#1. History of Origin

N. 1 The current constitutional provision on victim assistance goes back to a popular initiative by the magazine «Der Schweizerische Beobachter» from 1980. The initiative called for a law on compensation for victims of crimes against life and limb by the state. The counter-proposal by the Federal Assembly, which went further in terms of content, was accepted in the referendum on 2 December 1984 with 83.3% yes votes and the approval of all cantons. This led to the inclusion of Art. 64ter in the old Federal Constitution, which was adopted unchanged as Art. 124 BV in the framework of the total revision.

N. 2 The Message on the Total Revision of the Federal Constitution of 20 November 1996 (BBl 1997 I 1 ff., 420) states that the provision requires comprehensive assistance for victims of crimes. The constituent power did not only want financial compensation, but to establish a three-tier assistance system: immediate assistance, longer-term assistance as well as compensation and satisfaction. This tripartite structure continues to shape the implementing Victim Assistance Act to this day.

#2. Systematic Classification

N. 3 Art. 124 BV stands in the third chapter of the second title on social objectives, education and research. This placement emphasizes the social state character of victim assistance. Unlike the actual social objectives in Art. 41 BV, however, Art. 124 BV establishes directly enforceable claims. The norm is systematically connected with → Art. 41 para. 1 lit. c BV (social objective of protection from violence), → Art. 10 para. 2 BV (right to physical and mental integrity) and → Art. 11 BV (protection of children and young people).

N. 4 The constitutional provision has a dual legal nature: it is on the one hand a competence norm that obliges the Confederation and cantons to provide victim assistance, and on the other hand a principle norm with direct entitlement content. The Federal Supreme Court has repeatedly held that Art. 124 BV establishes a constitutional claim to victim assistance, the scope of which is specified by legislation (BGE 125 II 265 E. 3a).

#3. Elements of the Offence / Norm Content

#3.1 Concept of Victim

N. 5 The concept of victim presupposes that a person has been impaired in their physical, psychological or sexual integrity by a criminal offence. The case law interprets the concept of criminal offence broadly and also covers negligent result offences with a large temporal gap between the act and the occurrence of the result (BGE 134 II 308 E. 5). What is decisive is the realization of the objective and subjective elements of the offence, not the negligent behaviour as such.

N. 6 Some commentators emphasize that only natural persons can be victims. The impairment must have been directly caused by the criminal offence. In addition to primary victims, Art. 124 BV also covers relatives as secondary victims, provided they were themselves impaired in their psychological integrity by the criminal offence.

#3.2 Assistance

N. 7 The constitutionally required «assistance» encompasses, according to prevailing doctrine, a three-tier system: immediate assistance, longer-term assistance and financial benefits. It is disputed whether victim assistance also applies preventively. Part of the literature takes the view that victim assistance should not only apply when a criminal offence has occurred, but already when it is threatened. Other commentators contradict this interpretation with the argument that it finds support neither in the wording nor in the materials. Federal Supreme Court practice has not yet definitively expressed itself on this controversy.

#3.3 Appropriate Compensation

N. 8 The «appropriate compensation» is linked to the condition that the victim has fallen into economic difficulties as a result of the criminal offence. The case law specifies these difficulties by reference to the system of supplementary benefits (BGE 131 II 217). The compensation has a subsidiary character; benefits from third parties are offset.

N. 9 Some commentators explain that the appropriateness of compensation requires a balancing between the financial circumstances of the victim and the damage suffered. The compensation does not have to cover the full damage, but should prevent or mitigate economic hardship.

#4. Legal Consequences

N. 10 Art. 124 BV obliges the Confederation and cantons jointly to provide victim assistance. The Confederation has created the normative framework with the Victim Assistance Act, while the cantons are responsible for operational implementation. They must establish counselling centres, ensure immediate assistance and decide on compensation applications.

N. 11 The case law recognizes a direct claim to victim assistance from Art. 124 BV, the scope of which is specified by the OHG (BGE 149 II 246). In the case of offences abroad, a claim only exists if the victim had a personal relationship with Switzerland at the time of the offence (BGE 126 II 228). Swiss citizenship suffices as such a relationship (BGE 128 II 107).

#5. Contentious Issues

#5.1 Preventive Victim Assistance

N. 12 A central point of contention concerns the question of whether victim assistance already applies when a criminal offence is threatened. Gomm/Zehntner (Commentary OHG, 3rd ed. 2009, Art. 1 N. 15) and Leubin Müller (AJP 2012, 1585, 1587) take the view that the protective purpose of victim assistance also encompasses preventive measures. Other commentators contradict this with reference to the clear wording («by a criminal offence») and the lack of support in the materials. The practice of cantonal victim assistance centres is inconsistent.

#5.2 Relationship to Free Legal Aid

N. 13 The relationship between victim assistance and free legal aid regarding lawyer costs was controversially discussed. The Federal Supreme Court has clarified in BGE 149 II 246 that the subsidiarity of victim assistance does not apply in relation to free legal aid. These can only be claimed as immediate assistance or longer-term assistance, but not as compensation.

#6. Practical Guidelines

N. 14 For the assertion of victim assistance claims, the short limitation periods must be observed. The Federal Supreme Court requires that the facts establishing the claim be presented with sufficient specificity within the time limit (BGE 126 II 97). Unquantified claims are permissible if the damage has not yet been determined.

