Art. 5 FC — Principles of the Rule of Law

#Doctrine

#1. Legislative History

N. 1 Art. 5 FC is a genuine innovation of the total revision of 1999: the former FC of 1874 contained no corresponding express provision. The Federal Council expressly described the principles consolidated therein as «recognised unwritten principles of Swiss federal constitutional law», which were now to be codified at constitutional level for the first time (BBl 1997 I 131 f.). The aim was not to introduce new law, but to make visible an essential characteristic of the Swiss legal order.

N. 2 The Federal Council brought together four central principles — legality, proportionality and the public interest, good faith, and observance of international law — in a single provision (BBl 1997 I 132 ff.). A conflict-of-laws rule governing the relationship between international law and domestic law was deliberately omitted; para. 4 formulates a duty of observance, not a rule of precedence (BBl 1997 I 133). State liability was placed in a separate article (then Art. 137 of the 1996 Draft Constitution). The specific protection of legitimate expectations vis-à-vis State action was likewise regulated separately in Art. 9 FC.

N. 3 In the Council of States, rapporteur Hansheiri Inderkum (C, UR) proposed two departures from the Federal Council's draft: the heading should read «Principles of the Rule of Law» (instead of «Principles of State Action»), and «authorities» should additionally be inserted in para. 3. Inderkum justified this by the aim of making the rule of law visible as an essential characteristic of the Swiss polity: «This is intended to clarify that Articles 1 to 4 make visible the essential characteristics of the Swiss polity. And one of these essential characteristics is precisely the rule of law.» The addition of «authorities» in para. 3 was resolved in the conciliation procedure in favour of the uniform concept «state organs» (National Council and Council of States). Federal Councillor Koller agreed to the inclusion of the rule of law in the heading. Parliament adopted the provision on 18 December 1998 (final vote in the Council of States and National Council), and the FC was accepted in a popular referendum on 18 April 1999; it entered into force on 1 January 2000.

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#2. Systematic Classification

N. 4 Art. 5 FC appears in the first chapter («General Provisions», Art. 1–6 FC) and, together with Art. 3 (Cantons), Art. 4 (National languages), and Art. 6 (Individual and social responsibility), forms the introductory framework of the Constitution. The provision is a cross-cutting norm: it applies to all State activity — legislation, enforcement, adjudication — at all levels of the State. It gives concrete expression to the overall concept of the democratic and social rule of law enshrined in the Preamble and in Art. 2 FC; cf. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 195.

N. 5 The four paragraphs constitute qualitatively different norms: para. 1 (principle of legality) and para. 2 (public interest, proportionality) are directed, as objective constitutional principles, primarily at the State. Para. 3 (good faith) also binds private individuals (→ N. 22 ff.). Para. 4 (international law) binds the Confederation and the cantons vis-à-vis the international community. According to consistent case law, none of the four principles gives rise by itself to an enforceable subjective right; the individual claim to action in accordance with the rule of law is enforced through ↔ Art. 9 FC (prohibition of arbitrariness and good faith), ↔ Art. 36 FC (restrictions on fundamental rights), and the specific guarantees of fundamental rights. Cf. BGE 129 I 161 E. 2.1: «The principle of legality (Art. 5 para. 1 FC) is — apart from its specific significance in criminal law and fiscal law — not a constitutional individual right, but a constitutional principle, the violation of which cannot be pleaded independently, but only in connection with the violation of the principle of separation of powers, the principle of equality before the law, the prohibition of arbitrariness, or a specific fundamental right.»

