1Swiss citizens may not be expelled from Switzerland and may only be extradited to a foreign authority with their consent.
2Refugees may not be deported or extradited to a state in which they will be persecuted.
3No person may be deported to a state in which they face the threat of torture or any other form of cruel or inhumane treatment or punishment.
Art. 25 BV — Protection against Expulsion and Extradition
#Overview
Art. 25 BV protects people from forced removal from Switzerland in three different situations. This provision is particularly important for persons facing serious violations of their rights in other countries.
Swiss citizens may not be expelled. Persons holding Swiss passports can never be forcibly removed from Switzerland. This also applies to dual citizens. Extradition to other states is only possible with the express consent of the person concerned. This consent must be given voluntarily — mere silence is not sufficient.
Example: A Swiss citizen commits a criminal offence in Germany and flees to Switzerland. Germany may request his extradition. However, Switzerland may only extradite him if he personally consents. If he refuses consent, he must remain in Switzerland.
Refugees are protected against return. People who are persecuted in their home country may not be sent back there. This applies both to recognised refugees and to persons who have not yet received asylum but are being persecuted. The protection also applies to extraditions to the persecuting country.
Example: An Iranian opposition member flees to Switzerland. Even if her asylum application has not yet been decided, she may not be deported to Iran as long as she faces persecution there.
No one may be extradited to face torture. Switzerland may not, in principle, deport or extradite any person to a country where they face torture. The same applies to inhuman or degrading treatment. This protection is absolute and applies to all people — regardless of their nationality or what they have done.
Example: A terrorist is to be extradited to a state where torture is systematic. Switzerland may not carry out this extradition, even if the state in question promises not to torture. Only if such promises are credible and verifiable can extradition exceptionally take place.
The legal consequences are clear: If Switzerland violates these prohibitions, the expulsion or extradition order is void. The person concerned may appeal against it. In the case of refugees and torture victims, Switzerland must examine provisional admission if return is impossible.
Art. 25 BV ensures that Switzerland does not become complicit in human rights violations. The provision protects both Swiss nationals and particularly vulnerable foreigners from the most serious forms of state violence.
Art. 25 FC — Protection against Expulsion, Extradition and Refoulement
#Doctrine
#1. Legislative History
N. 1 Art. 25 FC is an innovation of the total revision of 1999 and has no direct counterpart in the Federal Constitution of 1874. The preliminary draft of 1995 (PD 1995) contained in Art. 25 a provision on procedural guarantees in cases of deprivation of liberty; the provisions listed there (legality requirement, notification of grounds, judicial review) were absorbed into the current Art. 31 FC (Explanatory Report PD 1995, p. 60 f.). The prohibition on expulsion and extradition commented on here appeared in the preliminary draft of 1996 under Art. 21 PD 96. The Federal Council noted in the dispatch that Art. 21 PD 96 contained «no corresponding provision in the previous FC» and was therefore new (BBl 1997 I 563).
N. 2 The three-paragraph structure was deliberately chosen by the Federal Council: para. 1 protects Swiss nationals against expulsion and involuntary extradition; para. 2 protects refugees against refoulement to the persecuting state; para. 3 establishes an absolute prohibition on refoulement to protect against torture and cruel treatment, which applies to everyone (BBl 1997 I 170 f.). The Federal Council expressly rejected any expansion into asylum law; a right to asylum was rejected as were any further-reaching rights for foreign nationals (BBl 1997 I 172). The dispatch stated that the provision was intended deliberately to leave open the development of case law and treaty practice (BBl 1997 I 172).
N. 3 In the Council of States, the substantive principles of Art. 25 remained uncontested. Council of States member Marty Dick (R, TI), as committee rapporteur, stated that protection against expulsion, extradition and refoulement had been «adopted unanimously by the committee» «without discussion of the principle» (AB 1998 SR Separatdruck). Council of States member Schmid Carlo (C, AI) merely enquired about the relationship to the Federal Decree on cooperation with international criminal courts — a point on which the Federal Council at the time argued that the transfer to international courts did not constitute «extradition» within the meaning of para. 1 (AB 1998 SR Separatdruck). The final text largely corresponds to the Federal Council's draft.
#2. Systematic Classification
N. 4 Art. 25 FC is located in the second chapter of the Federal Constitution (Fundamental Rights, Art. 7–36 FC) and is structured as a subjective defensive right. The provision contains three structurally distinct protective guarantees: the prohibition on expulsion under para. 1 is a civic right restricted to Swiss nationals; the non-refoulement obligation under para. 2 applies to refugees; the prohibition of torture under para. 3 is an absolute right applicable to everyone (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 475 ff.).
