V. v. Einwohnergemeinde X. und Regierungsrat des Kantons Bern (BGE/ATF 121 I 367) Swiss Federal Court
Three Czechs who were illegally residing in Switzerland challenged the denial of access to social welfare benefit; rights of non-nationals to social security; constitutional right to minimum conditions of existence implied from civil and political rights; justiciability of claims involving resource allocation.
Three brothers (V) lived in Switzerland from 1980 as recognised refugees. In 1987, they were expelled from Switzerland to Czechoslovakia for criminal offences. In September 1991, they illegally re-entered Switzerland. It was impossible for Switzerland to re-expel the brothers since the now Czech Republic had rescinded their citizenship but they were denied social support/welfare on the basis of their illegal status. The Court held that the exclusion of three non-nationals was a violation of an implied constitutional right to “conditions minimales d'existence” (basic minimum level of subsistence). This right was a condition for the exercise of other written constitutional rights - the right to life (“a core content of personal freedom, which would no longer be guaranteed were the most minimum prerequisites for survival not guaranteed”) human dignity (“which guarantees every person what they can expect from the community because of their humanity”); and the equality principle (“seen as also having the function of guaranteeing minimum material justice”). A sufficient societal consensus for such an implication was found, particularly given the constitutional principle of human dignity. The right was not be equated to a minimum level of income but rather what was necessary for a dignified human existence that prevented an undignified beggar's existence. The right can be invoked by both Swiss citizens and foreigners since it is a fundamental right based on human rights. The Court found that ‘positive' claims upon State expenditure, arising from this right, are justiciable if they are capable of being normatively defined and the judge has the necessary means and procedures to concretise and implement such claims. At the same time, the Court limited the scope of its potential to intervene by acknowledging it lacked the legal competence to set priorities for the allocation of resources. It nevertheless determined it would set aside relevant legislation when the outcome of the legislative framework failed to meet the minimum claim required by constitutional rights.
Keywords: V. v. Einwohnergemeinde X. und Regierungsrat des Kantons Bern (BGE/ATF 121 I 367) Swiss Federal Court, Equality, Nondiscrimination
The revised Swiss Constitution (2000) now provides for a right to aid in distress. Article 12 states that “Whoever is in distress without the ability to take care of him- or herself has the right to help and assistance and to the means indispensable for a life led in human dignity”. http://www.uni-wuerzburg.de/law/sz00000_.html
Advocate Peter Huber Advokaturbüro Belpstr. 16 3007 Bern Switzerland
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The case is significant since it indicates that the minimum core of economic and social rights can be derived from traditional civil and political rights. The court's reasoning on its role with respect to questions of resource allocation is also important since it notes that the judiciary will defer to the executive on such matters except when the state fails to provide the minimum claims guaranteed under the constitution.