1Freedom of assembly is guaranteed.
2Every person has the right to organise meetings and to participate or not to participate in meetings.
Art. 22 BV — Freedom of Assembly
#Overview
Article 22 of the Federal Constitution guarantees the freedom of assembly. Every person has the right to organise assemblies, to participate in them or to stay away. This fundamental right encompasses various forms of organised gatherings for opinion-forming purposes.
#What does Art. 22 BV regulate?
The freedom of assembly protects the right to assemble peacefully with others. This includes both small groups and large demonstrations. According to case law, two persons are sufficient for an assembly (BGE 129 IV 6 E. 5.5.1). The constitutional protection does not primarily relate to physical gathering, but to collective opinion formation (Hertig, BSK BV, Art. 22 N. 7).
It is central that only peaceful assemblies are protected. The Federal Supreme Court has repeatedly emphasised that the Constitution protects only peaceful assemblies despite the deviating wording (BGE 129 IV 6 E. 2.5; Hertig, BSK BV, Art. 22 N. 9). In case of violence, fundamental rights protection ceases if the violence completely overshadows the opinion-forming component.
#Who is affected?
All persons who organise an assembly, participate in it or consciously stay away are protected. This includes private individuals, associations and political groups. Everyone is entitled to this right, regardless of nationality or domicile (Hertig, BSK BV, Art. 22 N. 10).
Restrictions are possible: The state may require a permit for demonstrations on public ground. The prevailing doctrine considers this permit requirement as an interference with fundamental rights that requires a legal basis (Hertig, BSK BV, Art. 22 N. 18).
#What are the legal consequences?
For demonstrations on public ground, there is basically a conditional right to use public space. The authorities must ensure through appropriate measures that assemblies can take place (BGE 132 I 256 E. 3).
If special police costs arise from an assembly, these may be passed on to the organisers under certain conditions. However, the Federal Supreme Court has emphasised that cost impositions constitute an interference with fundamental rights and must be proportionate in order not to have a deterrent effect (BGE 143 I 147 E. 3.1 and 3.3).
#Example from practice
A group plans a demonstration against nuclear waste transports and blocks railway tracks for days. The Federal Supreme Court qualified such blockade actions as coercion, which are no longer protected by freedom of assembly, as they clearly exceed the tolerable level of political influence and are associated with unlawful means (BGE 129 IV 6 E. 2.5 and 3.7).
Art. 22 FC — Freedom of Assembly
#Doctrine
#1. Legislative History
N. 1 Freedom of assembly has been recognised as unwritten federal constitutional law since BGE 87 I 114 E. 2 (1961) and was consistently treated together with freedom of expression in Federal Supreme Court case law prior to 1999. With the total revision of the Federal Constitution of 1999, the fundamental right was codified expressly for the first time (BBl 1997 I 166 f.).
N. 2 In its dispatch, the Federal Council described freedom of assembly as an «indispensable element of the democratic constitutional order» and intended Art. 22 FC to give express form to the unwritten fundamental right, as well as to include demonstrations explicitly within the scope of protection (BBl 1997 I 166). At the same time, the negative component — the right to stay away from assemblies — was to be clarified (BBl 1997 I 167, 592).
N. 3 The Federal Council's original draft (Art. 18 FC-D) contained a paragraph 3 expressly reserving the possibility of a permit requirement for assemblies on public ground. National Councillor Andreas Gross (S, ZH) moved to delete this paragraph, characterising it as «completely unnecessary» on the grounds that it was «over-regulated» and «unnecessarily restricts freedom». By contrast, National Councillor Jean-François Leuba (L, VD) moved to retain the Federal Council's draft, arguing that municipal authorities needed the ability to maintain order in cases of competing assemblies. Rapporteur Pelli Fulvio (R, TI) supported the committee majority in favour of deletion, as Art. 36 FC as a general limitations clause was sufficient. Council of States rapporteur Inderkum Hansheiri (C, UR) ultimately joined the National Council's position, but expressly noted: «If we here … follow the National Council, no misunderstanding must arise to the effect that it would be impermissible to require a permit for assemblies and demonstrations on public ground.» The conciliation conference confirmed the deletion, and both chambers approved on 18 December 1998.
