Art. 33 FC — Right of Petition

#Doctrine

#1. Legislative History

N. 1 The right of petition has been enshrined in Swiss constitutional law since the 19th century. Art. 57 of the former Federal Constitution (version of 1874) contained the concise guarantee: «The right of petition is guaranteed.» The constituent assembly of 1999 sought to give concrete form to this historically evolved but textually open provision. In its dispatch on the new Federal Constitution (BBl 1997 I 188 f.), the Federal Council explained that the right of petition should be clarified through an explicit two-paragraph structure: paragraph 1 secures every person's right to address requests, suggestions, criticisms or complaints to authorities and expressly prohibits any resulting disadvantage; paragraph 2 imposes a duty on authorities to take note. The Federal Council deliberately rejected a more extensive obligation on authorities to deal with and reply to petitions on the merits — as demanded by several consultation participants — (BBl 1997 I 594).

N. 2 The parliamentary deliberations revealed significant divergences concerning the content of paragraph 2. In the Council of States, Councillor of States Marty Dick (R, TI), as committee rapporteur, moved to delete paragraph 2 as redundant: «The sub-commission 2 found it to be impertinent to suggest to authorities that they would only read something if expressly told to do so.» Councillor of States Gentil Pierre-Alain (S, JU) defended the Federal Council's version as minority speaker on fundamentally different grounds: «Sans cette obligation faite à l'autorité de répondre à une pétition, nous craignons que le droit de pétition soit un droit vide de sens.» He called for — going beyond the Federal Council's draft — a duty on authorities to reply. Councillor of States Büttiker Rolf (R, SO), by contrast, supported the Federal Council's version with a duty to take note and warned against both extremes. Councillor of States Schmid Carlo (C, AI) supported the Federal Council on grounds of «commercial good manners», yet remarked that the right of petition was «today, in principle, a futile exercise». Councillor of States Rhinow René (R, BL) drew attention to the real risk that petitioners might face despite good intentions from submitting a petition, and supported the Federal Council's version. Federal Councillor Leuenberger Moritz supported the Federal Council's draft: taking note — yes; substantive reply — no. The Council of States ultimately resolved (departing from the Federal Council's draft) to delete paragraph 2, among other changes.

N. 3 In the National Council, the committee majority under rapporteur Pelli Fulvio proposed a version including a duty to reply. Federal Councillor Koller Arnold recommended returning to the Federal Council's version with a mere duty to take note and referred to the settled case law of the Federal Supreme Court, according to which authorities are not obliged to reply to petitions on the merits: «We would then also have to reply on the merits to every submission from vexatious litigants. This would entail corresponding administrative effort and costs.» After several rounds of conciliation proceedings (the Council of States and the National Council each resolved differently on multiple occasions), the conciliation conference followed the Federal Council's proposal. Both chambers approved the conciliation conference's motion on 14/15 December 1998; the final vote took place on 18 December 1998.

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#2. Systematic Classification

N. 4 Art. 33 FC is situated in Chapter 2 of the Federal Constitution («Fundamental Rights», Arts. 7–36 FC) and belongs functionally to the political rights, which are simultaneously structured as liberty rights. It is a classic defensive right: the State may not impede the exercise of the right of petition and may not allow any disadvantage to arise from petitions. At the same time, paragraph 2 contains a duty of positive State action — the duty to take note — yet without conferring on the petitioner a subjective entitlement to a specific response (→ N. 8 ff.).

N. 5 The right of petition differs from other political participation rights (→ Art. 34 FC: political rights, right to vote; → Arts. 136 ff. FC: popular rights) in that it is available to all persons regardless of nationality and legal capacity, and imposes no substantive requirements on the subject matter of the petition. It also stands in tension with procedural rights (→ Art. 29 FC: general procedural guarantees; → Art. 30 FC: procedural guarantees before courts), which are specifically directed at the pursuit of legal remedies. In principle, any State authority may be the addressee of a petition — with one significant exception in relation to courts (→ N. 12). Restrictions on the right of petition must be assessed against Art. 36 FC, even though the right of petition as a mere liberty guarantee is hardly matched by a proper reservation for limitations.

