Federal court (Swiss)

The Federal court ( German Bundesgericht in , Italian Tribunale federal in , shortened TF in French) is a court Suisse. It is the legal authority supreme of the Swiss Confédération.

The Federal court is the supreme legal authority of the Confederation. | Art 188 al. 1 Cst

The currency of the Court is Lex justitia pax ( Loi, justice, peace in Latin).

Each canton has its own courts. If the decision of a cantonal court of last authority is disputed, it is possible to deposit a recourse to the Federal court. This last examines whether the cantonal decision is in conformity with the right (federal) and, if such is not the case, it can cancel or modify the contested act. The Federal court does not control in theory the facts on which rests the attacked decision, except if they were established in violation of the right. The Federal court has as functions on the one hand to ensure the uniform interpretation of the federal right by the cantonal and federal authorities of execution, on the other hand to develop the federal right by clarifying its range and by filling possible gaps.

History

One can say that the Swiss right is born from the first federal Pacte giving rise to the Swiss Confédération in 1291. This one is indeed the first demonstration of a confederal right or, in other term, of a take right into account several States (called cantons today) intended to form current Switzerland. This pact envisaged for example measurements against the assassination or the armed robbery. Its objective was before very that this kind of business finishes in front of justice rather than in a " private war ".

To the wire of time, from another agreements in various forms (pact, alliance) came to be added and supplement the confederal right . Their fields were vast but they had several essential goals: to guarantee peace interior, the collective security as well as a certain independence compared to the foreign powers.

After the Battle of Morgarten in 1315, the Pact of 1291 was supplemented: it was henceforth interdict with one of its members to conclude an agreement with a third without the agreement from the others. The union between the cantons thus became increasingly strong, without counting the arrival of novel members like Lucerne in 1332 and of new alliances with the cantons surrounding (Zurich, Zoug or Bern to quote only them). In the event of problem between the members, new the agreement envisaged the means to regulate them, always with an aim of peace and cohesion. The assemblies where the various members met was called federal Diète : this one was born mainly from the will of arbitration, was based especially on the habit and gave its judgment, in general, that if there were the unanimity. The Pacte of Zurich envisaged, for example, to meet in the church of Einsiedeln to solve a possible problem. On the other hand, it did not have a capacity forcing and it left the task apply the decision to the various cantons.

The Charte of the priests in 1370 is to regard as the first agreement which gives to the Confederation a legal status even if it still remains about it at the embryonic stage. This Charter prohibited in several fields the recourse in front of the ecclesiastical jurisdiction, considered by the parties as foreign , with the profit of the regional courts. However, these agreements were not always respected and one more and more often attended the refusal of all new clause: thus the cantons did not succeed in agreeing on a denominational unit. This system lasted until the invasion of the Confederation by France and the imposition of a unit system, the Swiss République, in 1798.

The idea of a Federal court appears in 1848, at the time of the historical birth of the Federal state. This new political system, the Federalism , transformed the relations completely enter the cantons and the political scene by giving rise to modern Switzerland. The Federal court of the time was not permanent and its jurisdiction was not clearly delimited. Most of the time, it treated businesses which opposed a canton to the Confederation. In a preoccupation with an effectiveness, but also to make the Federal court independent of the government, the new Constitution of May 29th 1874 gave him a new identity while making it permanent and establishing its seat with Lausanne.

The current building was built between 1923 and 1927 in the style Néo-classique. In particular, the statue in the center of the pediment was carved by Carl Angst.

Competences

The Federal court is the last judicial body at the Swiss level. It examines points of law and their conformity with in particular the federal right, but also with the International law, and the " right intercantonal" , cantonal constitutional laws, the autonomy of the communes and other guarantees granted by the cantons to the corporations of Public law as well as the federal and cantonal provisions on the right policies. It also takes care of the respect of the Jurisprudence and the good implementation of the right.

However, under the terms of the Direct democracy and of the balance of power practiced in Switzerland, the Constitution does not make it possible the Federal court to consider an act emitted by the federal Assemblée (legislative power) or the Federal council (executive power) nor to refuse the application of a federal law or international law except if, possibly, a legal tendency allows him. This kind of businesses however only occurs very seldom.

The Federal court and the other authorities are held to apply the federal laws and the international law. | Article 190 Cst.

