Art. 29a FC — Guarantee of access to the courts

#Doctrine

#1. Legislative history

N. 1 Art. 29a FC is a product of the judicial reform adopted in parallel with the total revision of the Federal Constitution of 1999. The Federal Constitution previously in force did not contain a general guarantee of access to the courts. In its Message of 20 November 1996, the Federal Council stated that it was the task of the rule-of-law state to grant citizens judicial protection of their rights through an independent court, and that an important gap in the existing law had to be closed (BBl 1997 I 502 f.). For civil claims and criminal matters, a guarantee of access was already provided by Art. 6 para. 1 ECHR; outside that sphere, however, no such guarantee existed (BBl 1997 I 503).

N. 2 In structural terms, the Federal Council drew inspiration from Art. 19 para. 4 of the German Basic Law and integrated the guarantee into the fundamental rights chapter of the new Constitution (BBl 1997 I 504). Two functions were paramount: first, the guarantee of access to the courts was intended to compensate for the restrictions on access to the Federal Supreme Court made possible by the judicial reform. Second, it was intended to improve legal protection against an increasingly powerful executive (BBl 1997 I 502). The guarantee met with broad acceptance during the consultation procedure (BBl 1997 I 502).

N. 3 The explanatory report on the preliminary draft of 1995 noted that the guarantee of access to the courts was intended to implement the national requirements arising from Art. 6 para. 1 ECHR and Art. 13 ECHR and to ensure a uniform minimum standard of legal protection (Explanatory Report on Preliminary Draft 1995, p. 295 f.). Exceptions by way of legislation were to remain permissible, but were to be limited to specifically justified exceptional cases — in particular acts of the Federal Assembly and the Federal Council, in respect of which the separation of powers would preclude judicial review (Explanatory Report on Preliminary Draft 1995, p. 296 f.). An absolute guarantee without any exception was explicitly rejected.

N. 4 In the context of the judicial reform bill (Bill C), the provision was initially numbered as Art. 25a. Rapporteur Wicki Franz (C, LU) referred in the Council of States to the close substantive connection between Art. 25a (guarantee of access to the courts) and Art. 177 of the judicial reform section, which provides the constitutional exception for certain governmental and parliamentary acts (AB 1998 SR Separatdruck). Following the vote of both chambers in the final ballot of 18 December 1998 (main part of the FC) and 8 October 1999 (judicial reform bill), the guarantee was incorporated as Art. 29a into the Federal Constitution adopted by the people on 18 April 1999. It entered into force on 1 January 2007 (AS 2006 1059 and 1243).

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#2. Systematic classification

N. 5 Art. 29a FC is situated in the third chapter of the second title of the Federal Constitution («Fundamental Rights») and belongs to the general procedural guarantees (Art. 29–32 FC). It is a fundamental procedural right with the character of a guarantee of access to justice: the provision does not establish the substantive right in dispute, but guarantees judicial access to its enforcement. Systematically, Art. 29a FC closes the gap between the substantive fundamental rights (Art. 7–28 FC) and the specific procedural guarantees (Art. 30 FC: independent court; Art. 31 FC: deprivation of liberty; Art. 32 FC: criminal proceedings).

N. 6 The relationship with Art. 6 para. 1 ECHR is complementary: Art. 29a FC goes beyond the protection of the ECHR, as it is not limited to «civil rights and obligations» and «criminal charges», but extends to all «legal disputes». Art. 6 para. 1 ECHR remains independently applicable alongside it and may, in individual cases, impose more far-reaching requirements (→ Art. 30 FC). Art. 13 ECHR (effective remedy) is superseded by Art. 29a FC to the extent that the latter guarantees a higher standard of protection (cf. BGE 137 I 128 E. 4.4.1).

N. 7 The provision is directed against all branches of the state (→ Art. 35 FC). It binds primarily the legislature, which shapes the organisation of the courts, as well as the authorities applying the law, which may not factually frustrate access to legal remedies. As a fundamental right, it is directly applicable (→ Art. 190 FC). The particular feature, however, is that the Federal Supreme Court must apply a federal statutory provision that violates Art. 29a FC by virtue of Art. 190 FC; it can only declare the constitutional violation (→ Art. 190 FC; BGE 137 I 128 E. 4.3.2).

