swiss supreme judicial authority

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THE SWISS FEDERAL TRIBUNAL:

SWITZERLANDS SUPREME JUDICIAL

AUTHORITY

Legal Memorandum

May 2012


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SWITZERLANDS SUPREME JUDICIAL AUTHORITY

Executive Summary

The purpose of this memorandum is to examine the core elements of

Switzerlands supreme judicial authority, including its structure, jurisdiction, and

role in protecting individual rights.

The Federal Supreme Court of Switzerland (Federal Tribunal) represents

the highest judicial authority of the Swiss Confederation. The Federal Tribunal has

original jurisdiction to adjudicate disputes between the federal government and the

cantons, as well as between cantons. This promotes uniformity and neutrality in

the interpretation of Swiss law, and preserves Switzerlands complex balance ofpower between the state and cantons.

The primary function of the Federal Tribunal is to serve as the final court of

appeal. Though the Court does not exercise supervisory control over lower federal

and cantonal courts, the Court is responsible for ensuring uniform interpretation

and application of laws by the lower courts. In this capacity, the Supreme Court

has no discretion to decline review of properly filed appeals in cases previously

decided by the lower federal courts or cantonal courts. Recent reforms have

streamlined the appellate process and added a safeguard for the protection offundamental rights enshrined in the Constitution.

The Constitution explicitly prevents the Federal Tribunal from conducting a

constitutional review of federal legislation. As a result, no court in Switzerland

may declare a federal law unconstitutional. This reflects Swiss commitment to

direct democracy and faith in a consultative legislative process that heavily

involves the public. However, the Constitution also permits exceptions as

provided by law, notably in the area of human rights and fundamental freedoms.


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TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Structure of the Federal Judiciary 2

Original Jurisdiction of the Federal Tribunal 2

Appellate Jurisdiction of the Federal Tribunal 4

Appellate Procedures 5

Judicial Review of State Law 7

Conclusion 8


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SWITZERLANDS SUPREME JUDICIAL AUTHORITY

Statement of Purpose

The purpose of this memorandum is to examine the core elements of

Switzerlands supreme judicial authority, including its structure, jurisdiction, and

role in protecting individual rights.

Introduction

The Federal Supreme Court of Switzerland (Federal Tribunal or Supreme

Court) is the highest judicial authority of the Swiss Confederation.1 The

Constitution and the Swiss Federal Supreme Court Act (FSCA) govern all

proceedings before the Court. The Federal Tribunal primarily interprets Swissfederal law and ensures that it is correctly and uniformly applied throughout the

state.2

The Federal Tribunal has limited original jurisdiction, hearing disputes

between cantons as well as between the state and one or more cantons.3 This

promotes uniformity and neutrality in the interpretation of Swiss law. In addition,

the Federal Tribunal has extensive appellate jurisdiction. Because the Constitution

requires the Federal Tribunal to adjudicate all properly filed appeals, it resolves

several thousand disputes annually.

4

Parties may appeal the decisions of cantonalcourts as well as Switzerlands two lower federal courts, which handle federal

crimes and federal administrative decisions.5 Recent reforms have streamlined the

appeals process to make appellate review more accessible to the public through

simplified procedures.6

Unlike the judiciaries of many other civil law countries, the Swiss judiciary

seldom functions as a check on the elected government,7and generally cannot

1SWISS CONST.art. 188(1) (2000), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.

2Swiss Portal, The Judiciary: The Federal Tribunal (last visited on Jan. 26, 2012), available athttp://www.ch.ch/behoerden/00215/00329/00353/index.html?lang=en.3SWISS CONST.art. 189(2) (2000).4Fridolin M.R. Walther,Introduction to the Swiss Legal System: A Guide for Foreign Researchers, LLRX (Nov. 15,

2000), available athttp://www.llrx.com/features/swiss.htm.5SWISS CONST.art. 189(1) (2000).6International Law Office,New Swiss Federal Supreme Court Act(Feb. 20, 2007), available at

www.internationallawoffice.com/newsletters/detail.aspx?g=7fa69b79-d9bc-db11-b095-001143e35d55.7Fridolin M.R. Walther,Introduction to the Swiss Legal System: A Guide for Foreign Researchers, LLRX (Nov. 15,

2000), available athttp://www.llrx.com/features/swiss.htm.


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review the constitutionality of federal laws.8 In some cases, however, the Federal

Tribunal may review federal law for compliance with international obligations.

