Rainer J. Schweizer - University of St. Gall, Switzerland
A Perspective from Switzerland: Judical System for a Federal State
1. FEDERALISM AND THE SWISS COURT SYSTEM
Switzerland has never been a classical nation-state, embracing one race, one linguistic group, or one religion. Rather it has been a workshop in peaceful togetherness among various languages, religions and historical traditions. In order to keep this heterogeneous amalgamation together, the form of the federal state proved - as Napoleon said - the only apt system of government.
The 26 Swiss cantons, that all are liberated even though their different greatness, enjoy a constitutionally protected sphere of material autonomy and they participate in federal decisions, since the Constitution guarantees their right to participate together with the people of the country in decisions concerning their spheres of competence. During the history of more than 150 years of the Swiss Federal State the federation obtained a lot of tasks that the cantons, which partly are rather small, nearly hasn’t been able to master on their own. Also a considerable extent of power has been transferred, by constitutional amendment, to the Federal Government, concerning especially civil and criminal law, wide fields of the economy and the social security, environmental and traffic concerns, the general principles of town and country planning, external and military affairs and many more competencies. From 1874, the date of the former so-called „total revision“ of the Federal Constitution, to 1998, 145 „partial revision“ of the Constitution has been adopted, what usually related to an adjournment of competencies. These transfers have often been effected in a quite unsystematic way. Now, the totally revised new Constitution of April 18, 1999 presents a systematic order of the federal public policies.
If this line of reasoning should not lead to the conclusion that the tendency in Switzerland is toward the „unitary federal state“, that is to say, toward a hidden centralisation. The distribution of powers concerns only the power to legislate, and not financing, governing or administering federal law. While it is true that the Federal Government enjoys large powers to legislate, there exist important federal checks and balances. For instance, the cantons in most cases execute and implement the federal statutes. The execution and implementation of civil and criminal law, environmental measures, the administrations of old age and insurance pensions, and the levying of the federal income tax all rest with the cantons. Owing to this „federalism of implementation“, there is no doubt that the effectiveness of federal laws is to a considerable amount at the mercy of the cantons and communes.
These peculiarities of the Swiss federal system are reflected in the organisation of the Swiss courts and the judicial system in general. Unlike the United States of America, which possesses a dual system of parallel federal and state courts, by and large the Swiss court system is pyramidal: The civil, criminal or administrative courts of first and second instance are cantonal. At federal level there is a bigger number of special administration courts, which have to judge selected conflicts (for example in right of economics, environment or asylum). Moreover there are particular delinquencies that will be pursued by the federal public prosecutor and will be brought at federal penal court. The Federal Tribunal is above all, it is the court of last instance on top the pyramid. Since the cantons are autonomous and execute and implement the greater part of the federal legislation, it seems logical that they should also organise the courts that apply the federal statues on the cantonal level. In order to secure a certain uniformity in the application of the federal law, however, a Federal Tribunal has power to decide on appeals from cantonal courts.
2. CANTONAL COURTS
2.1 Generalities
Each canton has instituted civil and criminal courts, and all cantons have instituted an administrative tribunal.
These cantonal courts apply both federal and cantonal substantive law. Almost all civil law is federal, as is most of the criminal law; on the other hand an important part of the administrative and tax law is cantonal. Commercial law is federal, and so it is mostly for the labour legislation and the social security law. Cantonal are namely the educational-, the health- and the police-law.
The procedural law is until today cantonal. Each canton has instituted, therefore, both a Civil and a Criminal Procedure Act. But now, the federal Government is entitled to prepare a bill for a unified Civil Procedure law and a unified Criminal Procedure law. The cantons will farther on have special statutes dealing with cantonal administrative procedure. In addition, the Federal Parliament has enacted statutes regulating the civil, criminal and administrative procedure at federal level, while federal civil suits are very seldom, nevertheless very important are the administration lawsuits, namely cause of the special federal administration courts mentioned above.
