Persons in need and unable to provide for themselves have the right to assistance and care, and to the financial means required for a decent standard of living.
Art. 12 BV — Right to assistance in situations of distress
#Overview
Article 12 of the Federal Constitution gives people in situations of distress the right to state assistance. This fundamental right (inalienable right of every person) guarantees the basic means for survival and for a life in human dignity.
Who is entitled to assistance? Every person who finds themselves in an acute situation of distress and cannot help themselves. A situation of distress exists when someone cannot meet their most important needs: food, housing, clothing or medical treatment. However, the person must first have exhausted all their own possibilities (principle of subsidiarity). Those who refuse reasonable work or decline other assistance generally receive no support.
What assistance is provided? The state must provide the absolutely necessary means for survival. This includes shelter, food, clothing and basic medical care. The assistance can be provided as money or as benefits in kind (direct provision of housing and food). In the case of rejected asylum seekers, often only benefits in kind are granted.
Practical example: A single mother loses her job and can no longer pay the rent. She has no assets and no family who could help. Unemployment benefits are not sufficient for living. In this situation, she can apply for emergency assistance until other support (social assistance) takes effect or she finds work again.
Important limitations: The right applies only to the absolute minimum for survival. It is not a right to comfortable living. The person concerned must actively seek solutions and accept offered assistance. Those who hide their own means or do not use all possibilities lose their entitlement.
Unlike other fundamental rights, Art. 12 BV cannot be restricted. Even criminals or persons without legal residence status retain this entitlement. The right protects human dignity in its most fundamental form.
Art. 12 FC — Right to Emergency Assistance
#Doctrine
#1. Legislative History
N. 1 Art. 12 FC codifies a fundamental right that the Federal Supreme Court had already recognised as unwritten constitutional law prior to the entry into force of the new Federal Constitution. In BGE 121 I 367 (1995), the Federal Supreme Court held that the right to subsistence was guaranteed by unwritten federal constitutional law and extended to foreign nationals as well. The provision was therefore the result of a judge-made legal development that the constitution-maker adopted in codified form.
N. 2 In the Federal Council's dispatch on the new Federal Constitution of 20 November 1996, the provision was still listed under the marginal heading «Recht auf Existenzsicherung» [right to subsistence] (BBl 1997 I 149). The Federal Council described it as a residual fundamental right of an entitlement character, activated when the ordinary social insurance and social assistance law fails. The current formulation «whoever is in a situation of distress and is unable to provide for themselves» was only inserted at the proposal of the constitutional committees of the federal chambers during parliamentary deliberations (AB 1998 S 39 f.; AB 1998 N 688 f.). This addition served to anchor the principle of subsidiarity explicitly at the level of the conditions of entitlement, as the Federal Supreme Court noted in BGE 130 I 71 E. 4.1 with reference to the parliamentary materials.
N. 3 Also during the parliamentary deliberations, a deliberate decision was made to limit the entitlement to a minimum — namely «bridging assistance» in the form of food, clothing, shelter and basic medical care (AB 1998 S 39). The marginal heading was changed from «Recht auf Existenzsicherung» [right to subsistence] to «Recht auf Hilfe in Notlagen» [right to emergency assistance] in order to signal this limitation. The provision has therefore been conceived since its inception as a minimum guarantee («filet de sécurité») and not as a guarantee of a minimum level of welfare-state provision.
#2. Systematic Classification
N. 4 Art. 12 FC is a social fundamental right (→ Art. 41 FC) with a distinctive feature: it constitutes a justiciable, enforceable entitlement right. Unlike the social goals of Art. 41 FC, which do not confer subjective rights, Art. 12 FC grants the individual a direct, judicially enforceable claim against the state (Schefer, Die Kerngehalte von Grundrechten, 2001, p. 338 f.; Lucien Müller, in: St. Galler Kommentar zur BV, 3rd ed. 2014, Art. 12 N. 31).
