Human dignity must be respected and protected.
Summary
Article 7 of the Federal Constitution protects the dignity of every human being. This dignity is inalienable and belongs to all people. It forms the foundation of all other fundamental rights in the Constitution.
Human dignity has two important aspects: the state must respect and protect it. Respecting means that state authorities may never treat people like objects. Protecting means that the state must also safeguard people from attacks by other persons.
Human dignity is absolutely protected. This means it can never be restricted - not even in emergency situations or to protect other important interests. Other fundamental rights can be limited under certain conditions, but human dignity never.
In practice, human dignity is particularly important in medical coercive measures. No one may be treated against their will, unless there is a very clear law and all other means are exhausted. Human dignity also plays a central role in social assistance: every person has the right to what is necessary for life.
A practical example: If a person in a nursing home is to receive medication against their will, strict conditions must be met. There must be a clear legal basis, the intervention must be proportionate and all milder means must have been tried beforehand.
Human dignity also has effect between private parties. Media may not treat people merely as objects. In cases of secret recordings or degrading reporting, those affected can invoke their dignity.
Particularly problematic are situations where people are discriminated against because of their origin or religion. Racist statements violate human dignity when they attribute lesser value to people.
Art. 7 FC — Human Dignity
#Doctrine
#1. Legislative History
N. 1 Art. 7 FC is a new creation of the constitutional reform of 1999. The old Federal Constitution of 1874 contained no explicit guarantee of human dignity; only Art. 119 para. 2 oFC (reproductive medicine and genetic technology) and Art. 119a para. 1 oFC (transplantation medicine) contained sector-specific references. The Federal Supreme Court had already previously recognised human dignity as a general protected interest and a general constitutional principle, and had invoked it in connection with the unwritten fundamental right of personal liberty (cf. BGE 97 I 45 cons. 3).
N. 2 The Federal Council set out the conception of the provision comprehensively in its Message on the Federal Constitution of 20 November 1996 (BBl 1997 I 139 ff.). It described human dignity as the «core and reference point of other fundamental rights», which outline their substance and serve as a guiding standard for their concretisation. Art. 7 FC constitutes «in a sense a subsidiary catch-all fundamental right» (BBl 1997 I 140). At the same time, the Federal Council noted that the right to a decent burial (Art. 53 para. 2 oFC) would no longer be expressly included in the new FC, as it was encompassed by human dignity (BBl 1997 I 111).
N. 3 The Federal Council deliberately chose the formulation «to be respected and protected» instead of the absolute formulation «inviolable» or «untouchable», as several respondents in the consultation procedure had demanded and as Art. 1 para. 1 of the German Basic Law provides (BBl 1997 I 141). The dual formulation encodes a twofold structure of State obligations: respect as a duty to refrain (negative aspect) and protection as a duty to act (positive aspect) (BBl 1997 I 563, 590). Human dignity was thus to be conceived not as an absolutely non-derogable right, but as a subsidiary catch-all fundamental right.
N. 4 In the parliamentary deliberations, Art. 7 FC (human dignity) as such was not at the centre of controversy; the debates focused on other provisions of the catalogue of fundamental rights, notably the prohibition of discrimination (→ Art. 8 FC). The final votes in both chambers on 18 December 1998 and in the Council of States and the National Council on 8 October 1999 led to the adoption of the Federal Constitution in its current form.
#2. Systematic Classification
N. 5 Art. 7 FC opens the catalogue of fundamental rights (Art. 7–36 FC) and occupies a special position within it: the provision stands before and above the specific liberty rights and social rights, and shapes the entire fundamental rights order as a foundational value. The Federal Supreme Court qualifies Art. 7 FC as a «guiding principle for all State activity» and the «innermost core» of the liberty rights (BGE 127 I 6 cons. 5b; BGE 132 I 49 cons. 5.1).
N. 6 Unlike the fundamental rights of Art. 10–34 FC, Art. 7 FC is not primarily conceived as a subjective defensive right; rather, it exerts its effect principally through its radiating effect and as a standard of interpretation. Human dignity forms the normative basis for the guarantee of the essential core in Art. 36 para. 4 FC (→ Art. 36 FC) as well as for the prohibition of degrading treatment in Art. 10 para. 3 FC (↔ Art. 10 FC). The right to emergency assistance (→ Art. 12 FC) is, according to consistent case law, directly oriented towards Art. 7 FC (BGE 131 I 166 cons. 7.1).