N. 4 The Federal Supreme Court addressed the legislative history in the leading decision BGE 127 I 164 E. 3 and clarified that the deletion of paragraph 3 has «no significance, according to the legislative history,» with regard to the permissibility of a permit requirement (referring to BBl 1997 I 167 and 592). The parliamentary debates thus confirm that the legislature did not intend to depart from the existing case law on permit requirements.
#2. Systematic Classification
N. 5 Art. 22 FC is a fundamental right within the «Fundamental Rights» section of the Federal Constitution (Art. 7–36 FC) and belongs to the communication fundamental rights alongside freedom of opinion and information (→ Art. 16 FC), freedom of the media (→ Art. 17 FC), and freedom of association (→ Art. 23 FC). It is a classical defensive right with a positive-entitlement component, which comes into play in particular in the context of demonstrations on public ground (→ N. 13).
N. 6 The provision has both individual and collective dimensions: it protects the individual against state interference with participation in assemblies, while also protecting the assembly as a collective phenomenon. Restrictions are subject to the general limitations on fundamental rights pursuant to → Art. 36 FC (statutory basis, public interest, proportionality, protection of the essential core).
N. 7 At the level of international law, Art. 22 FC corresponds to Art. 11 ECHR (freedom of assembly and association) and Art. 21 UN Covenant II. The Federal Supreme Court has repeatedly held that the guarantees of Art. 11 ECHR and Art. 21 UN Covenant II do not go beyond the federal constitutional guarantee in terms of content and scope of protection (BGE 132 I 256 E. 3 i.f.; BGE 148 I 33 E. 6.2). Art. 22 FC and the corresponding Federal Supreme Court case law are primarily determinative.
N. 8 Freedom of assembly constitutes a central prerequisite for the free democratic formation of political will and the exercise of political rights (↔ Art. 34 FC). It fulfils a «safety-valve, warning, control, and innovation function» in democratic society (Hertig, BSK BV, Art. 22 N. 1).
#3. Elements of the Provision / Normative Content
3.1 Concept of Assembly
N. 9 The concept of assembly is to be interpreted broadly. Assemblies within the meaning of Art. 22 FC are «the most varied forms of people coming together within a certain organisational framework for a broadly understood purpose of mutually forming or expressing opinions» (BGE 143 I 147 E. 3.1; BGE 127 I 164 E. 3b; BGE 137 I 31 E. 6.1). This covers political demonstrations, marches, sit-ins, climate protests, sporting events with a collective character, and also non-political gatherings. A degree of organisational structure is required; purely coincidental gatherings of people without a common opinion-forming purpose do not fall within Art. 22 FC.
N. 10 Rallies and demonstrations are distinguished from other assemblies in particular by their specific appeal function: they aim to draw public attention to a concern of the participants (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 581; Malinverni, CR CO I, Art. 22 BV N. 24; Errass, SGK BV, Art. 22 N. 15). This appeal effect is decisive for the proportionality review of restrictions.
N. 11 Art. 22 para. 2 FC expressly names three constituent entitlements: the right to organise assemblies, the right to participate, and the right to stay away (negative freedom of assembly). The right to stay away protects against compulsion to participate in assemblies, for example through compulsory affiliation. In addition, Art. 22 FC also protects against state measures directed at the convening, organisation, conduct, or form of an assembly (BGE 127 I 164 E. 3b).
N. 12 Only peaceful assemblies enjoy the protection of Art. 22 FC. If violence develops in the course of an initially peaceful assembly to such an extent that the opinion-forming component recedes entirely into the background, the fundamental right protection may cease to apply. However, small groups rioting on the fringes do not eliminate fundamental right protection for the assembly as a whole (BGE 143 I 147 E. 3.2, referring to Müller/Schefer, op. cit., p. 585; Hertig, BSK BV, Art. 22 N. 8 f.).