N. 5 The provision is closely connected with the protection of human dignity (↔ Art. 7 FC). Art. 12 FC gives specific expression to Art. 7 FC in situations of material hardship. The Federal Supreme Court has repeatedly emphasised this close connection (BGE 131 I 166 E. 3.1; BGE 142 I 1 E. 7.2). Art. 12 FC ensures that no one in Switzerland is exposed to an existence incompatible with human dignity.
N. 6 As a residual fundamental right of an entitlement character, Art. 12 FC applies subsidiarily to the existing social insurance systems (OASI, DI, UI, HI, etc.) and to cantonal social assistance law. The cantons are responsible for implementation (→ Art. 115 FC). The provision establishes a minimum entitlement under federal constitutional law which cantonal law may not fall below. Cantonal statutory social assistance entitlements generally go beyond the constitutional minimum of Art. 12 FC (Gächter/Werder, BSK BV, Art. 12 N. 5 ff.).
N. 7 Unlike the civil liberties (Art. 10 ff. FC), Art. 12 FC does not have classical fundamental rights restrictions under Art. 36 FC. In place of restrictions, the conditions of entitlement apply. Restrictive statutory concretisations are only permissible insofar as they are compatible with the minimum content guaranteed under constitutional law (BGE 131 I 166 E. 5.2). The protected scope and core content of Art. 12 FC coincide, which means that any interference with the protected scope simultaneously affects the core content that is inviolable under Art. 36 para. 4 FC (BGE 130 I 71 E. 4.1; BGE 131 I 166 E. 5.3).
#3. Elements of the Provision / Normative Content
a) Situation of distress
N. 8 The entitlement presupposes the existence of an actual situation of distress — that is, a situation that has already arisen or is immediately imminent, in which the person seeking assistance lacks the means necessary for an existence compatible with human dignity (Amstutz, Das Grundrecht auf Existenzsicherung, 2002, p. 157; BGE 131 I 166 E. 3.2). A merely hypothetical state of need does not suffice. At the same time, the cause of the situation of distress is in principle irrelevant: the right to assistance is independent of fault. Whether the person has contributed to the situation of distress does not affect the entitlement in principle (BGE 134 I 65 E. 3.3; BGE 131 I 166 E. 4.3).
b) Principle of subsidiarity («unable to provide for themselves»)
N. 9 The entitlement requires that the person be «unable to provide for themselves». This formulation anchors the principle of subsidiarity at the level of the constituent elements of the right. No entitlement exists for a person who is objectively capable of obtaining the means necessary for survival through their own efforts — in particular by accepting reasonable employment (BGE 130 I 71 E. 4.3). For such persons, the conditions of entitlement are not met in the first place.
N. 10 The principle of subsidiarity requires a substantive connection between the self-help that can reasonably be expected of the person in need of assistance and the actual termination of the situation of distress. The possible source of assistance must be concrete, current and suitable to overcome the situation of distress (BGE 131 I 166 E. 4.3; BGE 150 I 6 E. 10.2). Where the state refers to a future, merely hypothetical source of income (such as an uncertain claim to a disability insurance pension), subsidiarity does not apply (BGE 150 I 6 E. 10.2).
N. 11 If a person refuses remunerated, reasonable employment and would thereby be objectively capable of remedying the situation of distress themselves, the conditions of entitlement under Art. 12 FC are not met (BGE 130 I 71 E. 4.3, 5.3; BGE 139 I 218 E. 5.3). The question of reasonableness is assessed by analogy with the criteria of Art. 16 para. 2 UEIA (BGE 130 I 71 E. 5.3).
c) Content of the entitlement: assistance, care and means for an existence compatible with human dignity
N. 12 The entitlement comprises three elements: «assistance», «care» and «means essential for an existence compatible with human dignity». The Federal Supreme Court has specifically confined the essential means to food, clothing, shelter and basic medical care (BGE 130 I 71 E. 4.1; BGE 131 I 166 E. 3.1; BGE 142 I 1 E. 7.2.1). The fundamental right does not guarantee a minimum income; it guarantees only «the absolute essentials» protecting against a destitute existence unworthy of human dignity.