If it is seized, the European Cour of the human rights to the possibility of denouncing a judgment of the Federal court if it judges that the decision taken by this last violates the European Convention of the human rights. If necessary, the business is returned to the Court and a new judgment must be done by taking account of the decision of the European Court of the human rights
Operation, the statute, and the organization of the Federal court have as legal bases the Law on the Federal court and the Swiss Constitution.

Organization

Statistics

In 2007, the Federal court counts 39 Juge temporary S and 41 judges. Their number will be gradually reduced with 38 judges and 19 substitutes. They are assisted by more than 200 collaborators.

In 2006, 5210 new businesses had been introduced in front of the Federal court to Lausanne and 2650 front the Federal court of the insurances in Lucerne. This same year, the Federal court had liquidated 5113 businesses, the Federal court of the insurances 2513 businesses ^,

Administrative plan

On the administrative level, the Federal court is submitted exclusively to the high surveillance of the federal Assemblée. The body in charge of the administration is since 2007 the administrative Commission, made up of three judges. It carries out in particular the nomination of the Greffier s.
The role of the clerks (more than one hundred of people in 2007) consists in working out projects of stops under the responsibility of a judge and to write the stops of the Federal court.

The plenary Cour joins together the whole of the ordinary judges. It can sit only with the participation of two-third of the judges at least and its tasks are multiple: it is occupied, for example, to regulate the conflicts between the judges, the distribution of the businesses within the court, the legal emoluments or to adopt the annual report.

The Conférence of the presidents is composed as for it of the presidents of all the Courses of the court. Its task consists primarily with a standardization of the decisions in particular of establishing directives relating to the drafting of the stop S or the coordination of jurisprudence between different the Courses for example

The administrative Commission is made up of the president as well as vice-president of the court and ordinary judges. It is in particular given the responsability to guarantee the continuing education of the personnel, to adopt the budgets to then subject them to the federal Assemblée and to make sure so that the services necessary to operation (as well scientific as administrative) meet the needs for the court. She exerts also a monitoring on the federal penal Court and the federal Administrative court.

Presidency

President of the Federal court: Aeschlimann Arthur
Vice-president of the Federal court: Leuzinger-Naef Susanne

Federal judges

The federal judges are elected by the federal Assemblée which takes care to maintain a balance between the various speech communities and religious of the country. Their mandate, renewable, is 6 years but they cannot exert beyond 68 years. In theory, any citizen of the country can become federal judge, even without having a legal formation. But in practice, the members of Parliament support the people of course having a certain knowledge of the right and they also take care of a fair distribution of the political main forces among the body of the federal judges.

Courses

There exists within the Federal court 7 Cours (5 Cours with Lausanne and 2 Cours with Lucerne) which is in charge of the recourse in various fields. In the majority of the cases, the courses rule with 3 judges but it is possible, on request for one of the judges or when that relates to political rights to the levels as well federal as cantonal, as their number passes to 5. The deliberation can be done in public or with door-close.

First Court of public law

President : Féraud Michel
Judges : Heinz Aemisegger, Arthur Aeschlimann, Bertrand Reeb, Jean Fonjallaz, Ivo Eusebio
It takes care of the following fields : Expropriation; matters concerning the Town and country planning; Right policies; legal Mutual aid penal matter international; road traffic; Established among; personnel of the Public sector.

It also takes care of the following basic rights : equal treatment; protection against the Arbitrary and protection of the bona fide; Right to the life and personal freedom; protection of the private sphere, right to the Marriage and the family, Freedom of thought and of information, Freedom of the press; freedom of art, Right to meet, Right of association; guarantee of the Property; general guarantees of procedure; guarantee of the access to the Judge; guarantees of the legal procedures; Loss of liberty.

But also :

the penal matter recourse against the decisions concerned with the penal procedure
conflicts of competence between cantonal federal authorities and authorities, or cantons.

As example, here the quotation of a stop of this Court concerning a popular Initiative named “ SchweizerInnen zuerst! ” (“ the Swiss women initially! ”) where the political party of the Swiss Démocrates made recourse in front of the Federal court for violation of the political rights after this initiative, which aimed at registering in the Constitution inhabitant of Zurich an article ensuring the priority the Swiss ones, was invalidated:

The requirement the initiative is that it is necessary to give the priority to the Swiss women and to Swiss To Article 8 al. 2 Cst., the Swiss component took again the great principles of the guarantee of the basic rights to the international level, such as contents with Article 14 CEDH. The initiative cannot be understood that in the direction where the Swiss ones would be to privilege compared to the foreigners and, so seconds to be disadvantaged vis-a-vis the first. In the final analysis, it requires to establish an inequality of treatment within the principle even of the equal treatment fixes the Constitution. In conclusion, the decision the initiative does not violate the guarantee of the political rights within the meaning of Article 34 Cst. | {{of}} A. and G. against Regierungsrat of the canton of Zurich, FRA 129 I 392

Second Court of public law

President : Merkli Thomas
Judges : Adrian Hungerbühler, Alain Wurzburger, Robert Müller, Danielle Yersin, Peter Karlen
It takes care of the following fields : right from abroad; Taxes and taxes; Damages for a Moral repair.
In so far as another court is not qualified : economic Public law and other fields of the Administrative law.
It also takes care of the following Basic rights : protection of the children and the young people; Freedom of conscience and belief; freedom of the language; right to a basic teaching; freedom of the Science; Freedom of establishment; economic Freedom; Trade-union freedom.
Here the extract of a stop relative to a business which opposed K. against the Canton of Vaud: the canton had adopted a law on the weapons which obliged to announce with the canton any sale of weapon between private individuals. This business raises the question about the force of the federal right on the cantonal right:

Resorting supports primarily that the attacked provisions violent one the principle of the derogatory force of the federal right guaranteed by Article 49 al. 1 Cst. According to this provision the federal right takes precedence over the cantonal right which is contrary for him. That means that the cantons are not authorized to legislate in the regulated fields by the federal right. Adopted to a vast majority by the people and the cantons, Article 107 al. 1 Cst gave to the Confederation competence to enact regulations against the improper use of the weapons. In these circumstances, the Great Council of Vaud clearly took a contrary protection measure with the federal right, by providing that the contract written between private individuals was to be communicated with the cantonal police force. on the weapons the principle of the derogatory force of the federal right violates consequently and must be cancelled. | K. against law of Vaud on the weapons, goes down for hearing of October 29th, 2001.

First Court of civil law

President : Corboz Bernard
Judges : Kathrin Klett, Vera Rottenberg Liatowitsch, Gilbert Kolly, Christina KIS
It takes care of the following fields : Right of the obligations; contract of insurance; extracontractuelle responsibility; responsibility for the State for the medical activities; Private law of competition; Intellectual property; arbitration; behavior of the registers and the decisions in the preceding fields.
But also : Conflicts of Civil law between cantonal federal authorities and authorities, or cantons, in the preceding fields.
With regard to competition, in particular between internal site, the Federal court is in the case of to pronounce a selective copy of a base of data of a site towards another. The key question was to know if there were unfair competition :

The systematic research of the real advertisements appearing on Internet site of a third, their recovery in his real own site and their publication according to the criteria suitable for celui−ci do not constitute, as such, of unfair behaviors within the meaning of the federal law against unfair competition. | (of) FRA 131 III 384 (synthesis)

Second Court of civil law

President : Raselli Niccolò
Judges : Ursula Nordmann-Zimmermann, Elisabeth Escher, Lorenz Meyer, Fabienne Hohl, Luca Marazzi
President of the Room of the continuations and bankruptcies : Fabienne Hohl
Judges of the Room : Lorenz Meyer, Luca Marazzi
It takes care of the following fields : Civil code (Right of the people; Right of the family; Right of the successions; Right in rem); rural land right; continuations for debts and Bankruptcy; behavior of the registers and the decisions on the preceding fields.
But also : Conflicts of Civil law between cantonal federal authorities and authorities, or cantons, in the preceding fields.
Here the summary of a stop concerning a minor wishing to be adopted by his feeder parents, with whom he lived since the two months age. The biological mother (that the child refuses to see in spite of the effort of this one to maintain a good relationship) opposes the adoption and the business is carried in front of the Federal court. The question is to know if it is possible not to take account of the assent of the mother as the Civil code envisages it. This stop was criticized by part of the doctrines:

The desire of a child capable of understanding to be adopted by his/her feeder parents, at which he lived since the two months age and to which he is deeply attached, must be respected. If the mother opposes the adoption, it can give up its assent even if she endeavoured to have a relation with the child. |FRA 5C.4/2001

First Court of social right

President : Ursprung Rudolf
Judges : Ursula Widmer-Schmid, Franz Schön, Susanne Leuzinger-Naef, Jean-Maurice Frésard.
It takes care of the following fields : disablement insurance; complementary services; insurance-accidents; unemployment insurance; Social Security cantonal; Allowance S family in agriculture; Social security and helps in the situations of distress; military insurance.
This Court belonged to the Federal court of the insurances before 2007. It is located at Lucerne.

