Freedom of research and teaching is guaranteed.
Art. 20 BV — Freedom of Science
#Overview
Art. 20 BV guarantees the freedom of academic teaching and research. This provision protects both universities and individual researchers from state interference in their scientific activities.
#What does the norm regulate?
Academic freedom encompasses three core areas: freedom of research (free choice of research topic, methods and conduct), freedom of teaching (free design of courses) and freedom of learning (free choice of educational direction). The fundamental right protects primarily against state censorship of scientific publications and against official prohibitions of certain research directions.
#Who is affected?
All persons engaged in scientific activity are entitled — from professors at universities to researchers in private laboratories. Students can also invoke academic freedom, for instance in the free choice of their field of study. All state bodies are bound: the Confederation, cantons and municipalities.
#What legal consequences are there?
Academic freedom is not unlimited. In animal experiments, research benefits must be weighed against animal welfare (BGE 135 II 384 on primate experiments). Regarding archive access, Art. 20 BV grants no general entitlement to non-public documents, but only a conditional entitlement if research would otherwise be impossible (BGE 127 I 145 on criminal files).
#Practical significance
In practice, conflicts usually arise in sensitive research areas. In biosecurity research, doctrine discusses whether publications of dangerous findings may be restricted (BSK BV-Hertig N. 18). In clinical studies, patient rights must be preserved. In research funding, state bodies may not impose content-based censorship.
#Further information
Art. 20 BV is closely connected to freedom of expression (→ Art. 16 BV) and general freedom of action. Internationally, the norm corresponds to Art. 13 UN Covenant I and Art. 10 ECHR. Special regulations are found in higher education legislation (→ Art. 63a BV) and research funding law.
Art. 20 FC — Freedom of Science
#Doctrine
#1. Legislative History
N. 1 Freedom of science is not a product of the classical catalogues of fundamental rights. The American Bill of Rights of 1789 and the French Déclaration des droits de l'homme et du citoyen of 1789 do not contain it; its codification began in Germany (Paulskirche Constitution 1848, Weimar Constitution 1919, Basic Law 1949) and influenced the Swiss constitutional drafting process. As early as 1973, the Wahlen Commission appointed by the Federal Council recommended, drawing on German constitutional law, that freedom of science be incorporated as an independent fundamental right in a future Federal Constitution (Schwander, Grundrecht der Wissenschaftsfreiheit, Bern 2002, p. 27). Previously, the Federal Supreme Court had regarded the substance of the right — without definitively resolving the question of an unwritten fundamental right — as encompassed by personal liberty and freedom of opinion (BGE 115 Ia 234 E. 10a; BGE 119 Ia 460 E. 12b).
N. 2 In the preliminary draft of 1995 (PD 95), freedom of science was still combined with freedom of artistic expression in a single provision. In the constitutional draft of 1996, it received its current formulation as a standalone guarantee. The Federal Council's Dispatch (BBl 1997 I 1, p. 165) describes freedom of science as a fundamental right that protects «the intellectual and methodological independence of the researcher from state interference», and notes that the fundamental right does not confer «a claim to a specific share of the research budget». This conception as a primarily defensive right was thus established from the outset (→ N. 8). The Dispatch also refers to the international protection of freedom of science, in particular under Art. 15 para. 3 of the UN Covenant I (BBl 1997 I 1, pp. 163 f.).
N. 3 The parliamentary deliberations reflected an intense debate on the limits of freedom of science. In the National Council, Jutzet Erwin (minority, S, FR) moved that the freedom should be guaranteed «within the framework of responsibility towards humankind and the natural environment»: «We do not want any ‹Frankensteins›, no experiments on human foetuses, no research aimed at developing biological or chemical weapons of mass destruction.» Zbinden Hans (S, AG) supported this motion, arguing that science was operating «in a pre-democratic space, with barely any oversight». In contrast, Heim Alex (C, SO) and Leuba Jean-François (L, VD) — who recalled Rabelais' maxim «science sans conscience n'est que ruine de l'âme» — warned against a systematically misplaced restriction clause that singled out freedom of science. The majority of the National Council rejected the Jutzet motion; a further motion by Widmer Hans (S, LU) for the express entrenchment of freedom of learning, as well as a motion by Felten Margrith (S, BS) for a constitutional prohibition on non-therapeutic experiments on persons lacking capacity, also failed to find a majority. The Conference of Conciliation approved the text in its present form on 14/15 December 1998; the People and the Cantons adopted it on 18 April 1999.