N. 13 The concretisation of the entitlement is the responsibility of the cantons, which are in principle free in the design of the benefits. Both cash benefits and benefits in kind are permissible (BGE 131 I 166 E. 8.5; BGE 135 I 119 E. 5.3). The cantons may make the entitlement subject to reasonable conditions and requirements, provided these are directed at remedying the situation of distress and that conditions extraneous to that purpose are avoided (BGE 131 I 166 E. 4.4).
d) Personal scope of application
N. 14 Art. 12 FC applies universally — to Swiss nationals and to foreign nationals alike, irrespective of their residence status — by virtue of its human rights character. Even persons present illegally may invoke Art. 12 FC (BGE 131 I 166 E. 3.1; BGE 121 I 367 E. 2d; Amstutz, Das Grundrecht auf Existenzsicherung, 2002, p. 157). The entitlement may be graduated according to residence status; the lower limit is always human dignity (BGE 131 I 166 E. 8.2).
#4. Legal Consequences
N. 15 The entitlement under Art. 12 FC creates a direct, judicially enforceable duty on the part of the state to provide benefits. Where the constitutionally required minimum benefit is refused, the person concerned may claim benefits by way of appeal. The Federal Supreme Court entertains corresponding public-law complaints (formerly: staatsrechtliche Beschwerden [constitutional complaints]) (BGE 131 I 166 E. 1.2).
N. 16 Since the protected scope and core content coincide, any interference with the entitlement protected by Art. 12 FC is absolutely impermissible — even if the formal conditions for restricting a fundamental right under Art. 36 para. 1–3 FC were fulfilled (BGE 131 I 166 E. 5.3; BGE 142 I 1 E. 7.2.4). Sanctions under aliens law (e.g. the refusal of emergency assistance as a means of pressure to enforce a removal order) are therefore unconstitutional (BGE 131 I 166 E. 7.1).
N. 17 Where a situation of distress exists and the principle of subsidiarity is satisfied, the state may only give shape to the entitlement through proportionate accompanying measures that do not affect the protected scope: provision as benefits in kind, linkage with conditions under threat of penalty pursuant to Art. 292 SCC, or cantonal sanctions that leave the minimum untouched (BGE 142 I 1 E. 7.2.5; BGE 150 I 6 E. 11.3; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 780).
#5. Contested Issues
a) Abuse of rights and forfeiture
N. 18 The most significant contested issue in doctrine and case law concerns the question of whether Art. 12 FC may be refused on grounds of abusive conduct by the person seeking assistance. The Federal Supreme Court has expressly left this question open in its consistent practice (BGE 131 I 166 E. 6.2; BGE 134 I 65 E. 5.1; BGE 142 I 1 E. 7.2.5; BGE 150 I 6 E. 11.1). In any event, strict conditions must be met for an abuse of rights to be found: the person must have brought about the situation of distress intentionally and solely for the purpose of obtaining the entitlement to assistance; this intent must be clearly and unambiguously established (BGE 134 I 65 E. 5.2).
N. 19 The prevailing academic opinion rejects forfeiture of the entitlement on grounds of abuse of rights. Amstutz (Das Grundrecht auf Existenzsicherung, 2002, pp. 304 ff.), Schefer (Die Kerngehalte von Grundrechten, 2001, pp. 348 ff.), Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 780) and Riemer-Kafka (Das Verhältnis zwischen Grundrecht auf Hilfe in Notlagen und Eigenverantwortung, in: Tschudi [ed.], Das Grundrecht auf Hilfe in Notlagen, 2005, p. 148) are unanimous in the view that, given the protected scope of Art. 12 FC reduced to the absolute minimum, there is no room for forfeiture entailing a definitive refusal of benefits. Dubey (in: Commentaire romand, Constitution fédérale, 2021, Art. 12 N. 72 f.) and Gächter/Werder (BSK BV, Art. 12 N. 40) take the position that in genuine cases of abuse the condition of need is not met, such that the question of abuse of rights does not arise at all.
