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V v. Einwohrnergemeine X und Regierunsgrat des Kantons Bern

V v. Einwohrnergemeine X und Regierunsgrat des Kantons Bern

Swiss Federal Court, BGE/ATF 121 I 367; 27 October 1995

Keywords: Positive right, minimum level of dignity, resource allocation, constitutional law, national court, nationality 

In September 1991 three brothers illegally re-entered Switzerland. It was impossible to re-expel the brothers since the now-Czech Republic had rescinded their citizenship. The brothers were denied social support/welfare on the basis of their illegal status. Note. See cases on discrimination on the basis of nationality such as Dilcia Yean and Violeta Bosica v Dominican Republic.

 The Court determined there was an implied constitutional right to a basic minimum level of subsistence. The right was not to be equated to a minimum level of income but rather that which 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. 

The Court found that requiring the State to spend money in guaranteeing this right is justified should it be possible to clearly define what was required and the necessary means and procedures to inplement such claims are available.

Note. See case of Purohit and Moore v Gambia in the progressive realisation without discrimination section for another example of where the materials or systems are already in place. 

The Court acknowledged its lack of legal competence to determine resource allocation but said it would set aside legislation if the outcome failed to meet the minimum level of subsistence required by constitutional rights.
Right to education relevance – an example of how despite the fact that courts might not wish to get too involved in policy decisions, if a government is creating law that results in a failure to meet the minimum level of education provision required by their constitution, the court might be prepared to set-aside such violation.