1Every person has the right to equal and fair treatment in judicial and administrative proceedings and to have their case decided within a reasonable time.
2Each party to a case has the right to be heard.
3Any person who does not have sufficient means has the right to free legal advice and assistance unless their case appears to have no prospect of success. If it is necessary in order to safeguard their rights, they also have the right to free legal representation in court.
In a legal dispute, every person has the right to have their case determined by a judicial authority. The Confederation and the Cantons may by law preclude the determination by the courts of certain exceptional categories of case.
Overview
Art. 29 BV grants fundamental procedural guarantees in all state proceedings. These apply both before courts and before administrative authorities (BGE 134 I 140).
The first guarantee is equal and fair treatment as well as adjudication within a reasonable time (para. 1). Every person can demand that authorities decide fairly and without arbitrariness. If proceedings take too long, a complaint for delay of justice can be filed. What constitutes a reasonable time depends on the complexity of the case.
The second guarantee is the right to be heard (para. 2). This means: Affected persons must be heard before decisions are made about them. They may inspect all important documents and comment on them (BGE 137 I 195). The authority must justify its decision and explain why it did not consider certain arguments (BGE 126 I 97).
The third guarantee is free legal aid for indigent persons (para. 3). Those who cannot afford a lawyer receive free legal assistance – but only if the case is not hopeless (BGE 128 I 225). This assistance does not apply for the entire duration of proceedings, but only for specific procedural steps.
Example: A person is charged with tax evasion. They have the right to inspect all files, to comment on the accusations and to receive a judgment within a reasonable time. If they cannot afford a lawyer, they are entitled to free legal aid.
These guarantees largely correspond to Art. 6 of the European Convention on Human Rights (ECHR), but go partly beyond it, since they also cover purely administrative proceedings.
Art. 29 FC — General Procedural Guarantees
#Doctrine
#1. Legislative History
N. 1 Art. 29 FC codifies procedural guarantees that the Federal Supreme Court had, prior to 1999, derived from the general prohibition of arbitrariness and the principle of equality (Art. 4 of the former FC). The Federal Council's Dispatch of 20 November 1996 explicitly describes Art. 29 as a summary of «various general procedural guarantees» that had been concretised over decades of Federal Supreme Court case law on Art. 4 of the former FC (BBl 1997 I 181). In substantive terms, little was new; the gain lay in the express entrenchment as a fundamental right.
N. 2 The Dispatch identifies Art. 6 ECHR and Art. 14 UN Covenant II («fair trial») as normative foundations, but at the same time emphasises that Art. 29 FC goes beyond the scope of application of Art. 6 ECHR, because — unlike the Convention provision — it also covers purely administrative proceedings without a «civil rights» character (BBl 1997 I 182). The Federal Council explained the express mention of the prohibition of undue delay in para. 1 by the «great practical importance» of this aspect of procedural fairness (BBl 1997 I 182).
N. 3 The 1995 draft Constitution (VE 95) did not yet contain an independent provision on general procedural guarantees; these were only introduced as a self-standing Art. 25a in the Federal Council's draft of November 1996. The three-paragraph structure — equal and fair treatment / reasonable time (para. 1), right to be heard (para. 2), legal aid (para. 3) — corresponds to the Federal Council's draft and remained unchanged throughout the parliamentary process. The Council of States approved the text in its final vote on 18 December 1998, as did the National Council on the same day; the new Federal Constitution entered into force on 1 January 2000.
N. 4 Council of States member Wicki Franz (C, LU) emphasised during the deliberations on the guarantee of access to a court (Art. 29a FC, then Art. 25a of the draft) that the guarantee of access to a court conveyed the right «to appear before a judge, but not necessarily to invoke the highest court, the Federal Supreme Court» (AB 1998 SR Separatdruck). This principle applies by analogy to Art. 29 FC: the general procedural guarantees secure a fair procedural framework, but do not determine the appellate structure or the scope of judicial review.
#2. Systematic Classification
N. 5 Art. 29 FC is located in the third section of the second chapter of the Federal Constitution («Fundamental Rights», Arts. 7–36 FC). Together with Art. 29a FC (guarantee of access to a court) and Art. 30 FC (judicial proceedings), the provision forms the core of the constitutionally guaranteed procedural fundamental rights. The substantive scope of Art. 29 FC is broader than that of Art. 30 FC (which applies exclusively to court proceedings) and of Art. 6 ECHR (which is limited to civil and criminal proceedings): Art. 29 FC covers all State proceedings before judicial and administrative authorities.
