1Every Swiss man is required to do military service. Alternative civilian service shall be provided for by law.
2Military service is voluntary for Swiss women.
3Any Swiss man who does not do military or alternative service is liable to pay a tax. This tax is levied by the Confederation and assessed and collected by the Cantons.
4The Confederation shall legislate for fair compensation for loss of income.
5Persons who suffer damage to their health or lose their lives while doing military or alternative civilian service are entitled to appropriate support from the Confederation, whether for themselves or for their next of kin.
Overview
Art. 59 FC regulates military service (obligation to perform military service) and its alternatives. The Constitution obliges all male Swiss citizens to perform military service. Women may perform military service on a voluntary basis.
Anyone who cannot reconcile military service with their conscience is entitled to civilian alternative service. This alternative service is only available to those liable for military service and must be applied for. The specific admission requirements and procedures are regulated by implementing legislation.
Anyone who performs neither military nor alternative service must pay an annual contribution. This substitute contribution is also owed by persons who are unfit for service for health reasons. The exact amount and duration of the contribution obligation are determined by the relevant federal acts.
The Confederation must provide adequate compensation for loss of earnings during service. In the event of health damage or death in service, those affected or their relatives are entitled to support from the Confederation.
Example: A 20-year-old Swiss man can choose between three options: perform military service, apply for civilian service in case of a conflict of conscience, or not complete either service and pay the substitute contribution instead. A Swiss woman of the same age may perform military service voluntarily but is not obliged to do so.
The different treatment of men and women is constitutionally controversial and is criticised internationally. The European Court of Human Rights has also ruled that the obligation to pay substitute contributions for persons with disabilities may be discriminatory.
Art. 59 FC — Military and Civilian Service
#Doctrine
#1. Legislative History
N. 1 Art. 59 FC traces back to Art. 18 of the former Federal Constitution (aCst., version of 1874). The obligation to perform military service was conceived from the outset as a general civic duty. The referendums of 26 February 1984 and 24 May 1987 each rejected a proposed constitutional article introducing civilian substitute service. It was only on 17 May 1992 that the people approved an amendment to Art. 18 para. 1 aCst. adding the sentence: «The law shall provide for civilian service as an alternative.» The Federal Supreme Court characterised this decision as a fundamental change of system: civilian service was thereby enshrined as a constitutionally guaranteed alternative to military service, not merely as an alternative to criminal sanctions (BGE 121 II 166 E. 3).
N. 2 The total revision of the Federal Constitution of 1999 transferred Art. 18 aCst. into Art. 59 FC largely unchanged. The Federal Council's message of 20 November 1996 on the new Federal Constitution (BBl 1997 I 1) described Art. 59 FC as an «updating» of existing constitutional law without any change in substantive content (BBl 1997 I 207). However, the structure was streamlined: paragraphs 4 (compensation for loss of earnings) and 5 (entitlement in the event of harm to health or death) were for the first time formulated explicitly as independent constitutional guarantees, which until then had been regulated only at the level of statute law. The Federal Council emphasised that para. 5 was intended to enshrine the constitutional right to «adequate support» and thereby elevate the existing duty of performance of military insurance to the constitutional level (BBl 1997 I 207 f.).
N. 3 The question of military service obligations for women was discussed during parliamentary deliberations. Parliament decided to enshrine para. 2 (voluntary nature of military service for Swiss women) explicitly in the new Constitution, even though this corresponded to the existing legal position. Amendments to the structure of military service obligations have since required a constitutional revision; any extension to women would, according to the unanimous view of legal scholarship, only be possible by way of popular referendum (Ehrenzeller/Schweizer, SGK BV, Art. 59 N. 10; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 871).
#2. Systematic Classification
N. 4 Art. 59 FC is located in Chapter 3 («Confederation, Cantons and Communes») of Title 2 («Fundamental Rights, Civil Rights and Social Goals»), without itself constituting a fundamental right within the meaning of Art. 7–36 FC. It is rather a civic duty and competence norm that simultaneously contains subjective entitlements (paras. 4 and 5). The provision thus has a hybrid function: on the one hand it establishes the duty of personal service; on the other, it confers counter-rights of the person rendering service against the Confederation. This dual nature distinguishes Art. 59 FC from the pure defensive rights of Art. 7 ff. FC (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1037).
