1Fundamental rights must be upheld throughout the legal system.
2Whoever acts on behalf of the state is bound by fundamental rights and is under a duty to contribute to their implementation.
3The authorities shall ensure that fundamental rights, where appropriate, apply to relationships among private persons.
#Overview
Art. 35 FC establishes how fundamental rights (constitutional rights such as freedom of expression or equal treatment) are enforced in Switzerland. The provision addresses three different groups.
First, all courts and authorities must respect fundamental rights in their decisions. When a court renders a judgment or a municipality grants a permit, they may not violate any fundamental rights in doing so.
Second, private organisations are also bound by fundamental rights when they perform state functions. The SBB, for example, must allow political expressions of opinion in its railway stations because, as a state enterprise, it operates public transport. The same applies to the SRG for television programmes or to hospitals that are financed by the state.
Third, authorities must ensure that fundamental rights also have effect between private individuals (third-party effect). One example is the Disability Equality Act: it requires private shops and restaurants to make their premises accessible to persons with disabilities.
The legal consequences differ: state decisions that violate fundamental rights can be challenged in court. Private parties need only respect certain fundamental rights if a law expressly requires this.
Art. 35 FC is the most important instrument for ensuring that fundamental rights do not merely exist on paper, but are effectively protected in everyday life.
Art. 35 FC — Realisation of Fundamental Rights
#Doctrine
#1. Legislative History
N. 1 Art. 35 FC represents an innovation compared to the former federal constitutional law. The previous Federal Constitution of 1874 contained no comparable provision on the general applicability and realisation of fundamental rights. The provision traces back to Art. 31 of the 1996 Preliminary Draft, which already contained the three-paragraph structure of the current provision.
N. 2 The Federal Council justified the inclusion of the provision with the aim of anchoring fundamental rights as the foundation of the entire legal order and ensuring that they «come to bear throughout the political system as a whole» (BBl 1997 I 192). The dispatch explains that paragraph 1 codifies the function of fundamental rights as an objective system of values for the entire legal order. Paragraph 2 ensures the binding effect of fundamental rights on state organs and on private individuals performing state tasks. Paragraph 3 establishes, as a genuine innovation, an official duty to ensure that fundamental rights also take effect in relations between private individuals (BBl 1997 I 192 f.).
N. 3 In the Council of States, rapporteur Marty Dick introduced the provision and emphasised that fundamental rights have horizontal effect, which he illustrated with the example «À travail égal, salaire égal». In the National Council, the basic three-paragraph structure was uncontested. The debate focused on a minority motion led by Hubmann Vreni to expressly mention the special needs of children and young people in Article 31, in order to mark the horizontality of their rights across all fundamental rights and to reinforce the implementation of the Convention on the Rights of the Child. Maury Pasquier Liliane supported this concern by pointing out that children and young people are «aussi notre présent». By contrast, Federal Councillor Koller noted that Art. 11a already qualified children's rights as fundamental rights and that Art. 33 (social goals) addressed the concerns of children; a double anchoring would overshoot the mark. Schlüer Ulrich (SVP) described the minority motion as «in der Nähe von Allotria». The National Council followed the majority; Art. 35 FC received no specific children's rights clause. The final votes in both chambers took place on 18 December 1998.
N. 4 The current provision confirms, as a positive-law codification, developments that the Federal Supreme Court had already initiated under the former constitutional law: the recognition of fundamental rights as objective value decisions with a radiating effect on the entire legal order, and the binding of persons entrusted with the performance of state tasks to fundamental rights.
#2. Systematic Classification
N. 5 Art. 35 FC is situated in Chapter 2 («Fundamental Rights», Art. 7–36 FC) and together with Art. 36 FC (restriction of fundamental rights) forms the section on the applicability and limits of fundamental rights. The provision has a cross-cutting character: it does not concern a specific substantive fundamental right, but governs the modalities of applicability of all fundamental rights in Chapter 2. → Art. 36 FC.