3.2 Positive-Entitlement Dimension for Demonstrations on Public Ground
N. 13 In the context of demonstrations on public ground, freedom of assembly acquires a character «going beyond pure defensive rights» with a «certain positive-entitlement element»: the fundamental rights require, within certain limits, that public ground be made available for demonstrations with an appeal function (BGE 127 I 164 E. 3c; BGE 132 I 256 E. 3; BGE 143 I 147 E. 3.2). This conditional entitlement does not, however, permit a claim to a specific location, time, or particular conditions.
N. 14 Beyond making public ground available, the authorities are obliged to ensure, by means of appropriate measures — in particular by providing adequate police protection — that public demonstrations can actually take place and are not disrupted or prevented by opposing groups (BGE 127 I 164 E. 3c; BGE 132 I 256 E. 4.3; cf. ECtHR, Plattform «Ärzte für das Leben» v. Austria, 21 June 1988, Series A Vol. 139, paras. 32–34). The public authority enjoys a wide margin of appreciation in assessing which means can sensibly be deployed.
N. 15 Demonstrations constitute a form of intensified common use of public ground (BGE 127 I 164 E. 3b; BGE 124 I 267 E. 3a). Owing to the resulting restriction on equivalent simultaneous use by uninvolved parties, they may be subjected to a permit requirement. The deletion of the original paragraph 3 of the draft does not alter this (→ N. 4). A statutory basis is required for the permit requirement (BGE 127 I 164 E. 3a, referring to Weber-Dürler).
#4. Legal Consequences
4.1 Restrictions and Proportionality
N. 16 Restrictions on freedom of assembly require a statutory basis pursuant to → Art. 36 FC, must be justified by a public interest and be proportionate, and must preserve the essential core. Serious interferences — such as a de facto prohibition of demonstrations — presuppose a formal statutory basis (BGE 148 I 33 E. 5.1).
N. 17 In permit proceedings for demonstrations on public ground, the authority must conduct a comprehensive, neutral balancing of interests. It may take into account: (1) policing grounds (safety, prevention of violence); (2) the appropriate use of public facilities in the general interest; (3) the impairment of the liberty rights of uninvolved third parties (BGE 127 I 164 E. 3b; BGE 132 I 256 E. 3; BGE 143 I 147 E. 3.2). Taking into account the political content of the demonstration is impermissible.
N. 18 The principle of proportionality requires that alternatives, conditions, and requirements be examined in permit proceedings before a demonstration is prohibited. Organisers cannot demand to hold a demonstration at a specific location, at a specific time, and under self-determined conditions (BGE 127 I 164 E. 3c; BGE 132 I 256 E. 3). Where an alternative exists that adequately meets the publicity needs of the organisers, diverting to that alternative is permissible and required (BGE 127 I 164 E. 5c; recently confirmed in BGE 151 I 257).
N. 19 The «chilling effect» (deterrent effect) as an indirect impairment of freedom of assembly is constitutionally relevant. Governmental responses that cause persons with a right to act to refrain from exercising their fundamental right in future must be assessed under proportionality law (BGE 143 I 147 E. 3.3; BGE 147 I 372 E. 4.4.2). This applies in particular to the charging of policing costs to organisers, as well as to coercive measures under criminal procedure law such as DNA profiles taken from participants in peaceful demonstrations.
N. 20 Event organisers as purposive causers may in principle be held liable as disturbers of public order and required to bear the costs of police deployments without violation of Art. 22 FC — provided the obligation to bear costs is structured proportionately (BGE 143 I 147 E. 5.2). An across-the-board imposition of cost-bearing obligations on individual participants without differentiation according to their concrete share of the disturbance violates the principle of equivalence (BGE 143 I 147 E. 12.4).
