Art. 18 FC — Freedom of Language

#Doctrine

#1. Legislative History

N. 1 Freedom of language was not expressly enshrined in the Federal Constitution of 1874. The Federal Supreme Court recognised it in 1965 in BGE 91 I 480 as an unwritten fundamental right of the Federal Constitution, deriving it from the personal autonomy dimension of individual liberty. This judicial development of the law formed the immediate basis for the subsequent codification.

N. 2 The preliminary draft of 1995 still placed freedom of domicile under Art. 18 PD; freedom of language was conceived separately as Art. 15 PD (Explanatory Report PD 1995, p. 50 f.). In the Dispatch of 20 November 1996, the Federal Council advocated a concise, open formulation without express mention of the territoriality principle: freedom of language should be enshrined as an individual fundamental right protecting the use of the mother tongue (BBl 1997 I 161 f.). The anchoring of the territoriality principle in the Constitution was deliberately rejected — contrary to what several consultation respondents had demanded — because it could be introduced by the legislature as a possible restriction, but need not be enshrined as a positive constitutional principle (BBl 1997 I 163; cf. also BBl 1997 I 563, 592).

N. 3 Council of States member Inderkum (rapporteur) confirmed the consensus during the parliamentary debates of 1998: freedom of language had been recognised as an unwritten fundamental right since 1965 and guaranteed the use of the mother tongue; the formulation had been deliberately kept concise and open (AB 1998 SR Separatdruck). The constitutional text was adopted by both Chambers in the final vote on 18 December 1998 and entered into force with the new Federal Constitution on 1 January 2000. The codification confirms the unwritten right but does not expressly extend its scope of protection.

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#2. Systematic Classification

N. 4 Art. 18 FC is situated in the second chapter of the second title (Fundamental Rights, Art. 7–36 FC) and is structured as a classic defensive fundamental right. It protects the individual freedom of language use against state interference. The provision must be distinguished from the language-policy provisions of the Federal Constitution:

• → Art. 4 FC designates the four national languages (German, French, Italian, Romansh) as an institutional guarantee.
• ↔ Art. 70 FC governs the official languages of the Confederation and the cantons, the relationship between language communities, and the promotion of majority and minority languages; Art. 70 FC simultaneously concretises the territoriality principle as a possible restriction on Art. 18 FC.
• → Art. 36 FC sets out the general conditions for restrictions on fundamental rights, which also apply to Art. 18 FC.

N. 5 Art. 18 FC protects the individual (active) dimension of language use, i.e. the right of individuals to use a language of their own choice in the private sphere. The passive dimension — in which language state authorities address the public — is governed primarily by Art. 70 FC and is not the direct subject of protection of Art. 18 FC (BGE 139 I 229 E. 5.4). The prohibition of discrimination on grounds of language follows additionally from → Art. 8 para. 2 FC; more extensive protection in criminal proceedings derives from Art. 6 para. 3 lit. a and e ECHR (BGE 143 IV 117 E. 3.1).

N. 6 Relevant special legislation: The Federal Act of 5 October 2007 on the National Languages and Understanding between the Linguistic Communities (Languages Act, LA; SR 441.1) concretises Art. 70 FC and is not directly based on Art. 18 FC. The European Charter for Regional or Minority Languages (SR 0.441.2) contains largely programmatic provisions and is directed primarily at the legislature (BGE 139 I 229 E. 6).

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#3. Elements of the Provision / Normative Content

3.1 Scope of Protection

N. 7 Art. 18 FC guarantees the right to use a language of one's own choice, in particular the mother tongue (BGE 139 I 229 E. 5.4; BGE 136 I 149 E. 4.1; BGE 122 I 236 E. 2b; BGE 121 I 196 E. 2a). Protected is both the choice of the mother tongue in the strict sense and — according to part of the academic literature — any language a person wishes to use (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 292; Malinverni, Kommentar BV, N. 5 f.; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 485).

N. 8 The scope of protection extends to all four national languages and beyond, insofar as private language use is concerned. For national languages, additional institutional protection is available via → Art. 4 FC. In relation to Romansh, Art. 18 FC protects both the individual idioms and Rumantsch Grischun as variants of Romansh (BGE 139 I 229 E. 5.4, with reference to Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 294). Purely private communication between private individuals falls within the core area: as a matter of principle, the state must not interfere with the question of which language natural persons wish to speak among themselves (BGE 139 I 229 E. 5.4).