#2. Systematic Classification
N. 4 Art. 20 FC is situated in the third section («Fundamental Rights») of the second chapter of the Federal Constitution. It belongs to the group of communication fundamental rights (→ Art. 16 FC freedom of opinion; → Art. 17 FC freedom of the media; → Art. 21 FC freedom of artistic expression), but goes beyond a purely communicative right: it also protects non-communicative processes of knowledge acquisition (Kunz, commentary on Art. 20 FC, Onlinekommentar, 2024). The provision is a classical defensive right and not a programmatic state objective; it therefore produces direct binding effect on all holders of state authority at all levels (Art. 35 para. 2 FC).
N. 5 From a constitutional-systematic perspective, Art. 20 FC is linked to several provisions: ↔ Art. 64 FC (state promotion of research as a competence norm) forms the institutional basis of scientific activity; → Art. 63a FC enshrines university autonomy. Limits on research follow from → Art. 119 FC (reproductive medicine and genetic technology in the human sphere), → Art. 120 FC (genetic technology in the non-human sphere, dignity of living beings) and → Art. 80 FC (protection of animals). The requirements for justifying interferences are governed by → Art. 36 FC (restriction of fundamental rights) — in particular the three-part proportionality test (suitability, necessity, reasonableness).
N. 6 In 2010, the constitutional legislator supplemented the catalogue of fundamental rights with → Art. 118b FC (research involving human beings), which authorises and delimits federal legislation on research involving humans. Art. 118b FC thereby concretises the limits of the freedom of research protected by Art. 20 FC for a particularly sensitive domain and forms the constitutional basis for the Human Research Act (HRA, SR 810.30). This addition demonstrates that the constitutional legislator has chosen to anchor specific research restrictions below the level of Art. 20 FC itself, rather than incorporating them into the fundamental rights text — in line with the concept of a restriction clause that was rejected during the 1998 deliberations (→ N. 3).
#3. Elements of the Provision / Normative Content
a. Concept of Science
N. 7 Art. 20 FC only protects activities that qualify as scientific. The Federal Supreme Court defines research in consistent case law as «the acquisition and communication of human knowledge through the free choice of research question, method and conduct» (BGE 127 I 145 E. 4b). Both the natural sciences and the humanities, social sciences and historical disciplines are covered (BGE 127 I 145 E. 4d cc). Constitutional scholarship unanimously advocates a broad concept of science, informed by but not confined to the established practices of the scientific community: central is the systematic, method-guided approach that ensures the intersubjective verifiability of results (Kunz, Onlinekommentar, Art. 20 N. 19; Schweizer, in: SGK, Art. 20 FC N. 11, 4th ed. 2023). Constitutional law thereby implements a prohibition of identification: the state is forbidden from adopting a particular understanding of science as its own (Hertig, in: BSK BV, Art. 20 N. 5, 2015).
b. Freedom of Research
N. 8 Freedom of research protects the entire research cycle. Scholarship distinguishes the core sphere (the actual research activity: choice of research question, method, and staffing) from the impact sphere (dissemination of results: positive and negative freedom of publication, choice of timing and modalities) (Kunz, Onlinekommentar, Art. 20 N. 24; Hertig, BSK BV, Art. 20 N. 9 f.). The type of funding (private or public), the location of research (university, university of applied sciences, industry) and the category of research (basic or applied) are all irrelevant to the fundamental rights protection (Hertig, BSK BV, Art. 20 N. 11).
N. 9 The Federal Supreme Court has held that the provisions of the Animal Protection Act on animal experiments «are also an expression of the freedom of research under Art. 20 FC» and «in part represent a balancing of interests already undertaken by the legislature» (BGE 135 II 384 E. 3.1). Neither freedom of research nor animal protection enjoys a general priority; the competing interests are «of equal rank» and must be weighed against each other in each individual case (BGE 135 II 384 E. 4.3; BGE 135 II 405 E. 4.3.1).
