsgrundrechte, in: Diggelmann Oliver/Hertig Randall Maya/Schindler Benjamin (Hrsg.), Verfassungsrecht der Schweiz, Band II, 2. Aufl., Zürich/Basel/Genf 2020, S. 1413 ff. (zit. Schefer, Kommunikationsgrundrechte).
Schweizer Rainer J./Krebs Alina, in: Ehrenzeller Bernhard/Egli Patricia/Hettich Peter/Hongler Peter/Schindler Benjamin/Schmid Stefan G./Schweizer Rainer J. (Hrsg.), Bundesverfassung, St. Galler Kommentar, 4. Aufl., Zürich/St. Gallen und Zürich/Basel/Genf 2023.
Tschannen Pierre/Müller Markus/Kern Markus, Allgemeines Verwaltungsrecht, 5. Aufl., Bern 2022.
Villiger Mark E., Handbuch der Europäischen Menschenrechtskonvention (EMRK), mit besonderer Berücksichtigung der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte in Schweizer Fällen, 3. Aufl., Zürich/Basel/Genf und Baden-Baden und Wien 2020.
Vischer Benedict, Wie ist das Verhüllungsverbot mit den Grundrechten zu vermitteln?, Art. 10a BV im Kontext der Grund- und Menschenrechtsgarantien, Jusletter vom 4. April 2022.
Wyssmann Ursula, Nutzungskonflikte im öffentlichen Raum, Dargestellt am Beispiel des Bahnhofs Bern, Diss., Zürich/St. Gallen 2009.
Zeller Franz/Kiener Regina, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Zick Timothy, Parades, Picketing, and Demonstrations, in: Stone Adrienne/Schauer Frederick (Hrsg.), The Oxford Handbook of Freedom of Speech, Oxford 2021, S. 369 ff.
Zumsteg Patrice Martin, Demonstrationen in der Stadt Zürich, Verwaltungsrecht und Behördenpraxis am Massstab der Versammlungs- und Meinungsfreiheit, Diss., Zürich/Basel/Genf 2020 (zit. Zumsteg, Demonstrationen).
Zumsteg Patrice Martin, «Fridays for Future» und Menschenrechtsschutz, Sicherheit & Recht 2020, S. 4 ff. (zit. Zumsteg, «Fridays for Future»).
Zumsteg Patrice Martin, Versammlungsfreiheit und persönliche Freiheit, in: Helbing Lichtenhahn Verlag (Hrsg.), COVID-19, Ein Panorama der Rechtsfragen zur Corona-Krise, Basel 2020, S. 801 ff. (zit.: Zumsteg, COVID-19).