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#3. Elements of the provision / Normative content

3.1 Legal dispute

N. 8 The concept of «legal dispute» is to be understood broadly. It encompasses every dispute over rights and obligations that a party asserts in adversarial proceedings — irrespective of whether the matter concerns civil, criminal, or public law. The Federal Supreme Court defines the concept by reference to the case law on Art. 6 para. 1 ECHR, but goes beyond it (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2836). What is required is that an individual legal position of the appellant is genuinely and concretely affected.

N. 9 Abstract norm-review proceedings are not covered by Art. 29a FC unless the legislature has expressly provided for such a procedure: the guarantee does not require abstract judicial review of legislation, but neither does it preclude it (BBl 1997 I 523). Also not directly covered are acts of a purely political nature that lack the justiciability required for judicial review. The Federal Supreme Court has applied the statutory exclusion ground for exceptional cases to such situations (BGE 130 I 388 E. 4; BGE 137 I 128 E. 4.2).

3.2 Right to determination by a judicial authority

N. 10 The «judicial authority» within the meaning of Art. 29a FC must meet the requirements of Art. 30 para. 1 FC: it must be substantively and personally independent, established by law, and endowed with full cognition over questions of fact and law. The Federal Supreme Court clarified in BGE 134 I 199 E. 1.2 that the cantons must designate a judicial authority as the appellate instance in accordance with the requirements of Art. 29a FC and the Federal Supreme Court Act (FSCA) — not merely an administrative authority calling itself an appellate instance. This requirement applies in cantonal as well as in municipal matters.

N. 11 The right to full judicial review — i.e., free examination of the facts and the law — follows from the fundamental character of the guarantee. Restrictions on cognition are not, however, categorically excluded. The Federal Supreme Court has recognised that judicial restraint in reviewing open-ended legal concepts is permissible to the extent that it preserves the corresponding discretion of the administration — in particular of municipal authorities (BGE 145 I 52 E. 3.6). Such restraint may not, however, go so far as to confine appellate authorities to a mere review for arbitrariness, since such a restriction would be incompatible with Art. 29a FC (BGE 137 I 235 E. 2.5.2, confirmed in BGE 145 I 52 E. 3.6).

N. 12 On the question of the timing of access to the courts: the guarantee of access to the courts applies in principle also to interlocutory decisions, but only where an irreparable disadvantage makes an immediate judicial determination necessary. Where no such disadvantage is apparent, it suffices that the interlocutory decision can be subjected to judicial review together with the final decision (BGE 146 I 62 E. 5.1; BGE 138 V 271 E. 3.1).

N. 13 According to prevailing doctrine and practice, the right also encompasses a costs dimension: court fees may not render access to justice excessively difficult. The equivalence principle, which ensures proportionality of fees, is shaped in part by Art. 29a FC (BGE 145 I 52 E. 5.2.3; cf. also Kley, SGK BV, Art. 29a N. 7; Biaggini, BV, 2nd ed. 2017, Art. 29a N. 8b; Waldmann, BSK BV, Art. 29a N. 28).

3.3 Reservation for exceptional cases

N. 14 The second sentence of Art. 29a FC permits the Confederation and the cantons to exclude judicial determination in exceptional cases by way of legislation. The Federal Council explained that this reservation covers cases of non-justiciability and the separation of powers — in particular governmental and parliamentary acts (BBl 1997 I 524). The Federal Supreme Court clarified in BGE 137 I 128 E. 4.2 that exceptional cases within the meaning of Art. 29a FC second sentence concern decisions that are difficult to «judicialise» because they essentially raise political questions that are not amenable to judicial review. The exclusion must be effected by law — i.e., by federal statute or cantonal law — a mere ordinance does not suffice.