N. 6 Systematic cross-references:

• → Art. 3 FC: cantonal sovereignty as the correlate of the State's subjection to the law
• ↔ Art. 9 FC: subjective-law dimension of para. 1 (prohibition of arbitrariness) and para. 3 (good faith)
• → Art. 29 FC: general procedural guarantees as concrete expressions of the rule of law
• ↔ Art. 36 FC: proportionality review in the context of restrictions on fundamental rights (paras. 2 and 3)
• → Art. 49 FC: primacy and observance of federal law (in relation to cantonal law)
• ↔ Art. 190 FC: applicable law for the Federal Supreme Court (relationship to para. 4)

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#3. Normative Content

3.1 Principle of Legality (Para. 1)

N. 7 «The law is the foundation and the limit of State activity» — para. 1 contains two statements: the principle of legality in the strict sense (State activity requires a legal basis) and the duty of legal conformity (the law limits State action even where an authorisation exists). «Law» within the meaning of para. 1 encompasses the entire valid legal order — Constitution, statutes, ordinances, international law, and general principles of law; cf. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 793.

N. 8 The principle of legality requires a sufficiently precise legal basis: those to whom a norm is addressed must be able to align their conduct accordingly; the legal consequences must be foreseeable. The requirements of precision vary according to the severity of the interference: in criminal law and fiscal law a strict principle of legality applies with particularly high requirements of precision; in the context of the provision of benefits or special-status relationships, the requirements are lower. Cf. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 717 ff.; BGE 129 I 161 E. 2.2: «The principle of legality requires that the legal rules applied display an appropriate degree of precision, though the requirement of precision cannot be understood in an absolute sense.»

N. 9 The courts have deployed the principle of legality as a structural principle of the entire legal order. In BGE 139 I 16 E. 4.3.2 the Federal Supreme Court tied the direct applicability of Art. 121 paras. 3–6 FC — inserted by the deportation initiative — to the principle of legality: «Direct applicability would require, on the basis of the principle of legality, that the constituent elements and the legal consequences be formulated with sufficient precision so that the individual is able to align his or her conduct accordingly.» Since that requirement was not met, the Federal Supreme Court required legislative concretisation. → N. 32 f. (points of contention: relationship between international law and domestic law).

3.2 Public Interest and Proportionality (Para. 2)

N. 10 Para. 2 formulates two cumulative conditions for State action: it must, first, be in the public interest and, second, be proportionate. Both conditions apply to all State action — legislation, enforcement, and adjudication (BBl 1997 I 132).

N. 11 The public interest is an indeterminate legal concept whose content is given concrete form through the balancing of the public and private interests concerned. The Federal Supreme Court reviews the public interest in relation to cantonal acts without restriction; it recognises a wide margin of discretion for the legislature.

N. 12 The principle of proportionality is reviewed by the courts in three stages:

1. Suitability: the measure is apt to achieve the intended public interest.
2. Necessity: among several suitable measures, the least restrictive must be chosen.
3. Reasonableness (proportionality in the strict sense): the interference bears a reasonable relationship to the intended purpose.

Cf. Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N 591 ff. This three-stage test corresponds to the standard of review under → Art. 36 para. 3 FC (restrictions on fundamental rights); however, the principle of proportionality under Art. 5 para. 2 FC applies to all State action beyond cases involving restrictions on fundamental rights.

N. 13 The Federal Supreme Court has applied Art. 5 para. 2 FC in a long line of decisions in the area of aliens law to revocation and expulsion measures. In BGE 139 I 16 E. 2.2.1 it held: «The measure must — like any State action — be proportionate (cf. Art. 5 para. 2 FC; Art. 96 AuG). In assessing whether this is the case, account must be taken in particular of the gravity of the offence and the culpability of the person concerned, the time elapsed since the act, the conduct of the foreign national during that period, the degree of his or her integration or the duration of previous residence, and the disadvantages facing him or her and his or her family.» In BGE 144 IV 332 E. 3.3 the Federal Supreme Court clarified that Art. 5 para. 2 FC does not permit the criminal court to engage in free weighing when applying the hardship clause of Art. 66a para. 2 SCC, but constitutionally obliges it: «Where the conditions of the hardship clause are fulfilled, the principle of proportionality enshrined in Art. 5 para. 2 FC requires that expulsion be dispensed with.»