Second Court of social right

President : Meyer Ulrich
Judges : Qualities Lustenberger, Aldo Borella, Yves Kernen, Hansjörg Seiler
It takes care of the following fields : State pension schemes and surviving (AVS); Disablement insurance (AI); allowances for loss of profit; health insurance; professional Precaution.
This Court belonged to the Federal court of the insurances before 2007. Its seat is with Lucerne: criminal Law material; penal procedure (except the recourse against the incidental decisions concerned with the penal procedure which is spring of the First Court of public law).
With the mobile progression of the means of communication like SMS, the Court had to lean if of threat of a sexual nature anonymous by this average technique could constitute an infringement punishes by the penal code Swiss like forced sexual sends it.

The Federal court ordered the judgment for sexual constraint (Article 189 CP) and for rape (Article 190 CP) of a man who sent anonymous messages SMS to lui−même and his ex−épouse, convening them both at a given place where they could be seen, in order to have sexual relationships, with the threat that in the event of refusal the children of the woman would undergo acts of violence; the woman, who had not recognized the true author of the SMS, thus had achieved and undergone acts of a sexual nature | (of) FRA 131 IV 167 (synthesis)

Other Federal courts

On the federal level, of another courts allow to discharge the Federal court:

the federal penal Tribunal (TPF) with Bellinzone is a body of first authority reserved for the penal matters which are spring of the Confederation.
the federal Administrative court (TAF) is, since January 1st, 2007, the first authority of recourse against the decisions of the federal administrative authorities. Currently, it is located in temporary buildings in the area of Bern but it will take its final districts with Saint-Gall.

Until December 31st, 2006, the right of the Social Security was spring of the Federal court of insurances (TFA) whose seat was with Lucerne. Since January 1st, 2007, the Federal court of the insurances was integrated in the Federal court, which is henceforth also as regards Social Security the last authority in Switzerland. The courses qualified as regards right of the Social Security continue to sit at Lucerne.

Decisions

All decisions of the Federal court produces a stop. These decisions have a great importance since it constitutes the essence of the Swiss Jurisprudence while clarifying and by giving the just interpretation of the national right or possibly by denouncing an existing gap.

To return its decisions, the court proceeds by the method of the legal syllogism. A stop of the court is composed of the two distinct parts: in the first part one witnesses a summary of the facts and former legal procedures; the second part makes place with the reasoning itself which begins with major the , points out it existing legal bases, their interpretation in the doctrines or according to the will of the Législateur, then by minor the which consists has to compare what was stated in the major one with the facts. The conclusion comes to close this analysis by giving the final decision.

The classification and system of grading of a stop rests on the following system in four parts:

FRA (in red on the image) indicates the jurisdiction. In this case Arrêt of the Federal court ( BGE in German and DTF in Italian)
126 (out of orange on the image) indicates the date according to the system 1874+ X = year. In this case, 1874 + 126 = 2000
IV (out of turquoise on the image) is classification according to the field of right: I constitutional Law, II Administrative law, III Civil law, continuation and bankruptcy, IV criminal Law and execution of sorrow, V Droit of the Social Security
186 (purple on the image) is the numbers of page where the stop is (in the official Collection).

The principal adoptions are published in the official Recueil of the stops of the Federal court in the language in which they were returned. To have the version translated into French judgments delivered in German or Italian, it is necessary to refer to various specialized magazines like the Journal of the Courts (JdT) or the legal Semaine (SJ). The majority of the adoptions not published in the official collection can be consulted on of data on line of the Federal court ''

International relations

The Swiss Federal court is member of the Association of the High jurisdictions of cassation of the countries having shares of it the use of French (AHJUCAF).

See too

External documentation

Bibliography :

Andreas Auer, Giorgio Malinverni, Michel Hottelier, Swiss constitutional Law, volume I: The State , Stämpfli Editions SA, Bern, 2000

external Bonds :

Site of the Federal court of Lausanne
Official site of the Federal courts
the Swiss Federal court: judicial presentation
Power: Federal court

external References

Booklet of the federal Chancellery, explanation of the judicial power
Organization of the Court
'' Bundesgericht '', article of the historical Dictionary of Switzerland.

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