N. 15 Examples of statutory exclusions that the Federal Supreme Court has held to be permissible: parliamentary supervision (BGE 141 I 172 E. 3), certain governmental acts of the Confederation and the cantons. By contrast, the exclusion of the legal remedy against conditions and directives in social assistance law does not as a rule violate Art. 29a FC, provided that no irreparable disadvantage is at stake (BGE 146 I 62 E. 5.4.6). The exception must always be proportionate and may not hollow out the guarantee (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 857).

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#4. Legal consequences

N. 16 Art. 29a FC obliges the Confederation and the cantons to provide a judicial remedy before a judicial authority for all legal disputes. The principal legal consequence is a duty on the legislature to act: it must vest courts with the corresponding jurisdiction (→ Art. 86, 88, 110 FSCA). Where a cantonal court fails to exercise its jurisdiction, there is a violation of the formal denial of justice and of Art. 29a FC (BGE 135 I 6 E. 2.2; BGE 134 I 199 E. 1.2).

N. 17 Where a violation of Art. 29a FC is contained in a federal statute — rather than merely in cantonal law — the Federal Supreme Court cannot, by virtue of Art. 190 FC, set aside the unconstitutional federal statutory provision; it can only declare the unconstitutionality (BGE 137 I 128 E. 4.3.2). This constraint considerably limits the practical protective effect of the guarantee with respect to gaps in federal legislation.

N. 18 At the level of cantonal law, the Federal Supreme Court may set aside unconstitutional cantonal provisions in abstract norm-review proceedings. However, it will set aside a cantonal provision only where it is incapable of any interpretation consistent with the Constitution (BGE 146 I 62 E. 4). This likewise constrains the direct enforceability of the guarantee against cantonal law.

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#5. Contested issues

5.1 Scope of the concept of «legal dispute»

N. 19 The central controversy concerns the extent of the concept of «legal dispute». Kley (SGK BV, Art. 29a N. 4 f.) and Rhinow/Schefer/Uebersax (N. 2836) advocate a broad interpretation: the concept covers all contentious matters in which an individual legal position is asserted, irrespective of whether it originates in public or private law. A narrower position — restricting the concept to «civil rights» within the meaning of Art. 6 para. 1 ECHR — was discussed in the literature but rejected, on the ground that it would have reduced the significance of the constitutional amendment compared to the status quo ante (ECHR protection) to nil (Explanatory Report on Preliminary Draft 1995, p. 295; see also Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729 ff.). The Federal Supreme Court follows the broad interpretation (BGE 130 I 388 E. 4; BGE 137 I 128 E. 4.2).

5.2 Restrictions on cognition and municipal autonomy

N. 20 It is disputed whether and to what extent cantonal appellate authorities may restrict their cognition without violating Art. 29a FC. Schindler (Gemeindeautonomie als Hindernis für einen wirksamen Rechtsschutz, in: FS Jaag 2012, p. 149 ff.) and Griffel (Raumplanungs- und Baurecht in a nutshell, 2012, p. 182) criticise the position that appellate authorities may set aside municipal planning and design decisions only in cases of manifest unsustainability, arguing that this effectively establishes a review for arbitrariness and impairs effective legal protection. In BGE 145 I 52 E. 3.6, the Federal Supreme Court partially accepted this criticism and clarified that judicial restraint is permissible but may not go so far as to amount to a pure review for arbitrariness — since that would be incompatible with Art. 29a FC.

5.3 Scope of the reservation for exceptional cases

N. 21 Legal scholarship is divided on whether the reservation for exceptional cases in Art. 29a second sentence FC should be interpreted narrowly or broadly. Waldmann (BSK BV, Art. 29a N. 28) advocates a restrictive interpretation: only cases of genuine non-justiciability — i.e., cases in which the court is unable to adjudicate for lack of legally binding decision-making criteria — justify an exclusion. By contrast, Häfelin/Haller/Keller/Thurnherr (N. 857) emphasise that considerations of the separation of powers — in particular with regard to governmental and parliamentary acts — may also legitimise an exclusion. The Federal Supreme Court clarified in BGE 137 I 128 E. 4.2 that exceptional cases within the meaning of Art. 29a FC second sentence concern decisions that are difficult to «judicialise» and that raise essentially political questions. This formula leaves a certain margin but has been criticised in the literature as too imprecise (Kley, SGK BV, Art. 29a N. 14 f.).