Structure of the Federal Judiciary

Switzerland has a small federal judiciary, consisting of only three courts.

The Federal Criminal Court is a court of first instance responsible for trying the

few criminal offenses that exist under federal law (for instance, money laundering

and political corruption).9 The Federal Administrative Court adjudicates

complaints regarding administrative decisions by the federal government.10

Parties may appeal decisions from both courts to the Federal Tribunal, which has

supreme judicial authority over lower federal and cantonal courts.

The Federal Tribunal presently consists of thirty-eight full-time judges and

nineteen part-time judges.11 The docket is divided into four divisions: (1) PublicLaw Division; (2) Civil Law Division; (3) Criminal Law Division; and (4) Social

Law Division.12

While the Constitution requires judges to act independently in the

exercise of their powers,13

there are few formal provisions to ensure this.

Parliament elects judges to the Federal Tribunal, who serve six-year terms that

correspond to parliamentary terms and are eligible for reelection.14

Thus, the

courts composition often reflects party representation in Parliament.15

Original Jurisdiction

To promote uniformity in the interpretation and application of the law, the

Constitution vests the Federal Tribunal with the authority to adjudicate disputes

between the cantons and between the state and canton(s).16

Switzerland has twenty-six sovereign cantons,17

each with its own

constitution, executive, parliament, judicial system, and cantonal law.18

Cantons

8SWISS CONST.art. 189(4) (2000).9SWISS CONST.art. 191a(1) (2000).10

SWISS CONST.art. 191a(2) (2000).11Swiss Portal, The Judiciary: The Federal Tribunal, available athttp://www.ch.ch/behoerden/00215/00329/00353/index.html?lang=en (last visited Jan. 26, 2012).12Swiss Portal, The Judiciary: The Federal Tribunal, available at

http://www.ch.ch/behoerden/00215/00329/00353/index.html?lang=en (last visited Jan. 26, 2012).13SWISS CONST.art. 191(c) (2000).14SWISS CONST.arts. 168(1), 145 (2000).15Inter-Parliamentary Union,Judiciary The Federal Court(2012), available athttp://www.125-ipu.ch/judiciary-

the-federal-court.html.16SWISS CONST.art. 189(2) (2000).17SWISS CONST.art. 3 (2000).


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are sovereign except to the extent that their sovereignty is limited by the

[Constitution].19

The Constitution stipulates that all governmental functions and

powers not expressly granted to the Confederation belong to the cantons.20

The

cantons are also responsible for implementing federal law within their borders.21

The Federal Tribunal has jurisdiction to adjudicate all disputes between

cantons, regardless of the subject matter. This promotes a neutral arbiter of the

dispute, and is important because cantonal judges may, due to bias or pressure, be

inclined to decide the case in favor of their own canton.

The Federal Tribunal also handles disputes between the state and the

cantons. The Constitution provides that [f]ederal law shall take precedence over

any conflicting provision of cantonal law.22

The Federal Tribunal is responsible

for determining whether an actual conflict between state and cantonal law exists,

and if it does, for upholding the ultimate supremacy of state law.23

The Constitution stipulates that the processes to resolve inter-government

disputes must be cooperative rather than adversarial. The Federal Tribunal

therefore uses negotiation, mediation, and other conflict resolution strategies to the

greatest possible extent.24

Proceedings can be initiated only by the state or relevant

canton, though individuals may be heard as interested parties.25

In practice, the Federal Tribunal hears inter-governmental disputes

infrequently. In one recent decision, the Federal Tribunal determined that cantonsrather than the state have the primary authority to license mechanical devices.26

In

another decision, the Federal Tribunal considered whether the state has jurisdiction

over cantonal police records that implicate national security.27

The majority of

18Fridolin M.R. Walther,Introduction to the Swiss Legal System: A Guide for Foreign Researchers, LLRX (Nov.

