Proportionality and the Swiss Courts

Abstract This chapter explains proportionality as a legal principle using the example of Swiss law and analyzes its application by the Swiss Federal Supreme Court (FSC) regarding the COVID-19 pandemic measures. The principle of proportionality was put to the test during the pandemic when the government imposed severe restrictions on a broad range of fundamental rights in order to combat the spread of the virus. This contribution discusses the challenges of applying proportionality in times of crisis, the (self-imposed) limits of judicial review, and the issue of providing comprehensive protection while not losing sight of society’s most vulnerable groups. It argues that the FSC could have been more assertive and clearer in its pronouncements on the constitutionality of the pandemic measures, especially regarding the protection of vulnerable groups.