N. 5 The provision is closely connected with → Art. 10 para. 3 FC (prohibition of torture), → Art. 7 FC (human dignity) and → Art. 36 FC (restrictions on fundamental rights). Art. 36 FC does not apply to para. 3: the guarantee is absolute and contains no balancing clause. At the level of international law, the three paragraphs correspond to Art. 3 ECHR (prohibition of torture), Art. 33 of the Refugee Convention (non-refoulement for refugees) and Art. 3 of the UN Convention against Torture (SR 0.105). The parallel ECHR provision to para. 3 is Art. 3 ECHR, which the ECtHR likewise qualifies as an absolute right not subject to balancing.
N. 6 Art. 25 FC has direct effect against the state: all federal authorities, cantons and private persons entrusted with public duties are bound by the guarantees of the provision (→ Art. 35 para. 2 FC). As a fundamental right, Art. 25 FC establishes a directly justiciable subjective right; the provision is regarded as self-executing in all three paragraphs. Horizontal effect between private parties (third-party effect) is not, however, the subject of this provision, since it exclusively covers state acts of expulsion, extradition and refoulement.
#3. Elements of the Provision / Normative Content
Para. 1: Prohibition on Expulsion and Consent Requirement for Extradition
N. 7 The prohibition on expulsion under para. 1 sentence 1 protects «Swiss nationals», i.e. persons holding Swiss citizenship (→ Art. 37 FC). Expulsion — the state order to leave the territory, coupled with a prohibition on re-entry — is absolutely excluded for nationals. The prohibition applies regardless of whether the person concerned is resident in Switzerland. The Federal Council emphasised that this prohibition followed «necessarily from the law of nationality»: a state may not expel its own nationals (BBl 1997 I 170). The provision does not, however, protect against criminal expulsion as an ancillary penalty (→ Art. 66a ff. SCC), which does not apply to Swiss nationals.
N. 8 Persons whose naturalisation has been declared void retroactively lose Swiss citizenship and with it the protection of para. 1. The Federal Supreme Court has held that the annulment of a naturalisation places the person concerned «in the same legal position under aliens law as before the naturalisation» (BGE 135 II 1 E. 3.4 of 12.11.2008).
N. 9 Para. 1 sentence 2 prohibits the extradition of a Swiss citizen to a foreign authority without that person's consent. The consent must be given freely, in an informed manner and without coercion. The prohibition covers the surrender to state authorities of a foreign country; the transfer to international criminal courts is governed separately by treaty (e.g. the Federal Decree on Cooperation with International Courts, SR 351.20) and, in the Federal Council's view, does not fall within the concept of «extradition» within the meaning of para. 1.
Para. 2: Non-Refoulement Obligation for Refugees
N. 10 Para. 2 prohibits the removal or extradition of «refugees» to states «in which they are persecuted». The concept of refugee is determined by Art. 3 AsylA (SR 142.31) in conjunction with Art. 1A of the Refugee Convention: a refugee is a person who has a well-founded fear of persecution in their country of origin on account of race, religion, nationality, membership of a particular social group or political opinion. The persecution must originate from the state of origin or be incapable of being prevented by that state.
N. 11 The provision covers two forms of state action: «removal» (enforcement of a removal order) and «extradition» (surrender to a foreign state through diplomatic or mutual legal assistance channels). It encompasses any form of state coercion leading to the transfer to the persecuting state, including chain refoulement (onward transfer by the receiving state to the persecuting state; cf. Art. 5 para. 1 AsylA).
N. 12 The non-refoulement obligation under para. 2 admits exceptions pursuant to Art. 33 no. 2 of the Refugee Convention and Art. 5 para. 2 AsylA: where there is a significant danger to the security of Switzerland or where the person has been convicted of a particularly serious crime, the obligation may not apply. However, this exception presupposes a concrete risk of recurrence — a merely abstract dangerousness does not suffice (BGE 135 II 110 E. 2.2.2, E. 4.3.2 of 16.2.2009). The absolute prohibition of torture under para. 3 does not admit these exceptions (→ N. 18). In BGE 139 II 65 E. 5.4 of 15.12.2012, the Federal Supreme Court confirmed that even where coordination between a removal order under aliens law and revocation of asylum status is at issue, the requirements of Art. 65 AsylA and the non-refoulement obligation under Art. 25 paras. 2 and 3 FC must be fully observed.