N. 9 Active and passive dimensions. Since BGE 139 I 229 E. 5.4, the Federal Supreme Court has systematically distinguished between the active dimension (the freedom of individuals to choose which language they use in the private sphere and in which they communicate with one another) and the passive dimension (the question of which language state authorities use when addressing the public). Only the active dimension is the direct subject of protection of Art. 18 FC; the passive dimension belongs to Art. 70 FC.

3.2 Restrictions

N. 10 Art. 18 FC does not apply absolutely (BGE 143 IV 117 E. 2.1; BGE 139 I 229 E. 5.5). Restrictions are subject to the general conditions of → Art. 36 FC: legal basis, public interest, and proportionality. The core content (Art. 36 para. 4 FC) must not be impaired.

N. 11 Territoriality principle. The most important ground for restriction is the territoriality principle, which has its constitutional basis in → Art. 70 para. 2 FC. It permits the cantons to take measures to preserve the traditional boundaries of linguistic territories and their homogeneity, even where this restricts the freedom of individuals; however, such measures must be proportionate (BGE 121 I 196 E. 2a; BGE 122 I 236 E. 2c). The territoriality principle is not a constitutional individual right, but a restriction on freedom of language enabled by → Art. 70 para. 2 FC (BGE 122 I 236 E. 2c).

N. 12 Official language principle in dealings with authorities. In dealings with authorities, freedom of language is restricted by the official language principle: subject to special provisions (e.g. Art. 5 para. 2 and Art. 6 para. 3 lit. a ECHR), there is in principle no right to communicate with authorities in a language other than the official language (BGE 143 IV 117 E. 2.1; BGE 139 I 229 E. 5.5; BGE 136 I 149 E. 4.3; BGE 122 I 236 E. 2c).

N. 13 Language of instruction. The state's designation of the language of instruction does not impair the active freedom of language of individuals (their freedom to speak a particular language among themselves). The designation of the language of instruction pertains to the passive dimension of freedom of language and is a matter for the Confederation, cantons, and communes (BGE 139 I 229 E. 5.4, 5.6). There is no fundamental right to instruction in any given mother tongue; however, in traditionally multilingual or bilingual areas, a right to instruction in one of the languages traditionally spoken locally may arise from Art. 18 FC in conjunction with → Art. 70 para. 2 FC, provided this does not place a disproportionate burden on the public authority (BGE 122 I 236 E. 2d; BGE 139 I 229 E. 5.6).

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#4. Legal Consequences

N. 14 Art. 18 FC establishes a subjective defensive right against state interference in private language use. The interference must satisfy the conditions of Art. 36 FC. A positive entitlement — in particular a right to state instruction or official dealings in any given language — cannot be derived directly from Art. 18 FC (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1779; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 293 f.).

N. 15 Direct applicability. Art. 18 FC is directly applicable as a defensive right. State acts that interfere with private language use (e.g. a prohibition on using a language in private schools, or a disproportionate restriction of the language of proceedings) may be challenged by way of constitutional complaint or, under current law, by appeal in public-law matters.

N. 16 Horizontal effect. Direct third-party effect of Art. 18 FC as against private individuals is not recognised. In private-law matters, the fundamental right may at most have indirect effect through the interpretation of open-ended legal concepts (→ Art. 35 para. 3 FC).

N. 17 Procedural consequences. In criminal proceedings, the mere designation of a language of proceedings that differs from the accused's mother tongue is not in itself sufficient to violate Art. 18 FC; regard must be had to the specific circumstances, in particular proportionality and the guarantees of a fair trial (Art. 6 ECHR, → Art. 29 FC, → Art. 32 FC) (BGE 121 I 196 E. 5; BGE 143 IV 117 E. 3.1). In order to prevent excessive formalism, where a submission is filed within the time limit in a language other than the language of proceedings, an authority must grant an additional time limit for translation, insofar as it does not itself translate or accept the document (BGE 143 IV 117 E. 2.1).

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#5. Contested Issues

N. 18 Extent of the scope of protection. It is disputed whether Art. 18 FC protects only the mother tongue or any freely chosen language. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 292) and Malinverni (Kommentar BV, N. 5 f.) advocate a broad scope of protection encompassing any freely chosen language. Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 485) tend towards the narrower scope of the mother tongue. The Federal Supreme Court has not conclusively resolved this question but regularly refers to the mother tongue (BGE 139 I 229 E. 5.4; BGE 121 I 196 E. 2a).