5.4 Relationship with Art. 190 FC in cases of gaps in federal legislation

N. 22 Particularly problematic is the relationship between Art. 29a FC and Art. 190 FC where a federal statute contains a gap contrary to the guarantee of access to the courts. The Federal Supreme Court must apply the federal statute nonetheless and can only declare the unconstitutionality (BGE 137 I 128 E. 4.3.2). This outcome is not fully convincing to the legal literature: Rhinow/Schefer/Uebersax (N. 2840) point out that the interpretation of federal statutes in conformity with the Constitution — to the extent the wording of the statute permits — should take precedence over the mere declaration of unconstitutionality, so as not to undermine the protective purpose of Art. 29a FC.

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#6. Practical notes

N. 23 Duty of implementation by the cantons: Art. 29a FC did not enter into force until 1 January 2007. In parallel, the FSCA entered into force, restructuring cantonal instances. The cantons were obliged to adapt their procedural legislation and to provide a judicial instance for all legal disputes. The Federal Supreme Court enforced this obligation consistently even during the transitional period: in BGE 134 I 199 and BGE 135 I 6, it required cantonal administrative courts to assume jurisdiction even in areas previously reserved for internal administrative legal protection.

N. 24 Relationship with Art. 83 FSCA (exclusions): Art. 83 FSCA excludes certain subject-matter areas from appeals in public-law matters. In such areas — provided the appellant asserts a legally protected interest — the subsidiary constitutional appeal under Art. 113 ff. FSCA is available, though not for the purpose of raising violations of substantive fundamental rights for which no legal entitlement exists (BGE 133 I 185 E. 6.1 f.). In practice, choosing the correct type of appeal in these borderline cases requires great care.

N. 25 Court fees: Disproportionately high court fees may effectively frustrate access to justice and thereby violate Art. 29a FC. The Federal Supreme Court examines under the equivalence principle whether the fee is in obvious disproportion to the objective value of the judicial service rendered (BGE 145 I 52 E. 5.2.3). The customary scale of fees for comparable proceedings in Switzerland serves as a benchmark.

N. 26 Interlocutory decisions: In administrative proceedings, interlocutory decisions are in principle not immediately challengeable unless an irreparable disadvantage is at stake. The guarantee of access to the courts does not require immediate challengeability, as long as final judicial review at the stage of the final decision is secured (BGE 146 I 62 E. 5.4.6; BGE 138 V 271 E. 3.1). This is of particular practical significance in social insurance and social assistance law.

N. 27 Declaration of unconstitutionality in respect of federal statutes: Where an examination reveals that a federal statute violates Art. 29a FC, those seeking legal protection are not without recourse: the Federal Supreme Court declares the unconstitutionality and implicitly calls on the legislature to close the gap. In addition, in such constellations it may be examined whether a constitutionally conforming interpretation of the federal statute is possible that opens the judicial path (BGE 137 I 128 E. 4.3.1). This constellation is of particular practical significance in aliens and asylum law.

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Cross-references:

• ↔ Art. 29 FC (General procedural guarantees)
• → Art. 30 FC (Judicial authority)
• → Art. 36 FC (Restriction of fundamental rights — for the reservation of exceptional cases under the second sentence)
• → Art. 190 FC (Applicable law — limit on enforceability against federal statutes)
• → Art. 6 para. 1 ECHR (Right to a fair trial — complementary guarantee)
• → Art. 13 ECHR (Right to an effective remedy — subsidiary to Art. 29a FC)
• → Art. 82 ff., 86, 88, 110, 113 ff. FSCA (Implementation of the guarantee of access to the courts at federal level)

Art. 29a Cst.

#Case Law

Case law on Art. 29a Cst. has developed in various areas since the right to judicial review came into force on 1 January 2007. The Federal Supreme Court systematically defined the foundations of the right to judicial review and its practical implications.