N. 6 Art. 29 FC is a genuine fundamental right with direct effect against State authorities (→ Art. 35 para. 1 FC). The provision is justiciable: violations may be challenged before the Federal Supreme Court (Art. 95 lit. a SCA). The Federal Supreme Court reviews violations of Art. 29 FC with full cognition (→ Art. 95 SCA). There is no direct horizontal effect (effect on relations between private individuals); however, insofar as private individuals perform State functions, they are bound by the procedural guarantees (↔ Art. 35 para. 2 FC).
N. 7 Relationship to other provisions: Art. 29 para. 2 FC (right to be heard) is closely connected to ↔ Art. 8 FC (equality before the law). Art. 29 para. 1 FC (fair proceedings, reasonable time) may be restricted pursuant to → Art. 36 FC insofar as it is characterised as a subjective right. The relationship to → Art. 6 ECHR and → Art. 14 UN Covenant II is complementary in nature: these Convention guarantees may afford more extensive protection in individual cases (e.g. in criminal proceedings), but do not exceed Art. 29 FC in their substantive scope of application.
#3. Content of the Provision
3.1 Para. 1: Equal and Fair Treatment and Adjudication within a Reasonable Time
N. 8 The right to «equal and fair treatment» (para. 1, first limb) is to be understood as an independent procedural guarantee that goes beyond the general principle of equality (Art. 8 FC) and the prohibition of arbitrariness (Art. 9 FC). It encompasses the requirement of impartiality and neutrality on the part of the deciding authority, the prohibition of irrelevant distinctions in proceedings, and the principle of equality of arms («égalité des armes»). The Federal Supreme Court has concretised this aspect particularly in social insurance law from the perspective of equality of arms between the insured person and the insurer (BGE 137 V 210 E. 2.1.2).
N. 9 The prohibition of undue delay (para. 1, second limb) obliges State authorities to adjudicate within a «reasonable time». What is reasonable is measured according to the circumstances of each individual case: the complexity of the facts, the conduct of the parties, the workload of the authority, and the interests at stake for the person concerned must all be taken into account. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 830, emphasise that undue delay is to be understood not only in a formal sense, but also in a substantive sense — as a refusal to render a decision on the merits. Where a delay is unlawful, the Federal Supreme Court intervenes by ordering the matter to be dealt with without delay (so-called complaint of undue delay).
N. 10 The right to equal and fair treatment under para. 1 includes the right to the recusal of a biased decision-maker. Any person who has a personal interest in proceedings or who appears biased for other reasons must recuse themselves (→ Art. 10 APA; → Art. 34 SCA). BGE 137 V 210 E. 2.1.3 expressly holds that medical experts must in principle be equally independent and impartial as the judges themselves, because expert opinions, on account of their auxiliary function, often constitute a decisive element of the legal finding.
3.2 Para. 2: Right to Be Heard
N. 11 The right to be heard (para. 2) is the central and most frequently applied procedural fundamental right in the Swiss legal order. The Federal Supreme Court defines it as a «formal right», the violation of which leads to the annulment of the challenged decision irrespective of the merits of the appeal (BGE 137 I 195 E. 2.2). The formal character protects the parties' trust in a fair procedure and simultaneously serves the purpose of fact-finding (cf. BBl 1997 I 181 f.).
N. 12 According to consistent case law, the right to be heard comprises the following elements:
- Right to be heard on the merits: The parties must be able to comment on decisive facts and legal questions before a decision is rendered (BGE 126 I 97 E. 2b).
- Right to adduce evidence: The parties have the right to submit admissible and relevant offers of proof; the authority may reject these in anticipation where the facts have been sufficiently established.
- Right of access to the file: The person concerned has the right to inspect the files relevant to the decision.
- Duty to give reasons: The authority must give reasons for its decision so that the person concerned is able to challenge it effectively. The reasons must at least briefly set out the key considerations, without addressing every argument individually (BGE 126 I 97 E. 2b).
- Right of reply: The parties have the right to be notified of all submissions by the other participants in the proceedings and to comment on them (BGE 137 I 195 E. 2.3.1; BGE 138 I 484 E. 2.1).
N. 13 According to BGE 137 I 195 E. 2.3.1, the right of reply requires that the submissions in question be actually served on the party — the mere possibility of inspecting the file does not suffice. BGE 138 I 484 E. 2.4 clarifies: it is the task of the court to ensure an effective right of reply in each individual case. To this end, it may suffice to serve a submission merely «for information purposes» (without setting a deadline), where a party represented by legal counsel can be expected to respond promptly without being asked, or to apply for a deadline to be set.