N. 6 Art. 35 para. 1 FC positivises the objective-law dimension of fundamental rights. In addition to their classical function as subjective rights of defence (negative obligation of the state), this dimension gives rise to protective duties and institutional guarantees. Art. 35 para. 2 FC concretises the vertical binding effect of fundamental rights for state task-holders, even outside the core area of state activity. Art. 35 para. 3 FC codifies the horizontal dimension (indirect third-party effect) and, in international comparison, represents a relatively explicit constitutional provision. For the substantive conditions for restrictions → Art. 36 FC; for the rule of law principle → Art. 5 FC; for equality before the law ↔ Art. 8 FC.
N. 7 On the relationship to other types of norms: Art. 35 FC is not itself a competence norm and does not create new subjective claims beyond the substantive fundamental rights. The provision is addressed primarily to the legislature (→ N. 14 ff.), the administration, and the courts, and governs the manner in which these must give effect to fundamental rights. → Art. 190 FC on the binding nature of federal law.
#3. Elements of the Provision / Normative Content
3.1 Paragraph 1: Applicability throughout the Legal Order
N. 8 The sentence «Fundamental rights must be upheld throughout the legal order» codifies the radiating effect of fundamental rights. Fundamental rights are not merely limits on state interference; as objective value decisions, they also give direction and content to the entire legal order — private law, criminal law, procedural law. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 283 ff., describe this function as the basis of a «radiating effect» into civil law.
N. 9 The provision is addressed to all bodies applying the law. Even in the interpretation and application of private-law general clauses (good faith, public policy, personality rights), fundamental rights values must be taken into account. This corresponds to the German concept of «indirect third-party effect», which is explicitly taken up in paragraph 3 (→ N. 19 ff.).
3.2 Paragraph 2: Binding Effect in the Performance of State Tasks
N. 10 «Anyone who performs a state task» is the central point of reference for the binding effect of fundamental rights under paragraph 2. The concept is to be understood functionally: what matters is not the legal form of the actor (under public or private law), but the nature of the activity performed. Anyone who fulfils state tasks — even in a private-law legal form — is bound by fundamental rights. This applies in particular to public law institutions, companies established under special legislation (SBB, SRG, Post) and private individuals to whom state tasks have been delegated (concession). Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 549, speak of «functional binding by fundamental rights».
N. 11 The Federal Supreme Court has developed this functional approach in a series of leading decisions: for SBB in the management of railway station infrastructure (BGE 138 I 274 E. 2.2), for SRG in the area of advertising (BGE 139 I 306 E. 3.2.2) and in its broader editorial offering (BGE 149 I 2 E. 2.2 ff.), and for private security services to which police search powers are delegated (BGE 140 I 2 E. 10.6.2.2).
N. 12 The binding effect of fundamental rights under paragraph 2 also applies to private-law actions of state task-holders, to the extent that such actions have a sufficiently close factual connection to the state task. The Federal Supreme Court has clarified that a holder of fundamental rights in such a case is «not as free as a private individual» (BGE 149 I 2 E. 2.3.1). The mere assumption that an advertising message could be detrimental to one's own reputation does not suffice to interfere with the fundamental rights of third parties (BGE 139 I 306 E. 4.3).
N. 13 Paragraph 2 obliges those bound by fundamental rights not only to refrain from violating fundamental rights, but also positively «to contribute to their realisation». This duty of realisation is an independent element of the provision and goes beyond the classical defence function. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 28, understand this as a mandate to actively create conditions under which fundamental rights can take practical effect.
3.3 Paragraph 3: Official Protective Duty and Indirect Third-Party Effect
N. 14 «The authorities shall ensure that fundamental rights, where they lend themselves to it, are also upheld in relationships between private individuals.» Paragraph 3 does not establish a direct third-party effect of fundamental rights. Private individuals are in principle not addressees of fundamental rights. Rather, the authorities — primarily the legislature — bear a protective duty: they must ensure, through appropriate legislative, administrative and procedural measures, that the protective content of fundamental rights also takes effect in relations between private individuals.
N. 15 The formulation «where they lend themselves to it» contains an inherent limitation. Not all fundamental rights are suited for transposition into private legal relationships. The Federal Supreme Court and academic doctrine treat the question of suitability as a case-by-case assessment. Those considered particularly well-suited for effectiveness between private individuals include the prohibition of discrimination (→ Art. 8 FC), freedom of expression (→ Art. 16 FC) and the protective entitlements of the right to privacy (→ Art. 13 FC). Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 291, note that the effectiveness of fundamental rights between private individuals must withstand balancing against the principle of private autonomy.