N. 19 Territoriality principle: restriction or constitutional principle. The Dispatch expressly decided against anchoring the territoriality principle in the Constitution (BBl 1997 I 163). Nevertheless, academic writing and case law remain divided on whether it merely constitutes a permissible legislative restriction or whether it must flow as an immanent constitutional principle from Art. 70 para. 2 FC. Morand (Liberté de la langue et principe de territorialité, ZSR 112/1993 I, p. 11 ff., 31) and Rossinelli (La question linguistique en Suisse, ZSR 108/1989 I, p. 163 ff., 169) emphasise the individual right of freedom of language and advocate a restrained application of the territoriality principle, which could serve linguistic peace by promoting multilingualism. By contrast, Marti-Rolli (La liberté de la langue en droit suisse, 1978, p. 41) and Viletta (Grundlagen des Sprachenrechts, 1978, p. 342) derive from the territoriality principle a duty of assimilation in public language use for immigrants. The Federal Supreme Court takes an intermediate position: the territoriality principle is not an individual right, but entitles the cantons to proportionate restrictions (BGE 122 I 236 E. 2c; BGE 121 I 196 E. 2b).

N. 20 Protection of immigrant languages. It remains unresolved whether Art. 18 FC also protects the use of non-national languages in the public sphere. While Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 296 ff.) and Borghi (La liberté de la langue et ses limites, in: Verfassungsrecht der Schweiz, 2001, p. 613 ff.) call into question the rigid application of the territoriality principle with respect to immigrant languages, the Federal Supreme Court held in BGE 138 I 123 E. 7 that proportionate measures to safeguard the language of instruction are also permissible in relation to non-national languages, without comprehensively resolving this question.

N. 21 Relationship to Art. 70 FC. Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 489 ff.) and Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1779 ff.) agree that Art. 18 FC governs the individual defensive right and Art. 70 FC governs the institutional language order, but disagree on the weight to be given to each provision in the event of a conflict. In practice, the Federal Supreme Court invokes Art. 70 para. 2 FC as a restriction on Art. 18 FC without each time explicitly reasoning through the systematic distinction (cf. BGE 139 I 229 E. 5.1, 5.5).

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#6. Practical Notes

N. 22 Constitutional complaint. Anyone wishing to raise a violation of Art. 18 FC must set out clearly and in detail in what respect state interference with the protected sphere of private language use has occurred (principle of specific grounds, Art. 106 para. 2 BGG). A general invocation of freedom of language does not suffice (BGE 139 I 229 E. 2.2).

N. 23 Official dealings and language of proceedings. In dealings with authorities, there is no right to communicate in a language other than the official language. Party rights in criminal proceedings are governed primarily by → Art. 6 para. 3 lit. a and e ECHR and Art. 67 f. CrimPC (language of proceedings, right to interpretation). Art. 18 FC does not confer on the accused any more extensive right than these specific guarantees (BGE 143 IV 117 E. 3.1). To avoid excessive formalism, where submissions are filed within the time limit in the wrong language of proceedings, a time limit for translation must be set (BGE 143 IV 117 E. 2.1).

N. 24 Language of instruction. Parents cannot derive from Art. 18 FC any right to state instruction in their mother tongue; this applies in particular to immigrants (BGE 122 I 236 E. 2d). In traditionally bilingual areas, a right to instruction in one of the languages traditionally spoken there may arise, provided this does not place a disproportionate burden on the public authority (BGE 139 I 229 E. 5.6; BGE 122 I 236 E. 2d). Proportionate cantonal rules safeguarding the language of instruction (including for private schools) are compatible with Art. 18 FC (BGE 138 I 123 E. 8.3 f.).

N. 25 Bilingual cantons. In bilingual cantons (Fribourg, Berne, Graubünden, Valais), more extensive cantonal language rights are possible. Art. 18 FC sets the minimum threshold: even where cantonal law permits individuals to approach authorities in the official language of their choice (cf. BGE 136 I 149 E. 6 f. on Art. 17 para. 2 KV/FR), this must not result in the deliberate shifting of traditional language boundaries (→ Art. 70 para. 2 FC).