Para. 3: Absolute Prohibition on Removal where there is a Risk of Torture
N. 13 Para. 3 prohibits removal to a state in which the person faces «torture or any other form of cruel and inhuman treatment or punishment». The scope of protection is broader than para. 2: it applies to «no one», i.e. without regard to nationality, residence status or crimes committed. «Torture» encompasses the intentional infliction of severe physical or mental suffering by state actors or with the acquiescence of the state (Art. 1 UN Convention against Torture, SR 0.105). «Cruel and inhuman treatment» additionally covers serious forms of ill-treatment that do not reach the severity threshold of torture.
N. 14 The requirement of a «threat» presupposes a serious, concrete and personal danger — a merely theoretical or abstract possibility of ill-treatment does not suffice. The Federal Supreme Court requires a comprehensive risk assessment that first takes into account the general human rights situation in the destination state and then examines whether the person concerned faces an elevated risk on account of their personal circumstances (BGE 134 IV 156 E. 6.8 of 18.12.2007).
N. 15 According to the dispatch, the prohibition in para. 3 applies without any exception: not even serious criminal offences, security interests or treaty obligations can justify removal to a state practising torture (BBl 1997 I 172). This absolute character corresponds to Art. 3 ECHR, which, according to the constant case law of the ECtHR, is not susceptible to any balancing (ECtHR, Chahal v. United Kingdom, 15.11.1996, no. 22414/93, § 79 ff.).
#4. Legal Consequences
N. 16 Violations of para. 1 (expulsion of a Swiss citizen) render the state measure unlawful and require its judicial annulment. Under constitutional doctrine, state acts that violate an absolute fundamental right are void if the violation is serious and manifest; such an act cannot stand and must not be executed ex officio (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3202 ff.; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 2094 f.). As regards paras. 2 and 3: where removal or extradition is impermissible, the competent authority must order provisional admission (Art. 83 FNIA, SR 142.20), unless the enforcement can otherwise be organised in a lawful manner.
N. 17 The inadmissibility of enforcement of a removal order resulting from the non-refoulement prohibition under para. 3 is mandatory and cannot be circumvented by the discretion of the authority. Provisional admission pursuant to Art. 83 para. 3 FNIA takes effect as a substitute measure. The exclusion clauses for provisional admission (Art. 83 para. 7 FNIA) cannot override the inadmissibility within the meaning of para. 3 (BGE 135 II 110 E. 2.3).
N. 18 In the case of para. 3, the legal consequence is absolute: no justification — whether treaty obligation, security interest or criminal conviction of the person concerned — can justify removal where there is a serious risk of torture. This distinguishes para. 3 from para. 2, which exceptionally permits removal where there is a serious threat to public safety (Art. 5 para. 2 AsylA).
#5. Contested Issues
Diplomatic Assurances
N. 19 The most significant contested issue concerns the permissibility of diplomatic assurances as an instrument for enabling extradition despite a risk of torture. The Federal Supreme Court addressed this question in principle in BGE 134 IV 156 E. 6 of 18.12.2007: diplomatic assurances can constitute effective protection if the risk can thereby be reduced to a merely theoretical level. Decisive is a comprehensive risk assessment taking into account the general human rights situation and the specific personal situation of the person sought.
N. 20 This practice is controversial in legal scholarship. Martina Caroni takes the view that, from a human rights perspective, the adequacy of diplomatic assurances as effective protection against torture must be denied: a state that disregards the absolute prohibition of torture offers no guarantee that it will honour an individual contractual assurance (Caroni, Menschenrechtliche Wegweisungsverbote: Neuere Praxis, in: Jahrbuch für Migrationsrecht 2006/2007, Bern 2007, p. 59 f.). Peter Popp had additionally questioned the legal basis for granting mutual legal assistance subject to conditions (BGE 134 IV 156 E. 6.6.2). The Federal Supreme Court did not follow either position and relied on Art. 37 para. 3 and Art. 80p IMAC (SR 351.1) as the legal basis for extradition subject to conditions.
N. 21 The Federal Supreme Court clarified in BGE 133 IV 76 E. 4 of 23.1.2007 that in politically and internationally sensitive cases «great weight must be placed on effective and verifiable human rights guarantees». These include in particular the right of the Swiss Embassy to conduct unannounced prison visits, trial monitoring, and the unrestricted right of the person sought to contact the Swiss diplomatic mission. These requirements go beyond a mere declaration by the requesting state; they must be incorporated into the extradition decision as binding conditions.