N. 16 Paragraph 3 is addressed primarily to the legislature: the legislature is to shape fundamental rights through ordinary statutory provisions such that they also take effect between private individuals. Existing instruments include in particular Art. 28 ff. CC (protection of personality), Art. 328 CO (employer's duty of protection) and the Disability Discrimination Act (DDA), which the Federal Supreme Court in BGE 134 II 249 qualified as a realisation of third-party effect under Art. 35 para. 3 FC.
N. 17 «Authorities» in paragraph 3 encompasses all state organs of all three branches of government and all levels of the state (Confederation, cantons, municipalities). The courts are also indirectly addressed: general clauses of private law must be interpreted in conformity with fundamental rights.
#4. Legal Consequences
N. 18 If a holder of state tasks violates the binding effect of fundamental rights under paragraph 2, a state violation of fundamental rights occurs that can be challenged by the usual legal remedies (appeal in public-law matters under Art. 82 lit. a BGG). The Federal Supreme Court has assessed the question of the admissibility of an appeal depending on whether the conduct of the public authority or state task-holder is, under the functional theory, to be attributed to public law (BGE 138 I 274 E. 1.2).
N. 19 If the state violates its protective duty under paragraph 3, this does not give rise to a direct subjective entitlement of the citizen against the legislature to enact a specific provision. The legislature has a wide margin of discretion in shaping the third-party effect. However, the failure to enact necessary protective legislation may constitute a violation of paragraph 3 in conjunction with the substantive fundamental right concerned.
N. 20 Art. 35 para. 2 FC also establishes a duty of neutrality and impartiality: anyone who performs state tasks is «in principle obliged to maintain a neutral and objective stance when acting under private law» (BGE 149 I 2 E. 2.2.1, with reference to BGE 139 I 306 E. 3.2.3 and BGE 138 I 274 E. 2.2.2). Whether «more or less weight» is attached to a statement of opinion must not be decisive for the task-holder bound by fundamental rights (BGE 139 I 306 E. 3.2.3).
N. 21 Citizens exercising administrative functions are likewise bound by fundamental rights under Art. 35 para. 2 FC. This applies in particular to naturalisation decisions: even voters are bound by the prohibition of discrimination under Art. 8 para. 2 FC (BGE 129 I 232 E. 3.4.2). The duty to state reasons that follows from this binding effect cannot be fulfilled in ballot-box votes due to the nature of the system, which renders corresponding popular initiative petitions inadmissible (BGE 129 I 232 E. 3.7).
#5. Contested Issues
N. 22 Scope of the functional binding effect of fundamental rights (para. 2): It is disputed how broadly the concept of «state tasks» is to be construed. A broad interpretation that would include any activity permitted or promoted by the state would largely dissolve the dividing line between paragraph 2 and paragraph 3. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 551 f., emphasise the need for differentiation based on the proximity to the actual state task: only activities that directly serve the performance of the delegated task trigger the full binding effect of fundamental rights. Indirect ancillary activities (administrative support) are subject only to the prohibition of arbitrariness and the principle of equality. The Federal Supreme Court took up this distinction in BGE 149 I 2 E. 2.2.1, differentiating between direct performance of a task and administrative ancillary activities.
N. 23 Direct versus indirect third-party effect (para. 3): The question whether individual fundamental rights may, under certain conditions, have direct third-party effect — i.e., whether private individuals are directly and without the interposition of a statutory provision bound by fundamental rights — has not been conclusively resolved in Swiss academic doctrine. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 730, and Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 568 ff., generally reject a direct third-party effect and refer to the exclusive competence of the legislature under paragraph 3. A minority view, particularly in older parts of the doctrine, has advocated direct effect for certain fundamental rights (notably human dignity under Art. 7 FC). The Federal Supreme Court has left the question open and consistently relies on indirect third-party effect through legislative implementation and interpretation of general clauses.