4.2 State Duty to Protect
N. 21 In addition to its defensive dimension, Art. 22 FC also establishes a state duty to protect against private third parties who threaten to disrupt or prevent assemblies (→ Art. 35 para. 1 FC). The authorities are under an active duty to ensure the protection of assembly participants. The duty to protect is not, however, absolute; in the event of a concrete and serious risk of severe violent disturbances that cannot be managed by proportionate police deployment, refusal of a permit may exceptionally be justified (BGE 132 I 256 E. 4.6).
#5. Contested Questions
5.1 Freedom of Demonstration as an Independent Fundamental Right?
N. 22 Under the old Federal Constitution, the Federal Supreme Court refused to recognise an independent «freedom of demonstration» in the sense of an unconditional entitlement to use public ground (BGE 100 Ia 392 E. 4b). Under Art. 22 FC, the Court continues this line: there is merely a conditional entitlement to use public ground for demonstrations, and no unconditional right to demonstrate (BGE 127 I 164 E. 3c). In academic writing it is disputed whether Art. 22 FC — in particular by virtue of its express codification and the positive-entitlement element — establishes a stronger entitlement position than the former unwritten law. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 533 ff. affirm an enhanced normative effect of the express codification. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 1862 f. emphasise by contrast that continuity of case law is supported by the legislative history (→ N. 3–4).
5.2 Property-Law Theory vs. Fundamental-Rights Theory
N. 23 Regarding the permissibility of permit requirements for demonstrations on public ground, there was historically a dispute between the property-law theory (intensified common use requires a permit based on property-law principles) and the fundamental-rights theory (any restriction requires a statutory basis pursuant to Art. 36 FC). In the parliamentary debates of 1998 this dispute was discussed controversially (AB 1998 SR Separatdruck, Inderkum; AB 1998 NR Separatdruck, Koller Arnold). The Federal Supreme Court has clarified since BGE 127 I 164 E. 3a that a statutory basis is required for a permit requirement. The express decision in favour of the fundamental-rights theory is to be regarded positively, as it ensures that the authorities are bound by the principle of proportionality.
5.3 Pandemic-Related Restrictions and Protection of the Essential Core
N. 24 The Covid-19 case law raised important fundamental questions regarding the intensity of interferences. In BGE 148 I 33 E. 7.7–7.8, the Federal Supreme Court held that restricting political demonstrations to 15 persons «practically empties freedom of assembly of its substance» — which is equivalent to a de facto prohibition — and was characterised as disproportionate. By contrast, a limit of 300 persons in the Canton of Uri was assessed as proportionate (BGE 148 I 19). These decisions illustrate that demonstrations, on account of their democratic function (↔ Art. 34 FC), are privileged even in exceptional situations. In academic writing the question remains open whether an absolute prohibition of demonstrations — even in the most severe pandemic situations — would violate the essential core pursuant to Art. 36 para. 4 FC; Biaggini, BV Kommentar, 2nd ed. 2017, Art. 22 N. 7 emphasises the indispensable character of freedom of assembly for the democratic order, without providing a conclusive answer to this question.
5.4 «Chilling Effect» in the Context of Coercive Measures under Criminal Procedure Law
N. 25 The scope of freedom of assembly as a limitation on coercive measures under criminal procedure law has been clarified by BGE 147 I 372. The systematic identification and DNA profiling of participants in peaceful demonstrations violates the principle of proportionality and produces an impermissible «chilling effect». The question of whether DNA profiles taken in connection with peaceful demonstrations always constitute a serious — or merely a minor — interference with informational self-determination (Art. 13 para. 2 FC) was left open — a question on which the Federal Supreme Court indicated a change of course in this decision (E. 2.3) without definitively implementing it.
#6. Practical Guidance
N. 26 Permit proceedings: Organisers of demonstrations on public ground must as a rule submit an application in good time (cf. BGE 127 I 164 E. 6a: «It is essential that such applications be submitted sufficiently in advance»). The authority is required to conduct a neutral balancing of interests, having regard to the ideal content of the fundamental rights. It may not invoke the content of the demonstration as a ground for refusal.