3.3 Good Faith (Para. 3)

N. 14 Para. 3 requires «state organs and private individuals» to act in good faith. The express mention of private individuals is a special feature: it covers private individuals within the framework of public-law legal relationships and when performing tasks delegated by the State. The Federal Supreme Court has clarified that Art. 5 para. 3 FC «as a principle of the rule of law primarily prescribes a duty of conduct for authorities», but «according to case law also binds private individuals» (BGE 146 IV 297 E. 2.2.6).

N. 15 The subjective-law, judicially enforceable protection of legitimate expectations, on the other hand, is guaranteed by ↔ Art. 9 FC, which establishes an independent claim to protection of legitimate reliance on official assurances. Art. 5 para. 3 FC and Art. 9 FC thus stand in a relationship of the general to the specific: Art. 5 para. 3 FC states the objective principle, Art. 9 FC gives it subjective-law enforceability. Cf. BGE 129 I 161 E. 4.1: «The principle of good faith enshrined in Art. 9 FC confers on a person a right to protection of legitimate reliance on official assurances or other conduct of the authorities that gives rise to specific expectations.»

N. 16 From the principle of good faith the courts derive in particular: the prohibition of contradictory conduct (venire contra factum proprium), the duty of authorities to provide information and to warn, the duty to abide by binding assurances, and the duty to have regard to the legitimate expectations of those seeking legal protection. However, a plea of good faith may be defeated by overriding public interests or by the absence of good faith on the part of the person concerned (BGE 129 I 161 E. 4.1). Cf. Rhinow/Schefer/Uebersax, Verfassungsrecht, N 831 ff.

3.4 Observance of International Law (Para. 4)

N. 17 Para. 4 obliges the Confederation and the cantons to observe international law. The Federal Council derives this duty from the principle of pacta sunt servanda (BBl 1997 I 134). The principle applies to the whole of international law: treaties, customary international law, and general principles of law. The wording («observe») is deliberately left open and establishes no hierarchy (BBl 1997 I 133, 135).

N. 18 Para. 4 contains no conflict-of-laws rule for conflicts between international law and domestic law; this question was expressly left open (BBl 1997 I 133). The Federal Supreme Court has developed the solution — primacy of international law, subject to the «Schubert» reservation — on the basis of existing case law (→ N. 29 ff.). The relationship to → Art. 190 FC is central: the Federal Supreme Court is bound by federal statutes and international law, irrespective of their mutual order of precedence.

N. 19 In BGE 138 II 524 E. 5.1 the Federal Supreme Court held: «Where there is a genuine conflict of norms between federal law and international law, according to the case law the international law obligation of Switzerland takes precedence in principle. [...] In particular, Switzerland cannot invoke its domestic law to justify non-performance of a treaty (Art. 5 para. 4 FC; Art. 27 VCLT).» The Federal Supreme Court expressly relied on Art. 27 of the Vienna Convention on the Law of Treaties (VCLT; SR 0.111) as a bridge between para. 4 and general international law.

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#4. Legal Consequences

N. 20 As an objective constitutional principle, Art. 5 FC does not give rise to directly enforceable subjective rights. Violations of the rule-of-law principles of Art. 5 FC may only be challenged before the courts by invoking a connecting fundamental right: para. 1 through ↔ Art. 9 FC (arbitrariness) or specific fundamental rights (e.g. the principle of legality in criminal law and fiscal law through ↔ Art. 7 SCC and ↔ Art. 127 FC); para. 2 through ↔ Art. 36 FC (proportionality as a condition for restrictions on fundamental rights); para. 3 through ↔ Art. 9 FC; para. 4 through ↔ Art. 190 FC and the relevant treaties.

N. 21 In the event of violations of the principles of Art. 5 FC, State enactments or rulings may be annulled (not void, unless the violation is particularly serious). Where there is a conflict between constitutional law and international law, the Federal Supreme Court is bound by international law pursuant to → Art. 190 FC; a conflicting federal statute remains inapplicable in the event of such a conflict (BGE 138 II 524 E. 5.1; BGE 139 I 16 E. 5.1).