#Foundations and Limits of the Right to Judicial Review

BGE 135 I 6 of 22 December 2008 The Administrative Court of the Canton of Zurich is competent as the final cantonal appellate instance in criminal and measure enforcement disputes. Fundamental decision on the implementation of the right to judicial review following the coming into force of the FSCA.

«According to Art. 29a Cst., every person has the right to have legal disputes decided by a judicial authority. This provision, the so-called right to judicial review, came into force on 1 January 2007. In criminal matters it is given concrete form by Art. 80 para. 2 FSCA.»

BGE 134 I 199 of 17 March 2008 Requirement for a judicial authority as the final cantonal appellate instance in voting rights matters. Landmark decision on the interpretation of the right to judicial review in political rights.

«Appeals concerning popular votes in cantonal matters are admissible against acts of final cantonal instances. The cantons provide for a remedy against official acts that may violate political rights.»

#Formal Denial of Justice and Procedural Guarantees

BGE 141 I 172 of 24 August 2015 Parliamentary oversight bears predominantly political features, which allows the cantons to provide for an exception to the right to judicial review. Clarification of exceptions to the scope of application of the right to judicial review.

«The exclusion of the competence of cantonal judicial authorities to review the exercise of parliamentary oversight violates neither the prohibition of arbitrariness nor the right to judicial review; oversight bears predominantly political features, which allows the cantons to provide for an exception to the right to judicial review.»

BGE 148 I 104 of 2022 The negative conflict of competence amounts to a formal denial of justice and a violation of the right to judicial review for the affected litigant. Specification of protection against formal denial of justice in competence conflicts.

«The negative conflict of competence to be assessed amounts to a formal denial of justice and a violation of the right to judicial review for the affected litigant.»

#Exceptions and Limits

BGE 146 I 62 of 14 January 2020 Social assistance conditions and instructions are not independently appealable, which does not violate the right to judicial review. Confirmation that not every sovereign measure opens up an independent legal remedy.

«§ 21 para. 2 SHG/ZH, according to which social assistance conditions and instructions are not independently appealable, does not violate - subject to any particularly situated individual cases - any federal law. In particular, this regulation does not violate the right to judicial review according to Art. 29a Cst.»

#Material Enforcement of the Right to Judicial Review

BGE 137 I 128 of 15 December 2010 The absence of a remedy against cantonal decisions that refuse a residence permit procedure according to Art. 14 para. 4 AsylA violates the right to judicial review according to Art. 29a Cst. Identification of a protection gap in asylum law, which could only be established but not remedied.

«The absence of a remedy against cantonal decisions that refuse a residence permit procedure according to Art. 14 para. 4 AsylA violates the right to judicial review according to Art. 29a Cst. The Federal Supreme Court can only establish this pursuant to Art. 190 Cst.»

#Relationship to Other Procedural Guarantees

BGE 139 I 206 of 1 January 2013 Scope of the acceleration requirement under immigration law in connection with the right to judicial review. Specification of requirements for accelerated proceedings in case of deprivation of liberty.

«If immigration law detention continues based on a new cantonal detention decision that is based on the same legal and factual grounds as the contested detention decision, no new appeal procedure is generally required.»

BGE 145 I 52 of 5 September 2018 Municipal autonomy, the right to judicial review and cantonal procedural autonomy stand in a relationship of tension. Delineation between the right to judicial review and cantonal procedural sovereignty in construction law.

«The Building Appeal Court of the Canton of Zurich may, even when it has to conduct an appropriateness review according to § 20 para. 1 of the Administrative Justice Act of the Canton of Zurich (VRG), only overturn a classification decision of the municipal building authority if it has violated federal law in the application of aesthetic regulations.»

#Procedural Implementation

BGE 149 I 72 of 1 November 2022 Entitlement to an asylum law hardship permit in relation to the right to judicial review. Recent development on the limits of the right to judicial review in immigration law.

«For an appeal in public law matters according to Art. 83 lit. c no. 2 FSCA to be open, the appellant must assert in a defensible manner a right to residence in Switzerland.»