-
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
-
- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
-
- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
-
- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
-
- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. History of origin
- II. Context
- III. Commentary in the narrow sense
- Recommended further reading
- Bibliography
I. History of origin
1 The guarantees of Art. 30 FC confer directly enforceable rights to a fair, equal and just trial on those entitled to fundamental rights (for the personal scope of protection, see N. 10 et seq.) within the framework of judicial proceedings (for the material scope, see N. 13 et seq.). Art. 30 FC is based partly on the Federal Constitutions of 1848 and 1874 (Art. 50 and 53 and Art. 58 and 59 respectively), partly on international law (Art. 6 no. 1 ECHR, Art. 14 no. 1 UN Covenant II) and partly on cantonal law. The earlier federal constitutions already guaranteed the right to a court established by law ("guarantee of the constitutional judge"; today Art. 30 para. 1 FC). They also guaranteed the right to a court of domicile (now Art. 30 para. 2 FC). The principle of judicial publicity, on the other hand, was absent from the Federal Constitutions of 1848 and 1874. It was guaranteed under cantonal law and via the most important international human rights conventions before the Federal Constitution of 1999 came into force. The constitutional revision of 1999 brought these elements together in Art. 30 FC. The case law that the Federal Supreme Court had developed on the old federal constitutional law should be able to retain its validity.
2 The abolition of ecclesiastical jurisdiction was not transferred to Art. 30 of the 1999 Federal Constitution. A corresponding provision is considered obsolete. Today, the prohibition of debt bondage is guaranteed by Art. 7 ("Human dignity") and Art. 10 para. 2 ("Personal freedom") FC.
II. Context
3 Art. 30 FC represents a central procedural characteristic of the liberal-democratic constitutional state. The judicial process and its special mode of operation are intended to ensure - and at the same time derive their legitimacy from - that the democratically established law is applied fairly and equally to similar cases in a procedure that is comprehensible and acceptable to both the parties and the general public. This is associated with a rejection of cabinet justice, i.e. the control of judicial proceedings from the political backrooms ("cabinets").
4 In institutional terms, the Federal Constitution expresses the concern just described in Art. 143 et seq. ("Federal authorities") and Art. 191c ("Judicial independence"). These provisions provide for a power-inhibiting functional separation of the federal authorities into the legislative, executive and judicial branches (separation of powers). They thus guarantee the independence of the judiciary (see N. 25 et seq.) from the legislature and the application of the law. In their activities, the courts are "bound only by the law" (Art. 191c FC).
5 In substantive terms, the binding nature of all state action to constitutional, democratically enacted law is expressed in Art. 5 para. 1 FC and the equality of all before the law in Art. 8 para. 1 FC. Fundamental procedural rights can be explained more fundamentally by a liberal understanding of human dignity (Art. 7 FC). The individual should never be degraded to a mere object, but should be allowed to participate appropriately in state decisions that affect his or her person. By deciding on individual legal positions in a comprehensibly correct manner, the legal consequences of personal actions are foreseeable and the possibility of personal self-determination is respected.
6 In addition to Art. 30 FC, the liberal-democratic constitutional state is realized through further fundamental procedural rights. First of all, Art. 29 FC contains further "general" constitutional guarantees. These are not limited to court proceedings, but also apply to administrative proceedings. Art. 29a FC guarantees the right to the adjudication of every legal dispute by at least one judicial authority, i.e. in a procedure that meets the strict requirements of Art. 30 FC. Art. 30 FC does not itself grant access to courts. Additional fundamental procedural protection is afforded to persons against whom the state resorts to its harshest means: deprivation of liberty and criminal law (Art. 31 and 32 FC).
7 Furthermore, Art. 30 FC is part of the broader context of international human rights protection (see n. 1). The European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) on the ECHR are of primary importance. The Swiss courts are required to take this so-called Convention law into account. However, there is a difference with regard to the scope of application of Art. 30 FC and Art. 6 no. 1 ECHR (right to a fair trial). While the national law provision covers all judicial proceedings, the Convention standard only applies to civil and criminal proceedings. This is relevant, among other things, for the scope of Art. 30 para. 3 FC (see N. 58, N. 62).