15, 2000), available athttp://www.llrx.com/features/swiss.htm.19SWISS CONST.art. 3 (2000).20

Gregory M. Bovey, The Swiss Legal System and Research, Hauser Global Law School Program at New York

University School of Law (Nov. 2006), available athttp://www.nyulawglobal.org/globalex/Switzerland.htm.21

SWISS CONST.art. 46 (2000).22SWISS CONST.art. 49 (2000).23SWISS CONST.art. 189(2) (2000).24SWISS CONST.art. 44 (2000).25Recueil officiel des Arrts du Tribunal fdral suisse ATF 117 Ia.26Heinz Aemisegger, La rsolution des conflits entre Etat central et entits dotesdu pouvoir lgislatif par la Cour

constitutionnelle (14-15 Juin 2002), 9, available in French athttp://www.bger.ch/la_resolution_des_conflits.pdf.27Heinz Aemisegger, La rsolution des conflits entre Etat central et entits dotesdu pouvoir lgislatif par la Cour

constitutionnelle (14-15 Juin 2002), 9, available in French athttp://www.bger.ch/la_resolution_des_conflits.pdf.


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cases likewise relate to substantive issues of state and canton jurisdiction.28

There

is very little case law on procedural conflicts between state and cantonal

authorities.29

As the adjudicator of inter-government disputes, the Federal Tribunalprovides a neutral forum and plays a vital role in preserving Swiss federalism.

Despite its mandate to resolve disputes, the Federal Tribunal also places a

procedural emphasis on cooperation and compromise between governments.30

Appellate Jurisdiction

As the supreme judicial authority of Switzerland, the Federal Tribunal is the

final court of appeal, and therefore responsible for ensuring that lower courts

accurately and uniformly apply the law. Though the Court does not exercise

supervisory control over lower federal or cantonal courts, the Court is responsiblefor ensuring that lower courts accurately interpret and apply the relevant laws.

31

Provided that the subject matter falls under its jurisdiction, the Federal

Tribunal must review all properly filed appeals from both cantonal and federal

courts.32

Appeals in criminal cases may arise from cantonal courts33

or the Federal

Criminal Court, which was established by the Constitution as the court of first

instance for federal crimes.34

Likewise, administrative law appeals may arise from

cantonal courts or the Federal Administrative Court. Appeals in civil cases arise

exclusively from cantonal courts.

35

The Constitution permits parties to appeal decisions involving the following

subject matters: (1) federal law; (2) international law; (3) inter-cantonal law; (4)

cantonal constitutional rights; (5) the autonomy of the communes; (6) cantonal

guarantees for public law corporations; and (7) federal and cantonal provisions on

28Heinz Aemisegger, La rsolution des conflits entre Etat central et entits dotesdu pouvoir lgislatif par la Cour

constitutionnelle 9 (June, 2002), available in French athttp://www.bger.ch/la_resolution_des_conflits.pdf.29

Heinz Aemisegger, La rsolution des conflits entre Etat central et entits dotesdu pouvoir lgislatif par la Cour

constitutionnelle 9 (June, 2002), available in French athttp://www.bger.ch/la_resolution_des_conflits.pdf.30

Swiss Portal, The Judiciary: The Federal Tribunal (last visited on Jan. 26, 2012), available at

http://www.ch.ch/behoerden/00215/00329/00353/index.html?lang=en.31Swiss Portal, The Judiciary: The Federal Tribunal, available at

http://www.ch.ch/behoerden/00215/00329/00353/index.html?lang=en (last visited Jan. 26, 2012).32Fridolin M.R. Walther,Introduction to the Swiss Legal System: A Guide for Foreign Researchers, LLRX (Nov.

15, 2000), available athttp://www.llrx.com/features/swiss.htm.33SWISS CONST.art. 123 (2000).34SWISS CONST.art. 191(a) (2000).35SWISS CONST.art. 122 (2000).


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political rights.36

While political rights remain vaguely defined, this provision

has allowed citizens to seek review of procedural hurdles to voting. For instance, a

group of citizens challenged the canton of Juras policy of having the cantonal

parliament decide the constitutionality of proposed referendums before submitting

them to a vote.

37

To safeguard fundamental rights enshrined in the Constitution, the Federal

Supreme Court Act (FSCA) created a subsidiary constitutional appeal.38

Though the enforcement of fundamental rights is primarily a cantonal

responsibility, the subsidiary constitutional appeal permits the Federal Tribunal to

review appeals against decisions of the highest cantonal judicial authorities in

which the appellant has a legal interest and alleges a violation of fundamental

rights.39

Because earlier drafts of the FSCA permitted cantons to refer such cases

directly to the European Court of Human Rights, without any review by the

Federal Tribunal, the adoption of the subsidiary constitutional appeal helped toensure uniformity in the interpretation and application of Swiss law.