N. 15 In the case of long-term damage (asbestos, HIV infections), the limitation period only begins when the damage becomes recognizable (BGE 126 II 348). The counselling centres are obliged to point out these particularities and to support the formulation of applications.

N. 16 In the cross-border context, the public international law context must be considered. The literature refers to the European Convention on the Compensation of Victims of Violent Crimes (SR 0.312.5) and the EU Victims' Rights Directive 2012/29/EU. Swiss victims of violent crimes in the EU area can invoke these instruments.

#Temporal Scope in Consequential Offences

BGE 134 II 308 of 1 October 2008 — Asbestos Victims In negligent consequential offences with a long time gap between the act and the occurrence of the consequence, the realisation of the objective and subjective elements of the offence is decisive for the scope of application of the Victim Support Act. This leading decision establishes the constitutional framework for long-term damage and clarifies the victim-oriented approach of Art. 124 FC.

«For the temporal scope of victim support provisions on compensation and satisfaction, one cannot rely solely on negligent conduct. Rather, what is decisive is the occurrence of the factual consequence of such conduct.»

BGE 126 II 348 of 19 May 2000 — HIV Infection Following Rape The limitation period for criminal offences with delayed occurrence of damage begins only when the victim can recognise the damage. Fundamental decision on the victim-oriented interpretation of Art. 124 FC for latent damages.

«From this victim-oriented perspective, in connection with the principle of good faith enshrined in Art. 5 para. 3 FC, the Federal Supreme Court has decided that a victim must be able to recognise the relevant damage or injury before it can rely on the existence of a criminal offence within the meaning of the Victim Support Act.»

#Compensation Calculation and Third-Party Benefits

BGE 131 II 217 of 30 March 2005 — Deduction of Damages Payments Damages payments must be deducted from victim support compensation, even if they have already been taken into account when calculating income under the Supplementary Benefits Act. Fundamental decision on coordination between victim support and other social insurance benefits according to Art. 124 FC.

«Contrary to the wording of the Victim Support Act, benefits that the victim has received as damages must be deducted from compensation even if they have already been taken into account when calculating their creditable income under the Federal Act on Supplementary Benefits.»

BGE 129 II 145 of 8 January 2003 — Household Damage Following Killing Determination of household damage for employed persons; deduction of occupational pension benefits as damages. The decision concretises the compensation entitlement of relatives according to Art. 124 FC.

«In the case of employment, a deduction may be made from the time spent on household management. The hourly rate of CHF 25 assumed by the lower court is within the discretionary range.»

BGE 131 II 656 of 3 August 2005 — Income Calculation and Residual Work Capacity Timing of income calculation and consideration of residual work capacity in determining compensation. Important decision on the practical implementation of the compensation entitlement according to Art. 124 FC.

«As a rule, the time of determining victim support compensation and thus the time of the decision on this compensation is decisive for income calculation.»

#Scope of Application for Foreign Offences

BGE 126 II 228 of 19 May 2000 — Offences Abroad Victims of foreign offences are only entitled to victim support if they had a personal connection to Switzerland at the time of the offence. The decision delineates the territorial scope of Art. 124 FC.

«The victim of an offence suffered abroad has no entitlement to the assumption of further costs according to Art. 3 para. 4 Victim Support Act if it had no connection to Switzerland at the time of the offence.»

BGE 128 II 107 of 18 January 2002 — Swiss Citizenship Abroad Swiss citizenship suffices as a personal connection to Switzerland for victim support entitlements in foreign offences. Clarification of the territorial scope of Art. 124 FC.

«Swiss citizenship of the victim at the time of the offence suffices to establish a personal connection to Switzerland and thus entitlement according to Art. 3 Victim Support Act.»

#Legal Costs and Subsidiarity

BGE 149 II 246 of 2 June 2023 — Legal Costs in Criminal Proceedings Legal costs can only be claimed as immediate or longer-term assistance, not as compensation. No subsidiarity vis-à-vis free legal aid. Current leading decision on the practical implementation of assistance according to Art. 124 FC.

«The victim within the meaning of victim support legislation can claim legal costs of criminal proceedings exclusively as immediate assistance or as longer-term assistance within the meaning of Art. 13 Victim Support Act. The subsidiarity of victim support does not apply in relation to free legal aid.»

#Child Protection and Victim Support

BGE 125 II 230 of 19 March 1999 — Relationship to Family Law Measures Family law child protection measures cannot replace victim support if they do not provide sufficient protection. Fundamental decision on the relationship between different state protective duties according to Art. 124 FC.

«If child protection measures taken under family law provide sufficient protection within the meaning of the Victim Support Act, the need for corresponding assistance under victim support law ceases to exist.»

#Duty of Substantiation

BGE 126 II 97 of 17 March 2000 — Presentation of Compensation Claims Victims must present the facts establishing their claim with sufficient specificity within the limitation period. Unquantified claims are admissible if the damage has not yet been determined. Important procedural decision on the practical assertion of Art. 124 FC.

«To the extent that damage or possible third-party payment obligations are not established within the two-year limitation period, unquantified compensation and satisfaction claims are admissible. However, the victim must present the facts establishing the claim with sufficient specificity within the limitation period.»