N. 6 In relation to the ECHR protective system, the ECHR contains no expressly enshrined right of petition. The right to lodge an individual application with the ECtHR (Art. 34 ECHR) is a procedural instrument and is not comparable to the constitutional right of petition. More closely related is Art. 10 ECHR (freedom of expression), which — as the Federal Supreme Court acknowledged in BGE 98 Ia 484 E. 5b — is akin to the right of petition: Jean-François Aubert classified the right of petition doctrinally as a form of freedom of expression (Aubert, Traité de droit constitutionnel suisse, N 2010).

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#3. Elements of the Provision / Normative Content

3.1 Personal Scope

N. 7 «Every person» in Art. 33 para. 1 FC encompasses all natural persons without restriction as to nationality, age, legal capacity or domicile; the provision cannot be read as excluding, for example, foreign nationals or persons lacking legal capacity. Legal persons and public bodies may also be petitioners insofar as a matter of their own concern is involved; the Federal Supreme Court left this question open in BGE 98 Ia 484 E. 5a. Tschannen notes that the right of petition may be exercised «almost without any formality and without disadvantage» (Tschannen, BSK BV, Art. 33 N. 3).

3.2 Material Scope of Protection

N. 8 «Petitions» within the meaning of Art. 33 para. 1 FC refers to requests, suggestions, criticisms and complaints concerning matters falling within the competence of the authority addressed. The Federal Supreme Court held in BGE 98 Ia 484 E. 5b that the right of petition entitles everyone to «address requests, suggestions, criticisms or complaints concerning matters within their area of competence to the authorities without fear of harassment or legal disadvantage of any kind». This definition was carried forward unchanged in BGE 119 Ia 53 E. 3 and in Judgment 1C_473/2010 E. 2.1 under the new FC.

N. 9 Collective and mass petitions are covered by the scope of protection. They may not be declared inadmissible from the outset merely because they contain individual invalid signatures; the right of each individual signatory to be heard remains unaffected (BGE 104 Ia 434 E. 6). The collection of signatures for a petition on public ground is subject, according to BGE 109 Ia 208 E. 4a, to a general principle of authorisation — regardless of whether it is classified as ordinary use, intensified public use or special use. The authorisation procedure must not, however, lead to political censorship, and the authority must observe the principle of proportionality: a refusal is permissible only in the face of serious and concrete risks to public order; conditions and terms must be considered as a priority over outright refusal (BGE 109 Ia 208 E. 5). This decision simultaneously confirms the doctrinal proximity between the right of petition and freedom of expression (→ Art. 16 FC).

3.3 Addressees

N. 10 Art. 33 FC is directed at all State «authorities» — administrative authorities and parliaments at federal, cantonal and communal level. Petitions to courts are in principle permissible insofar as they concern general matters (court administration, general questions of jurisprudence). Petitions by parties to proceedings that concern a specific, pending or imminent judicial proceeding are inadmissible: a judge who receives such a petition is exposed to a serious risk of bias, and the right to an impartial judge (Art. 30 FC, Art. 6 para. 1 ECHR) prevails (BGE 119 Ia 53 E. 4).

3.4 Prohibition of Disadvantage (para. 1, second clause)

N. 11 «No one may suffer any disadvantage as a result» protects the petitioner against any negative consequences arising from the submission of a petition. Protection extends not only to legal detriments (disciplinary punishment, dismissal) but also to factual harassment (BGE 98 Ia 484 E. 5b). In the context of imprisonment, Art. 33 para. 1 FC protects a prisoner from punishment for the submission of a petition as such; however, a disciplinary sanction for the clandestine collection of signatures in breach of house rules remains permissible, since it penalises the disciplinary infraction rather than the petition itself (BGE 100 Ia 77 E. 4b/c). An «aggravated penalty» on account of the content of a petition would, by contrast, constitute a legal disadvantage prohibited by Art. 33 para. 1 FC (BGE 100 Ia 77 E. 4c).