N. 24 Scope of the official protective duty: A further controversy concerns the extent of the positive duty to act under paragraph 3. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 288 ff., see in paragraph 3 both an authorisation and an obligation on the legislature to create appropriate protective mechanisms. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 574, by contrast, emphasise the legislature's wide margin of design: as long as there is no evident protection deficit that renders fundamental rights effectively meaningless, the legislature is free in its choice of means. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 729 f., argue for greater justiciability of the protective duty where there are evidently serious threats to fundamental rights protected interests.
N. 25 Binding effect of fundamental rights in the context of privatisation and delegation: In the context of increasing privatisation of public tasks, it is disputed how far the binding effect of fundamental rights can extend to concessionaires and task-holders organised under private law. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 553, emphasise that the transfer of a state task to private individuals makes them equally bound by fundamental rights as the state itself. The Federal Supreme Court held in BGE 140 I 2 E. 10.2.2 that private security services to which search powers are delegated under the Football Hooliganism Concordat are likewise bound by fundamental rights under Art. 35 para. 2 FC and must in particular observe the principle of proportionality.
#6. Practical Notes
N. 26 Qualification of an activity as a state task: In practice, the question frequently arises whether a specific activity of a legal entity under private law qualifies as the performance of «state tasks» within the meaning of paragraph 2. The Federal Supreme Court applies the functional theory: what is decisive is whether the concrete conduct directly serves the discharge of administrative tasks (BGE 138 I 274 E. 1.2). Even a merely indirect connection to state tasks — such as a private-law ancillary use — may suffice if it has a close factual nexus to the core state mandate (BGE 139 I 306 E. 3.2.2, BGE 149 I 2 E. 2.2.2 f.).
N. 27 Duty of neutrality: Anyone who performs state tasks and acts (also) in a field governed by private law is obliged to proceed in a neutral and impartial manner. One-sided substantive assessments of statements of opinion, advertising messages, or comments are impermissible if they are not based on a legal foundation and do not correspond to a public interest (BGE 138 I 274 E. 3.4; BGE 139 I 306 E. 4.1 f.; BGE 149 I 2 E. 4.2).
N. 28 Legal remedy: Since the binding effect of fundamental rights under paragraph 2 establishes a state (public-law) duty, a violation of that duty generally opens the public-law legal avenue. In the case of real acts by state task-holders — such as the deletion of comments by SRG — the Federal Supreme Court held in BGE 149 I 2 E. 3.2 ff. that the civil-law legal avenue does not meet the requirements of Art. 29a FC in such cases; the public-law legal avenue must be made available.
N. 29 Naturalisation proceedings and democratic participation: The binding effect of fundamental rights under paragraph 2 also applies to citizens exercising administrative functions. An initiative to introduce ballot-box votes on naturalisation applications is invalid because the structurally inherent absence of a duty to state reasons violates the binding obligations under Art. 29 para. 2 and Art. 8 para. 2 FC (BGE 129 I 232). Even democratic decisions must uphold fundamental rights; Art. 35 para. 2 FC sets rule-of-law limits on direct democracy to this extent.
N. 30 Protective duty and legislation: For legislative practice, paragraph 3 requires that fundamental rights protective content be taken into account when shaping private-law provisions. The Disability Discrimination Act is a positive-law example of how the legislature has given legal effect to the third-party effect of the prohibition of discrimination under Art. 8 para. 2 FC in relations between private individuals (BGE 134 II 249). In interpreting general clauses of private law (e.g. Art. 2 CC, Art. 28 CC, Art. 328 CO), courts are required to incorporate fundamental rights values.
N. 31 Relationship to the ECHR: The protective duty dimension of Art. 35 para. 3 FC corresponds to the doctrine of positive protective obligations developed in the case law of the ECtHR under the ECHR. The ECtHR derives positive obligations from Art. 8 ECHR (right to respect for private life) and other Convention rights, requiring Contracting States to provide effective protection also in relations between private individuals. The parallelism of these obligations increases the density of fundamental rights protection and must be taken into account when interpreting paragraph 3 in conjunction with the substantive fundamental rights. → Art. 190 FC.