8 The implementation of the guarantees of Art. 30 FC is initially a matter for the legislature. The claims flowing from the constitutional provision find their concrete implementation above all in the various federal and cantonal laws on court organization and procedure. The case law practice on fundamental rights guarantees only becomes really significant if the legislator falls short of the minimum standards of Art. 30 FC or fails to address an issue within the scope of Art. 30 FC. At the federal level, however, case law can only enforce the guarantees of Art. 30 FC within the limits of Art. 190 FC anyway. Art. 190 FC declares federal law to be "authoritative", i.e. the courts must apply federal laws regardless of their (presumed) unconstitutionality. Some compensation for this gap in the protection of fundamental rights under federal constitutional law is provided by the protection of human rights under international law, in particular the ECHR. Art. 190 FC declares international law to be equally "authoritative" as federal laws, and according to the case law of the Federal Supreme Court, the ECHR takes precedence over conflicting federal laws.
III. Commentary in the narrow sense
9 Art. 30 FC is divided into three paragraphs. Para. 1 guarantees a constitutional court. Para. 2 guarantees the right of civil law defendants to have their case judged in their canton of residence. Para. 3 deals with the publicity of court hearings and the pronouncement of judgments. Sections B. - E. discuss these three parts of Art. 30 FC individually.
A. Personal scope of protection
10 In principle, the three elements of Art. 30 FC have the personal scope of protection in common. They are available to all natural and legal persons who participate in court proceedings as a party, similar to a party or as another party to the proceedings. They therefore protect a person regardless of their nationality, domicile, legal form and the like. Protection is also afforded to persons who have been denied party status.
11 In principle, the state is not a party to fundamental rights. Only in exceptional cases can authorities entitled to appeal, municipalities and other legal entities organized under public law invoke Art. 30 FC. The prerequisite is that they are affected by a sovereign act in the same way as private individuals, act as private individuals under civil law, complain about violations of their (municipal) autonomy or guarantee of existence, exercise their right to complain to the authorities or otherwise represent public interests in court (e.g. as a public prosecutor).
12 The personal scope of protection of Art. 30 FC is differentiated in two ways with regard to its subsections. Para. 2 specifically protects the defendant (see n. 51); para. 3 can also protect persons not directly involved in proceedings (see n. 64).
B. Competent, independent and impartial court established by law (para. 1)
1. Material scope of application
13 Art. 30 para. 1 FC guarantees that any judicial assessment of a legal dispute shall take place before a court that is established by law, has jurisdiction, is independent and impartial in person and in institution. The material scope of application of Art. 30 para. 1 FC is broad in two respects. Firstly, the concept of a court in this provision is a functional one, and secondly, it covers all areas of law (see n. 15). The former means that the guarantees of Art. 30 para. 1 FC apply in all proceedings in which a body that is independent and impartial in terms of personnel and organization from the parties to the dispute and other authorities makes a binding decision on a third-party dispute in a judicial, fair procedure on a legal-normative basis, stating reasons. Central to the concept of a court are, on the one hand, its core task of administering justice and, on the other, its organizational and institutional independence. A judicial authority does not necessarily have to be integrated into the state court structure, nor does it necessarily have to have the term "court" in its nominal name. The legal basis of judicial proceedings is also irrelevant. The wording of Art. 30 para. 1 FC is somewhat ambiguous ("Any person whose case must be judged in judicial proceedings shall be entitled..."). It should not be understood to mean that Art. 30 para. 1 FC only applies to the one judicial procedure required by the guarantee of legal recourse (Art. 29a FC). Court proceedings before all instances (even those provided for by simple law) are equally covered by Art. 30 para. 1 FC. Finally, a further criterion sometimes mentioned by the Federal Supreme Court, which links the functional concept of a court to the independent establishment of legal facts, should be read with caution. The Federal Supreme Court in particular, whose qualification as a court is beyond question, does not generally fulfill this criterion. This criterion, which is strongly developed in the context of the individual case, was therefore formulated too generally in the case law of the Federal Supreme Court.
14 The institutional breadth of application of the concept of a court under Art. 30 para. 1 FC is reflected in the case law of the Federal Supreme Court. For example, public prosecutors and investigating judges can also fall under Art. 30 para. 1 FC, for example when issuing summary penalty orders. Furthermore, mediation proceedings under reconciliation and civil procedure law must meet the requirements of Art. 30 para. 1 FC, as do various cantonal institutions such as the Child and Adult Protection Authority (KESB, TG), the Tax Appeals Commission (VS), the District Council (ZH) in certain matters or the Appeals Commission of the Protestant Reformed Church (AG). Finally, private arbitration tribunals whose decisions are equivalent to state court judgments in terms of their legal force and enforceability, including those of the Tribunal Arbitral du Sport (TAS), are also considered courts within the meaning of Art. 30 para. 1 FC. Because Art. 30 para. 1 in conjunction with Art. 29a BV. Art. 29a FC guarantees a court established by law, the existence of an arbitration agreement that justifies the waiver of the statutory court cannot be assumed lightly. The Federal Supreme Court has denied the quality of a court for commissions of authorities (administrative units of the federal government that are not subject to directives), namely the Independent Complaints Authority for Radio and Television (UBI) and the Competition Commission (WEKO), as well as for the Supervisory Commission for Lawyers (ZH).
