#1. Legislative History

N. 1 Art. 61 FC goes back to the total revision of the Federal Constitution of 1999. The provision essentially adopted the content of Art. 22bis old FC, which had been incorporated into the old constitution by popular vote of 24 May 1959 (BBl 1997 I 435). The Message on the new Federal Constitution emphasised that civil protection, as an independent organisation alongside the army, makes an important contribution to the security of the population (BBl 1997 I 436).

N. 2 With the reform of population protection and civil protection through the Federal Act on Population Protection and Civil Protection of 4 October 2002 (CAPA; SR 520.1), civil protection was integrated into a comprehensive population protection system that also includes police, fire service, health service and technical operations. The constitutional basis remained unchanged, but received a contemporary design through legislation.

#2. Systematic Classification

N. 3 Art. 61 FC is located in Section 2 of Title 2 of the Federal Constitution under the heading «Education, Research and Culture». This systematic classification is historically conditioned and not entirely appropriate in terms of content. Substantially, the provision belongs to security law and is closely related to → Art. 57 FC (Security), → Art. 58 FC (Armed Forces) and → Art. 59 FC (Military and Alternative Service).

N. 4 Civil protection is part of Switzerland's comprehensive security system. It complements military national defence through the protection of the civilian population and operates in conjunction with other civilian partner organisations of population protection (police, fire service, health service, technical operations). The allocation of powers follows the federalist principle: the Confederation regulates, the cantons implement (→ Art. 46 FC).

#3. Elements of the Offence / Normative Content

#a) Legislative Power (Para. 1)

N. 5 Para. 1 assigns to the Confederation exclusive legislative power for civilian protection against armed conflicts. The term «armed conflict» encompasses both international and non-international armed confrontations within the meaning of international humanitarian law. The power is comprehensive and excludes cantonal regulations in this area (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 61 N. 3).

N. 6 «Civilian protection» encompasses all non-military measures for the protection of the population, in particular protective structures, alarm and warning systems, evacuation plans as well as the organisation and training of civil protection personnel. The demarcation from military defence (→ Art. 58 FC) is functional: civil protection protects the population, the army repels the attack.

#b) Disasters and Emergency Situations (Para. 2)

N. 7 Para. 2 extends federal power to the deployment of civil protection in disasters and emergency situations. This power is not exclusive but concurrent: the cantons retain their responsibilities in the area of disaster relief insofar as the Confederation does not enact regulations (→ Art. 3 FC).

N. 8 «Disasters» are events triggered by natural forces, technical accidents or other causes that exceed the ordinary means of the affected communities. «Emergency situations» are extraordinary situations that entail increased danger to the population without reaching the scale of a disaster. The terms are to be understood broadly and also encompass pandemics, large-scale power outages or cyber attacks on critical infrastructures.

#c) Mandatory and Voluntary Protection Service (Para. 3)

N. 9 According to para. 3, the Confederation may declare protection service mandatory for men, which it has done with Art. 11 ff. CAPA. The obligation to perform protection service is an independent service obligation alongside military service obligation (→ Art. 59 FC). It begins at the age of 20 and generally lasts until the age of 40.

N. 10 For women, protection service is voluntary. This gender-specific differentiation is constitutionally permissible because Art. 61 para. 3 FC as lex specialis takes precedence over the general equality requirement (→ Art. 8 para. 3 FC). Women may volunteer for civil protection and then have the same rights and obligations as male persons liable for protection service.

#d) Income Compensation (Para. 4)

N. 11 Para. 4 obliges the Confederation to enact provisions on adequate compensation for loss of income. This obligation has been implemented through the Income Compensation Act (ECA; SR 834.1). The income compensation must be «adequate», which implies a certain scope for discretion by the legislature. According to case law, «adequate» does not mean complete compensation but fair remuneration taking into account public interests and financial possibilities (BGE 138 V 324 E. 5.2).

