Period III newsletter

The Session Hall of the Federal Court. Photo: https://www.bger.ch

The Swiss Federal Court

The old Swiss Confederation or Eidgenossenschaft was a loose and complex agreement between cantons. The origins of the cooperation go back to the thirteenth century, but it was not until 1848 that the federal constitution formalized the relations between the cantons.

There was no federal supreme jurisdictional authority until this time and when a dispute arose between two or more cantons, the conflict was resolved by good services, mediation by third parties or by warfare. Religious, political or economic conflicts,  the military dominance of German cities and cantons and the international political situation occasionally led to civil war or warfare against the House of Habsburg, the Duke of Burgundy or the Duke of Savoie.

Switzerland didn’t differ from other regions without central royal authority, like the Netherlands after its formal independence in 1648 or the Italian city states. The French occupation of the old Confederation in 1798 and the creation of the Helvetic Republic was the occasion for establishing the first supreme court (Oberster Gerichtshof).

Each canton appointed a judge, the registrar, president and public prosecutor were appointed by the central government. The court did not survive the end of the Helvetic Republic and was abolished in 1803. Conflicts between cantons were once again resolved through arbitration or at a session of the assembly of the cantons’ representative body (Tagsatzung).

After a brief civil war in 1847 (Sonderbundskrieg) the Swiss federal state was founded in 1848, including a federal court, though with a limited federal jurisdiction. One typical Swiss characteristic of this Court is the primary of the parliament. It was not envisaged that the Court should become a major actor in Swiss public life. This is reflected in the political background and appointments of the judges.

The political background, prestige and weight of the judges and the guarantees for their independence (their career could not be jeopardized nor were they subject to any government control) functioned relatively well, perhaps due to the democratic tradition of the Swiss cantons. It prevented a class of judges that acted isolated from society. From this point of view the system reflects the direct democracy of the Swiss political model.

The position of the Court was considerably strengthened by the constitutional reform  of 1874. The main reason for this reform was to develop a system of unitarian public, civil and criminal justice. The federal state had the power to unify private law, while in the area of public law, the Court was allocated the task of dealing with conflicts of jurisdiction between the federal and cantons’authorities, conflicts on public law between the cantons and claims by individuals for violation of constitutional rights, and with cases related to treaties. As a gesture to the French cantons, that had joined the federation in 1815, the Court was moved to Lausanne, where it is still today. Since 1874, the federal jurisdiction has been continuously extended and the Federal Supreme  Court has the final say in civil-, public-, criminal-, social and constitutional law and ensures the uniform application of the law in the 26 cantons.

The seats are in Lausanne and Lucerne (social security law). The Court is also the administrative supervisory authority of the three federal courts of first instance: the Federal Criminal Court in Bellizona, and the Federal Administrative and the Federal Patent Court in St. Gallen. The Court renders its rulings in the language of the decision being contested. The parties to the proceeding are free to draft their petitions in one of Switzerland’s four languages (Italian, French, German, Romansh).

The judges are appointed by parliament. The selection of candidates is decided within each political party. Although the professional qualities, experience and career of the candidate are decisive factors, the parliament and not the bureaucratic career has the last say.

It apparently functions rather well. The deeply rooted democracy and system of checks and balances is an adequate safeguard and the Swiss court system evolved to a well functioning apparatus in a multilingual federation. (Source: M. Luminati, in C. van Rhee and A. Wijjfels, The European Supreme Courts. A Portrait Through History, London 2013).