Exceptions to the Non-Refoulement Obligation (Para. 2)
N. 22 It is contested under what conditions the exception pursuant to Art. 33 no. 2 of the Refugee Convention and Art. 5 para. 2 AsylA may be invoked. The Federal Supreme Court requires in consistent case law a «minimally concrete and not merely purely abstract risk of recurrence» (BGE 135 II 110 E. 4.3.2). Legal scholarship emphasises that the exception must be interpreted narrowly, because para. 2 FC stands systematically alongside para. 3, and the principle of proportionality in the balancing of interests must always take into account the protection needs of the refugee (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729 ff.).
Relationship to Para. 3 FC and Art. 3 ECHR
N. 23 The relationship between Art. 25 para. 3 FC and Art. 3 ECHR is essentially congruent; both are regarded as absolute and admit no exceptions. Rhinow/Schefer/Uebersax point out that Art. 25 para. 3 FC covers removal — not only extradition — and thus has a broader scope of application than the EEA regime (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862). The FC guarantee is more far-reaching in that it also mandatorily covers administrative refoulement (removals within the framework of aliens law), while Art. 3 ECHR applies equally under ECtHR case law.
#6. Practical Notes
N. 24 In enforcement proceedings under aliens law, the prohibition on refoulement under Art. 25 paras. 2 and 3 FC must be examined as a matter of necessity before a removal order is enforced. The examination must take place in a single, coordinated decision; a division into separate proceedings is permissible only where it is ensured that all aspects of inadmissibility are examined in a procedure consistent with the rule of law (BGE 139 II 65 E. 5.1 of 15.12.2012; BGE 135 II 110 E. 3.2). Cantonal authorities that wish to revoke or refuse to renew a residence permit of a recognised refugee must observe, in addition to the requirements under aliens law (Art. 62 ff. FNIA), the requirements of Art. 65 AsylA and the non-refoulement obligation. In the case of Dublin transfers, it must further be examined whether there is a risk of a violation of Art. 3 ECHR in the transferring state; a situation that is merely difficult but not without prospects is insufficient to establish a state of emergency (BGE 146 IV 297 E. 2.2.3 of 30.6.2020).
N. 25 In extradition proceedings, diplomatic assurances are a permissible instrument provided that the risk of torture is concretely established on the basis of a comprehensive risk analysis and the assurances include effective monitoring mechanisms (unannounced prison visits, trial monitoring, free contact with the Swiss diplomatic mission). Mere general declarations of guarantee without an enforcement mechanism do not suffice (BGE 133 IV 76 E. 4.8; BGE 134 IV 156 E. 6.14).
N. 26 For criminal law practice, the following applies: criminal expulsion pursuant to Art. 66a ff. SCC applies only to foreign nationals; Swiss nationals may not be expelled pursuant to Art. 25 para. 1 FC. Even in the case of criminal sanctions with a cross-border dimension (e.g. extradition to foreign authorities), para. 3 must be observed without restriction; the non-refoulement obligation has an enforcement-suspending effect regardless of the gravity of the offences attributed to the person sought (cf. BGE 133 IV 76 E. 4.1).
N. 27 As regards the burden of proof: the authority is in principle obliged to investigate the security situation in the destination state ex officio; the person concerned must render the individual risk credible. Where Art. 3 ECHR or Art. 25 para. 3 FC is invoked, a removal must not be enforced as long as there are serious doubts about the absence of a risk of torture. General unsubstantiated assertions are, however, insufficient (BGE 139 II 65 E. 6.4).
#Caselaw
#Prohibition on Expulsion of Swiss Citizens (para. 1)
BGE 135 II 1 of 12 November 2008
When a naturalisation is declared void, the person concerned is placed under foreign national law in the same legal position as before naturalisation. The prohibition on expulsion in Art. 25 para. 1 FC applies only to genuine Swiss citizens, not to persons whose naturalisation has been declared void.
«Mit der Nichtigerklärung der Einbürgerung wird die davon betroffene Person ausländerrechtlich, unter Vorbehalt allfälliger Untergangsgründe, in die gleiche Rechtsstellung wie vor der Einbürgerung versetzt.»
#Prohibition on Extradition Where Risk of Torture (para. 3)
BGE 133 IV 76 of 23 January 2007
The prohibition on torture under Art. 25 para. 3 FC prohibits extradition to states where torture or inhuman treatment is threatened. Diplomatic assurances may be sufficient, but they must be effective and verifiable, in particular through trial monitoring by the Swiss embassy.