#e) Indemnification (Para. 5)

N. 12 Persons who suffer harm to their health or lose their lives in protection service have, according to para. 5, a right for themselves or their relatives to adequate support from the Confederation. This provision establishes a direct constitutional claim that is enforceable even without legislative specification (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 892).

N. 13 The term «adequate support» encompasses both financial benefits and benefits in kind such as medical treatment or rehabilitation. Adequacy is determined according to the damage suffered, personal circumstances and the degree of fault. Legislative implementation is carried out through military insurance, which also applies to civil protection personnel.

#4. Legal Consequences

N. 14 The legislative powers under para. 1 and 2 authorise and oblige the Confederation to enact corresponding laws. The most important implementing legislation is the CAPA. The cantons are bound by federal legislation and obliged to implement it (→ Art. 49 FC).

N. 15 The obligation to perform protection service under para. 3 establishes for the affected men a public law duty that can be enforced with coercive measures. Non-compliance with call-ups is punishable (Art. 88 CAPA). Women may volunteer, but are then subject to the same obligations.

N. 16 The claims under para. 4 and 5 are subjective public rights that are judicially enforceable. The legal remedy is governed by the relevant procedural laws (ECA or Military Insurance Act).

#5. Controversial Issues

N. 17 In doctrine, it is disputed whether federal power under para. 2 also encompasses preventive measures to prevent disasters. Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1456) answer in the affirmative with the argument that effective population protection begins with prevention. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3842) take a more restrictive interpretation and limit the power to dealing with events that have occurred.

N. 18 The question of whether the gender-specific regulation in para. 3 is still contemporary is also controversially discussed. Müller/Schefer (op. cit., p. 456) argue de lege ferenda for a gender-neutral formulation with reference to → Art. 8 para. 3 FC. The prevailing doctrine maintains the permissibility of the differentiation because the constitution explicitly provides for it.

N. 19 Regarding the amount of income compensation under para. 4, opinions differ. While part of the doctrine demands full income compensation analogous to military service (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 42 N. 18), case law considers a reduced approach constitutionally compliant as long as it is not disproportionately low (BGE 138 V 324).

#6. Practical Notes

N. 20 When applying Art. 61 FC, attention must be paid to the close interconnection with the CAPA. The constitutional concepts are specified by legislation and must be interpreted in light of the current threat situation.

N. 21 Relevant for practice is the demarcation between civil protection and other population protection organisations. While civil protection is regulated by federal law, fire service and medical service are primarily subject to cantonal law. In joint operations, the different legal bases and responsibilities must be observed.

N. 22 Disputes over the obligation to perform protection service are frequent. Administrative authorities must carefully examine personal circumstances, particularly in applications for service deferral or exemption, and ensure proportionality (→ Art. 5 para. 2 FC).

N. 23 In assessing income compensation and damages, reference should be made to case law on military insurance, which is applicable by analogy. «Adequacy» must be determined in individual cases taking into account all circumstances.

#I. Constitutional Foundations

#Allocation of Competences and National Defence

BGE 115 Ia 277 of 3 May 1989 (constitutional complaint) Coordinated medical service and service obligation for medical personnel in case of disaster The Federal Court established fundamentally that the Confederation does not have exclusive legislative authority in the field of national defence, but only has a leadership and coordination function.

«From this concept, on which the Basel-Landschaft legislature obviously relied when creating §§ 26-32 ZKG, it is clear that by no means every medical care provided within the framework of the coordinated medical service is to be assigned to civil defence and is covered by Art. 22bis BV. Coordinated medical service is a cooperation of various independent partners in the medical service field in case of warlike events.»

#Service Obligation and Fundamental Rights

BGE 115 Ia 277 (E. 8) The Court held that the creation of a service obligation is not disproportionate and does not violate the right to personal freedom if it can be foreseen that in case of disaster or war, the canton cannot meet the need for medically trained personnel through voluntary services.