b) Subsidiarity and conditions of entitlement vs. the sanctions model
N. 20 It is disputed whether the refusal of reasonable employment causes the conditions of entitlement to lapse (as held by the Federal Supreme Court: BGE 130 I 71 E. 4.3) or whether it merely justifies proportionate sanctions that must leave the core content untouched. Amstutz (Einstellung von Sozialhilfeleistungen bei Ablehnung zumutbarer Arbeit, ZfSo 2003, pp. 97 f.) criticises the Federal Supreme Court's practice and favours the sanctions model: where reasonable employment is refused, only temporary reductions in benefits are permissible, without affecting the absolutely protected subsistence needs under Art. 12 FC. The Federal Supreme Court expressly rejected this criticism in BGE 130 I 71 E. 4.3, on the grounds that it fails to give sufficient weight to the principle of subsidiarity and the primacy of self-help. The practice is refined in BGE 142 I 1: where the work offered is unremunerated, the principle of subsidiarity does not apply, and a refusal of emergency assistance violates Art. 12 FC.
c) Conditions and requirements
N. 21 Discussion concerns the extent to which conditions may be attached to the grant of constitutionally mandated emergency assistance. The Federal Supreme Court permits conditions, provided they have a substantive connection to remedying the situation of distress and do not serve extraneous purposes (BGE 131 I 166 E. 4.4). Linking emergency assistance to cooperation duties under aliens law — such as obtaining identity documents for the purposes of enforcing a removal order — is impermissible, since such duties do not contribute to remedying the economic situation of distress (BGE 131 I 166 E. 4.5, 7.1). Tschudi (Die Auswirkungen des Grundrechts auf Hilfe in Notlagen auf sozialhilferechtliche Sanktionen, in: Grundrecht auf Hilfe in Notlagen, 2005, pp. 117 f.) and Mösch Payot (Sozialhilfemissbrauch?!, in: Das Schweizerische Sozialhilferecht, 2008, p. 294) favour a broad spectrum of permissible sanctions (benefits in kind, threat of penalty pursuant to Art. 292 SCC) that leave the core content untouched.
#6. Practical Notes
N. 22 Jurisdiction: Responsibility for granting emergency assistance lies with the cantons. In the case of rejected asylum seekers, the canton of allocation is responsible (BGE 137 I 113 E. 3). Federal and cantonal authorities must ensure that the protection of Art. 12 FC is guaranteed even for persons in irregular residence situations.
N. 23 Analytical framework: In practice, the first step is to examine whether an actual situation of distress exists (N. 8). Next, the principle of subsidiarity must be considered: is the person objectively capable of helping themselves, and is a concrete, current and suitable source of assistance available (N. 9–11)? Only if both questions are answered affirmatively do the conditions of entitlement lapse. Otherwise, the entitlement to emergency assistance in the form of food, clothing, shelter and basic medical care exists.
N. 24 Distinction between social assistance / emergency assistance under Art. 12 FC: In practice, a strict distinction must be drawn between the more extensive cantonal statutory social assistance entitlement and the minimum entitlement under Art. 12 FC. Cantonal social assistance law (including SSAC guidelines) may be restricted, reduced or made subject to conditions. The entitlement under Art. 12 FC forms the absolute floor which may not be undercut (BGE 142 I 1 E. 7.2.1, 7.3).
N. 25 Employment programmes: Conditions requiring participation in employment programmes are constitutionally sound, provided the programme is remunerated and the remuneration obtained is suitable for overcoming the situation of distress. Where the programme is unremunerated, the principle of subsidiarity does not apply, and refusal of emergency assistance is unconstitutional (BGE 142 I 1 E. 7.2.3, 7.2.6). Where cooperation is refused, the authorities have alternative measures available: provision as benefits in kind or conditions with threat of penalty pursuant to Art. 292 SCC.
