8.2.2.1 The Dual Role of the Federal Supreme Court
The Federal Supreme Court is ‘the supreme judicial authority of the Confederation’ (Art. 188 (1) Const.).
The Federal Supreme Court has a dual role. On the one hand, it must ensure that national law is interpreted and applied in a uniform manner, whether these are legislative acts, regulations, or international law (where it plays the role of supreme judge). On the other hand, it needs to guarantee that both federal and cantonal constitutions are respected, including protecting the constitutional rights of individuals (where it plays the role of constitutional judge). It is therefore one and the same court which, as supreme authority, performs the functions of ordinary judge (in civil, criminal, and administrative matters) as well as constitutional judge of the Confederation. As compared with the French judicial system, the Swiss Federal Supreme Court combines the roles of the Cour de cassation (the highest court in civil and criminal matters), the Conseil d’Etat (the highest court for administrative justice), and the Conseil constitutionnel (the highest constitutional review authority). In German terms, it combines the roles of the Bundesgerichtshof, Bundesverwaltungsgericht, Bundesfinanzhof, Bundesarbeitsgericht, Bundessozialgericht, as well as that of the Bundesverfassungsgericht.
Consequently, it generally only intervenes as a last resort. As already noted, the control over the application of cantonal law is not only the business of the cantonal courts, but is largely true in the application of federal law—at least at the lower levels—as well. The cantons all have complete, multi-level judicial organizations, but with exceptions for specific areas, the Swiss Confederation has few lower instances. So for the most part, the Federal Supreme Court only acts once the cantonal courts have done their work, and then as a court of appeals against their judgments, whether in civil (Art. 72 et seq. FSCA) or criminal matters (Arts. 78 et seq. FSCA), and in public law (Art. 82 et seq. FSCA). Only in exceptional cases does it judge certain cases as the sole instance, for example, when jurisdictional disputes arise between federal and cantonal authorities, or between cantons (Art. 120 (1) (a) and (b) FSCA).
The law provides for various means of legal redress in bringing a case to the Federal Supreme Court: three ordinary (civil law, criminal law, and public law appeals) and one extraordinary (a subsidiary constitutional appeal). As conditions for admissibility, it also places certain limitations on access, such as setting minimum values in civil or administrative litigation or even restricting access entirely. The FSCA (Art. 83), for example, gives a long list [from a. to x.] of areas where a public law appeal is not admissible, for example.
8.2.2.2 The Composition of the Federal Supreme Court and the Appointment of Judges
By law, the Federal Supreme Court is composed of 35 to 45 ordinary judges (Art. 1 (3), FSCA); the number of deputy judges may not exceed two-thirds of the number of ordinary judges (Art. 1 (4) FSCA). Through a regulation, it is in fact the Federal Assembly which determines the number of judges (Art. 1 (5), FSCA). As of 30 September 2011, this was set at 38 ordinary judges and 19 deputy judges. It is also the Federal Assembly, meaning both houses of Parliament, which elects the federal judges (Arts. 168 (1) and 157 (1) a) Const.).
In practice, Parliament
tries to adhere to a proportional representation of the different linguistic regions, the two Christian denominations and, above all, the main political parties represented in the Federal
Assembly. As a result
, federal judges
are always associated with a (major) political party (Lienhard et al.
2017: 417–419). When a vacancy occurs, it is the political party of the retiring judge
which, in principle, selects and presents replacement candidates to the Judicial Committee of the Federal
Assembly. The National Council (lower house) is re-elected every four years; if a significant modification in the equilibrium of the political forces takes place, the new power
balance can be taken into account when one or more vacancies appear in the Federal Supreme Court, whence the composition of the latter can be adapted to the new order. Ordinary judges
and deputies are elected for a six-year period and can be re-elected (Art. 145 Const. and Art. 9 (1) FSCA).
It is a peculiarity of the Swiss judiciary system that federal judges
are elected on a partisan basis, and for a limited time period, by Parliament
. Cantons follow suit: some even provide for the popular election of judges
, and the terms can vary from one to as many as ten years, depending on the canton.