2.2 Civil Courts
In most cantons, a civil lawsuit is possible only after a conciliation procedure before a so-called „justice of the peace“. The justice of the peace may also have power to decide minor affairs.
The court of first instance is either a single judge (for cases with a reduced litigation value) or a district court. The district courts usually consist of a lawyer-president and several lay members. As a rule, appeals are possible in cases with a substantial litigation value or involving family controversies or other special domains. In all major cantons the court of second instance is a professional tribunal, composed of several members of equal standing. The second instance is called Cantonal or Superior Court. It decides upon appeals, petitions for nullity and sometimes as court of first instance.
2.3 Criminal Investigations and Courts
Usually, there is not only one investigating authority in criminal proceedings, but there are several authorities with different functions. Thus, the public prosecutor is a career civil servant and, as such, generally part of the administration. He may have power to initiate the formal public accusation or to investigate in the pre-trial procedure. By contrast, the investigating judge is a judge and enjoys a qualified independence, conforming to the European Convention on Human Rights (ECHR).
Generally the public prosecutor or the investigating judge must bring the case before the criminal court of first instance, which is usually a district court. As a rule, an appeal, a petition for nullity or a petition for cassation will lead to the Cantonal or Superior Court. The situation is more or less analogous to that in civil affairs.
Jury trials are exceptional in Switzerland. Only in a few cantons (especially in Geneva and Zurich) are they still of importance for hard criminal affairs. But this institution is developing controversial.
2.4 Administrative Proceedings and Courts
Traditionally, in Switzerland, the public administration exercised almost as first instance its own justice within the executive branch; so appeals and petitions were possible to the head of an administrative department and in selected, more political cases from there to the Cantonal or the Federal Government.
The cantonal administrative tribunals are competent for cases and controversies on cantonal and federal administrative law. Cantonal courts may refuse to apply cantonal statutes or ordinances because they violate federal law. Moreover, there are no special cantonal constitutional courts beside in a very few cantons just like Nidwalden and Jura. Even in all cantons some questions are still assigned to the executive branch; this is true especially with problems in which a certain administrative discretion is of the essence (for example, employment and promotion of civil servants or complaints about results of school examinations or decisions about nuclear power stations).
As in civil and criminal matters, the administrative procedure is within the power of the cantons, whereas the Federal Government has enacted, its own Federal Administrative Procedure Act. Certain standards concerning, for instance, the right to be heard or the obligation to act in good faith, are imposed on the cantons level and on the federal level by federal constitutional law and the European Convention on Human Rights (see especially Article 6 ECHR).
2.5 Other Courts
Certain cantons have institutes courts, which are specialised in matters, which in other cantons belong outside of the jurisdiction of either civil or administrative courts. A few cantons (Zurich, Berne, St. Gall, Argovia) possess a specific commercial court for disputes arising from commercial undertakings. Almost half of the cantons have a labour or industrial court to which are assigned disputes between employers and employees.
3. FEDERAL COURTS
3.1 Generalities
The Confederation has one High Court the Federal Tribunal (tribunal fédéral; Bundesgericht); which stays in Lausanne and, for matters of social security, with a Division in Lucerne. Its members are elected by the Federal Assembly (Federal Parliament). The justices are elected for terms of six years. Re-election is possible. While it is true that the federal justices are not nominated for life tenure, no case is on record in which a federal justice was denied re-election for political reasons. The same is true of cantonal judges, who are likewise nominated for a fixed term (usually four Years) only. Each Swiss citizen can be a candidate, irrespective of his preparation, but in practice, the federal justices who are elected are either cantonal judges or law professors or federal parliamentarians with legal education. All Swiss languages, regions and political parties are proportionately reflected in the composition of the Federal Tribunal.
