1The Confederation and the Cantons shall within the scope of their powers ensure the security of the country and the protection of the population.
2They shall coordinate their efforts in the area of internal security.
Overview
Art. 57 Cst. regulates the division of security responsibility between the Confederation and the cantons. The provision obliges both levels of government to ensure the security of the country and the protection of the population. In doing so, they must coordinate their efforts.
The constitutional provision creates a common basis for Switzerland's security architecture. According to the Message on the new Federal Constitution (BBl 1997 I 209 f.), it was not intended to change the traditional division of tasks, but to constitutionally secure the cooperation practice. The Confederation is primarily responsible for external security, the cantons for internal security (police).
All state authorities entrusted with security tasks are affected: police, border guard, intelligence service, army and civil defence. Citizens are also indirectly affected, as they benefit from security measures or may be affected by them.
The legal consequences are limited. According to prevailing doctrine (Diggelmann/Altwicker, BSK BV, Art. 57 N. 23-26), Art. 57 Cst. does not create new competences, but presupposes existing jurisdictions. It is disputed whether the coordination obligation in paragraph 2 grants the Confederation new regulatory competences. The prevailing doctrine rejects this because of the federalist order of competences.
An example of practical application is the concordat on measures against violence at sporting events. The Federal Court confirmed its admissibility as intercantonal police coordination (BGE 140 I 2). In cross-border security situations, cantonal police forces and federal authorities work together, for example in combating terrorism or organised crime.
The norm does not protect individual rights to security. It is addressed only to state organs and obliges them to cooperate in the field of security.
Art. 57 FC — Security
#Doctrine
#1. Legislative History
N. 1 Art. 57 FC was introduced with the total revision of the Federal Constitution of 1999 and entered into force on 1 January 2000. There was no direct predecessor provision in the old Federal Constitution of 1874; security tasks were scattered across various provisions therein (cf. Art. 13, 18 ff. oFC concerning the military). The Federal Council's Message of 20 November 1996 (BBl 1997 I 1) states that the provision is intended to enshrine in the Constitution the existing division of powers between the Confederation and the cantons in the area of security and to expressly require coordination of efforts in the field of internal security (BBl 1997 I 236 f. on Art. 53 Draft-FC, which corresponds to the later Art. 57 FC).
N. 2 In its Message, the Federal Council described the cantons' police sovereignty as an «original competence» and wished to enshrine it explicitly without transferring it to the Confederation. Para. 2 was inserted at the initiative of Parliament in order to give constitutional status to the increasingly important horizontal coordination between the Confederation and the cantons, as well as among the cantons themselves, in the area of internal security. In so doing, the constituent legislature responded to experience with insufficient coordination among security authorities in the 1980s and 1990s (notably in the context of the Fichenskandal debate and the challenges posed by organised crime).
#2. Systematic Classification
N. 3 Art. 57 FC belongs to Chapter 4 of Title 3 of the FC («Relations between the Confederation and the Cantons»), Section 2 («Competences»). The provision is a competence norm (→ Art. 3 FC; → Art. 42 FC; → Art. 43 FC) that governs the allocation of tasks between the Confederation and the cantons in the area of security. It is not a fundamental right and does not give rise to subjective individual claims.
N. 4 Art. 57 para. 1 FC is closely connected with the subsequent provisions on external security (Art. 58 ff. FC), in particular Art. 58 FC (Army) and Art. 60 ff. FC (military organisation). Within the security architecture of the FC, Art. 57 forms the «security policy hinge» between external defence (army, Confederation) and internal security (police, cantons): Müller/Mohler, in: Die schweizerische Bundesverfassung, St. Galler Kommentar (SGK BV), 4th ed. 2023, N. 1 on Art. 57 FC.
N. 5 Art. 57 para. 2 FC forms the constitutional basis for police concordats and intercantonal security cooperation, as well as for the Confederation's coordination tasks (e.g. through the Federal Office of Police fedpol and the Federal Office for Civil Protection FOCP). The provision interacts with: ↔ Art. 48 FC (intercantonal treaties), ↔ Art. 49 FC (supremacy of federal law), → Art. 5 FC (rule of law principle), and → Art. 36 FC (restrictions on fundamental rights, which governs all police measures).
#3. Content of the Provision
3.1 Art. 57 para. 1 FC: Security Mandate within the Scope of Competences
N. 6 Art. 57 para. 1 FC establishes a shared responsibility of the Confederation and the cantons for «the security of the country and the protection of the population», without providing for an exhaustive allocation of tasks. The phrase «within the scope of their competences» is decisive: the provision creates no new competences, but presupposes the existing division of powers governed elsewhere in the FC. The Federal Supreme Court confirmed this in BGE 140 I 353 E. 5.1: «The competence of the cantons to maintain public safety and order within their territory is regarded as an original competence of the cantons.»