N. 5 Art. 59 FC is conceived as a federal competence: military law is an exclusive federal matter (→ Art. 60 FC for the army, → Art. 173 para. 1 lit. a FC for the Federal Assembly). The cantons are limited to the role of assessment authority (para. 3 sentence 2). The duty to perform service is governed by the Federal Act on the Army and Military Administration (MG; SR 510.10) and, for civilian service, by the Civilian Service Act (ZDG; SR 824.0). The military service exemption levy is regulated in the Federal Act on the Military Service Exemption Levy (WPEG; SR 661). All three Acts are based directly on Art. 59 FC.
N. 6 For infringements of fundamental rights connected with the obligation to perform military service (e.g., restrictions on personal liberty through the duty to report for service, restrictions on property through the levy obligation), → Art. 36 FC applies. The proportionality test (suitability, necessity, reasonableness) also applies to restrictions in the context of military service, whereby Art. 59 FC itself is regarded as a sufficient statutory basis within the meaning of Art. 36 para. 1 FC (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2810). ↔ Art. 8 FC (equality before the law) is relevant in particular with regard to the military service exemption levy (N. 20 ff.).
#3. Elements of the Provision / Normative Content
3.1 Obligation to Perform Military Service (Para. 1)
N. 7 Para. 1 sentence 1 establishes the general obligation to perform military service for every male Swiss national. «Every Swiss national» encompasses all men holding Swiss citizenship, regardless of domicile and any dual citizenship. The obligation arises by virtue of citizenship, not domicile. The Federal Supreme Court held in BGE 121 II 166 E. 1 that the military service obligation must be fulfilled by personal service and that another form of service — such as work in the public interest under Art. 81 no. 2 of the former Military Penal Code (aMStG) — does not count as fulfilment of this obligation.
N. 8 Para. 1 sentence 2 contains a legislative mandate: the law shall provide for civilian service as an alternative. The words «shall provide» are to be understood as an imperative obligation on the legislator, not a mere authorisation. Civilian service replaces military service as a form of personal fulfilment of the military service obligation; it is not a privilege but a right of the person subject to service, which is granted upon demonstrated conscientious objection (Art. 1 ZDG). Civilian service is 1.5 times longer than military service (Art. 8 ZDG), which constitutes a constitutionally permissible — and judicially confirmed — additional burden, provided proportionality is maintained (Ehrenzeller/Schweizer, SGK BV, Art. 59 N. 15).
3.2 Voluntary Nature for Swiss Women (Para. 2)
N. 9 Para. 2 stipulates that military service for Swiss women is voluntary. This provision does not constitute discrimination but rather a differentiation explicitly provided for by the Constitution. Swiss women who voluntarily perform military service are subject to the same rules as men obliged to perform military service (→ Art. 3 MG). The restriction of the military service obligation to men is compatible with Art. 8 para. 3 FC, since the constitutional legislator itself provided for this exception to equal treatment. The Tax Appeals Court of the Canton of Zurich confirmed this in WE.2013.2 (27 November 2012).
3.3 Military Service Exemption Levy (Para. 3)
N. 10 Para. 3 sentence 1 establishes the military service exemption levy for Swiss nationals who perform neither military nor civilian service. The levy is a substitute levy (contribution de remplacement): it fiscally compensates for the absence of personal service and is intended to ensure equal treatment between those who perform service and those who do not (BGer, judgment 2C_339/2021 of 4 May 2022 E. 3.1; BGE 150 I 144 E. 3.1). The Federal Supreme Court clarified in BGE 121 II 166 E. 4 that it does not constitute a punishment but rather a public-law obligation linked to the failure to render personal service: «The levy is owed as such because the person subject to military service is exempted from the public-law obligation to perform military service incumbent upon him vis-à-vis the community» (with reference to BBl 1958 II 340 and BGE 113 Ib 206 E. 3a).
N. 11 Para. 3 sentence 2 governs the division of competences between the Confederation and the cantons: the Confederation levies the charge (regulating it by federal act), while the cantons assess and collect it. The constitutional anchoring of this division of competences is unusual, since tax and levy-raising competences are not normally regulated in such detail at the constitutional level. The reason is that the military service exemption levy is functionally situated between a federal charge and a cantonal administrative task (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 873).
3.4 Compensation for Loss of Earnings (Para. 4)
N. 12 Para. 4 obliges the Confederation to enact provisions on adequate compensation for loss of earnings. This constitutional mandate is implemented by the Federal Act on Income Compensation for Persons Performing Service and in the Event of Maternity (EOG; SR 834.1). «Adequate» is an indeterminate legal concept: it requires compensation that neither fully offsets the loss of income caused by service nor leaves it substantially uncompensated. The Federal Supreme Court reviews the proportionality of the statutory regulation with restraint (→ Art. 190 FC).