N. 14 A violation of the right to be heard may be remedied if the person concerned is given the opportunity to be heard before an appellate authority that can freely review both the facts and the law (BGE 137 I 195 E. 2.3.2). In the case of particularly serious violations, however, a remedy is excluded; the principle applies that persons subject to the law are entitled to have the instance structure respected (BGE 137 I 195 E. 2.7).
N. 15 The right to be heard under para. 2 applies to «parties». The term is to be understood functionally and includes all persons whose legal interests are directly affected by the outcome of the proceedings. In administrative proceedings, the term is broader than in civil procedure law (→ Art. 6 APA; Art. 102 CPC).
3.3 Para. 3: Legal Aid
N. 16 Art. 29 para. 3 FC establishes two cumulative guarantees: (a) exemption from court costs and party costs («legal aid» in the strict sense) and (b) assignment of a free legal representative «where necessary to safeguard the rights» of the person concerned. The provision contains three conditions that must be cumulatively fulfilled:
- Indigence: A person is indigent if they are unable to bear the costs of proceedings without impairing the minimum standard of living for themselves and their family (BGE 128 I 225 E. 2.5.1).
- Non-hopelessness: The legal claim must not «appear hopeless». A case is hopeless where the prospects of success are considerably lower than the risks of failure (BGE 128 I 225 E. 2.5.3).
- Necessity (only for legal representation): Free legal representation must be granted where the interests at stake are seriously affected and the case presents factual or legal difficulties that the person concerned would not be able to handle alone (BGE 128 I 225 E. 2.5.2).
N. 17 The entitlement exists for any State proceeding in which the applicant is involved or which is necessary for the protection of their rights — thus not only for court proceedings, but also for non-contentious administrative proceedings (BGE 128 I 225 E. 2.3). Pure legal advice outside a specific proceeding is excluded. As a rule, no entitlement exists in respect of future proceedings not yet initiated; rather, the conditions must be examined separately for each proceeding (BGE 128 I 225 E. 2.4.2).
N. 18 Art. 29 para. 3 FC is a minimum guarantee; cantonal and federal procedural law may provide for more extensive entitlements (→ Arts. 117 ff. CPC; Art. 65 SCA). In cantonal law, Art. 29 para. 3 FC operates as a directly applicable safety net insofar as cantonal law does not afford equivalent protection (BGE 128 I 225 E. 2.3).
#4. Legal Consequences
N. 19 A violation of Art. 29 FC has different legal consequences depending on which element of the guarantee is affected:
- Violation of para. 1 (fair proceedings): Quashing of the challenged decision or remittal for a fresh determination; in the case of undue delay, an order to deal with the matter without delay.
- Violation of para. 2 (right to be heard): Annulment of the decision irrespective of the merits, since the right to be heard is a formal right. Exceptionally, a remedy may be possible in appellate proceedings (→ N. 14).
- Violation of para. 3 (legal aid): Setting aside of the costs order or ordering the assignment of a free legal representative; no automatic quashing of the substantive decision.
N. 20 Restrictions on Art. 29 FC are permissible pursuant to → Art. 36 FC insofar as the provision is characterised as a liberty right. This is of practical relevance principally in relation to the right to legal aid (e.g. limitation to non-hopeless cases) and to the right to be heard (e.g. anticipated appraisal of evidence). Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 875 ff., point out that the conditions for restricting procedural fundamental rights must tend to be interpreted more narrowly than those applicable to substantive liberty rights, because fair procedure fulfils an instrumental function for all other fundamental rights.
#5. Contested Issues
N. 21 Relationship between Art. 29 para. 1 and Art. 6 ECHR: It is disputed whether and to what extent Art. 29 para. 1 FC has an independent content that goes beyond the Convention guarantee of Art. 6 ECHR. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2690 ff., emphasise the independent constitutional content of Art. 29 para. 1 FC, which also applies in administrative proceedings without a «civil rights» character. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 829 ff., agree, but qualify the practical significance of this distinction, since the Federal Supreme Court has increasingly interpreted Art. 6 ECHR extensively. The Federal Supreme Court itself holds in consistent case law that Art. 29 para. 1 FC is co-extensive with Art. 6 para. 1 ECHR within the latter's scope of application, but applies beyond it to all State proceedings (BGE 134 I 140 E. 4 f.).
N. 22 Formal vs. substantive character of the right to be heard: Academic commentary discusses whether the formal character of the right to be heard — the decision is annulled regardless of the merits — is justified or leads to procedural formalism. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 870 ff., defend the strictness of the rule on the ground that only in this way can an effective deterrent against procedural violations by authorities be achieved. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2705 ff., acknowledge the rule but emphasise that the possibility of remedy in appellate proceedings represents a necessary exception to avoid excessive delays. The Federal Supreme Court expressly confirmed the possibility of remedy in BGE 137 I 195 E. 2.3.2, while establishing the principle of the instance structure as a limiting factor.