«However, almost consistently poor experiences have been made with training services on a voluntary basis both in the Canton of Basel-Landschaft and throughout Switzerland. [...] In this situation, the Basel-Landschaft legislature cannot be reproached for wanting to secure the hospital personnel needed to maintain public healthcare through a service and training obligation.»

#Gender-Specific Service Obligation

Judgment WE.2013.2 of the Tax Appeal Court of Zurich of 2 October 2013 Constitutional conformity of gender-specific military service obligation The Court dismissed a constitutional complaint against military service obligation applying only to men.

«Military service obligation only for men and not also for women, and thus the levying of the military service replacement levy only from the former, violates neither the FC nor international law.»

#II. Income Replacement and Compensation

#Entitlement to Loss of Earnings Compensation

BGE 138 V 324 of 18 June 2012 (9C_650/2011) Loss of earnings compensation for civil defence deployments for the benefit of the community The Federal Court defined the requirements for loss of earnings compensation for civil defence service according to Art. 61 para. 4 FC.

«According to the clear wording of Art. 1a para. 3 EOG, the entitlement to compensation for loss of earnings is exclusively linked to the entitlement to pay.»

The decision clarified that entitlement to pay generally cannot be refused on the grounds that the authorisation required for the service is insufficient.

#Recovery of Unlawfully Paid Compensation

Judgments 9C_534/2009, 9C_612/2011, 9C_649/2011 of 4 February 2010 and 28 June 2012 respectively Restitution of protection service days wrongfully invoiced via the EO Several parallel proceedings concerned the recovery of loss of earnings compensation for unlawfully invoiced civil defence service days.

The Federal Court confirmed the recovery authority of the compensation funds in cases of erroneously paid compensation.

#III. Protective Structures and Construction Measures

#Subsidies for Protective Facilities

BGE 122 II 382 of 5 July 1996 (administrative court complaint) Federal subsidies for public shelters and standing to appeal The Court clarified the authority to appeal in subsidy disputes.

«The municipality is entitled to file an administrative court complaint as subsidy applicant.»

BGE 112 Ib 358 of 7 November 1986 Replacement contribution for alterations under the Federal Act on Construction Measures in Civil Defence The Federal Court defined the requirements for qualification as a substantial alteration.

#Abolition of Shelters

Judgment A-62/2022 of the Federal Administrative Court of 7 June 2023 Abolition of a shelter - administrative procedure The FAC dealt with an application for abolition of a private shelter due to change of use.

Judgment PVG 2023 13 of the Administrative Court of Graubünden of 7 November 2024 Competence for shelter abolition The cantonal administrative court declined jurisdiction and referred the case to the Federal Administrative Court.

#IV. Criminal Law and Enforcement

#Violations of the Civil Protection Act

Judgment SB.2020.4 of the Court of Appeal of Basel-Stadt of 10 September 2020 Offence against the BZG - elements of the offence The Court confirmed the criminal liability for wilful non-compliance with a lawful civil defence call-up.

Judgment SK 2024 400 of the Regional Court of Bern-Mittelland of 12 May 2025 Violation of the BZG - intent and culpability A recent decision on criminal liability for breaches of civil defence obligations.

BGE 98 IV 231 of 7 September 1972 Civil defence call-up and lawfulness requirements The Federal Court held that a call-up for protection service is only legally valid if it is addressed to a person already assigned to civil defence service.

#V. Historical Development

#Early Civil Defence Case Law

BGE 99 Ib 60 of 2 February 1973 Subsidisation of civil defence facilities under the old Civil Defence Act Fundamental decision on the legality of the Civil Defence Ordinance.

BGE 99 IV 246 of 1973 Civil defence service obligation and illness The Court established that persons already assigned to civil defence who fail to comply with a course call-up due to illness generally cannot be punished.

BGE 99 Ib 459 of 14 December 1973 Revocation of subsidy decisions in civil defence The Federal Office for Civil Defence was allowed to withdraw from legally binding contribution commitments if the contribution-eligible costs had been set too high.