Chapter 15 - Switzerland: The Substitute Constitution in Times of Popular Dissent

Summary

Recently, criticism of the ECtHR has taken on quite a drastic tone in Switzerland. The criticism is largely confined to the political sphere and the media. For example, some commentators called the practice or particular judgments of the ECtHR “bizarre” (concerning the interpretation of the right to a rejoinder), “unworldly” (relating to the judgment in the case of Hadri-Vionnet), or as being “at the limit of comprehensibility” (concerning the practice of the ECtHR in child abduction cases). In academic articles, criticism is sometimes couched in somewhat more subtle terms such as “human rights vs. legality” or “sacralisation of the law vs. primacy of politics”. In singular cases, criticism of individual ECtHR judgments against Switzerland even resorted to polemical language.

While the current political debate on Switzerland's relationship to the Convention system is characterised by a harsh tone, there is a consensus among the major political parties, the Swiss government as well as the majority of Swiss academics that the ECtHR performs a crucial function with regard to the protection of democracy, freedom and the rule of law. A recent attempt by a member of the Federal Council (the Swiss government) directed at terminating ECHR membership, failed to gain the approval of the other Council members. In addition, there have been repeated interventions by non-governmental organisations (e.g. Amnesty International Switzerland), several civil society associations (e.g. foraus, Verein “Unser Recht”, Informationsplattform humanrights.ch), and academic think tanks (e.g. the Swiss Centre of Expertise in Human Rights) stressing the importance of the Convention protection mechanism for Switzerland. Nevertheless, it is not unlikely that the present critical debate will result in changes of Swiss law, cutting back on the direct and the indirect domestic influence of the ECtHR on the Swiss legal order.

CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

CRITICISM IN THE MEDIA, ACADEMIA, POLITICAL ARENA, AND THE JUDICIARY

High-circulation media in Switzerland presents, on the whole, a balanced view of the debate on the ECtHR. Usually, newspapers like “Blick”, “Tagesanzeiger” and “Neue Zürcher Zeitung” try to picture the full range of opinions of the political spectrum.