1 Such a judicial system is often little understood abroad, given the principle of an independent judiciary. This process is rarely strongly contested in theory and is fairly widely accepted in Switzerland, as it is seen to guarantee to the citizens that judges
will represent the existing, and differing, political tendencies or sensitivities in society, at least as represented in Parliament
.
According to many authors and even some magistrates
, it can give the third power
—as with the other two—the democratic legitimacy
and the transparency
it needs. Added to this argument is the fact that this system is the result
of a long tradition and reflects the Swiss conception of democracy. However, the democratic argument loses force with regard to re-election, as judges
in most cantons and at the federal level are subject to re-election at regular intervals (Mahon and Schaller
2013a,
b). It is theoretically possible that a judge
will not be re-elected, and that at the discretion of politicians and without reasons given; this can pose problems in terms of judicial independence. One cannot rule out the potential influence which could be exerted and which could threaten a re-election.
However, while there is no right to be re-elected, in practice, at least thus far, re-election has always been the rule and non-re-election the exception. Judges are virtually never removed for political reasons. The rare cases of a failure to reelect were due to a dysfunction, not politics. Thus, despite the theoretical risk to the independence of the magistrates which the system suggests, in practice such independence has been relatively well ensured until now. In Switzerland, the risks to an independent judiciary are also linked to the small size of the (cantonal, especially in the first instance) territories in which magistrates exercise their office. The ‘cantonalisation’ of the judicial system, and in the cantons, its organization into districts, results in an almost complete absence of mobility.
Another peculiarity in recruitment
is the absence of initial vocational training for becoming a judge
in Switzerland, in contrast to the relatively extensive training which exists, and is required, abroad. However, for federal judgeships, Parliament
only selects experienced and eminent jurists from the ranks of the cantonal judges
, though they sometimes also choose lawyers or university professors (Lienhard et al.
2017: 418).
Finally, at the cantonal level, cantonal laws sometimes require that judges be domiciled in the canton where they exercise their office.
8.2.2.3 The Structure of the Federal Supreme Court
The headquarters of the Federal Supreme Court are in Lausanne (Art. 4 (1) FSCA), and the work of the court is organized by the domains of law they address. The two divisions which address social law are located in Lucerne (Art. 4 (2) FSCA). Currently, there are two public law divisions (each with six judges), two civil law divisions (one with five, the other with six judges), one criminal law division (five judges), and two social law courts (each with five members). They serve as appeals courts to challenge the judgments of lower cantonal and federal authorities. Other bodies also exist, with their member judges who belong to one of the seven divisions. They include an Appeals Commission, composed of three ordinary judges, which decides in particular about personnel and transparency issues, and two administrative bodies, the Conference of Presidents and the Administrative Commission.
With the exception of the powers
—essentially administrative—for which the law requires plenary sessions, the Federal Supreme Court exercises its judicial powers
through its divisions, which deliberate alone, unless one of them proposes to derogate from the case law of one or more other divisions, in which case an agreement of that (or those) divisions is necessary (Art. 23 FSCA). The law provides that the divisions are constituted for two years, and as a rule, sit as a three-judge court which is assisted by a law clerk (Haller
2016: 154, 155; Lienhard et al.
2017: 415, 416). If a case concerns a legal question of principle or if a judge
so requests, this can be raised to five. A five-judge
court is also necessary for appeals against a cantonal act which can be subjected to a referendum
, as well as cantonal decisions
about the admissibility of an initiative
or the requirements of a referendum
(Art. 18 et seq. FSCA).
In principle, court sessions are open; remarkably, this is also true for the deliberations as well as voting. However, the law provides for the possibility of ordering a closed session (Art. 57 et seq. FSCA) (Haller
2016: 155). In practice, it is possible to choose a simplified procedure, specifically when the
decision is to not consider a case (Art. 108 and 109 FSCA), in which judges
decide unanimously and by circulating material (Art. 58 FSCA). Open or public deliberations have become rare or very rare.