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#5. Points of Contention

5.1 Legal Nature of the Principle of Legality: Constitutional Principle or Subjective Right?

N. 22 The prevailing view in case law and academic writing treats the principle of legality (para. 1) as an objective constitutional principle without an autonomous subjective-law content outside criminal law and fiscal law (BGE 129 I 161 E. 2.1; Rhinow/Schefer/Uebersax, Verfassungsrecht, N 795). A minority view in Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 717, advocates a broader subjective content also outside these special areas, in order to strengthen judicial protection against unlawful executive action. The Federal Supreme Court's practice does not follow this extension; it instead uses the prohibition of arbitrariness (Art. 9 FC) as a catch-all provision.

5.2 Binding Force of Art. 5 Para. 3 FC on Private Individuals

N. 23 Para. 3 expressly requires «private individuals» as well to act in good faith. The scope of this binding force is disputed. According to the narrower view (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N 223), it covers private individuals only within the framework of public-law legal relationships. According to the broader view, it extends — in conjunction with Art. 27 CC and Art. 2 CC — to all areas of law, insofar as citizens act in the context of State proceedings. The Federal Supreme Court recognised this in BGE 146 IV 297 E. 2.2.6 without defining the precise scope: Art. 5 para. 3 FC «also binds private individuals according to the case law.»

5.3 Relationship between International Law and Domestic Law: «Schubert» Practice and its Limits

N. 24 The most central contentious issue concerning Art. 5 para. 4 FC is the relationship between international law and subsequent domestic law. Para. 4 provides no answer (BBl 1997 I 133). The courts have developed the so-called «Schubert» practice (BGE 99 Ib 39 E. 3 and 4): the principle is the primacy of international law; by way of exception the Federal Supreme Court departs from this where the legislature has knowingly accepted a conflict of norms with international law. BGE 138 II 524 E. 5.1 and BGE 139 I 16 E. 5.1 expressly confirm this approach in connection with Art. 5 para. 4 FC.

N. 25 For human rights conventions, the «Schubert» practice does not apply according to the Federal Supreme Court's practice: departure from the ECHR or the UN Covenant II is impermissible even where the legislature has knowingly given precedence to the statute (BGE 125 II 417 E. 4d; BGE 139 I 16 E. 5.1). Academic writing is divided: Tschannen (Staatsrecht der Schweizerischen Eidgenossenschaft, 4th ed. 2016, § 9 N 33) and Hangartner (in: Aubert/Mahon [eds.], Petit commentaire, Art. 190 N 30) favour a complete exception for human rights treaties. Epiney (ZGRG 1/2010, p. 6), by contrast, emphasises that the democratic legitimacy of popular rights requires some consideration even in conflicts with human rights conventions, to the extent that the margin of appreciation of the ECtHR permits this.

N. 26 The relationship between popular initiatives and international law remains systematically unresolved. Under Art. 139 para. 3 FC and Art. 194 para. 2 FC, popular initiatives and constitutional revisions are measured only against peremptory norms of international law (ius cogens). The Federal Supreme Court laid down in BGE 139 I 16 E. 4.2.2 that even «newer» constitutional law must respect the overall constitutional context and achieve practical concordance, which may limit the outcome of a popular initiative. Rhinow/Schefer/Uebersax, Verfassungsrecht, N 867, describe the relationship as «not well settled»; Tschannen, Staatsrecht, § 9 N 36, advocates legislative primacy with correction by political institutions, not by the courts.

5.4 Cumulative or Alternative Relationship between the Public Interest and Proportionality (Para. 2)

N. 27 Academic writing discusses whether the public interest (para. 2, first clause) and proportionality (para. 2, second clause) are to be reviewed cumulatively or hierarchically. According to Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N 586 f., the public interest has logical priority: if it is absent, the proportionality review becomes unnecessary. The Federal Supreme Court's practice generally follows this sequential approach (cf. BGE 139 I 16 E. 2.2.1; BGE 115 Ia 370); the proportionality test presupposes the existence of a legitimate public interest.