N. 23 Scope of the right of reply: It is disputed whether the court must always expressly set a deadline for submissions, or whether mere service «for information purposes» may suffice. The ECtHR found a violation of Art. 6 ECHR in Schaller-Bossert v. Switzerland (28 October 2010) because an unrepresented applicant was unable to reply effectively. BGE 138 I 484 E. 2.3 f. clarifies: in the case of parties represented by legal counsel who must be taken to be aware of the practice regarding the unconditional right of reply, service for information purposes suffices, provided the court allows sufficient time before rendering its decision. This distinction is accepted in academic commentary (cf. Lanter, ZBl 113/2012 p. 167, 175 f., cited in BGE 138 I 484 E. 2.4), but remains prone to dispute in individual cases.
N. 24 Legal aid in non-contentious administrative proceedings: It was disputed whether Art. 29 para. 3 FC applies only in formally contentious proceedings or also in non-contentious administrative proceedings. The Federal Supreme Court has since BGE 128 I 225 E. 2.3 and consistent subsequent case law confirmed the broad application to all State proceedings. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 836 ff., welcome this as a necessary consequence of the social character of the guarantee; Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2715 ff., point to the associated fiscal burden, which they nonetheless consider justified by the constitutional rank of the guarantee.
#6. Practical Notes
N. 25 Raising a violation of Art. 29 FC before the Federal Supreme Court: A violation of Art. 29 FC constitutes a ground of complaint in respect of federal law (Art. 95 lit. a SCA) and may be raised by way of an appeal in public law matters as well as — where no other remedy is available — by way of a subsidiary constitutional complaint (Arts. 116 ff. SCA). The Federal Supreme Court reviews violations of Art. 29 FC with full cognition. Since a violation of the right to be heard may be remedied in appellate proceedings, the party concerned should raise all violations of the right to be heard expressly before the appellate authority in order to avoid forfeiture.
N. 26 Right of reply in practice: Any person who receives a submission «for information purposes» and wishes to comment on it must do so promptly, or must expressly apply for a deadline to be set. Silence after service of a submission may be construed as a waiver of the right of reply (BGE 138 I 484 E. 2.2, 2.5). Parties represented by legal counsel bear a heightened duty of diligence in this regard.
N. 27 Duty to give reasons and academic opinion: An authority does not violate the duty to give reasons flowing from Art. 29 para. 2 FC by reproducing an academic opinion with the content it actually derives from it — even if this interpretation of the cited author is objectively incorrect — provided it actually bases its decision on that view (BGE 126 I 97 E. 2c). The decisive factor is that the reasoning enables effective challenge of the decision.
N. 28 Legal aid — application: An application for legal aid must be submitted in good time, i.e. before advance payment of costs falls due, and must be accompanied by documentary evidence of indigence. Hopelessness is to be assessed according to the circumstances at the time the application is submitted (BGE 128 I 225 E. 2.5.3). Where the case was assessed as non-hopeless at the time of the application, a subsequently unfavourable expert opinion does not alter the original finding of non-hopelessness.
N. 29 Relationship to Art. 6 ECHR in practice: Practitioners should note that Art. 6 ECHR provides more extensive specific guarantees in civil and criminal proceedings (public hearing, exclusionary rules on evidence, principles of criminal procedure) that Art. 29 FC does not necessarily contain. In administrative proceedings outside the scope of application of Art. 6 ECHR, by contrast, Art. 29 FC is the relevant guarantee provision. A parallel review under the ECHR must always be carried out where civil rights or criminal charges are at issue (↔ Art. 6 ECHR).
N. 30 Equality of arms in social insurance proceedings: The principle of equality of arms flowing from Art. 29 para. 1 FC requires structural correctives where an insured person is structurally disadvantaged vis-à-vis a specialised insurer. BGE 137 V 210 issued a landmark decision in this regard, requiring the legislative body and supervisory authorities to adopt reform measures (random assignment in the awarding of mandates to medical assessment centres (MEDAS), participation rights in the ordering of expert opinions). This judgment is a leading authority for the understanding of equality of arms as a structural corrective, and not merely as a formal requirement of equal treatment.
Art. 29 BV
#Caselaw
#Right to be heard (para. 2)
Right of rejoinder and service obligation
BGE 137 I 195 of 23 March 2011 The right of rejoinder as an aspect of the right to be heard requires service of all submissions by the parties to the proceedings. This violation cannot be cured by mere possibility of file inspection.