3.5 Entitlement in the Event of Harm to Health or Death (Para. 5)
N. 13 Para. 5 contains a subjective entitlement of the person rendering service and their dependants to «adequate support» from the Confederation if the person suffers harm to health or loses their life during military or civilian service. This entitlement is given concrete form by the Federal Act on Military Insurance (MVG; SR 833.1). The Federal Supreme Court clarified the legal nature of military insurance in BGE 127 II 289 E. 3b: it is not insurance in the technical sense, but a state liability and insurance system with a predominantly tortious character; the Confederation's obligation to perform arises from the fact that it places persons rendering service in a situation of heightened danger.
N. 14 The formulation «adequate support» is deliberately kept open. It contains a qualitative standard (adequacy), not full coverage of all loss. Military insurance is therefore not liability for an unlawful act in the civil-law sense, but a public-law obligation of the Confederation to make good the loss. Military insurance excludes the Confederation's liability under Art. 135 MG to the extent that its benefits cover the damage (BGE 127 II 289 E. 3d).
#4. Legal Consequences
N. 15 If a Swiss national subject to military service fails to fulfil his service obligation, various legal consequences are provided for: (a) criminal sanctions under the Military Penal Code (MStG; SR 321.0), (b) disciplinary measures under the MG, and (c) the obligation to pay the substitute levy under Art. 59 para. 3 FC in conjunction with the WPEG. The substitute levy arises by operation of law, regardless of the reason for non-performance of service — even unfitness for service on health grounds does not in principle exempt from the levy obligation (BGer, judgment 2C_924/2012 of 29 April 2013 E. 3.1).
N. 16 The entitlement under Art. 59 para. 5 FC is a judicially enforceable subjective right. It may be asserted directly before federal authorities. The MVG gives concrete form to this entitlement; it supersedes Art. 135 MG as lex specialis (Maeschi, Kommentar MVG, Bern 2000, pp. 8 ff.; BGE 127 II 289 E. 3d).
N. 17 A violation of the right to adequate compensation for loss of earnings (para. 4) must be asserted by appeal before the social insurance courts. The constitutional provision does not establish a directly enforceable obligation to perform, as long as the EOG remains within the bounds of what is adequate.
#5. Contested Issues
5.1 Constitutionality of the Levy in Cases of Unfitness for Service Owing to Illness
N. 18 The question of whether the military service exemption levy in cases of unfitness for service owing to illness or disability is compatible with the prohibition of discrimination (→ Art. 8 FC, Art. 14 in conjunction with Art. 8 ECHR) was long unresolved and contested. The ECtHR held in Glor v. Switzerland (no. 13444/04, judgment of 30 April 2009) that the imposition of the levy on a diabetic who had clearly expressed his willingness to perform service but had been declared unfit and had not been assigned to an alternative service violated Art. 14 in conjunction with Art. 8 ECHR. The Federal Supreme Court concluded therefrom that the levy obligation may continue to be imposed in such constellations only if the person concerned has not sufficiently expressed their willingness to perform service (BGer, judgment 2C_924/2012 of 29 April 2013 E. 5.1; BGE 150 I 144 E. 8.2.2). In BGE 150 I 144 E. 8.2.3 the Federal Supreme Court clarified that a naturalised Swiss national who has taken no concrete steps towards late recruitment cannot invoke discrimination pursuant to Glor.
N. 19 The ECtHR confirmed its approach in Ryser v. Switzerland (no. 23040/13, judgment of 12 January 2021): a levy originating from the inability to perform service due to illness falls within the scope of Art. 8 ECHR, even if its consequences are primarily financial in nature. Following Glor, Switzerland partially amended the WPEG, in particular by introducing grounds for exemption for significant disabilities. Ehrenzeller/Schweizer (SGK BV, Art. 59 N. 30) consider the current regulation to be compatible with the ECHR, provided that voluntary service is made possible where appropriate capacity exists; Müller/Schefer (Grundrechte, 4th ed. 2008, p. 875) emphasise the remaining protection gap for persons with moderate disability.
5.2 Compatibility of the Military Service Obligation Restricted to Men with Art. 8 Para. 3 FC
N. 20 Whether the military service obligation restricted to men is compatible with the equality mandate of Art. 8 para. 3 FC is an academic contested issue. The dominant scholarly and practical view affirms compatibility, since Art. 59 paras. 1 and 2 FC operates as lex specialis in relation to Art. 8 FC and the constitutional legislator explicitly provided for this differentiation (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, 10th ed. 2020, N 1037; Tax Appeals Court Zurich, WE.2013.2, 27 November 2012). A minority view in legal scholarship — notably Haller/Kölz, Allgemeines Staatsrecht, 2nd ed. 1999, p. 239 — regards this as an internal constitutional contradiction to be resolved in any future constitutional revision. De lege ferenda, a gender-neutral general service obligation is under discussion (Rhinow/Schefer/Uebersax, Verfassungsrecht, 3rd ed. 2016, N 2815).
