The Right to Be Heard in Administrative Procedure

Constitutional Foundation

Guaranteed by art. 29 para. 2 FC and art. 29 APA. The Federal Supreme Court qualifies it as a formal constitutional right: its violation in principle leads to annulment of the decision, regardless of its substantive merits (ATF 137 I 195).

Content

Right to Express Oneself

Before any decision is taken (ATF 135 II 286). Opportunity to present arguments, in writing or orally.

Right to Access the File (art. 26 APA)

Access to documents underlying the decision. Restrictions possible for overriding public interest (art. 27 APA).

Right to Evidence

Right to propose relevant evidence (witnesses, experts, documents). The authority may dispense with evidence by anticipatory assessment if it would not alter its conviction (ATF 141 I 60).

Right to a Reasoned Decision

The decision must be sufficiently reasoned to allow the addressee to understand the reasons and challenge it effectively. The authority need not address every argument but must treat essential points (ATF 143 III 65).

Right to Participate in Evidence Administration

Right to attend witness hearings and ask questions.

Violation: Consequences

Annulment

In principle, the decision is annulled and remanded for a new decision after respecting the right to be heard.

Healing

Exceptionally, the violation may be healed if (ATF 137 I 195): the violation is not serious, the appeal authority has the same review power, and the person could express themselves before the appeal authority. Healing remains the exception (ATF 142 II 218).

Practical Applications

Tax: right to access tax file and express oneself before reassessment. Immigration: before revoking a permit, the authority must hear the person (ATF 144 I 11). Public employment: before public-law dismissal, the employer must respect the right to be heard.