#Case Law
#Fundamental Rights Obligations for State Tasks
BGE 138 I 274 of 3 July 2012
The SBB are bound by fundamental rights when administering their railway stations as a state task; a general prohibition of political posters in the station violates freedom of expression
The judgment clarified the fundamental rights obligations of mixed-economy enterprises when performing state tasks
«The SBB provide that public property in the strict sense can also be used extraordinarily for posting; the exclusion of poster sites must be carried out by the SBB based on a comprehensive balancing of interests (including the appropriate use of the public facility).»
BGE 139 I 306 of 2013
The SRG is bound by fundamental rights in its private law conduct in the advertising sector and must take account of the ideal content of fundamental freedoms
The judgment clarified the fundamental rights obligations for commercial activities of state enterprises
«In its private law conduct in the advertising sector, the SRG is bound by fundamental rights. In doing so, it must take account of (also) the ideal content of fundamental freedoms in particular.»
BGE 149 I 2 of 29 November 2022
The SRG is also bound by fundamental rights in its other journalistic offerings (üpA), including the deletion of user comments on Instagram
The most recent judgment extended fundamental rights obligations to digital communication platforms of state media enterprises
«The SRG is bound by fundamental rights in its other journalistic offerings (üpA); this also applies - due to the close substantive connection between its editorial contribution and user comments thereon - insofar as it deletes such comments based on its 'netiquette'.»
#Obligations of Municipal Authorities
BGE 135 I 265 of 7 July 2009
Municipal citizens' assemblies are bound by fundamental rights in naturalisation decisions and must adequately justify their decisions
The judgment clarified that direct democracy is also subject to fundamental rights
«The admissible motion in the appeal procedure for assessment of naturalisation applications by the appellate body is not a matter of state supervision [...] Binding of state organs by fundamental rights.»
BGE 129 I 232 of 9 July 2003
Ballot votes on naturalisation applications are incompatible with the constitutional duty to give reasons; municipal initiatives thereon are invalid
The fundamental judgment on the incompatibility of direct democratic naturalisation procedures with fundamental rights
«Rejecting naturalisation decisions are subject to the duty to give reasons according to Art. 29 para. 2 FC (right to be heard) in conjunction with Art. 8 para. 2 FC (prohibition of discrimination). In ballot voting, reasoning that meets constitutional requirements is not possible.»
#Police Fundamental Rights Obligations
BGE 140 I 2 of 7 January 2014
Intercantonal concordats on violence prevention at sporting events must respect the fundamental rights obligations of police authorities; transferred tasks to private parties are subject to the same standards
The judgment comprehensively dealt with fundamental rights obligations in police law and the transfer of police powers
«The concordat regulates police administrative action with regard to acts of violence at sporting events. The envisaged measures are directed at future conduct and are applied independently of the criminal law assessment of acts of violence already committed.»
#Third-Party Effect of Fundamental Rights (Art. 35 para. 3 FC)
BGE 134 II 249 of 9 July 2008
The Disability Equality Act realises the third-party effect of fundamental rights and obliges private parties to design publicly accessible buildings to be accessible for disabled persons
The judgment concretised the third-party effect in the area of equality of disabled persons
«Art. 8 para. 2, Art. 35 para. 3, Art. 190 FC; Disability Equality Act (DDA) [...] The authorities shall ensure that fundamental rights also take effect between private parties, insofar as they are suitable for this.»
#Fundamental Rights Realisation through Legislation
BGE 129 III 35 of 7 May 2002
The Post must be treated equally to private providers for competitive services, but remains bound by fundamental rights for basic services
The judgment distinguished between different areas of activity of mixed-economy enterprises
«In the area of competitive services, the Post is to be treated equally to other postal service providers. If the Post provides competitive services despite the absence of a legal obligation, the general rules of equality must be observed.»
BGE 129 I 12 of 7 November 2002
The right to elementary education guarantees education corresponding to individual abilities and limits disciplinary school exclusions
The judgment concretised the realisation of fundamental rights in the education sector
«Art. 19 FC gives rise to the right to free elementary education at public schools corresponding to the individual abilities of the child and his personality development during compulsory schooling.»