A Look into Switzerland’s Judiciary
The Swiss civil law system, birthed from a history of celebrated cantonal autonomy, instantiates its legal ideals throughout the cantonal courts organized in civil, administrative, and criminal courts of first instance and appeals.
A hallmark of Switzerland’s concept of law is that of mentioned cantonal autonomy. Switzerland strives to decentralize much of judicial power by distributing authority to the lowest levels of governance. This is most notable in the Swiss Federal constitution, which declares that the cantons are sovereign to the extent that their sovereignty is not limited by federal law. Each canton even has its own constitution, legislature, and courts.
As you can probably imagine, for a number of years, Switzerland had different procedural rules for civil cases in each of the cantons. However, in 2011, the Swiss people approved the Unified Swiss Code of Civil Procedure in order to simply the civil claims process across the country.
This new procedural guide outlined the general judicial structure for each canton and certain mandated provisions for mediation and reconciliation of claims. In order to preserve the autonomy of these regions, cantons retain the power to appoint judges, adjudicate cases, and set forth the details of the appellate process.
Similar to the cantonal autonomy emphasized in the Code of Civil Procedure, the Swiss Criminal Code delegates the adjudication of most cases at the cantonal level, unless a suspect is being accused of committing a federal crime, such as terrorism.
Like most civil law traditions, the system of criminal justice is inquisitorial, placing great value on seeking an objective truth and necessitating the importance of process, especially in the preliminary phases. Therefore, the stages of a criminal proceeding listed below are at the heart of the system:
(1) The preliminary proceedings, which are activated when the police open an investigation into a crime that has occurred. The case moves on to the next stage only if they find probable cause for an indictment.
(2) Once all the details have been gathered, the prosecutor files an indictment (or in the case of lesser charges, a penalty order). Once this happens, the case must be taken to trial.
(3) The main proceedings, which take place at a court of first instance. Based on the severity of the crime at hand, the case might be presided over by a single judge or a collegiate court. Since jury courts were eradicated after the unified Swiss Code of Criminal Procedure entered into law in 2011, it is the court or single judge that gives a verdict of “guilty” or “not guilty.”
(4) Finally, the case may go on to appellate proceedings, in which case the aforementioned verdict can be appealed to a court of second instance. The highest court of appeals in Switzerland is the Supreme Court, an interesting entity we will discuss further in next week’s blog.
This mirrors the steps in a civil case, generally being the “Assertion Phase,” where evidence is gathered, the “Evidentiary Phase,” where the judge rules on which facts require additional proof, and the “Post Hearing Phase” where the judge issues a decision.
If an unsatisfactory decision to one of the parties is rendered, they may appeal to the local cantonal appellate court. Each canton has different levels of appeal, but in the majority of cantons there is one higher court. The function of the appellate court is simply to determine if the law as written was correctly applied to the gathered facts. Some larger cantons, such as Zurich, have a court of cassation, which may further review the decisions of the lower courts.
Finally, a party may appeal to the Federal Supreme Court, the highest level of the judiciary. This court only has the jurisdiction to determine if the relevant federal laws were applied correctly to the case.
Disputes under administrative law, however, are subject to a separate administrative court of appeals, temporarily located in Bern. Rulings by federal authorities may be reviewed by this court of appeal, along with decisions by cantonal authorities, which allow appeals be made to either the cantonal courts or the Federal Administrative Court (FAC).
Once again, the FAC is the lower instance courts and as such its judgments may be appealed to the Federal Supreme Courts.
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