c. Academic Freedom of Teaching
N. 10 Freedom of teaching protects the free choice of teaching methods and subject matter in academic teaching at the tertiary level (BBl 1997 I 1, p. 165; Hertig, BSK BV, Art. 20 N. 14). It covers all types of higher education institution and primarily protects autonomous teaching activities; according to the prevailing view in scholarship, instruction-bound tutoring by assistants without independent responsibility falls outside the scope of protection (Hertig, BSK BV, Art. 20 N. 14; Biaggini, BV Kommentar, Art. 20 N. 9, 2nd ed. 2017). Vocational education and training and instruction at general education schools are not covered.
d. Personal Scope of Protection
N. 11 All natural persons are entitled to this fundamental right regardless of nationality, age or formal academic qualification — the sole criterion is fulfilment of the requirement of scientific character (Schweizer, SGK, Art. 20 FC N. 31). Legal entities under private law are entitled to the fundamental right insofar as their activities are conducted under conditions of scientific character (Hertig, BSK BV, Art. 20 N. 19). State universities occupy a dual role: they are addressees of fundamental rights (Art. 35 para. 2 FC) and may simultaneously be holders of fundamental rights when defending their own institutional autonomy or the rights of their researchers (Hertig, BSK BV, Art. 20 N. 21). The Federal Supreme Court derives university autonomy primarily from Art. 63a FC (judgment 2C_421/2013 of 21.3.2014 E. 1.2.1).
e. Restrictions and Proportionality
N. 12 Interferences with Art. 20 FC must satisfy the requirements of Art. 36 FC: a legal basis, a public interest or the protection of the fundamental rights of third parties, and proportionality. Legitimate grounds for justification include in particular human dignity (Art. 7 FC), personal liberty (Art. 10 para. 2 FC), protection of privacy (Art. 13 para. 2 FC), animal protection (Art. 80 FC) and the dignity of living beings (Art. 120 para. 2 FC) (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 547). Under German law, freedom of science is regarded as a fundamental right without any reserve clause, which results in a higher level of protection there — a difference that is discussed in Swiss scholarship (→ N. 16).
#4. Legal Consequences
N. 13 Art. 20 FC primarily establishes a subjective defensive right: researchers and teachers may defend themselves against unjustified state restrictions on their liberty. The fundamental right does not, however, confer a claim to state benefits, and in particular no claim to access to university studies (BGE 125 I 172; BGE 121 I 22), to repeat examinations (BGer, 2P.283/2004 of 7.4.2005 E. 6) or to specific shares of research funding (BBl 1997 I 1, p. 165; Hertig, BSK BV, Art. 20 N. 3). The claim to equal treatment and to freedom from arbitrariness, derived from Art. 8 and 9 FC, does, however, exist in the university sphere as well (Schweizer, SGK, Art. 20 FC N. 31; → Art. 8 FC, → Art. 9 FC).
N. 14 In addition to the subjective-law dimension, scholarship recognises an objective-law dimension: Art. 20 FC obliges the state, as a matter of objective direction and programming, to create conditions conducive to science, without thereby giving rise to directly enforceable claims (Hertig, BSK BV, Art. 20 N. 4; Schweizer, SGK, Art. 20 FC N. 15; Boillet, in: Martenet/Dubey, Constitution fédérale, Art. 20 N. 8, 2021). This includes the duty to design funding allocation procedures in a manner appropriate to science and to maintain the institutional functioning of free science (Schwander, op. cit., p. 163).
N. 15 On the question of access to information on the basis of freedom of science, the Federal Supreme Court has developed a two-stage doctrine: in principle, Art. 20 FC does not establish a general right of access to sources not generally accessible beyond that provided by Art. 16 para. 3 FC; however, such a right could exist «in the case of a specific research approach and a resulting research necessity» (BGE 127 I 145 E. 4d bb). In a more recent decision, the Federal Supreme Court held that the interest in consulting archival material is «reinforced» by freedom of science (BGE 148 II 273 E. 6.5.2).
#5. Contested Issues
N. 16 Without reserve clause or not? Under German law, freedom of science is a fundamental right without a reserve clause; its limits follow by necessary implication from the constitutional protection of conflicting constitutional values, resulting in a higher level of protection. In Switzerland, prevailing scholarship subjects Art. 20 FC to the general restriction regime of Art. 36 FC (Biaggini, BV, Art. 20 N. 12; Hertig, BSK BV, Art. 20 N. 25; Schweizer, SGK, Art. 20 FC N. 32). This difference is doctrinally significant: whereas in Germany interferences are measured against strict constitutionally immanent limits, Swiss law — as a minimum requirement — accepts a legal basis with a public interest. The practical impact on case law remains limited to date, as the Federal Supreme Court consistently conducts a substantive proportionality review in all relevant cases.