N. 27 Conditions: Before issuing a prohibition, the authority must examine conditions (route modifications, time shifts, restrictions on numbers of participants, obligation to provide marshalling services). Conditions must themselves be proportionate; in particular, the authority may not require organisers to assume core policing tasks (BGE 143 I 147 E. 5.3.3).
N. 28 Spontaneous assemblies: Short-notice assemblies organised in response to current events cannot be subjected to a prior permit requirement where this would effectively defeat the exercise of the fundamental right. The spontaneous assembly must be distinguished from a notification requirement; in the case of a genuinely spontaneous assembly, the obligation to bear costs under the type of § 32b para. 3 PolG/LU also lapses (BGE 143 I 147 E. 5.3.2).
N. 29 Disturber principle and cost-bearing: Demonstration organisers are liable as purposive causers for policing costs in principle only where they commit at least a grossly negligent breach of proportionate permit conditions (BGE 143 I 147 E. 5.3.4). Individual demonstration participants may be required to bear costs only in proportion to their concrete share of the disturbance, and not on an across-the-board basis (BGE 143 I 147 E. 12.3 f.).
N. 30 Relationship to Art. 11 ECHR: For practical purposes, it should be noted that Art. 11 ECHR confers no further-reaching entitlements than Art. 22 FC. The ECtHR does, however, derive from Art. 11 ECHR positive obligations that correspond to the Federal Supreme Court's duty-to-protect case law (ECtHR, Plattform «Ärzte für das Leben» v. Austria, 21 June 1988). The ECtHR's case law on bans on demonstrations and assemblies is to be consulted as supplementary authority in proportionality reviews.
N. 31 Pandemic and comparable exceptional situations: Bans on events or restrictions on numbers of participants for political demonstrations are subject to heightened justificatory requirements. The differentiated solution through permit proceedings with risk-limiting conditions is generally to be preferred over a blanket prohibition as the milder means (BGE 148 I 33 E. 7.7.3). Demonstrations may not, on account of their democratic significance, be equated with private events.
#Case Law
#Foundations and Scope of Protection
BGE 127 I 164 (20.9.2001)
Basic principles of freedom of assembly for rallies on public ground.
The Federal Court clarified the fundamental doctrine on freedom of assembly in connection with the denial of a demonstration at the WEF 2001 in Davos.
«Freedom of expression and assembly in the context of demonstrations take on a character that goes beyond mere defensive rights and have a certain positive element. Within certain limits, the fundamental rights in question require that public ground be made available.»
BGE 143 I 147 (1.1.2017)
Freedom of expression and assembly regarding the imposition of costs for rallies.
Clarification of the scope of protection and the concept of "chilling effect" for fundamental rights.
«Freedom of expression and assembly can be impaired not only by direct interference such as prohibitions and sanctions. Indirect impairments of these fundamental rights are also conceivable in the sense that the affected person no longer dares to exercise the fundamental right again due to an official reaction.»
#Authorization Requirements and Balancing of Interests
BGE 132 I 256 (1.8.2006)
Denial of a rally on August 1, 2006 in Brunnen.
Principles of official protective duties in the face of threatening counter-demonstrations.
«Beyond making public ground available, the authorities are obligated to ensure through appropriate measures - particularly by providing adequate police protection - that public rallies can actually take place and are not disturbed or prevented by opposing groups.»
BGE 142 I 121 (20.4.2016)
Police detention of a potential participant in an unauthorized demonstration.
Proportionality of preventive police measures at demonstrations.
«The approximately two-and-a-half-hour detention of the complainant as part of police kettling and the subsequent nearly three-and-a-half-hour detention for security police verification constituted, viewed as a whole, a deprivation of liberty that was disproportionate.»
#Cost Bearing and Disturber Concept
BGE 143 I 147 (1.1.2017)
Liability for costs at rallies involving violence under Lucerne police law.
Principles for cost bearing by organizers at violent demonstrations.