3.5 Duty to Take Note (para. 2)

N. 12 Art. 33 para. 2 FC obliges authorities to «take note» of petitions. This duty was deliberately set below the level of a duty to reply (→ N. 1 ff.). The authority must actually read the petition and — where another body has jurisdiction — forward it; a substantive refusal to engage with it is unconstitutional (BGE 98 Ia 484 E. 5b, confirmed in BGE 119 Ia 53 E. 3). Beyond this, paragraph 2 confers on the petitioner no entitlement to substantive examination, a reply, or to having the request granted: «Le droit de pétition comprend le droit d'adresser une pétition aux autorités et une obligation du Conseil d'Etat d'en prendre connaissance et de l'examiner» (Judgment 1C_155/2020 E. 2.2). Many authorities go beyond the mere duty to take note in practice (BBl 1997 I 188); this does not, however, give rise to a legal obligation.

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#4. Legal Consequences

N. 13 A violation of the prohibition of disadvantage (Art. 33 para. 1 FC) may be challenged by way of a public law appeal to the Federal Supreme Court. A violation of the duty to take note (Art. 33 para. 2 FC) is likewise appealable; the practical possibilities are, however, limited because the authority cannot retrospectively make good on taking note in a manner that produces any practical benefit.

N. 14 Art. 33 FC does not confer on the petitioner party status in administrative proceedings or an entitlement to the issuance of a ruling. Accordingly, the rejection or discontinuation of a petition cannot be judicially reviewed on the merits (Judgment 1C_473/2010 E. 2.1; Judgment 1C_155/2020 E. 2.2). In this respect, the petitioner differs from an appellant, to whom the right of appeal affords an enforceable claim to a decision (BGE 98 Ia 484 E. 5b, with reference to BGE 90 I 230).

N. 15 The right of petition is not suited to replacing or supplementing procedural legal remedies where these are available. Thus, in Judgment 1C_37/2019 E. 4.3, the Federal Supreme Court noted that the right of petition under Art. 33 FC offers a means of «approaching the authorities almost without formality and without disadvantage» (with reference to Tschannen, BSK BV, Art. 33 N. 3), but is not an instrument of individual legal protection against State omissions where no subjective rights are involved.

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#5. Contested Issues

5.1 Duty to Reply

N. 16 The central doctrinal controversy concerning Art. 33 FC relates to the question of whether authorities are obliged to reply over and above the duty to take note. The Federal Supreme Court's case law expressly denied this under Art. 57 of the former FC (BGE 98 Ia 484 E. 5b; BGE 119 Ia 53 E. 3) and left the question of an extension «to the legislature» (BGE 98 Ia 484 E. 5b). This reservation is reflected in the parliamentary debates: already in the Council of States, Councillor of States Gentil Pierre-Alain (S, JU) called for a duty to reply in order not to reduce the right of petition to a «meaningless right» (→ N. 2); in the National Council, the committee majority under Pelli took the same position but was defeated on the motion of Federal Councillor Koller (→ N. 3).

N. 17 In academic literature, Jörg Paul Müller raised the question of whether the traditionally restrictive view still does justice to «changed circumstances and perceptions» (cited in BGE 98 Ia 484 E. 5b and BGE 119 Ia 53 E. 3). Rhinow/Schefer/Uebersax note that in practice the right of petition is considerably more effective than its constitutional minimum guarantee might suggest, since authorities regularly examine petitions on the merits and reply to them (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1660). Häfelin/Haller/Keller/Thurnherr emphasise the democratic function of the right of petition as a low-threshold instrument of participation (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 480 ff.). The controversy has not been resolved in positive constitutional law: Art. 33 para. 2 FC was deliberately limited to taking note upon adoption in 1999.