«Niemand darf in einen Staat ausgeliefert werden, in dem ihm Folter oder eine andere Art grausamer und unmenschlicher Behandlung oder Bestrafung droht (Art. 25 Abs. 3 BV). [...] In politisch und völkerrechtlich schwierigen Fällen wie dem vorliegenden, bei denen die Auslieferungsvoraussetzungen des EAUe grundsätzlich erfüllt erscheinen, ist daher nach der Praxis des Bundesgerichtes ein grosses Gewicht auf wirksame und überprüfbare Menschenrechtsgarantien zu legen.»
BGE 134 IV 156 of 18 December 2007
Diplomatic assurances can constitute effective protection for the person being persecuted. When examining this, a risk assessment must be undertaken. The non-refoulement principle also applies to economic offences where concrete risks of torture exist.
«Diplomatische Zusicherungen können einen wirksamen Schutz für den Verfolgten darstellen. Bei der Prüfung, ob dies der Fall sei, ist eine Risikobeurteilung vorzunehmen.»
#Non-Refoulement Principle for Refugees (para. 2)
BGE 135 II 110 of 16 February 2009
The non-refoulement principle under Art. 25 para. 2 FC protects recognised refugees from expulsion to states of persecution. Expulsion despite refugee status requires a minimally substantiated and not merely abstract risk of repetition.
«Die Ausweisung eines anerkannten Flüchtlings, dessen Asyl widerrufen worden ist, rechtfertigt sich nur, wenn sie gestützt auf die gesamten wesentlichen Umstände verhältnismässig erscheint; dabei kann bloss die Prüfung von Aspekten, welche die Unzulässigkeit betreffen, in das Verfahren über die vorläufige Aufnahme verwiesen werden.»
BGE 139 II 65 of 15 December 2012
The non-refoulement prohibition also applies when coordinating foreign national law removal and asylum revocation. Cantonal authorities must observe both foreign national law and asylum law requirements when removing persons entitled to asylum.
«Beabsichtigt die kantonale Behörde, eine Aufenthalts- oder Niederlassungsbewilligung eines Ausländers, der über Asyl verfügt, nicht zu verlängern oder zu widerrufen und den Betroffenen in Anwendung von Art. 64 Abs. 1 lit. c AuG wegzuweisen, hat sie allerdings dafür zu sorgen, dass neben den Voraussetzungen gemäss Art. 62 ff. AuG auch die Erfordernisse nach Art. 65 AsylG beachtet sind.»
#Criminal Law Expulsion and Non-Refoulement
BGE 6B_747/2019 of 24 June 2020
The non-refoulement prohibition must also be observed in criminal law expulsion. The enforcement examination must take account of Art. 25 paras. 2 and 3 FC.
«Non-Refoulement-Gebot (Art. 25 Abs. 2 BV) berufen.»
#Current Developments
E-4103/2024 of 8 November 2024
Current application of the non-refoulement principle in asylum procedures relating to Turkey. The Federal Administrative Court continues to carefully examine compliance with Art. 25 paras. 2 and 3 FC in removal decisions.
E-1308/2023 of 19 March 2024
The non-refoulement prohibition must be fully observed even in accelerated asylum procedures. A shortened procedure duration does not release from careful examination of enforcement obstacles under Art. 25 FC.
E-3427/2021 of 28 March 2022
In Dublin procedures, the non-refoulement prohibition must be examined in relation to the third state. Art. 25 paras. 2 and 3 FC also apply to transfers to safe third countries where chain refoulement is threatened.
#Prohibition on Torture and Inhuman Treatment
BGE 139 IV 41 of 5 February 2013
The prohibition on torture under Art. 25 para. 3 FC in conjunction with Art. 3 ECHR also applies to criminal enforcement in Switzerland. Not every irregularity in pre-trial detention justifies release from detention.
BGE 140 I 125 of 26 February 2014
Detention conditions must correspond to the standards of Art. 25 para. 3 FC and Art. 3 ECHR. Overcrowding and unreasonable detention conditions can violate the prohibition on torture.
#Relationship to International Treaties
BGE 122 II 373 of 11 September 1996
Art. 25 para. 3 FC gives concrete form to obligations under international law arising from Art. 3 ECHR. Extraditions are only permissible where sufficient guarantees exist for treatment in conformity with human rights.
BGE 146 IV 297 of 30 June 2020
The non-refoulement prohibition also applies to Dublin transfers. Emergency assistance only justifies unlawful acts in genuine emergency situations with no other possibilities for remedy.