15 The material scope of application of Art. 30 para. 1 FC must encompass all areas of law in view of the general guarantee of legal recourse under Art. 29a FC. Art. 30 para. 1 FC must therefore apply to judicial proceedings in all areas of law, and not only to civil and/or criminal proceedings.
2. Legality of the court
16 Subject to valid arbitration agreements, Art. 30 para. 1 FC deals with proceedings before courts established by a formal law. It is not permissible to regulate by ordinance "in which form the judge may be called upon, which judge in which proceedings shall conduct the examination from a functional and local point of view ... how the costs are to be allocated" and how the appeal process is structured. The essentials of court organization must therefore be regulated in a constitutional law in the formal sense, such as the jurisdiction, competences and procedures of a court. Detailed questions may be regulated by ordinance.
17 Of practical importance is the entitlement to a panel of judges duly appointed and composed in accordance with the law. It goes without saying that this right must be upheld throughout the proceedings. The right to a correctly composed panel according to generally abstract criteria is intended to prevent a panel from being composed of court members who are inclined towards a certain result: "The administration of justice should ... not be influenced by a targeted selection of judges in individual cases". The formation of a panel of judges clearly violates Art. 30 para. 1 FC if it serves to "manipulatively establish a very specific panel of judges for a specific case in order to bring about the desired result" and is therefore not based on objective criteria that strive for the correct and expeditious handling of cases.
18 The formation of a panel of judges does not have to be regulated in formal law. It is sufficient that it is carried out according to abstract and objective criteria that are defined in advance and made transparent; according to the case law of the Federal Supreme Court, this can also be guaranteed by established practice. For example, the allocation of cases according to alphabetical order or by means of an IT application, such as the Federal Supreme Court's "CompCour" or the Federal Administrative Court's "Bandlimat", are conceivable. However, constraints such as workload, language skills, particularly high levels of individual expertise in complex matters or, conversely, particularly inexperienced court members require a certain degree of discretion. However, the doctrine rightly demands that criteria should be decisive for this exercise of discretion, which a publicly accessible decree (e.g. a court ordinance) defines in a general and abstract manner. The provision of the military criminal proceedings, according to which the president of the court "designates" extraordinary substitute judges - i.e. selects them at his discretion - if the court cannot be formed from its ordinary (substitute) members, appears incompatible with Art. 30 para. 1 FC. In any case, the influence of non-judicial authorities must be prevented. The formation of a panel of judges must always remain an act of judicial self-administration.
19 In the case law of the Federal Supreme Court on the formation of panels, two groups of cases can be roughly distinguished. One group comprises cases in which the panel of judges included "wrong" persons, i.e. persons who were not authorized to make decisions under the relevant provisions. The other group consists of cases in which the adjudicating body was faulty, although its members were in principle authorized to decide.
20 In recent federal court practice, the following examples can be found of panels that were judged to be unconstitutional for reasons relating to one of their members:
Participation of a judge who was unlawfully elected due to the absence or lapse of eligibility requirements (residence in the canton);
Involvement of a judge who had already left office;
Assumption of a position by a court clerk who was no longer working at the court at the time of the judgment.
On the other hand, Art. 30 para. 1 FC is not violated if a court member has "only" gained knowledge of the parties' submissions and the evidentiary proceedings by studying the files. Lay judges are also constitutionally permissible; Art. 30 para. 1 FC does not give rise to any entitlement to a specific professional training of court members (see also n. 27).
21 In recent Federal Supreme Court practice, the following examples can be found of faulty panels whose faultiness was not due to the person of a member:
Lack of a legal basis for a single judge's decision to revoke an inpatient therapeutic measure (incorrect interpretation of the law by the cantonal authorities);
Unjustified change of judge before a judgment was issued, which made it impossible to substantively contest the relevance of the change of the adjudicating body;
systematic and general appointment of court secretaries to relieve single judges, with the result that the former were granted autonomous judicial power without a legally sufficient basis in law;
unlawful number of members of a panel (in various constellations): Under- or overstaffing, disregard of the requirement of the presence of a certain quorum of court members, lack of a legally prescribed standard number of members of the panel, disregard of the jurisdiction of the full court in the absence of any other regulation, absence of a court clerk with an advisory vote.