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#6. Practical Notes

N. 28 When challenging State measures, Art. 5 FC must always be invoked in conjunction with a connecting fundamental right. In appeals and complaints, the violation of para. 1 (principle of legality) must be combined with a plea of violation of Art. 9 FC (arbitrariness) or a specific fundamental right (e.g. Art. 26 FC for interferences with property rights, Art. 27 FC for economic freedom). An isolated plea of violation of Art. 5 para. 1 FC is procedurally inadmissible outside criminal law and fiscal law (BGE 129 I 161 E. 2.1).

N. 29 The proportionality review (para. 2) must be conducted ex officio in administrative appeal proceedings under the APA and the Federal Supreme Court Act (Art. 49 APA). Before the Federal Supreme Court in proceedings on public-law appeals, the proportionality review is restricted to the extent that cantonal authorities enjoy a margin of discretion; the Federal Supreme Court intervenes only in cases of excess or abuse of discretion. The principle of proportionality under Art. 36 para. 3 FC in the context of restrictions on fundamental rights is additionally reinforced by the qualified duty to give reasons under Art. 106 para. 2 Federal Supreme Court Act.

N. 30 In the area of application of para. 4, conflicts of norms arising from treaties require an examination of whether the legislature knowingly accepted the conflict. The parliamentary deliberations on a federal statute must have expressly addressed the international law aspects; a merely general discussion of the advantages and disadvantages of a provision is insufficient (BGE 138 II 524 E. 5.3.2). In the event of conflicts with the ECHR, the «Schubert» exception never applies (BGE 125 II 417 E. 4d; BGE 139 I 16 E. 5.1): the Federal Supreme Court implements the ECHR case law of the ECtHR irrespective of the will of the federal legislature (→ Art. 190 FC).

N. 31 For cantons, Art. 5 para. 4 FC means a direct obligation to observe international law, even where they are not party to a treaty: treaties of the Confederation bind the cantons in the implementation of federal law and — according to the prevailing academic view — also in the exercise of their own competences, insofar as federal law declares the treaty to be applicable vis-à-vis cantonal law (cf. Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N 203 f.). The cantons cannot invoke competences under Art. 3 FC against the Confederation in order to circumvent the Confederation's obligations under international law.

Art. 5 BV - Case Law

#Rule of Law Principle in General

#Principle of Legality (para. 1)

BGE 151 II 254 E. 4 (26.11.2024) The Federal Supreme Court confirms the strict principle of legality for state interventions. In the absence of a legal basis, there is no obligation for the municipality to bear the costs for the medical treatment of a found cat.

«The law is the basis and limit of state action. State organs may only act if there is a sufficient legal basis.»

VB.2024.00334 (13.8.2024) - Zurich Administrative Court Cost compensation for police operations requires a sufficient legal basis. The costs to be passed on for a police operation constitute an administrative fee, which is subject to the principle of legality.

BVGE 2024 I/1 (8.5.2024) This practice is based neither on a civil service regulation nor on an analogical conclusion at the decisive point. In the absence of a legal basis, the principle of legality is violated.

AGVE 2016 85 (4.10.2016) - Aargau Administrative Court
Municipal consultative votes are only permitted at municipal assemblies, not at the ballot box. According to Art. 5 BV, the law is the basis and limit of state action. The principle of legality determines that administrative activities may not take place without legal authorization.

#Proportionality (para. 2)

BGE 139 I 16 E. 2.2 (12.10.2012) Fundamental decision on the proportionality test for residence-terminating measures. According to Art. 63 FNA, the settlement permit may be revoked. The measure must - like all state action - be proportionate (Art. 5 para. 2 BV; Art. 96 FNA).

«In assessing whether this is the case, particular consideration must be given to the seriousness of the offence and the fault of the person concerned, the period that has elapsed since the act, and the foreigner's behaviour during this period.»