«The exercise of the right of rejoinder as an aspect of the right to be heard pursuant to Art. 29 para. 2 Cst. and Art. 6 no. 1 ECHR requires service of the submissions filed by the other parties to the proceedings. If the court has not served such a submission but it is in the file, the appellate instance cannot cure the violation of the right to be heard with mere reference to the possibility of file inspection.»
BGE 145 I 167 of 26 November 2018 Under certain circumstances, initiators have a right to be heard when the cantonal executive reviews the validity of a popular initiative. The right to be heard is not violated when the decision is based on foreseeable legal argumentation.
«Under certain circumstances, there exists for initiators a right to be heard (Art. 29 para. 2 Cst.) when a cantonal executive decides on the validity of an initiative before signatures are collected for it.»
Procedural defects in jurisprudence
BGE 136 I 229 of 14 May 2010 Examination procedures and violation of the right to be heard in the assessment of master's degrees. An examination result can be challenged by subsidiary constitutional complaint when passing or failing as well as grades are determined according to fixed rules.
«An examination result (or a grade) can be challenged by subsidiary constitutional complaint when failing, another legal consequence (such as exclusion from continuing education) or a grade is at issue for which the examination regulations prescribe how it is to be determined.»
BGE 126 I 97 of 12 April 2000 Duty of the deciding authority to give reasons regarding essential points as part of the right to be heard. The authority must explain in its decision why it did not consider certain evidence.
«The authority must explain in its decision why it did not consider certain evidence or aspects that were of considerable importance to the affected party and were raised by it.»
#Free legal assistance (para. 3)
Principles and requirements
BGE 128 I 225 of 14 August 2002 Right to free legal representation in enforcement of measures exists only for specific proceedings, not for the entire duration of enforcement. For the initial granting of relaxations of enforcement, legal representation is necessary given the complexity and significance.
«A right to free legal representation exists only for a specific proceeding (e.g. review of a (provisional) release, relaxations of enforcement or individual orders), but not for the entire duration of enforcement regarding the design of the measure (enforcement planning) and its regular review.»
BGE 141 III 369 of 27 August 2015 Partial granting of free legal assistance is permissible. A party can be exempted from security payments without necessarily being granted free legal counsel.
«It is not excluded under federal law to exempt the partially indigent party in the sense of Art. 118 para. 1 lit. a CPC from advance and security payments, but not to grant free legal counsel.»
#Reasonable duration of proceedings (para. 1)
BGE 137 V 210 of 31 March 2011 Fair procedure design when obtaining expert opinions from Medical Assessment Offices (MEDAS) in social insurance proceedings. The parties have a right to comment on essential procedural elements.
«Even considering the more recent jurisprudence of the European Court of Human Rights, there is no formal right to insurance-independent expert assessment in proceedings concerning the granting or denial of social insurance benefits.»
BGE 135 V 465 of 28 October 2009 Assessment of evidence in social insurance proceedings and the significance of fair proceedings under ECHR. The principles of Art. 29 para. 1 Cst. also apply in administrative proceedings.
«The deciding authority is required to design the taking of evidence in such a way that fair proceedings are ensured and the parties to the proceedings can effectively exercise their rights.»
#Recent developments (2020-2024)
Judgment 6B 172/2023 of 24 May 2023 Violation of the right to be heard in criminal proceedings due to insufficient consideration of the accused's objections to essential questions of evidence assessment.
Judgment 8C_710/2022 of 6 March 2023 Right of rejoinder in administrative proceedings: When ordering an exchange of briefs, the lower instance must give the parties sufficient opportunity to comment.
VB.2024.00020 of 21 August 2024 (VG ZH) Right to be heard regarding official conditions: An authority violates the right to be heard when it imposes conditions and makes a final decision without further procedural steps.
#Relationship to Art. 6 ECHR
BGE 134 I 140 of 7 January 2008 Protective measures against domestic violence and procedural guarantees. The guarantees of Art. 29 Cst. essentially correspond to those of Art. 6 ECHR, whereby Art. 29 Cst. also applies to purely administrative proceedings.
BGE 142 II 218 of 5 April 2016 Official assistance in tax matters: Application of procedural guarantees in international legal assistance proceedings. The deadline for comments must be reasonably set.
BGE 127 I 54 of 29 February 2000 Prohibition of arbitrariness and right to be heard regarding psychiatric expert opinions in criminal proceedings. An expert opinion without personal examination is only exceptionally permissible.
«A psychiatric expert opinion without personal examination of the person concerned is only exceptionally permissible when substantial reasons make personal examination impossible and other sources of knowledge are sufficient for a proper assessment.»