5.2 Petition and Actio Popularis

N. 18 Contested is the delimitation between the legally non-binding petition and the supervisory complaint (→ Art. 71 APA) as well as the request for a ruling on acts of a material nature (→ Art. 25a APA). In Judgment 1C_37/2019 E. 4.3, the Federal Supreme Court draws a clear boundary: a person who does not assert their own subjective rights may approach the authorities by way of petition, but has no claim to individual legal protection. The petition serves as a means of communication between citizens and the State, not as an instrument for enforcing individual legal positions. Müller/Schefer point out that the protected spheres of the right of petition and freedom of expression are often simultaneously engaged in practice (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729).

5.3 Right of Petition in Relation to Courts

N. 19 It is disputed to what extent courts may be considered as addressees of petitions. Academic writing distinguishes between general petitions (e.g. questions of court administration, which are permissible) and procedure-related petitions by parties to proceedings (which are inadmissible). The Federal Supreme Court followed this distinction in BGE 119 Ia 53 E. 4 and justified the inadmissibility of procedure-related petitions with the principle of the impartial judge (Art. 30 FC, Art. 6 para. 1 ECHR). Rhinow/Schefer/Uebersax consider this restriction to be objectively justified, since otherwise any procedural submission could be recharacterised as a petition (Rhinow/Schefer/Uebersax, N 1661).

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#6. Practical Notes

N. 20 A petition requires no particular form. It need not satisfy any legal requirements and may be drafted in any language. The authority is obliged to forward it to the competent body if it is not addressed to the correct authority (BGE 98 Ia 484 E. 5b). Petitions containing insulting language or originating from persons lacking legal capacity may be rejected as inadmissible (BGE 98 Ia 484 E. 5b).

N. 21 For the collection of signatures on public ground, a general requirement of authorisation applies pursuant to BGE 109 Ia 208 E. 4a, even in the absence of an explicit statutory basis. The authorising authority is, however, bound by the principle of proportionality: it may refuse authorisation only where there are serious and immediate risks to public order; where risks are avoidable, conditions and terms are to be preferred over outright refusal (BGE 109 Ia 208 E. 5). The authorisation procedure must not lead to political censorship. These principles apply mutatis mutandis under Art. 33 FC; the proximity to freedom of expression (→ Art. 16 FC) must be taken into account in the proportionality assessment.

N. 22 In the context of imprisonment and in other special legal relationships (e.g. school, military), the right of petition remains guaranteed in principle. A prisoner may submit a petition, and the institution administration is obliged to forward it without scrutinising its content. The right to collect signatures collectively within the institution may be restricted by security regulations; a disciplinary sanction for breach of house rules is constitutionally compliant as long as the sanction is directed at the unauthorised conduct rather than the petition itself (BGE 100 Ia 77 E. 4b/c; ↔ Art. 36 FC).

N. 23 Cantonal constitutions and legislation may shape the right of petition beyond the federal standard. For example, Art. 31 para. 2 Cst./VD provides for a duty to reply on the part of the legislature and executive that goes beyond Art. 33 para. 2 FC (cf. Judgment 1C_155/2020 E. 2.2). Where cantonal law contains more generous guarantees, the federal minimum standard under Art. 33 FC is not affected; cantonal restrictions falling below this standard would, however, be contrary to the Federal Constitution (→ Art. 49 para. 1 FC).

N. 24 Of practical importance is the distinction between a petition and other submissions: a person who submits a petition does not acquire party status and cannot challenge a negative or unresponsive authority reply by way of appeal. A person who, by contrast, requests a ruling on acts of a material nature under Art. 25a APA must demonstrate a legitimate interest and that their own rights are affected — a significantly higher threshold. The choice of the correct instrument is decisive for the question of the right of access to a court (→ Art. 29a FC).