N. 26 Form of benefits: The cantons may choose between cash benefits and benefits in kind (BGE 131 I 166 E. 8.5; BGE 135 I 119 E. 5.3). In the case of rejected asylum seekers, provision as benefits in kind is recommended in accordance with the Federal Supreme Court's indications, as this reduces problems of oversight (BGE 131 I 166 E. 8.5). Modalities such as a weekly attendance requirement to collect benefits are permissible, provided there are no special reasons (e.g. poor state of health) to the contrary (BGE 131 I 166 E. 8.4).
N. 27 ECHR: Art. 12 FC is thematically connected with Art. 3 ECHR (prohibition of inhuman treatment), insofar as emergency assistance is calibrated in such a way as to endanger physical integrity. The Federal Supreme Court regularly leaves open the direct application of Art. 3 ECHR in the context of emergency assistance, but places Art. 12 FC in close connection with human dignity, which is regarded as the absolute lower limit of any emergency assistance (BGE 131 I 166 E. 8.2). The Federal Supreme Court has not to date directly invoked Art. 11 ICESCR (right to an adequate standard of living).
#Bibliography (selected)
- Amstutz Kathrin, Das Grundrecht auf Existenzsicherung, Bern 2002 (ASR H. 664)
- Gächter Thomas/Werder Evelyne, BSK BV, Art. 12 N. 1 ff. (2nd ed. 2024)
- Lucien Müller, St. Galler Kommentar zur BV, 3rd ed. 2014, Art. 12 N. 1 ff.
- Müller Jörg Paul/Schefer Markus, Grundrechte in der Schweiz, 4th ed. 2008, pp. 769 ff.
- Schefer Markus, Die Kerngehalte von Grundrechten, Bern 2001, pp. 338 ff.
- Dubey Jacques, in: Commentaire romand, Constitution fédérale, 2021, Art. 12 N. 1 ff.
- Rhinow René/Schefer Markus/Uebersax Peter, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2100 ff.
- Tschudi Carlo (ed.), Das Grundrecht auf Hilfe in Notlagen, Bern/Stuttgart/Wien 2005
Art. 12 BV
#Case Law
#Fundamental Case Law on the Subsistence Minimum
BGE 130 I 71 — 14 January 2004
Fundamental judgment on the scope of the right to assistance in situations of distress.
Clarification of the constitutional foundations and the subsidiarity principle in social assistance.
«The constitutional entitlement encompasses only a minimum, i.e., the indispensable means to be able to survive. The scope of protection and the core content coincide. [...] Anyone who is objectively in a position to procure the means necessary for survival through their own efforts—particularly by accepting reasonable employment—does not meet the entitlement requirements.»
BGE 121 I 367 — 2000
Fundamental judgment on securing existence before the entry into force of the new Federal Constitution.
Development of the constitutional foundations of the subsistence minimum as unwritten constitutional law.
«The right to secure existence is guaranteed by unwritten constitutional law of the Confederation. Foreign nationals may also invoke this right.»
#Emergency Assistance for Asylum Seekers and Foreign Nationals
BGE 131 I 166 — 18 March 2005
Landmark judgment on emergency assistance for rejected asylum seekers.
First express recognition of a constitutional entitlement to emergency assistance pursuant to Art. 12 BV.
«Art. 12 BV guarantees an entitlement to emergency assistance, which also applies to rejected asylum seekers. [...] Emergency assistance must secure the subsistence minimum and may not be completely refused.»
BGE 135 I 119 — 20 March 2009
Benefits in kind as a form of emergency assistance.
Boundary between constitutionally required emergency assistance and services going beyond this.
«Emergency assistance provided exclusively as benefits in kind for accommodation and meals does not, as such, violate the fundamental right to assistance in situations of distress guaranteed pursuant to Art. 12 BV.»
BGE 137 I 113 — 6 January 2011
Jurisdictional regulation for emergency assistance for asylum seekers.
Clarification of the scope of constitutionally owed emergency assistance.
«The canton of allocation is responsible for granting emergency assistance to a rejected asylum seeker with a removal order. Emergency assistance must meet constitutional minimum requirements.»
BGE 139 I 272 — 22 November 2013
Accommodation in air-raid shelters as a form of emergency assistance.
