Constitution and Democracy

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

The Swiss Federal Tribunal

The old Swiss Confederation or Eidgenossenschaft was a loose and complex agreement between cantons. There was no federal supreme jurisdictional authority until 1798. 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 did not differ from other regions without central royal authority, like the Provinces of the Dutch Republic or the Italian city-states.

The first supreme court

The French occupation of the old Confederation in 1798 and the creation of the Helvetic Republic was the occasion to establish the first supreme court (Oberster Gerichtshof).

Each canton appointed a judge, while 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. Its members are appoimted by the parliament.

The Federal Supreme Court

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, the education of the judges and the guarantees for their independence (their career could not be jeopardized nor were they subject of any government control) functioned relatively well.

This 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 that 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 cantonal authorities, conflicts on public law between the cantons and claims by individuals for violations of constitutional rights, and with cases related to treaties.

As a gesture to the French cantons, which had joined the federation in 1815, the Court was moved to Lausanne, where it remains to this day.

Since 1874, federal jurisdiction has been continuously extended, and the Federal Supreme Court has the final say in matters of civil-, public-, criminal-, social and constitutional law, and ensures the uniform application of the law in the 26 cantons.

The Seats

The seats are in Lausanne and Lucerne (social security law). The Court is also the administrative supervisory authority of the three federal courts of the first instance: the Federal Criminal Court in Bellinzona, 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 proceedings are free to draft their petitions in one of Switzerland’s four languages (Italian, French, German, Romansh).

The Judges

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.

The deeply rooted democracy, together with d the federal system of checks and balances provide an adequate safeguard.

The Swiss court system evolved into a well functioning apparatus in a multilingual and mulitcultural federation. (Source: M. Luminati, in C. van Rhee and A. Wijjfels, The European Supreme Courts. A Portrait Through History, London 2013).