N. 7 In international law, human dignity finds expression in particular in Art. 1 of the Universal Declaration of Human Rights (UDHR; Resolution 217 A [III] of the UN General Assembly of 10 December 1948), according to which all human beings are born free and equal in dignity and rights. The prohibition of inhuman or degrading treatment is set out in Art. 3 ECHR and Art. 7 UN Covenant II (SR 0.103.2), which the Federal Supreme Court regularly invokes alongside Art. 7 FC (BBl 1997 I 139 f.; BGE 127 I 6 cons. 5c–e).
N. 8 Human dignity is furthermore expressly enshrined in specific subject-matter areas: Art. 119 para. 2 FC (reproductive medicine), Art. 119a para. 1 FC (transplantation medicine), Art. 120 FC (genetic technology in non-human areas). These sector-specific guarantees give concrete expression to Art. 7 FC without displacing it.
#3. Elements of the Provision / Normative Content
N. 9 According to its wording, Art. 7 FC contains an instruction to the State («to be respected and protected»), rather than a classical guarantee of rights for the individual. Since BGE 127 I 6 cons. 5b, the Federal Supreme Court has developed a three-part doctrine of functions:
- Guiding principle: Art. 7 FC is a standard for all State activity and a maxim of interpretation for all other fundamental rights.
- Innermost core of the liberty rights: Art. 7 FC forms the normative basis of personality-related fundamental rights and underpins the guarantee of the essential core in Art. 36 para. 4 FC.
- Subsidiary catch-all fundamental right: Art. 7 FC can, in specially situated constellations, develop an autonomous fundamental rights content that goes beyond the more specific guarantees (BBl 1997 I 140 f.; BGE 132 I 49 cons. 5.1).
N. 10 The substantive content of human dignity resists any definitive positive determination. The Federal Supreme Court describes it in BGE 132 I 49 cons. 5.1 as «that which is ultimately ungraspable about the human being and humanity», oriented towards «recognition of the individual in his or her own inherent worth and individual uniqueness and possible distinctiveness». This openness of the normative content is conceptually intentional: Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 1 describe human dignity as the supreme constitutive principle to which the other fundamental rights owe the quality of their binding force.
N. 11 The duty to respect (negative aspect) obliges the State to refrain from encroachments on human dignity. It is most clearly relevant in constellations of inhuman or degrading treatment — for example in conditions of detention (BGE 140 I 125 cons. 3.6.3), compulsory treatment (BGE 130 I 16 cons. 3), and deportation proceedings. The duty to protect (positive aspect) obliges the State to take active steps where dignity is threatened by private or structural factors.
N. 12 Concrete fields of application of the autonomous human dignity guarantee, according to the Message and case law, include: conditions of detention, interrogation methods, extradition, compulsory medical measures, genetic technology, and areas of extreme social destitution. The overlap with Art. 3 ECHR (prohibition of torture and inhuman treatment) is considerable and is regularly examined in parallel by the Federal Supreme Court (BGE 127 I 6 cons. 5c).
#4. Legal Consequences
N. 13 Art. 7 FC operates primarily as an objective-law principle and standard of interpretation. By virtue of its subsidiary character, the rule is that insofar as a more specific fundamental right (Art. 10–34 FC) is applicable, persons concerned can as a rule derive nothing to their advantage from invoking Art. 7 FC independently (BGE 132 I 49 cons. 5.1). The Federal Supreme Court expressly states: «For specially situated constellations, human dignity may have an autonomous content» — this presupposes, however, that the more specific fundamental rights do not provide sufficient protection.
N. 14 As an autonomous catch-all fundamental right, Art. 7 FC produces subjective-law effects in particular in areas not covered by any other constitutional guarantee. The Federal Council expressly described this in the Message as a «subsidiary catch-all fundamental right» (BBl 1997 I 140). Judicial enforceability in this area is recognised; however, practice restricts the autonomous invocation to manifestly dignity-violating treatment.