N. 17 Freedom of learning as an independent component? The inclusion of freedom of learning was expressly rejected during the parliamentary deliberations (→ N. 3). Nevertheless, a now apparently majority view in scholarship calls for its recognition — either as an independent component or as a sub-category of freedom of teaching: Schweizer (SGK, Art. 20 FC N. 28 f.) and Hertig (BSK BV, Art. 20 N. 17) as well as Müller/Schefer (Grundrechte, pp. 552 f.) support it. Biaggini (BV, Art. 20 N. 10), on the other hand, rejects it by reference to the intent of the historical constitutional legislator. The recognition of freedom of learning would be practically significant for students engaged in independent academic work (dissertations, seminar papers).
N. 18 Scientific misconduct and the scope of protection. Whether systematic misconduct (data fabrication, plagiarism) leads to the absence of scientific character and thus to exclusion from the scope of protection of Art. 20 FC is contested. Boillet (Constitution fédérale, Art. 20 N. 12) answers this in the affirmative; Hertig (BSK BV, Art. 20 N. 6) and Biaggini (BV, Art. 20 N. 7) set a high threshold for exclusion: not every instance of misconduct, but only systematic failure, should lead to a loss of protection. The second view is to be preferred, since an overly broad extension of this category would hollow out the fundamental right.
N. 19 Basic research versus applied research. The Federal Supreme Court has clarified, in the context of the balancing of interests in animal experiments, that an apodictic distinction between basic and applied research is not possible and that the expected gain in knowledge must be weighed in both types of research when conducting the balancing of interests (BGE 135 II 384 E. 4.3). The legislative intention not to privilege one type of research is thereby confirmed in outcome, although the Court does take clinical utility as a factor in the concrete weighting of the gain in knowledge.
#6. Practical Guidance
N. 20 Animal experiments. Art. 20 FC must always be taken into account when interpreting the licensing requirements under animal protection law. The Federal Supreme Court emphasises that neither freedom of research nor animal protection enjoys general priority; in each individual case, a concrete balancing of interests must be conducted between the gain in knowledge sought through the experiment and the pain, suffering or harm caused to the animals, with the particular proximity of non-human primates to humans and the dignity of living beings (Art. 120 para. 2 FC) reinforcing the animal protection interest (BGE 135 II 384 E. 4.6.1; BGE 135 II 405 E. 4.3.4). The determining factor is the specific individual experiment applied for, not the result of a series of experiments (BGE 135 II 384 E. 4.4.3).
N. 21 Archival access for research purposes. Researchers have no general claim to access non-public sources based on Art. 20 FC alone. Anyone seeking archival access on the basis of freedom of science must demonstrate a specific research approach and a concrete research necessity (BGE 127 I 145 E. 4d bb). In the balancing of interests, freedom of science may reinforce the interest in consultation as against competing interests in the protection of personality (BGE 148 II 273 E. 6.5.2).
N. 22 Examination law and access to higher education. Art. 20 FC does not establish a claim to access to university studies, to exemption from examination requirements or to unlimited repetition of examinations. Examination rules and admission restrictions are to be assessed against Art. 8 and 9 FC (equality before the law and prohibition of arbitrariness); an interference with Art. 20 FC arises only where the measure substantially restricts the scientific activity itself — the choice of research question, method and conduct.
N. 23 Institutional threats. Novel threats to freedom of science arise less from direct state prohibitions today than from structural phenomena such as excessive administrative burdens, evaluation pressure, dependence on third-party funding and private research sponsorship. While these typically do not constitute a direct interference with the fundamental right, they are to be assessed against the objective-law dimension of Art. 20 FC; the legislature is obliged to design institutional conditions in a manner appropriate to science (Hertig, BSK BV, Art. 20 N. 4; Kunz, Onlinekommentar, Art. 20 N. 11, 13). In case of doubt, a broad interpretation of the scope of protection is to be preferred, in order to protect unconventional and, for majorities, inconvenient research approaches as well.