The Federal Tribunal sits in various divisions and chambers: two Divisions for Constitutional and Administrative Law, two Civil Law Divisions including a Chamber for Bankruptcy and Seizure, the Criminal Cassation Court, the Accusation Chamber, the Criminal Chamber, and the Federal Criminal Court. It decides upon appeals or petitions for nullity coming up from cantonal courts just as of the special federal administration courts, thus enforcing a certain uniformity and primacy of federal law. Exceptionally, it may also sit as a court of first instance in certain civil, criminal, administrative and constitutional matters. In addition, the Federal Insurance Tribunal is an independent division for social security questions, which sits in Lucerne but is part of the Federal Tribunal for purposes of organisation and ranking. The Federal Court in Lausanne has got 32 regular official and full time judges just as 30 part time judges. The Court in Lucerne has got 13 full employment and 11 part time employment of judges.
Like mentioned the Federal Tribunal isn’t the only federal court. There are more than 30 special tribunals in various fields touching upon administrative law – the so-called Appeal Commissions. The Appeal commissions will be managed partly by full time and partly by part time judges. That depends on the intensity of work in the individual domains. In the future, a new Federal Administration Court will be created of the first instance as successor of all these special administrative courts. That arising Federal Administration Court might have 50-70 full time judges when it will assume all purviews of the Appeal Commission (that means about 12 000 cases a year). Finally it should be created a new penal court at federal level as well, that judge at first instance certain delinquencies, like for example organised delinquency, that no more will be pursued by the cantons but by the federal attorneyship.
3.2 The Federal Tribunal as a Court of Constitutional Law
The powers of the Federal Tribunal as a court of last resort are limited in some respects. Various forms of judicial control, which exist in the United States of America or in the Federal Republic of Germany, are unknown in Switzerland. The Federal Assembly decides on the constitutionality of federal statutes, and the Federal Tribunal is prevented, under Article 191, of the Federal Constitution, from exercising such judicial review. Moreover, the Federal Assembly decides upon the compatibility of cantonal constitutions with federal law, and upon the validity of constitutional initiatives for the revision of the Federal Constitution.
The Federal Tribunal decides on conflicts of competence between federal and cantonal authorities, or between two or more cantons; in these cases, it sits as a court of first instance. It does not have power, however, to decide upon disputes between various federal organs (e.g., between the executive and the legislature), or upon cases submitted by lower courts for a preliminary ruling, or upon advisory opinions.
The bulk of the constitutional adjudications by the Federal Tribunal consists undoubtedly of „constitutional complaints“ („staatsrechtliche Beschwerden“). Each citizen whose constitutional rights have been violated by any cantonal act or measure may raise a constitutional complaint with the Federal Tribunal. This applies to fundamental rights and freedoms, including the guaranty of property or the freedom of economy and it also protects the political rights of voting, referendum or initiative. In a very bold series of decisions, the Federal Tribunal has declared that any application or interpretation of cantonal law, which is so manifestly wrong as to be arbitrary or capricious, amounts to an inequality before the law. Because of this notion of arbitrariness, the Federal Tribunal has been able to sanction not only violations of rights and freedoms guaranteed in the federal or cantonal constitutions, but even violations of cantonal statutes: Since arbitrary application of a cantonal statue violates the guarantee of equality, the person concerned is violated in a constitutional right.
Unfortunately the constitutional complaint is admissible only against cantonal acts, not against federal acts. If federal statues of the Federal Parliament were to violate constitutional rights, there is no judicial legal protection. In this situation the persons only have the chance to complain about their rights and interests at the European Courts for Human Rights in Strasbourg because of the injury of the ECHR or their supplementary agreements. If acts of federal executive authorities, such as ordinances, orders or decrees were to violate constitutional rights or any other federal law, it is possible to raise the constitutional complaints within the scope of an „administrative complaint“ before the Federal Tribunal or the special Administration Courts. As a rule, however, acts of the Federal Council and federal ordinances, which are based on federal statues, cannot be invalidated by the Federal Tribunal.