3. Jurisdiction of the court
22 Art. 30 para. 1 FC enshrines the right to have a legal dispute decided by the competent court, i.e. the court that actually has jurisdiction under the law. In the words of the Federal Supreme Court: "In order to prevent abuse and manipulation or to exclude any appearance or suspicion of such, courts and their jurisdiction (in personal, temporal, local and substantive terms) should be determined in advance by general abstract procedural law".
23 Courts of exception are explicitly prohibited (Art. 30 para. 2 FC). However, courts that are created to judge a specific case (ad hoc) or a specific person (ad personam) are not a problem in Swiss practice. There are no relevant federal court rulings. The origins of this provision go back a long way, namely to the political unrest of the 19th century. Special procedural guarantees were required to ensure transitory justice. This history confirms that this provision (at least according to its original meaning and purpose) has long since become obsolete. Nevertheless, and contrary to the Federal Council's draft constitution, the Councils retained the provision during the total revision of the Federal Constitution.
24 Specialist courts created by law, such as labor, tenancy, commercial, juvenile criminal or military courts, are to be distinguished from exceptional courts. They are permissible if there are objective reasons for their establishment, such as the need for certain specialist knowledge or the requirement for a court to be made up of equal numbers of representatives of affected interest groups. The Federal Supreme Court ruled that the assignment of the power to review certain measures under the Federal Act on Measures to Safeguard Internal Security to the detention judge (Canton of Zurich) and the assignment of independent jurisdiction to court clerks in civil law (Ticino) were inadmissible.
4. Independence and impartiality of the court
25 All members of a court must be independent and impartial (Art. 30 para. 1 sentence 1 FC). If they are not, Art. 30 para. 1 FC confers the right to demand that the member of the court concerned recuse himself or herself. What independence and impartiality mean exactly is explained in detail after some preliminary remarks. These requirements apply not only to judges, but also to all other court members and auxiliary persons involved in the proceedings (for the latter by analogy, but according to the prevailing doctrine based on Art. 29 FC). In other words, the requirements of independence and impartiality apply to all persons involved in the rendering of a judgment, but not to administrative law firm personnel. The requirement of independence and impartiality therefore extends not only to the members of the court, including party arbitrators, but also to court clerks, auditors and the like, experts who prepare expert opinions and the like for the court, as well as interpreters and translators. In view of the great influence that these persons can have on the outcome of court proceedings, this seems undisputed. In my opinion, however, it is unclear why the view is predominantly held that the independence and impartiality of these persons is governed by Art. 30 FC by analogy, but is formally derived from Art. 29 FC. Since Art. 30 FC speaks of "court" (not of judges), judicial assistants or decision-makers can also be subsumed under this term. As far as can be seen, there is no conclusive justification for the former view in either doctrine or case law. The direct application of Art. 30 FC to all court personnel, including court assistants and decision-makers, should therefore be preferred for reasons of simplicity and the legal system alone.
26 The right to independent and impartial court personnel presupposes knowledge of these persons. It therefore follows from Art. 30 para. 1 FC that there is a right to know, or at least to be able to know, who is involved in the decision. If it is said in practice that this information does not necessarily have to be contained in the court's rubric, but that it is even sufficient if it can be taken from generally accessible sources, such as a state calendar, this is problematic in several respects. On the one hand, this demands a great deal from the legal layperson in particular. On the other hand, the naming of the members of a court does not usually indicate the composition of a specific panel. The court authorities are required to inform the parties of any changes to the panel of judges on their own initiative, stating the reasons. In addition, court personnel are in any case responsible for observing any reasons for recusal of which they are aware.