N. 15 The connection between Art. 7 FC and Art. 12 FC (right to assistance in situations of need) is fundamental: the minimum subsistence level under Art. 12 FC is «oriented towards the preservation of human dignity» (BGE 131 I 166 cons. 7.1). It follows that the denial of emergency assistance — even in relation to persons who fail to comply with their obligations under aliens law — is incompatible with human dignity: «It proves incompatible with human dignity (cf. Art. 7 FC), towards the preservation of which Art. 12 FC is oriented, if the survival of the persons affected is placed in question by the exclusion from emergency assistance» (BGE 131 I 166 cons. 7.1).
N. 16 In the area of serious encroachments on fundamental rights — notably in the case of compulsory medical treatment — Art. 7 FC, together with Art. 10 para. 2 FC, requires a «complete and comprehensive weighing of the interests at stake» (BGE 130 I 16 cons. 5.4). Human dignity thereby constitutes an independent dimension of review, which stands alongside the proportionality assessment under Art. 36 FC.
#5. Contested Issues
N. 17 Holders of the right (subjects of fundamental rights). It is undisputed that Art. 7 FC applies to all human beings regardless of nationality, age, or capacity of judgement. It is contested whether legal persons, groups, or — in bioethical contexts — the nasciturus are also entitled to the protection of human dignity. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 195 affirm that the universal human dignity guarantee is an exclusively individual right. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862 emphasise the anthropocentric character of the guarantee. For particularly vulnerable groups — such as persons with intellectual disabilities — the Federal Supreme Court has expressly held in BGE 139 I 169 cons. 7.2.1 that the prohibition of discrimination «also encompasses aspects of human dignity under Art. 7 FC», which underlines the close connection between Art. 7 and Art. 8 para. 2 FC (↔ Art. 8 FC).
N. 18 Restrictability of human dignity. A fundamental dispute exists as to whether human dignity — unlike Art. 1 para. 1 of the German Basic Law — is subject to restriction. The Message deliberately rejected the formulation «inviolable» (BBl 1997 I 141). Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 4 f. argue that the essential core of human dignity is absolutely inviolable (→ Art. 36 para. 4 FC), while peripheral aspects may be open to balancing. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1872 emphasise that the scope of protection and the essential core of Art. 7 FC — similarly to Art. 12 FC — largely coincide, thus practically excluding any restrictions. The Federal Supreme Court left this question open in BGE 127 I 6 cons. 9e, but found that a compulsory medical treatment carried out in accordance with medical rules as a form of assistance «does not encroach on the core area of human dignity».
N. 19 Relationship to Art. 10 para. 3 FC (prohibition of torture). Art. 10 para. 3 FC expressly prohibits torture and any form of cruel, inhuman, or degrading treatment. According to the prevailing doctrine, this prohibition is absolute and corresponds to Art. 3 ECHR and Art. 7 UN Covenant II. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 369 regard Art. 10 para. 3 FC as a sector-specific concretisation of Art. 7 FC, without Art. 7 FC thereby losing its autonomous scope of application. It is contested whether, for particularly serious violations of dignity falling below the threshold of Art. 10 para. 3 FC, an independent recourse to Art. 7 FC remains possible.
N. 20 Subsidiarity in practice. It is disputed how narrowly the subsidiary character of Art. 7 FC as a catch-all fundamental right is to be understood. BGE 132 I 49 cons. 5.1 confirms that independent reliance on Art. 7 FC is precluded where more specific fundamental rights are applicable. Tschentscher has critically noted in the literature (ZBJV 141/2005 p. 655) that this restrictive approach considerably limits the practical relevance of Art. 7 FC as a subjective right. The Federal Supreme Court holds, in contrast, that Art. 7 FC exerts its principal effect as a standard of interpretation and concretisation for all other fundamental rights and has permanent significance in this function (BGE 127 I 6 cons. 5b).
N. 21 Human dignity and prohibition of begging. In BGE 149 I 248 cons. 4.3, 4.6.3, the Federal Supreme Court recently clarified that in cases of prohibitions on begging «aspects of human dignity (pursuant to Art. 7 FC) are to be taken into consideration», without Art. 7 FC serving as an independent standard of review. The primary standard remains Art. 10 para. 2 FC (personal liberty) in conjunction with Art. 8 ECHR (right to private life). It is impermissible to characterise begging as «undignified behaviour» and thereby to reverse the protective effect of fundamental rights to the detriment of those who beg (BGE 149 I 248 cons. 4.6.3). This case law confirms and extends the findings of BGE 134 I 214 cons. 5.3.