N. 7 The police sovereignty of the cantons is the governing principle: the cantons have original jurisdiction to maintain public safety and order in their territory and corresponding legislative competence in police law. This so-called police sovereignty encompasses in particular preventive police activity that is not linked to a suspicion of an offence and is not based on the Confederation's Code of Criminal Procedure: BGE 140 I 353 E. 5.1. The Confederation is responsible for criminal law enforcement under Art. 123 para. 1 FC to the extent regulated by the CrimPC: BGE 151 I 137 E. 3.5.1.
N. 8 «Security of the country» encompasses both external and internal security. «Protection of the population» refers to comprehensive civil protection in the sense of the coordinated deployment of police, fire services, medical services, technical services, and civil population protection (cf. Art. 61 FC). The provision thus covers a broad spectrum: from national defence through public order to disaster protection. The delimitation between the respective spheres of competence is not effected by Art. 57 FC itself, but by the specific competence articles (e.g. Art. 58 FC for the army, Art. 123 FC for criminal procedure law): Müller/Mohler, SGK BV, 4th ed. 2023, N. 5–8 on Art. 57 FC; Schweizer, in: SGK BV, 2nd ed. 2008, N. 5 on Art. 57 FC.
N. 9 According to Federal Supreme Court practice, the provision does not constitute an independent basis for restricting fundamental rights. Security police measures always require a specific statutory basis within the meaning of Art. 36 para. 1 FC. Art. 57 FC does, however, serve as a constitutional reference framework demonstrating the public interest underlying police measures: BGE 140 I 2 E. 10.5.2 («The public interest required under Art. 36 para. 2 FC for the admissibility of a restriction on fundamental rights derives from the police interest in protecting public order and security [Art. 57 FC]»).
3.2 Art. 57 para. 2 FC: Duty to Coordinate in the Field of Internal Security
N. 10 Art. 57 para. 2 FC establishes a duty to coordinate for the Confederation and the cantons in the field of internal security. «Internal security» encompasses the maintenance of public order and security within the country, in particular through police activity. The duty to coordinate is not confined to internal security in the narrow sense but includes interfaces with external security (e.g. counter-terrorism). External security, by contrast, falls primarily within the Confederation's jurisdiction (Art. 54, 58 ff. FC) and is not covered by Art. 57 para. 2 FC: Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, para. 2782 ff.
N. 11 The duty to coordinate is a statement of state objectives with institutional and organisational content. It obliges the Confederation and the cantons to structure their institutions and procedures in such a way as to ensure effective cooperation. It does not give rise to directly enforceable subjective rights for individuals and is therefore not fully justiciable. The duty to coordinate does, however, have legal effects for the institutional design: it forms the constitutional basis for institutions such as the Conference of Cantonal Justice and Police Directors (CCJPD) and the HOOGAN information system: BGE 140 I 2 E. 5.2; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, para. 1748.
N. 12 The coordination mandate under para. 2 relates to the «efforts» of both levels of government, i.e. to factual and legal measures. The Federal Supreme Court held in BGE 140 I 353 E. 5.5.1, with reference to the Message (BBl 1997 I 236 f.), that the principle of primary cantonal responsibility for security in their territory is not abrogated by Art. 57 FC but rather confirmed by it.
#4. Legal Effects
N. 13 Art. 57 FC, in conjunction with specific implementing legislation, produces direct legal effects. As a competence norm, the provision determines which level — Confederation or cantons — may act in the area of security. The following applies:
- Police sovereignty of the cantons (para. 1): The cantons have original jurisdiction for preventive police activity. They enact cantonal police laws and are responsible for maintaining public order in their territory.
- Federal competences (para. 1): The Confederation is responsible for areas assigned to it by specific competence articles (Art. 58–60, Art. 123 FC), in particular the army, criminal procedure law, and the intelligence service. In addition, it has a coordination role.
- Duty to coordinate (para. 2): The Confederation and the cantons are obliged to coordinate their security efforts. This is manifested in intercantonal concordats (e.g. the Hooligan Concordat), in federal coordination mechanisms (e.g. the Federal Act on Measures to Safeguard Internal Security, MASIC; SR 120), and in shared databases.
N. 14 The state monopoly on the use of force is anchored in Art. 57 FC. It means that sovereign security tasks must in principle be carried out by state organs. The transfer of security police tasks to private parties is permissible only on the basis of a sufficient statutory foundation. The Federal Supreme Court imposes particularly stringent requirements in this regard: BGE 148 II 218 E. 3.3.3 («Where the state monopoly on the use of force is engaged, particularly strict requirements apply»); cf. also BGE 140 I 2 E. 10.2.1 («In places open to the general public, it is in principle the task of the police to ensure security [Art. 57 FC]»).