40

Appellate Procedures

Adopted in 2007, the FSCA streamlined and modernized the appellate

process.41

Previously, Switzerland had a complex array of appeal procedures, each

governed by a unique set of rules,42

that depended on factors such as the relevant

area of law, the court of first instance, the precise ground for appeal, and

evidentiary rules.

43

This complexity frequently resulted in multiple proceedings to

36SWISS CONST.art. 189(1) (2000).37 Recueil officiel des Arrts du Tribunal fdral suisse ATF 124 I 107.38Schellenberg Wittmer, The New Federal Supreme Court Act (FSCA)(Dec. 2006), available at,

http://www.swlegal.ch/CMSPages/GetFile.aspx?disposition=attachment&nodeguid=37ec5254-7494-4145-a741-

8824e74f6933.39Schellenberg Wittmer, The New Federal Supreme Court Act (FSCA)(Dec. 2006), available at,


8824e74f6933.40

Schellenberg Wittmer, The New Federal Supreme Court Act (FSCA)(Dec. 2006), available at,

http://www.swlegal.ch/CMSPages/GetFile.aspx?disposition=attachment&nodeguid=37ec5254-7494-4145-a741-8824e74f6933.41International Law Office,New Swiss Supreme Court Act (Feb . 20, 2007), available at

www.internationallawoffice.com/newsletters/detail.aspx?g=7fa69b79-d9bc-db11-b095-001143e35d55.42Schellenberg Wittmer, The New Federal Supreme Court Act (FSCA)(Dec. 2006), available at,http://www.swlegal.ch/CMSPages/GetFile.aspx?disposition=attachment&nodeguid=37ec5254-7494-4145-a741-



8824e74f6933.


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resolve a single case,44

and often discouraged parties from seeking appeal. The

FSCA created the unified appeals procedure, which streamlined the process to

created three broad categories of appeal criminal, civil, and administrative and

had no relation to the source of law (cantonal, federal, or constitutional).45

This

uniformity and simplicity are designed to increase public access to appellatereview.46

Generally, parties may only appeal final decisions or interim decisions that

operate independently or end a portion of the proceedings.47

In most cases, the

filing of an appeal does not suspend the challenged decision in the interim unless

the presiding Federal Tribunal judge grants a request for suspension.48

Exceptions

do exist, however, particularly when the appellant has been sentenced to prison or

the relevant law is changing.49

In its review, the Federal Tribunal accepts the

factual determinations of the lower courts unless the appeal alleges gross factual

inaccuracies in the record, the correction of which can alter the outcome of theproceedings.

50

The Federal Tribunal primarily functions as an appellate court. The

streamlining of the appellate process by the FSCA and the requirement that the

Federal Tribunal adjudicate all properly filed appeals ensure that the public has

easy access to appellate review by the highest court. The subsidiary constitutional

appeal also provides a safeguard for fundamental rights and allows for the Federal

Tribunal to ensure uniform interpretation and application of such rights.

44International Law Office,New Swiss Supreme Court Act (Feb . 20, 2007), available at

www.internationallawoffice.com/newsletters/detail.aspx?g=7fa69b79-d9bc-db11-b095-001143e35d55.45International Law Office,New Swiss Supreme Court Act (Feb . 20, 2007), available atwww.internationallawoffice.com/newsletters/detail.aspx?g=7fa69b79-d9bc-db11-b095-001143e35d55;

Schellenberg Wittmer, The New Federal Supreme Court Act (FSCA)(Dec. 2006), available at,




8824e74f6933.47International Law Office,New Swiss Supreme Court Act (Feb . 20, 2007), available atwww.internationallawoffice.com/newsletters/detail.aspx?g=7fa69b79-d9bc-db11-b095-001143e35d55.48Schellenberg Wittmer, The New Federal Supreme Court Act (FSCA)(Dec. 2006), available at,


8824e74f6933.49International Law Office,New Swiss Supreme Court Act (Feb . 20, 2007), available at

www.internationallawoffice.com/newsletters/detail.aspx?g=7fa69b79-d9bc-db11-b095-001143e35d55.50Schellenberg Wittmer, The New Federal Supreme Court Act (FSCA)(Dec. 2006), available at,


8824e74f6933.