BGE 115 Ia 370 (1989) Protection of Bern's old town silhouette - public interest and proportionality. Cognition of the Federal Supreme Court in weighing interests and proportionality. The application of a provision for the protection of the old town may in individual cases lead to a reduction of the building volume permitted under the zoning regulations.

BGE 109 Ia 76 E. 3b (1983) Mushroom picking prohibition - proportionality test for property restrictions. The right of appropriation under Art. 699 CC may be restricted by cantonal public law, provided that there is a sufficient public interest and the principle of proportionality is observed.

VB.2016.00538 - Zurich Administrative Court Restriction of foreign persons - proportionality of the perimeter size. The public interest in restriction does not weigh heavily, since the appellant never went underground. A restriction to the territory of an entire municipality proves to be disproportionate.

#Good Faith (para. 3)

BGE 102 Ia 331 E. 3 (1976) Fundamental decision on good faith in zoning plans. Assurances regarding the continuation of a zoning plan are only binding from the perspective of good faith if they emanate from the body competent to change the plan.

«However, the municipal legislator must also take into account the requirement of legal certainty even without a guarantee that is binding on itself.»

BGE 116 Ib 185 E. 3c (1990) Application of the principle of good faith to incorrect official information. These principles must also be observed when assessing land use plan determinations. The forest determination on parcels which were considered forest-free in the years 1973 to 1976 during the preparation of a district plan.

UR 00/01 23 (30.5.2000) - Uri Higher Court Constitutional protection of legitimate expectations - requirements. A claim to protection of trust only exists if the citizen has exercised the care and attention that can be reasonably expected of him under the circumstances.

«Anyone who, despite existing doubts, interprets the ruling in a favourable sense without appropriate inquiry and makes corresponding arrangements cannot invoke the protection of good faith.»

BGE 97 I 125 (1971) Good faith in tax law - prohibition of contradictory behaviour. Significance of the principle of good faith and the resulting prohibition of contradictory behaviour in tax law. Relationship of this principle to the principle of legality of taxation.

LU JSD 2012 9 (24.10.2012) - Lucerne Justice Department Extension of residence permit despite suspicion of sham marriage. If a residence permit is extended without reservation despite suspicion of a sham marriage, the extension may not be refused one year later on the basis of the same indications. Such a procedure violates good faith.

#International Law (para. 4)

BGE 139 I 16 E. 4-5 (12.10.2012) Relationship between constitutional law and international law in the expulsion initiative. The para. 3-6 of Art. 121 BV adopted with the expulsion initiative do not take precedence over fundamental rights or the guarantees of the ECHR.

«The values expressed by the constitutional legislator can be taken into account insofar as this does not lead to contradiction with superior law or to conflicts with the margin of appreciation that the ECtHR grants to individual contracting states.»

BGE 138 II 524 E. 5 (19.9.2012) Conflict of norms between international law and domestic law - primacy of international law. A unilaterally extended national tax exemption for cross-border traffic contradicts the Swiss-Italian border agreement. The Federal Supreme Court confirms the fundamental primacy of international law.

«The interpretation of international treaties is governed by the general principles of the Vienna Convention on the Law of Treaties.»

BGE 105 IV 218 (7.5.1979) Lake Constance fishery - incorporation of international legal provisions into domestic law. Art. 1 para. 6 of the Federal Council Decree of 12 September 1967 on Lake Constance fishery, which incorporated the 1967 amended provision of the Bregenz Agreement on minimum mesh size into domestic law, is covered by the delegation provision.

#Systematic Structure and Cross-References

#Relationship to Other Constitutional Provisions

The case law shows the close connection of Art. 5 BV with other constitutional principles:

• → Art. 8 BV (Legal equality): Equal treatment in wrongdoing (BGE 127 I 1)
• → Art. 9 BV (Protection against arbitrariness): Overlap in protection of legitimate expectations
• → Art. 29 BV (Procedural guarantees): Rule of law as an overall concept
• ↔ Art. 36 BV (Restrictions on fundamental rights): Proportionality as a common standard
• → Art. 190 BV (applicable law): Implementation of respect for international law