N. 15 Art. 57 FC serves as a constitutional point of reference in the balancing of interests between security interests and other constitutional values. In BGE 128 II 1 E. 3d, the Federal Supreme Court held that the interest in national defence (Art. 57 ff. FC) is of constitutional rank and must be weighed against equally ranked interests — such as nature conservation (Art. 78 FC). Both interests are of constitutional rank; neither is abstractly superior.
#5. Contested Issues
5.1 Normative Character of Art. 57 FC
N. 16 It is disputed whether Art. 57 FC is merely a declaratory competence norm or whether it has an independent normative content beyond that. According to the prevailing doctrine, the provision is primarily of a clarifying nature: it confirms the cantonal police sovereignty already following from Art. 3 FC and creates no new federal competences. Müller/Mohler take the view that, in addition to its clarifying function, the provision has the normative content of establishing a duty to coordinate and of anchoring the state monopoly on the use of force at the constitutional level: Müller/Mohler, SGK BV, 4th ed. 2023, N. 3 f. and N. 32 on Art. 57 FC. Rhinow/Schefer/Uebersax regard Art. 57 para. 2 FC primarily as a statement of state objectives without direct justiciability: Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, para. 2784.
5.2 Delimitation of Cantonal Police Sovereignty and Federal Competence
N. 17 The relationship between cantonal police sovereignty and federal competences (in particular Art. 123 FC on criminal procedure law) is a matter of practical controversy, especially in the area of modern surveillance technologies. The Federal Supreme Court has ruled on this in principle in BGE 140 I 353 E. 5.5.1–5.5.2 and BGE 151 I 137 E. 3.5: preventive police activity without a suspicion of an offence is a cantonal matter; once an initial suspicion arises, the CrimPC applies and the canton no longer has jurisdiction. Göksu (BSK BV, 2015, N. 9 on Art. 123 FC) argues that the Confederation has made exhaustive use of its competence through the CrimPC. The delimitation between preventive police activity (cantons) and action under criminal procedure law (Confederation) remains difficult in individual cases, notably in the case of «dual-purpose measures»: BGE 151 I 137 E. 3.5.2.
5.3 Privatisation of Security Tasks
N. 18 The admissibility of transferring security police tasks to private parties is dogmatically contested. Kälin/Lienhard/Wyttenbach (Auslagerung von sicherheitspolizeilichen Aufgaben, 2007, pp. 61 and 63 f.) require that, in addition to the subject matter of the outsourcing, the requirements applicable to concessionaries, their powers, and state supervision must also be governed by formal legislation. Gamma (Möglichkeiten und Grenzen der Privatisierung polizeilicher Gefahrenabwehr, 2000, pp. 203 f.) emphasises the narrow limits on conferral of powers in view of the state monopoly on the use of force. The Federal Supreme Court confirmed the strict line taken by legal scholars in BGE 148 II 218 E. 3.3.3–3.3.4 and requires a sector-specific, sufficiently precise formal statutory basis for the transfer of security police tasks.
5.4 New Technologies and Coordination
N. 19 The question of whether and how an intercantonal police information system network can be established on the basis of cantonal law alone has not been resolved as a matter of constitutional law. The Federal Supreme Court left this question open in BGE 151 I 137 E. 6.5 and annulled the contested cantonal provision on other grounds. The background is the discussion concerning the POLAP platform (Police Query Platform). The Federal Supreme Court noted in BGE 151 I 137 E. 6.4.2 that the federal chambers had referred to the Federal Council a motion to revise the Federal Constitution in order to confer on the Confederation the power to regulate the exchange of police data between the Confederation and the cantons — implying that the current Constitution does not yet contain this federal competence.
#6. Practical Notes
N. 20 Police measures: Security police measures (exclusion zones, reporting obligations, searches, surveillance measures) always require a specific cantonal legal basis. Art. 57 FC demonstrates the public interest but does not replace the statutory basis required under Art. 36 para. 1 FC. The principle of proportionality applies with particular weight in police law: BGE 140 I 353 E. 8.7; BGE 140 I 2 E. 9.2.2.
N. 21 Intercantonal concordats: Art. 57 para. 2 FC forms the constitutional basis for police concordats under Art. 48 FC. The Hooligan Concordat (Concordat on Measures against Violence at Sporting Events of the CCJPD) is the best-known example. The Federal Supreme Court largely confirmed its constitutionality in BGE 140 I 2, but annulled certain provisions (minimum duration of exclusion zones, automatic doubling of reporting obligations) as disproportionate.
N. 22 Transfer to private parties: Any party examining, at the federal level, the transfer of security police tasks to private security services must provide a specific, sufficiently precise formal statutory basis governing the subject matter of the outsourcing, the powers conferred, the requirements applicable to concessionaries, and the supervision mechanisms. In the absence of such a basis, the Confederation remains directly liable: BGE 148 II 218 E. 6.1–6.3.