Case law
The case law on Art. 20 FC shows the tensions between academic freedom and other constitutional interests. The case law is divided into three main areas: freedom of research in relation to animal protection, entitlement to access information for scientific purposes and higher education law aspects.
#Freedom of research and animal protection
#Animal experiments with primates
BGE 135 II 384 (7 October 2009)
Leading decision on balancing freedom of research and animal protection in animal experiments with non-human primates.
The balancing of interests under Art. 61(3)(d) former APA requires a concrete balancing between knowledge gained and animal suffering.
«The provisions of the former Animal Protection Act on animal experiments are also an expression of the freedom of research under Art. 20 FC. They therefore partly represent a balancing of interests already undertaken by the legislature.»
BGE 135 II 405 (7 October 2009)
Supplementary decision to BGE 135 II 384 concerning the balancing of interests in primate experiments.
Confirms the strict requirements for authorising animal experiments on non-human primates.
#Burden balancing
VB.2007.00157, Administrative Court of Zurich (27 March 2008)
Animal experiment for investigating brain structures in rhesus monkeys.
Concrete application of the Federal Supreme Court's principles for balancing research interest and animal protection.
VB.2007.00156, Administrative Court of Zurich (27 March 2008)
Animal experiment for investigating learning abilities in rhesus monkeys.
The case law makes clear that freedom of research does not automatically outweigh animal protection.
#Information and archive access
#Basic delineation
BGE 127 I 145 (27 June 2001)
Fundamental decision on the relationship between freedom of information and academic freedom regarding access to archived criminal files.
Academic freedom does not establish a general entitlement to access non-publicly accessible sources.
«Freedom of information and academic freedom do not grant a general entitlement to obtain information from non-generally accessible sources (archived files during protection period).»
«Freedom of research cannot simply open access to sources that are considered not publicly accessible from the perspective of the more general freedom of information.»
#Limited entitlement
BGE 148 II 273 (1 March 2022)
Access to archival material before expiry of the protection period for research purposes.
Academic freedom can strengthen the research interest in the balancing of interests.
«The reappraisal of history is to be considered as a weighty interest in access; this is additionally strengthened by the legitimate invocation of academic freedom.»
1C_117/2021 (1 March 2022)
Lower instance to BGE 148 II 273 concerning the principle of publicity and application for access to archived files.
Specifies the requirements for a conditional entitlement from academic freedom.
#Higher education law and studies
#Exclusion from studies
2P.199/2005 (8 November 2005)
Exclusion from further studies after failing the licentiate examination twice.
Academic freedom does not guarantee an entitlement to unlimited repetition of examinations.
Academic freedom protects the free choice of research question, method and conduct, but not unlimited participation in higher education operations.
#Other higher education law decisions
VB.2012.00745, Administrative Court of Zurich (19 May 2011)
Exclusion from the bachelor's degree programme after unexcused absence from examinations.
University autonomy sets limits on individual academic freedom.
A-5458/2008, Federal Administrative Court (19 May 2009)
Personnel matter at ETH Zurich.
Shows the tensions between institutional and individual academic freedom.
#Protection of personality and research
#Academic freedom vs. protection of personality
K 2008/2, Administrative Court of St. Gallen (19 August 2008)
Violation of personality and academic freedom through government council letters.
Academic freedom cannot ward off every impairment of the research environment.
#Other decisions
#Social insurance law
9C_1075/2008 (28 May 2009)
Health insurance and research on identification medicine.
Academic freedom is not violated per se by general legal obligations.
#Criminal law
BGE 128 IV 201 (26 July 2002)
Hard pornography and freedom of expression.
Marginal mention of academic freedom in the context of communication freedoms.
#Foreign nationals law
C-857/2013 and other Federal Administrative Court decisions
Consent to prior labour market decision for foreign researchers.
Academic freedom can be considered in the granting of work permits.
#Development trends
The case law shows a restrictive attitude towards expansive interpretations of academic freedom. The Federal Supreme Court regularly emphasises that academic freedom:
- Is not absolute: It must be balanced against other constitutional interests
- Does not establish a general information entitlement
- Must respect the limits of university autonomy
- Requires concrete research necessity
The more recent case law (BGE 148 II 273) shows, however, a certain upgrading of academic freedom in the balancing of interests, particularly in the area of historical research.