Swiss Supreme Judicial Authority

THE SWISS FEDERAL TRIBUNAL:
SWITZERLANDS SUPREME JUDICIAL

AUTHORITY

Legal Memorandum

May 2012

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 of
power 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 of
fundamental 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.

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

1

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 Swiss
federal 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 cantonal
courts 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,
7
and generally cannot

1
SWISS CONST. art. 188(1) (2000), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.
2
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.
3
SWISS CONST. art. 189(2) (2000).
4
Fridolin M.R. Walther, Introduction to the Swiss Legal System: A Guide for Foreign Researchers, LLRX (Nov. 15,
2000), available at http://www.llrx.com/features/swiss.htm.
5
6
International 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.
7
Fridolin M.R. Walther, Introduction to the Swiss Legal System: A Guide for Foreign Researchers, LLRX (Nov. 15,
2000), available at http://www.llrx.com/features/swiss.htm.

2

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) Public
Law 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

8
9
SWISS CONST. art. 191a(1) (2000).
10
SWISS CONST. art. 191a(2) (2000).
11
Swiss 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).
12
13
SWISS CONST. art. 191(c) (2000).
14
SWISS CONST. arts. 168(1), 145 (2000).
15
Inter-Parliamentary Union, Judiciary The Federal Court (2012), available at http://www.125-ipu.ch/judiciary-
the-federal-court.html.
16
17
SWISS CONST. art. 3 (2000).

3

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 cantons
rather 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

18
Fridolin M.R. Walther, Introduction to the Swiss Legal System: A Guide for Foreign Researchers, LLRX (Nov.
15, 2000), available at http://www.llrx.com/features/swiss.htm.
19
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 at http://www.nyulawglobal.org/globalex/Switzerland.htm.
21
22
23
24
25
Recueil officiel des Arrts du Tribunal fdral suisse ATF 117 Ia.
26
Heinz 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 at http://www.bger.ch/la_resolution_des_conflits.pdf.
27
constitutionnelle (14-15 Juin 2002), 9, available in French at http://www.bger.ch/la_resolution_des_conflits.pdf.

4

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 Tribunal
provides 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 responsible
for 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 courts
33
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

28
constitutionnelle 9 (June, 2002), available in French at http://www.bger.ch/la_resolution_des_conflits.pdf.
29
constitutionnelle 9 (June, 2002), available in French at http://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.
31
32
Fridolin M.R. Walther, Introduction to the Swiss Legal System: A Guide for Foreign Researchers, LLRX (Nov.
15, 2000), available at http://www.llrx.com/features/swiss.htm.
33
34
SWISS CONST. art. 191(a) (2000).
35

5

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 to
ensure 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

36
37
Recueil officiel des Arrts du Tribunal fdral suisse ATF 124 I 107.
38
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.
39
8824e74f6933.
40
8824e74f6933.
41
International Law Office, New Swiss Supreme Court Act (Feb. 20, 2007), available at
42
8824e74f6933.
43
8824e74f6933.

6

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 appellate
review.
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 the
proceedings.
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.

44
45
www.internationallawoffice.com/newsletters/detail.aspx?g=7fa69b79-d9bc-db11-b095-001143e35d55;
8824e74f6933.
46
8824e74f6933.
47
48
8824e74f6933.
49
50
8824e74f6933.

7

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 legislative
process 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
In
2009, 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 as
the 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

51
SWISS 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.
52
Nicholas Schmitt, Switzerland, Institute of Federalism (last visited on Jan. 26, 2012), available at
http://www.federalism.ch/files/categories/IntensivkursII/Switzerlandg1.pdf.
53
54
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 REVIEW 774, 776 (2011).
57
Daniel Moeckli, Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights, 11:4 HUMAN
RIGHTS LAW REVIEW 774, 774 (2011).
58
59
60
Jan-Erik Lane, THE SWISS LABYRINTH: INSTITUTIONS, OUTCOMES, AND REDESIGN, 90 (2001).

8

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 a
reservation 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 rights
enshrined 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.

61
Recueil officiel des Arrts du Tribunal fdral Suisse, ATF 2C_349/2011.
62
Vienna 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.
63
Recueil officiel des Arrts du Tribunal fdral Suisse, ATF 121 V 229.

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THE SWISS FEDERAL TRIBUNAL:

SWITZERLANDS SUPREME JUDICIAL

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