27 The lay judiciary practiced in Switzerland (as elsewhere) is not per se a problem with regard to judicial independence and impartiality (see n. 20 above). However, the practice whereby, for example, only legally trained persons are elected to the Federal Supreme Court indicates that legal training of court members of all instances would at least be desirable with regard to the desideratum of a professional judiciary (which is not limited to judicial independence and impartiality). For reasons of procedural economy alone, it is important to prevent lower instances from deciding inadequately in a way that leads to a fundamental right of the parties to the proceedings to be allowed to submit their case to a further instance. The Federal Supreme Court must therefore be followed in principle when it emphasizes that court members without a law degree must essentially "be able to grasp the details of the case, form an opinion on it and apply the law to it". The fact that lay judges presumably increasingly rely on the support of legally trained court personnel does not pose a problem, as the latter must also meet the requirements of judicial independence and impartiality (see n. 25). Rather than lay judges per se, problems may arise from the fact that lay judges may have other (possibly full-time) activities in addition to their judicial mandate. However, this problem also exists in the case of legally trained court members who work part-time as judges (see N. 34). According to Kiener, the same applies to the question of whether lay court members are more likely to be influenced by public pressure than legally trained judges. What is primarily important is experience and routine, i.e. regular (preferably full-time) work as a court member. This is particularly lacking in the case-by-case jury courts, which must be distinguished from Swiss lay judges.
a. Independence
28 The right to an independent court includes the right to a court that is institutionally and organizationally independent within the meaning of Art. 191c FC (see n. 13). According to Art. 191c FC, the courts are "bound only by the law". They may not accept instructions or orders from non-judicial persons and institutions. This includes, in particular, other state bodies, but also the litigants themselves and intermediary powers such as parties, associations, the media, etc., whose campaigns and reporting may be capable of interfering with court proceedings. A judicial body must also remain independent of other judicial authorities and their members, including those of the same court. Art. 30 para. 1 FC guarantees an individual fundamental right to respect for judicial independence, as provided for institutionally in Art. 191c FC. This right is of course not violated by the amendment or annulment of a judgment by an appellate court. The purpose of an appeal is precisely to have the lower-instance decision reviewed and, if necessary, corrected.
29 In the case of private arbitration tribunals, a particular problem of independence can sometimes arise. If a private arbitration tribunal is supported by one or more associations, the arbitration tribunal may lack the independence required by fundamental rights vis-à-vis a party in proceedings if the latter is not a member of the association or is not on the association's side (and nevertheless had to agree to an arbitration clause due to the market power of the association, for example).
b. Impartiality
30 The case law of the Federal Supreme Court is not primarily concerned with independence, but with the impartiality of the courts. The requirement of judicial impartiality is initially a subjective criterion relating to the inner state of a person, which cannot be determined objectively or established by means of evidence. In the words of the Federal Supreme Court, this requirement entitles every person in court proceedings to have their case decided by "impartial, unbiased and unprejudiced" members of the court "without the influence of extraneous circumstances". Until now, the doctrine has not been able to recognize any clear boundaries in the federal court's use of these three adjectives. Although impartiality is likely to play the role of the (comprehensive) generic term, nothing of practical legal significance seems to be attached to these different terms.
31 Because partiality does not (necessarily) manifest itself in an objectively ascertainable manner, it is sufficient for a violation of this claim that external circumstances exist that give the appearance of a lack of impartiality. In the words of the ECtHR: "dans des cas où il peut être difficile de fournir des preuves permettant de réfuter la présomption d'impartialité subjective du juge, la condition d'impartialité objective fournit une garantie importante de plus". The decisive factor is an objectified standard, i.e. not the subjective view of the person concerned, but the effect of the circumstances on an average third party; in other words, objective reasons must be sought which make the insufficient impartiality of a court person appear doubtful in a justified manner.
32 In principle, the impartiality of a person is presumed. The exceptional lack of subjective impartiality or its objective appearance may then result from reasons that lie in the person and their conduct and/or from reasons of an institutional and functional nature that are inherent in the court organization.
33 The Federal Supreme Court has summarized its case law practice on the impartiality requirement under Art. 30 para. 1 FC in the recently issued BGE 147 I 173. An inadmissible appearance of partiality does not regularly exist if the relationship in question is merely one of professional collegiality. The situation is different if there are private or professional relationships of closeness or dependence that go beyond what is socially customary. The latter is the case, for example, with the substitute judge who assessed claims for damages and compensation against the university at which she was also a titular professor; with the senior judge whose husband and brother-in-law had a close relationship with a person who was closely connected to one of the parties to the proceedings; and with the judge who reviewed decisions by the authorities that his wife had initiated in a leading position.
34 The Federal Supreme Court also ruled that various constellations involving lawyers acting as court members were inadmissible. This accumulation of roles, which jeopardizes judicial impartiality, results from the widespread practice of part-time court members in this country. For example, a lawyer acting as a judge who has an ongoing or permanent client relationship with a party to the proceedings cannot be considered impartial. It is sufficient for the appearance of partiality that the attorney-client relationship in question only exists with a person closely associated with the party to the proceedings. Kiener/Medici come to the conclusion, after a convincing weighing of interests taking into account various case constellations, that a separation between the roles of lawyer and judge is appropriate. Federal law is moving in the same direction: the federal legislator has now prohibited (most) members of the federal courts from professionally representing third parties (before most courts).