5.3 Legal Nature of Military Insurance
N. 21 The legal nature of military insurance — social insurance or state liability — was contested prior to BGE 127 II 289. The older scholarship (notably Schatz, Kommentar zur Eidgenössischen Militärversicherung, Zurich 1952, p. 20) emphasised the liability character; more recent voices (e.g. Maeschi, MVG, Bern 2000, pp. 8 ff.) saw both elements, but weighted the tortious character as predominant. The Federal Supreme Court aligned itself with this assessment (BGE 127 II 289 E. 3b and d) and held that the provisions of the MVG are «other liability provisions» within the meaning of Art. 135 para. 3 MG, which exclude additional federal liability under the Military Act. This case law has been consolidated since then; Steger-Bruhin (Die Haftungsgrundsätze der Militärversicherung, diss. St. Gallen, Zurich 1996, pp. 20 ff.) had anticipated this result.
5.4 Intertemporal Law and the Military Service Exemption Levy
N. 22 The revision of the WPEG with effect from 1 January 2019 — in particular the extension of the levy obligation period to the age of 37 — raised questions of retroactivity. The Federal Supreme Court held in BGE 150 I 144 E. 6.1 and 7.2 that there is no impermissible genuine retroactivity where the new provision is applied to facts arising after its entry into force, even if under the old law the person concerned had already reached the end of their levy obligation. The levy obligation arises anew each year and does not constitute a continuing situation in the intertemporal law sense.
#6. Practical Notes
N. 23 Levy obligation and exemptions: Persons subject to military service should clarify at an early stage whether a ground for exemption under Art. 4 WPEG exists (financial hardship, unfitness for service with significant disability). A medically established unfitness for service alone, without a declaration of willingness to perform service, does not in principle protect against the levy obligation according to the case law of the Federal Supreme Court and the ECtHR (BGE 150 I 144 E. 8.2.2). Anyone wishing to invoke Glor/Ryser must have actively and demonstrably expressed their willingness to serve and must have applied for assignment to an alternative service.
N. 24 Naturalised persons: Following the 2019 revision of the WPEG, the levy obligation commences at the earliest from age 19 and ends at the latest upon reaching age 37 (Art. 3 WPEG). Persons who are not naturalised until after the age of 24 may still join the army through the late recruitment provision (Art. 9 para. 3 MG in conjunction with Art. 12 para. 2 OMi), provided there is a requirement. Failure to take the relevant steps precludes a claim of discrimination under BGE 150 I 144 E. 8.2.3.
N. 25 Civilian service: Civilian service requires that a genuine conscientious objection be made credible (Art. 7 ZDG). The assessment requires a personal hearing in accordance with BVGE 2007/26. The admission procedure is subject to review by the Federal Administrative Court. Rejected applicants owe the military service exemption levy for the period during which no civilian service was performed.
N. 26 Military insurance claims: Claims under Art. 59 para. 5 FC in conjunction with the MVG must be lodged with military insurance (SWICA on behalf of the Confederation). Military insurance covers harm to health that has arisen or worsened during service. For the purposes of establishing causation, a preponderance of probability suffices (Art. 5–6 MVG). Important: military insurance benefits exclude a parallel state liability claim under Art. 135 MG in principle (BGE 127 II 289 E. 3d). Persons rendering service whose damage exceeds the MVG benefits have no additional entitlement at the federal level.
N. 27 Cross-references: → Art. 58 FC (judicial authorities for military personnel); → Art. 60 FC (army); ↔ Art. 8 FC (equality before the law in respect of the levy obligation); → Art. 36 FC (restriction of fundamental rights in connection with the service obligation); → Art. 190 FC (applicable law: federal acts are binding on the Federal Supreme Court even if they restrict Art. 59 FC). At the international level: Art. 4 para. 3 lit. b ECHR (no element of forced labour in military service); Art. 14 in conjunction with Art. 8 ECHR (prohibition of discrimination in respect of the levy obligation, notably in light of Glor v. Switzerland, ECtHR no. 13444/04 of 30 April 2009).
Case Law
#I. Military Service Obligation and Alternative Service
#Principles of Military Duty
BGE 121 II 166 E. 1 (11 August 1995) Military service substitute payment for conscientious objection. The military duty under Art. 59 para. 1 Cst. must be fulfilled through personal service.