#6. Practical Guidance
N. 22 Approach when examining a violation of dignity. Art. 7 FC should not ordinarily be invoked in isolation. Before examining a direct reliance on Art. 7 FC, it must always be clarified whether a more specific fundamental right is applicable. The following are to be considered in particular: Art. 10 para. 2 FC (personal liberty), Art. 10 para. 3 FC (prohibition of torture), Art. 12 FC (emergency assistance), Art. 13 FC (private and family life), and Art. 8 FC (equality before the law and prohibition of discrimination). Only if these provisions do not afford sufficient protection is an autonomous complaint under Art. 7 FC admissible.
N. 23 Compulsory treatment and deprivation of liberty. In proceedings concerning compulsory psychiatric medication, Art. 7 FC is regularly to be examined alongside Art. 10 para. 2 FC. According to consistent case law, the examination requires a complete balancing of interests encompassing public interests, the necessity of the treatment, alternatives, side effects, and the risk of harm to self and others (BGE 130 I 16 cons. 5.1). The feeling of «heteronomy and helplessness» resulting from treatment carried out against the will of the person concerned affects human dignity «centrally» (BGE 127 I 6 cons. 5g).
N. 24 Conditions of detention. Extreme overcrowding in detention facilities may violate human dignity when combined with further deficiencies — such as confinement for several hours per day (BGE 140 I 125 cons. 3.6.3). Art. 3 ECHR and the case law of the ECtHR also form a benchmark. For practice: even in the case of detention conditions that are legitimate under penal law, respect for human dignity must be observed as an absolute lower limit.
N. 25 Emergency assistance and existential need. Art. 7 FC places an absolute lower limit on State discretion in the area of social assistance: even in cases of breach of obligations under aliens law, emergency assistance may not be used as a means of pressure to achieve migration policy objectives. Withdrawal of the minimum subsistence level is incompatible with Art. 7 FC (BGE 131 I 166 cons. 7.1). In practice, it is to be noted that Art. 12 FC covers the scope of protection and the essential core in a single provision, so that restrictions are precluded (→ Art. 12 FC).
N. 26 Discrimination as a dignity-violating unequal treatment. Acts of discrimination under Art. 8 para. 2 FC always also engage Art. 7 FC, because they are based on characteristics that constitute a significant and difficult-to-abandon element of identity (BGE 132 I 49 cons. 8.1; BGE 139 I 169 cons. 7.2.1). This applies in particular to the exclusion of especially vulnerable groups — such as persons with intellectual disabilities — from legal proceedings in which they should be involved (↔ Art. 8 FC).
N. 27 Recent development: prohibition of begging. In BGE 149 I 248 (2023), the Federal Supreme Court clarified that partially designed prohibitions on begging are not generally disproportionate, but that aspects of human dignity must be taken into account in their design. The blanket prohibition of passive begging in public parks was lifted as disproportionate; the direct conversion of a fixed-penalty fine into a custodial sentence against destitute persons who beg is permissible only if less severe administrative measures have first been exhausted (BGE 149 I 248 cons. 5.4.6 f.). This case law marks the threshold at which a State measure against particularly vulnerable persons is qualified as a violation of dignity.
Case Law
#Fundamental Significance and Scope of Application
#Human Dignity as Foundation of the Legal System
BGE 130 I 16 E. 3 (7 January 2004)
Forced medication in psychiatric hospitals as central interference with human dignity.
The judgment establishes Art. 7 Cst. as constitutional fundamental norm for particularly serious fundamental rights interferences.
«A forced medication constitutes a serious interference with personal liberty and affects human dignity centrally.»
BGE 132 I 49 E. 5.1 (25 January 2006)
Expulsion and restraining orders; relationship of human dignity to more specific fundamental rights.
Fundamental judgment on the independent significance of Art. 7 Cst. compared to other fundamental rights.
«Human dignity has generally the significance of a guiding principle for any state activity, forms as innermost core at the same time the foundation of liberty rights, serves their interpretation and concretisation and is a catch-all fundamental right.»