N. 23 New surveillance technologies: Automated surveillance measures (automated vehicle tracking, analytical systems) constitute serious interferences with the right to informational self-determination (Art. 13 para. 2 FC) and require a particularly precise formal statutory basis. Cantonally governed preventive police activity reaches its limit as soon as the measure serves primarily the purpose of criminal prosecution — in which case federal law (CrimPC) is determinative: BGE 151 I 137 E. 3.5–3.7. Cantonal legislators must ensure that their provisions clearly confine the purpose to prevention if they wish to rely on cantonal police sovereignty.
N. 24 Conflicts of interest between security and other constitutional values: Where the security interest (Art. 57 ff. FC) conflicts with other constitutional interests (e.g. nature conservation Art. 78 FC, fundamental rights Art. 7–36 FC), an explicit balancing of interests must be carried out by the competent authority at the appropriate decision-making level. A tacit prioritisation by subordinate authorities is insufficient: BGE 128 II 1 E. 3d.
#Bibliography (Selected)
- Müller/Mohler, in: Die schweizerische Bundesverfassung, St. Galler Kommentar, 4th ed. 2023, Art. 57 FC
- Schweizer, in: Die schweizerische Bundesverfassung, St. Galler Kommentar, 2nd ed. 2008, Art. 57 FC, N. 1–16
- Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, para. 2782 ff.
- Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, para. 1745 ff.
- Kälin/Lienhard/Wyttenbach, Auslagerung von sicherheitspolizeilichen Aufgaben, 2007, pp. 61–64
- Gamma, Möglichkeiten und Grenzen der Privatisierung polizeilicher Gefahrenabwehr, 2000
- Mohler, Grundzüge des Polizeirechts in der Schweiz, 2012
- Ruch, Äussere und innere Sicherheit, in: Verfassungsrecht der Schweiz, 2001, p. 898 para. 33
- Message of the Federal Council on a new Federal Constitution of 20 November 1996, BBl 1997 I 1 ff. (in particular pp. 236 f. on Art. 53 Draft-FC)
Case law
#Intercantonal police coordination and violence prevention
BGE 140 I 2 of 7 January 2014 Agreement on measures against violence at sporting events constitutes permissible specific police law. The Federal Supreme Court confirmed the constitutional basis for intercantonal police coordination in the security sector.
«The agreement constitutes specific police law. It is oriented towards the particular phenomenon of violence at sporting events. It aims to prevent such acts of violence with special measures such as area bans, reporting obligations and police custody and in this way to enable the peaceful conduct of major sporting events.»
BGE 140 I 353 of 1 October 2014 Cantonal competence for preventive police activity confirmed. The cantons are competent for regulating preventive police activity, insofar as this does not fall under the Code of Criminal Procedure.
«Competence of the cantons to regulate preventive police activity that is not linked to suspicion of an offence and is not based on the federal Code of Criminal Procedure.»
#Division of tasks between the Confederation and cantons
BGE 128 II 1 of 22 January 2001 National defence as a federal task in relation to cantonal competences. In case of conflicts of interest between national defence and other protected interests, the sectoral planning authority must establish clear priorities.
«If the interest of national defence collides with the interest in preserving a wildlife corridor of national importance, plan approval presupposes that the sectoral planning authority (here: the Federal Council) has expressly addressed the conflict of interest in the sectoral plan and has clearly decided in favour of the precedence of the military interest.»
#Transfer of security tasks to private parties
BGE 148 II 218 of 30 April 2021 High requirements for transferring security police tasks to private parties. Entrusting private parties with public-law security tasks requires a sufficient legal basis.
«Particularly high requirements are to be placed on the formal legislative basis in the area of transferring security police tasks. Neither the AsylG nor the BWIS contains a sufficient legal basis for the transfer of security police tasks to Securitas AG that is in question in the present case.»
#New technologies in police work
BGE 151 I 137 of 24 March 2025 Constitutional limits on automated surveillance. Modern surveillance technologies are subject to strict constitutional requirements regarding the delimitation of competences and proportionality.
«Since this primarily serves criminal prosecution, it requires a basis in the StPO; the canton is not competent for this. For the remaining preventive police application area, the interference with the right to informational self-determination permitted under § 4 quinquies PolG/LU is disproportionate.»
#Counter-terrorism
F-6954/2023 (BVGer) of 17 April 2024 Police measures to combat terrorism must be proportionate. Security authorities can take preventive measures against terrorism risks, but are subject to fundamental rights limitations.
The case law shows that Art. 57 Cst. creates a flexible basis for the coordination of security authorities, but at the same time draws clear constitutional limits. In particular, the transfer of tasks to private parties and the use of new surveillance technologies are subject to strict scrutiny.