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Judicial Review

While the Federal Tribunal has broad power to review cantonal laws, it

generally cannot review the constitutionality of federal statutes.51

This prohibition

is premised on the belief that Switzerlands lengthy and consultative legislativeprocess will identify and address any constitutional problems.52

It also reflects

Switzerlands historical preference for a direct democracy in which courts cannot

overrule the will of the people.53

Because all federal legislation is subject to a

popular referendum either automatically or upon the petition of 50,000 citizens, the

public ultimately controls the fate of legislation.54

The lack of judicial review has sometimes resulted in limits on the rights of

certain groups. Although the 1874 Constitution proclaimed equality under the law

for all human beings,55

womens suffrage required majority approval by

Switzerlands entirely male voting population. This did not occur until 1971.56 In2009, a referendum succeeded in banning the construction of minarets on mosques,

despite the opposition of both the Federal Council and the Federal Assembly.57

These instances highlight the potential vulnerability of constitutional principles in

the absence of judicial review.

The Constitution permits the government to create exceptions to the

prohibition on judicial review.58

Because the Constitution requires all levels of

government to respect international law,59

the Federal Tribunal has authority to

review the compatibility of Swiss laws with applicable international law, such asthe European Convention on Human Rights.60

In 2011, the Federal Tribunal

invalidated a federal law that prevented foreign nationals without a valid visa from

getting married, citing a recent decision by the European Court of Human Rights

51SWISS CONST.art. 189 (2000). The Federal Assembly is Switzerlands bicameral federal legislature. The Federal

Council is Switzerlands seven-member Executive branch, responsible for executing federal law and preparing draft

laws and policy. Each member heads a department, equivalent to a ministry in other states.52Nicholas Schmitt, Switzerland, Institute of Federalism (last visited on Jan. 26, 2012), available at

http://www.federalism.ch/files/categories/IntensivkursII/Switzerlandg1.pdf.53Nicholas Schmitt, Switzerland, Institute of Federalism (last visited on Jan. 26, 2012), available at

http://www.federalism.ch/files/categories/IntensivkursII/Switzerlandg1.pdf.54

Nicholas Schmitt, Switzerland, Institute of Federalism (last visited on Jan. 26, 2012), available athttp://www.federalism.ch/files/categories/IntensivkursII/Switzerlandg1.pdf.55

SWISS CONST, art 8(1) (1848).56

Daniel Moeckli, Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights, 11:4 HUMAN

RIGHTS LAW REVIEW774, 776 (2011).57

Daniel Moeckli, Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights, 11:4 HUMANRIGHTS LAW REVIEW774, 774 (2011).58SWISS CONST.art. 189(4) (2000).59SWISS CONST.art. 5(4) (2000).60Jan-Erik Lane, THE SWISS LABYRINTH:INSTITUTIONS,OUTCOMES,AND REDESIGN,90 (2001).


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concerning a similar English law.61

However, the Federal Tribunal will not

enforce provisions of international law to which Switzerland made a reservation (a

unilateral statement rejecting the laws applicability to the state).62

For instance, a

man who challenged the different retirement ages of men and women in his canton

could not obtain review by the Federal Tribunal because Switzerland had made areservation to the gender equality clause of the Convention.63

The Swiss judiciary is not empowered to function as a check on the elected

executive and legislature, and consequently has traditionally had no power of

judicial review. While the Federal Tribunal has begun to exercise some authority

in reviewing laws for compliance with Switzerlands international obligations, the

commitment to direct democracy remains a strong constraint on the judiciary.

Conclusion

Although the administration of justice is primarily a responsibility of the

cantons, the Federal Tribunal plays a critical role as Switzerlands supreme judicial

authority. The Federal Tribunal is the entity primarily responsible for preserving

the federal balance between the Confederation and the cantons, and resolving

disputes between the cantons. In both instances, the Federal Tribunal places the

utmost emphasis on cooperation and compromise. As the appellate court of final

instance, the Federal Tribunal ensures the accurate and uniform application of laws

throughout the cantons. Recent reforms have made the Federal Tribunal more

accessible to the public and empowered it to uphold the fundamental rightsenshrined in the Constitution. The constitutional prohibition of the Federal

Tribunals constitutional review of federal legislation reflects the strong Swiss

tradition of direct democracy. Nonetheless, an exception to the prohibition now

allows constitutional review where human rights and fundamental freedoms are

implicated.

61Recueil officiel des Arrts du Tribunal fdral Suisse, ATF 2C_349/2011.62Vienna Convention on the Law of Treaties, art. 19, May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969),

available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.63Recueil officiel des Arrts du Tribunal fdral Suisse, ATF 121 V 229.

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