Legal Order: Criminal Law, Civil Law, Police and Fundamental Rights
What this domain tests
You need the hierarchy of norms, the difference between civil and criminal proceedings, the main codes with their dates, and the conditions under which the state may restrict a fundamental right.
Hierarchy and codes
Federal Constitution, then federal statutes, then cantonal constitution, then cantonal statutes, then ordinances. The key private-law code is the Civil Code (ZGB, 1907, in force 1912) with the Code of Obligations (OR, 1881); criminal law is in the Criminal Code (StGB, 1937, in force 1942). Since 2011 unified federal codes govern procedure (ZPO and StPO), so procedure no longer differs radically between cantons. Cantons still organise their courts and police.
Civil versus criminal
- Civil: disputes between private parties about contracts, tenancy, employment, family or property; the claimant sues, the Friedensrichter attempts conciliation first, costs follow the losing party.
- Criminal: the state prosecutes an offence; the Staatsanwaltschaft investigates, the Strafgericht tries; the presumption of innocence applies, and only a court may impose a penalty. Minor breaches may be settled by Ordnungsbusse on the spot.
Fundamental rights
Articles 7–36 BV guarantee human dignity, equality, protection of privacy, freedom of religion, opinion and media, property and economic freedom. A restriction is lawful only if it has a legal basis, serves a public interest, is proportionate and does not touch the core of the right. The death penalty is abolished.
Police and arrest
Kantonspolizei Basel-Stadt acts under the cantonal police law and the principle of proportionality. A detained person must be brought before a judge – in Basel-Stadt the Zwangsmassnahmengericht – within the statutory limit, and has the right to a lawyer and to remain silent. Legal aid (unentgeltliche Rechtspflege) covers those unable to pay.
Worked example
A neighbour plays loud music at 2 a.m. Reasoning: three routes exist. Politely ask first; call the police for breach of night quiet, which is an administrative offence; or, if the noise persists, sue in civil law for excessive immissions under Article 684 ZGB. Police action is quicker but does not produce damages; the civil claim can. Choosing the wrong route is a common exam mistake.
Traps that cost marks
Do not assume American-style juries or a constitutional court. Do not mix criminal and civil outcomes. Do not treat proportionality as optional – it is the central test for every restriction of a right.