N. 26 Minority languages. Art. 70 para. 2 FC prohibits the deliberate shifting of traditional language boundaries or the suppression of established minority language groups (BGE 100 Ia 462 E. 2b; BGE 139 I 229 E. 5.5). This guarantee is of particular relevance to Romansh and Italian and operates as a state duty of protection ↔ Art. 18 FC.

#Case Law

#Principles of Freedom of Language

BGE 139 I 229 of 5 December 2013 — Rumantsch Grischun in school Limits of freedom of language in determining the school language. The Federal Court clarified the scope of Art. 18 BV in relation to the territoriality principle.

"Freedom of language (Art. 18 BV) guarantees the right to use a language of one's own choice, in particular one's mother tongue [...]. As an individual fundamental right, it protects the use of both Romansh idioms and Rumantsch Grischun [...]. In this private sphere of freedom of language – i.e. when it concerns the freedom of individual citizens to decide which language they use and in which they want to communicate with each other – the state must not interfere."

BGE 122 I 236 of 15 July 1996 — Freedom of language and school attendance Relationship between individual freedom of language and state school organisation. Pioneering for the delineation between individual rights and entitlements to services in the language sphere.

"Freedom of language does not oblige the communities to offer school instruction in the language of newly immigrated linguistic minorities [...]. However, if another municipality is voluntarily prepared to accept the child in a French-speaking school and the parents bear the resulting financial consequences, it is a disproportionate restriction of freedom of language to require attendance at a German-speaking school."

BGE 121 I 196 of 1995 — Procedural language in criminal law Fundamental case law on freedom of language and the territoriality principle in court proceedings. Defines the limits of the right to use one's mother tongue in court.

"According to doctrine and case law, freedom of language, i.e. the authority to use one's mother tongue, belongs to the unwritten fundamental rights of the Federal Constitution. Insofar as the mother tongue is simultaneously a national language of the Confederation, its use is moreover under the protection of the institutional guarantee laid down in Art. 116 para. 1 BV."

#Limits of Freedom of Language

BGE 143 IV 117 of 13 April 2017 — Procedural language and translation Current case law on the non-absolute validity of freedom of language in dealings with authorities. Specifies the duties of authorities regarding submissions in foreign languages.

"Freedom of language according to Art. 18 BV does not apply absolutely. In principle, there is no right to deal with authorities in a language other than the procedural language (Art. 67 StPO). To prevent excessive formalism, the criminal authority must, in the case of a submission filed within the time limit that is not written in the procedural language, grant an additional time limit for translation, insofar as it does not content itself with the document or have it translated itself."

BGE 136 I 149 of 22 October 2009 — Official and procedural language Freedom of language in administrative proceedings of the bilingual Canton of Fribourg. Confirms the restriction of freedom of language by the territoriality principle.

"Freedom of language is restricted by the territoriality principle: The individual has no right to deal with authorities in any language, but must – subject to special entitlements – use the respective official language."

#Minority Languages and Territoriality Principle

BGE 100 Ia 462 of 1974 — Fundamental minority protection Early fundamental case law on the protection of linguistic minorities. Establishes the territoriality principle as a protective instrument for minority languages.

"The territoriality principle [...] also prohibits the conscious shifting of traditional language boundaries or the suppression of traditional minority language groups [...]. These principles apply in particular to the protection of traditional linguistic minorities such as Italian and Romansh."

#School Language and Education System

BGE 125 I 347 of 9 September 1999 — Denominational neutrality of school Freedom of language in the context of denominationally neutral education. Shows the balancing between different fundamental rights in the education sector.

"In bilingual or multilingual areas, freedom of language may give rise to a right to be taught in one of the several traditional languages, provided this does not lead to a disproportionate burden on the community."

#Recent Developments

Judgment 1B_70/2009 of 7 April 2009 — Freedom of language in criminal proceedings Clarification of translation rights in criminal proceedings. Specifies the balance between freedom of language and procedural economy.

Judgment 2C_806/2012 of 12 July 2013 — Rumantsch Grischun as school language Confirms flexibility in the organisation of Romansh-language education. Shows the limits of individual language rights in public education.

Judgment 1C_40/2015 of 18 September 2015 — Language rights in administration Current application of freedom of language in administrative proceedings. Confirms the restrictive handling of translation entitlements outside the official languages.