Humane minimum standards for emergency assistance.
«For a single man in good health, the fact that he must spend the night in a civil defence air-raid shelter does not contravene the minimum requirements guaranteed by Art. 12 BV and does not, in particular, violate the right to respect for human dignity.»
#Employment Programmes and Conditions
BGE 142 I 1 — 8 March 2016
Limits on the refusal of emergency assistance due to non-participation in employment programmes.
Important judgment on the distinction between emergency assistance and social assistance.
«If emergency assistance (in the sense of the absolutely necessary) is refused due to non-compliance with the instruction to participate in an employment programme, this violates Art. 12 BV if participation in the programme would not be remunerated and the subsidiarity principle therefore does not apply.»
BGE 139 I 218 — 29 July 2013
Test workplaces as a reasonable measure.
Proportionality of employment conditions in social assistance law.
«The provision of material assistance may be linked to the condition of undertaking temporary work at a so-called test workplace. This measure is neither disproportionate nor does it constitute a violation of personal freedom.»
#Social Assistance and Asset Assessment
BGE 134 I 65 — 2007
Subsistence minimum in cases of voluntary renunciation of assets.
Limits on the assessment of gifted assets.
«Since there is no obvious abuse of rights, the subsistence minimum guaranteed in Art. 12 BV may not be refused, even if assets were voluntarily renounced.»
BGE 142 V 513 — 6 September 2016
Assessment of cohabitation contributions.
Calculation of social assistance in cohabiting relationships.
«All income must be offset against the extended SKOS budget of the non-supported cohabiting partner. If this results in surplus income, this must be fully assessed as income in the budget of the applicant in cases of stable cohabitation.»
BGE 141 I 153 — 17 September 2015
Constitutional conformity of cohabitation contribution assessment.
Confirmation of case law on social assistance calculation in cohabitation.
«The assessment of a cohabitation contribution in the social assistance budget is neither arbitrary nor does it violate the principle of equality before the law in cases of stable cohabitation.»
#Criminal Proceedings and Subsistence Minimum
BGE 141 IV 360 — 10 August 2015
Seizure for cost coverage and subsistence minimum.
Protection of the subsistence minimum in criminal proceedings.
«In seizure for cost coverage, the income and asset circumstances of the accused must be taken into account and assets that are not attachable under Arts. 92-94 SchKG must be exempted. This examination takes account of the principle of proportionality and the fundamental right to guarantee of the subsistence minimum.»
#Maintenance Law and Subsistence Minimum
BGE 135 III 66 — 23 October 2008
Subsistence minimum of the maintenance obligor.
Deficit allocation in cases of insufficient means of the maintenance obligor.
«In any case, the subsistence minimum must be left to the maintenance obligor, whereby any deficit must be borne unilaterally by those entitled to maintenance.»
BGE 126 III 353 — 2000
Calculation of minimal basic needs.
Principles for determining the subsistence minimum in cases of scarce financial means.
«The tax burden of the pension debtor must be disregarded in cases of scarce financial means. Principles for calculating the minimal basic needs of the pension debtor must be observed.»
#Data Protection in Social Assistance Law
BGE 138 I 331 — 2012
Social assistance confidentiality and data protection.
Proportionality of data disclosure in the social assistance sector.
«The lapse of social assistance confidentiality upon authorisation by the affected person for data disclosure is constitutional, provided proportionality is maintained.»
#Recent Developments
BGE 149 I 248 — 2023
Prohibition of begging and subsistence minimum.
Constitutional conformity of partial prohibitions on begging.
«Begging falls within the scope of protection of the fundamental right of personal freedom. A partial prohibition on begging may be proportionate under certain circumstances, but must not endanger securing existence.»
BGE 146 I 1 — 6 February 2020
Refusal of social assistance in view of impending inheritance.
Consideration of future assets in social assistance calculation.
«The refusal of financial support in view of the impending division of an inheritance with real estate must be examined from the perspective of Art. 12 BV and cantonal social assistance legislation.»