«Art. 18 para. 1 sent. 1 Cst. [today Art. 59 para. 1 Cst.] establishes the general military duty. This must be fulfilled through personal service (military service) in the army classes. Anyone who does not fulfil their military duty through personal service must pay a military service substitute fee.»
#Civil Service and Conflict of Conscience
BVGE 2007/26 (26 April 2007) Admission requirements for civil service. The assessment of a conflict of conscience requires a personal hearing by the admissions commission.
«The assessment of whether a conflict of conscience within the meaning of the law can be credibly established involves an evaluation of internal processes or a psychological state for which no direct evidence can be provided.»
#II. Military Service Substitute Fee
#Fee Obligation in Case of Unfitness for Service
Judgment 2C_924/2012 (29 April 2013) E. 3.1 Military service substitute fee for persons unfit for military service. The substitute fee obligation arises regardless of the reason for unfitness for service.
«According to Art. 59 para. 1 Cst., every Swiss citizen has military duty; the law provides for civilian alternative service. According to Art. 1 of the Federal Act on Civilian Service of 6 October 1995 (Civil Service Act, CSA; SR 824.0), persons liable for military service who cannot reconcile military service with their conscience are granted, upon application, a longer-lasting civilian alternative service (civil service).»
Judgment 2C_396/2012 (23 November 2012) ECHR conformity of the military service substitute fee. The substitute fee does not violate the prohibition of discrimination under the ECHR.
«The imposition of a substitute fee on persons who are unfit for military service due to health impairments does not violate Art. 14 in conjunction with Art. 8 ECHR if these persons have not sufficiently demonstrated their willingness to serve.»
#ECtHR Case Law on Discrimination
ECtHR No. 23040/13 (Ryser v. Switzerland) (12 January 2021) Substitute fee obligation for unfitness for military service due to illness. The ECtHR confirmed a violation of Art. 14 in conjunction with Art. 8 ECHR.
«A fee levied by the state that has its origin in the inability to serve in the army due to illness, i.e., in circumstances beyond the control of the person concerned, falls under Art. 8 ECHR, even if the consequences of this measure are mainly of a financial nature.»
#III. Voluntary Nature of Military Service for Women
#Constitutional Conformity of Gender-Specific Military Duty
Tax Appeal Court Zurich WE.2013.2 (27 November 2012) Male military duty and equal rights. The limitation of military duty to men does not violate the principle of equality.
«Military duty only for men and not also for women, and thus the levying of the military service substitute fee only from the former, violates neither the Federal Constitution nor international law.»
#IV. Loss of Earnings Compensation and Military Insurance
#Relationship between Military Insurance and State Liability
BGE 127 II 289 E. 3 (18 April 2001) Federal liability for military service damages. Military insurance excludes liability under the Military Act.
«The provisions of the Military Insurance Act are therefore 'other liability provisions' according to Art. 135 para. 3 MA and exclude liability under the Military Act. Military insurance has elements of (social) insurance law, but significantly also elements of state liability law/tort law.»
#V. Current Developments
#Naturalization and Subsequent Military Duty
BGE 150 I 144 (25 September 2024) E. 3.1 Military service substitute fee after naturalization. Naturalized Swiss citizens are subject to the military service substitute fee from naturalization onwards.
«The fee is levied annually from those liable for substitute payment who do not fulfil their service obligation through military or civil service in the substitute year. This is intended to ensure equal treatment of those liable for military service who perform military or civil service and those exempt from such service.»
Administrative Court Zurich VB.2024.00349 (11 September 2024) Prohibition of retroactivity for legislative changes. The provisions introduced in 2019 also apply to persons already naturalized.
«There is no impermissible retroactivity of the amendments to the MSFRA that entered into force on 1 January 2019 when a naturalized Swiss citizen turning 36 years old becomes liable for substitute payment for the first time in substitute year 2019.»
#VI. Military Service Exclusion and Refusal
#Unsuitability for the Army
Federal Administrative Court A-4854/2012 (7 March 2013) Exclusion due to criminal conviction. The exclusion of unsuitable persons follows strict criteria.
«According to Art. 22 of the Military Act, persons who have become unsuitable for the army as a result of conviction by a criminal court for crimes or misdemeanors are excluded from military service.»
#Non-Recruitment for Health Reasons
Federal Administrative Court A-998/2021 (12 January 2022) Procedure for non-recruitment. Non-recruitment is based on medical and other objective criteria.
«The fulfilment of military service obligation is basically done armed. Non-recruitment is only considered when special circumstances exist that make service impossible even in unarmed functions.»