#Case Law

#Foundations and Significance of the Right of Petition

BGE 119 Ia 53 of 3.2.1993
The Federal Supreme Court clarified the foundations of the right of petition under Art. 57 old Federal Constitution (now Art. 33 Federal Constitution).
Central case law on the definition and delimitation of the right of petition vis-à-vis procedural remedies.

«The freedom of petition under Art. 57 Federal Constitution allows everyone, according to case law, to address requests, proposals, criticism or complaints to the authorities without hindrance, without having to fear harassment or legal disadvantages of any kind. The authority is obligated to take notice of the petition and examine it.»

BGE 98 Ia 484 of 20.9.1972
The Federal Supreme Court defined the nature and scope of the right of petition under the old Federal Constitution.
Fundamental judgment on the scope of the right of petition as a constitutional right.

«The right of petition, as guaranteed by Art. 57 Federal Constitution and most cantonal constitutions, is a constitutional right of the citizen within the meaning of Art. 84 para. 1 lit. b Federal Court Act, the violation of which can be challenged by constitutional appeal.»

#Collective Petitions and Formalities

BGE 104 Ia 434 of 20.9.1978
A collective (mass) petition may not be declared inadmissible from the outset merely because it contains some invalid signatures.
Important principle on the admissibility of collective petitions despite formal defects.

«Déclarer d'emblée irrecevable une pétition collective (de masse) au motif qu'elle contient quelques signatures non valides viole l'art. 57 Cst.»

BGE 109 Ia 208 from 1983
Collection of signatures for petitions is in principle subject to authorization requirements, including on public property.
The judgment confirms the connection between the right of petition and freedom of expression.

«However the collection of signatures on public property may be legally qualified (as ordinary use, enhanced ordinary use or special use), it cannot be carried out anywhere and in any way; it is subject to authorization requirements according to a general principle.»

#Limits of the Right of Petition

BGE 119 Ia 53 of 3.2.1993
Petitions to courts are inadmissible when they concern specific court proceedings.
The judgment draws clear boundaries between the right of petition and procedural rights.

«Petitions by parties to proceedings concerning specific court proceedings cannot be considered admissible. This applies in particular to the so-called protective brief of the appellant, designated as a petition.»

BGE 100 Ia 77 of 13.2.1974
Disciplinary punishment of prisoners for secret collection of signatures does not violate the right of petition.
The judgment shows the limits of the right of petition in penal enforcement.

«The disciplinary punishment for unauthorized secret contact among prisoners for the collection of signatures is justified as a sanction to maintain order in penal enforcement and does not violate the freedom of petition.»

#Recent Case Law under the Current Federal Constitution

Judgment 1C_473/2010 of 31.1.2011
The Federal Supreme Court confirmed the principles of the right of petition under the new Federal Constitution.
First judgment that explicitly applies Art. 33 new Federal Constitution and confirms the continuity of case law.

«The freedom of petition under Art. 33 Federal Constitution and Art. 3 lit. d of the Constitution of the Canton of St. Gallen allows every person to address requests, proposals, criticism or complaints to the authorities without hindrance. However, the legal remedy of petition does not give the individual any right to the issuance of an administrative decision or an appeal decision in the matter itself.»

Judgment 1C_155/2020 of 24.3.2020
The Federal Supreme Court clarified the obligation to take notice of and examine petitions.
The judgment shows the limited scope of the right of petition at the federal level.

«Le droit de pétition comprend le droit d'adresser une pétition aux autorités et une obligation du Conseil d'Etat d'en prendre connaissance et de l'examiner.»

#Special Cases and Delimitations

Judgment 1C_242/2010 of 19.7.2010
Treatment of submissions that can be qualified both as petitions and as requests concerning political rights.
The judgment shows the delimitation between different fundamental rights.

«The right of petition is a mere freedom right that grants no positive entitlement. The petitioner can neither demand that his petition be materially dealt with nor that it be answered.»