#Independent Invocation of Human Dignity
#No independent invocation in police measures
BGE 132 I 49 E. 5.1 (25 January 2006)
Expulsion orders against persons in alcohol-consuming gatherings.
Important principle on the subsidiarity of Art. 7 Cst. compared to more specific fundamental rights.
«From an independent invocation of human dignity (Art. 7 Cst.) the affected persons cannot derive anything in their favour; they can rely on freedom of assembly (Art. 22 Cst.), personal liberty (Art. 10 para. 2 Cst.), the prohibition of discrimination (Art. 8 para. 2 Cst.) and the prohibition of arbitrariness (Art. 9 Cst.).»
#Human Dignity and Emergency Assistance
#Right to dignified existence
BGE 131 I 166 E. 5.2 (18 March 2005)
Emergency assistance for asylum seekers with non-entry decision; minimum standards of social assistance.
Fundamental judgment on the connection between Art. 7 and Art. 12 Cst.
«Personal liberty can be invoked for a minimal duty of care as well as the claim to minimal help and care according to Art. 12 Cst. These starting points are ultimately based on the commandment of respect and protection of human dignity in the sense of Art. 7 Cst.»
BGE 139 I 272 E. 3 (22 November 2013)
Accommodation in civil protection shelters as emergency assistance for a healthy single man.
Concretisation of minimum requirements for dignified accommodation.
«For a single man in good health, the fact that he must spend the night in a civil defence air raid shelter does not contradict the minimal requirements guaranteed by Art. 12 Cst. and in particular does not violate the right to respect for human dignity.»
#Human Dignity in Prison and Deprivation of Liberty
#Prison conditions and inhuman treatment
BGE 140 I 125 E. 3.6.3 (26 February 2014)
Overcrowding in Champ-Dollon prison as violation of human dignity.
Clarification of minimum standards for prison conditions in case of extreme overcrowding.
«The occupation of a cell designed for three persons with a gross area of 23 m² by six inmates can violate human dignity if it lasts almost three months and is accompanied by other deficiencies, such as confinement to the cell for 23 hours per day.»
#Work obligation in prison
BGE 139 I 180 E. 2 (18 July 2013)
Constitutionality of work obligation for prisoners of all age groups.
Confirmation that work obligation does not violate Art. 7 Cst.
«The obligation of the prisoner to work violates neither federal nor constitutional law. It applies regardless of the age of the prisoner.»
#Personal Liberty and Medical Treatment
#Forced medication in psychiatric hospitals
BGE 130 I 16 E. 5 (7 January 2004)
Proportionality test in forced medication.
Comprehensive balancing of interests required for serious interferences with human dignity.
«Given the severity of the fundamental rights interference, constitutional law requires a complete and comprehensive weighing of the interests at stake: public interests, necessity of treatment, effects of non-treatment, examination of alternatives, assessment of danger to self and others.»
#Discrimination and Human Dignity
#Naturalisation procedures and arbitrariness
BGE 129 I 232 E. 3 (9 July 2003)
Invalidity of naturalisation initiatives without possibility of justification.
Connection of procedural guarantees with respect for human dignity.
«Rejecting naturalisation decisions are subject to the duty to give reasons according to Art. 29 para. 2 Cst. (right to be heard) in connection with Art. 8 para. 2 Cst. (prohibition of discrimination). In ballot voting, a justification meeting constitutional requirements is not possible.»
BGE 139 I 169 E. 6 (13 May 2013)
Discriminatory refusal of naturalisation towards mentally disabled persons.
Protection of human dignity for particularly vulnerable groups of persons.
«To exclude mentally disabled persons from naturalisation for lack of own will to naturalise does not correspond to the legal order and proves to be discriminatory due to the general effect thereby connected.»
#Recent Developments
#Begging ban and personal liberty
BGE 149 I 248 E. 4 (13 March 2023)
Partial begging ban in Basel-City; relationship to personal liberty.
Current case law on the delimitation between human dignity and other fundamental rights.
«Begging falls within the scope of protection of the fundamental right to personal liberty or the right to respect for private life. A partial begging ban interferes with these rights and must fulfil the corresponding requirements.»