«Rally organizers as causative agents can in principle be held liable as disturbers without violating Art. 22 BV, provided the cost-bearing obligation is proportionately structured.»
#Pandemic-Related Restrictions
BGE 148 I 33 (3.9.2021)
COVID-19-related restriction of the number of participants at rallies to 15 persons.
Landmark decision on the proportionality of pandemic measures for demonstrations.
«The general authorization requirement for rallies on public ground allows differentiated solutions and the ordering of risk-limiting conditions in individual cases. Against this background and in view of the high democratic significance of rallies, the limitation of the number of participants to 15 persons appears disproportionate.»
BGE 148 I 19 (3.9.2021)
COVID-19-related restriction to 300 persons in Canton Uri.
Confirmation of the special constitutional status of rallies even in pandemic times.
«The restriction of the number of participants at political and civil society rallies to 300 persons is proportionate in view of the discretion available to the government council and the concrete epidemiological situation.»
BGE 147 I 450 (8.7.2021)
Event ban by Canton Schwyz to contain the COVID-19 pandemic.
Proportionality of blanket rally bans during the pandemic.
«The event ban of Canton Schwyz proves to be proportionate in view of the discretion available to the government council when assessing the epidemiological situation.»
#Criminal Procedural Aspects
BGE 147 I 372 (22.4.2021)
DNA profile and identification service registration for peaceful rally participation.
Protection of freedom of assembly from disproportionate criminal procedural interventions.
«A peaceful protest action is protected by freedom of assembly and expression; DNA profiling and identification service registration prove to be disproportionate when there are no significant and concrete indications of further criminal offenses.»
BGE 134 IV 216 (3.4.2008)
Highway blockade in the context of a strike and the offense of coercion.
Boundaries between permissible demonstration and punishable coercion.
«The right to strike and freedom of assembly do not justify every obstruction of traffic. A blockade of traffic on a highway in the context of a strike can fulfill the elements of coercion.»
#Banishment and Exclusion Orders
BGE 132 I 49 (25.1.2006)
Banishment and exclusion orders before sporting events.
Relationship between preventive police measures and freedom of assembly.
«The affected persons cannot derive anything in their favor from an independent invocation of human dignity; they can rely on freedom of assembly, personal liberty, the prohibition of discrimination and the prohibition of arbitrariness.»
BGE 147 I 103 (29.4.2020)
Disproportionality of automatically connecting banishment measures with criminal threats.
Protection of freedom of assembly from preventive measures with criminal character.
«The automatic connection between banishment and exclusion measures with the criminal threat under Art. 292 SCC proves to be a disproportionate interference with freedom of assembly.»
#Hooligan Concordat and Sporting Events
BGE 137 I 31 (13.10.2010)
Concordat on measures against violence at sporting events.
Compatibility of preventive measures with freedom of assembly.
«The measures provided for in the concordat (area ban, reporting obligation and police custody) are of a police nature and constitute interference with freedom of assembly, which are however proportionate under the given circumstances.»
BGE 140 I 2 (1.1.2014)
Abstract norm control regarding the hooligan concordat.
Constitutionality of preventive measures against violence at sporting events.
«The provisions of the concordat on measures against violence at sporting events withstand freedom of assembly insofar as they are proportionately structured.»
#Current Developments
BGE 151 I 257 (8.10.2024)
WEF march rally on alternative route instead of cantonal road.
Proportionality of route restrictions and their impact on appeal effect.
«The interference with freedom of expression and assembly associated with the route shift proves to be disproportionate because the rally could have been authorized under conditions and requirements at least in sections along the cantonal road as a milder means.»
#Private Events and General Police Clause
BGE 147 I 161 (3.8.2020)
Prohibition of an event in private space and concept of disturber.
Scope of protection of freedom of assembly also for private premises.
«The scope of application of the general police clause as legal basis for interference with freedom of assembly is in principle limited to unforeseeable emergencies that are not regulated by special legislation.»