35 Journalistic work in a broad sense, which is itself protected by fundamental rights, can also be in conflict with activities as a court member. Nevertheless, court members are generally permitted to express themselves publicly as private individuals on legal and socio-political issues. Articles in the (specialist) press, expert opinions, discussions of judgments that are not final (including in lecture halls) and the like threaten to impair the impartiality of the authorship if they express themselves in detail and clearly on issues that are still open in the context of proceedings. However, it is also quite possible that more general publications and presentations may give rise to doubts that a court member has not already decided on a judgment before the end of the proceedings. This would be conceivable, for example, if a court member expresses a firm, apparently irreversible opinion on a (potential) leading judgment while similar judgments are pending before the court. In order to answer the question of when journalistic activities by members of the court violate their impartiality in a way that is contrary to fundamental rights, two criteria are decisive: In terms of timing, a publication becomes problematic in particular if it contains references to cases that are already pending or of which it is foreseeable that they will become pending. Foresighted restraint is advisable here in order to prevent possible grounds for recusal. However, a public reference to a position further in the past can also call into question the impartiality of a court member, meaning that the person concerned must recuse themselves. In terms of content, a publication by a court member is problematic if it can at least appear to give rise to justified doubts that the outcome of the proceedings in question is still open to the publishing court member. The Zurich district judge clearly disregarded these limits when he held out the prospect of impunity for the climate activists (see N. 47). Conversely, the value of journalistic activities by court members should not be forgotten. On the one hand, the public can benefit from valuable contributions to the discourse based on specialist knowledge and practical experience. On the other hand, parties to proceedings can gain valuable information from them, for example on key legal issues, important lines of argumentation and the like. Overall, therefore, an overly strict standard should not be applied. In my opinion, the Federal Supreme Court goes too far when it expects its members (even if only) "not to comment on political issues as a matter of principle" and to "refrain from criticizing other opinions".
36 Finally, there is extensive case law on the problem of prior and multiple referrals, i.e. role cumulation. Here, the problem of (presumed) bias lies in the fact that the court member in question has already dealt with the dispute before the current stage of the proceedings, possibly in a different judicial role. "In such a case ... the question arises as to whether a court member, through his or her involvement in earlier decisions, has already committed himself or herself on individual points to such an extent that he or she no longer appears to be impartial and, accordingly, the proceedings are no longer open." As the added emphasis in the Federal Supreme Court's description of the problem makes clear, prior involvement does not automatically imply insufficient impartiality. There is only room for a judicial assessment of disputed impartiality in the absence of codified regulations. If a court has to assess the admissibility of a prior or multiple referral, three considerations are paramount: firstly, which questions the disputed court member has to decide in his two roles and how closely connected these questions are, in particular whether they are very similar or even identical; secondly, how much leeway the court member has in assessing these questions; thirdly, how decidedly the court member has already expressed his opinion on the questions to be answered again in his first referral.
c. (Party) political appointment of the courts
37 The traditional election and, above all, re-election procedures of court members by political electoral bodies (parliament, electorate) probably pose the greatest systemic challenge to the independence and impartiality of the courts in Switzerland. For example, federal judges are elected by the United Federal Assembly (National Council and Council of States) for a term of office of six years. They can then be re-elected without restriction until retirement age. This combination of a relatively nutshell term of office with the possibility of political re-election is widespread in Switzerland. Its problem lies in the fact that it harbors the danger of tempting court members who are worried about their re-election to make "politically convenient" rulings. The Federal Supreme Court also recognizes this problem. In fact, past elections to the Federal Supreme Court have shown that there can at least be attempts to exert political influence.
38 The problem could be mitigated by a recent development in the case law of the Federal Supreme Court, although it does not directly affect judicial independence. The Federal Supreme Court has indicated that it sees a need for legal protection in the case of non-re-election of court members. It bases this need for legal protection on the fundamental rights of the non-re-elected court member, not on the right of the parties to the proceedings to an independent court. Nevertheless, the Federal Supreme Court thus restricts the freedom of the competent bodies (usually parliament or the people of the cantons) not to re-elect court members. Conversely, this strengthens the institutional independence of the courts. If the Federal Supreme Court restricts the ability of the electoral bodies to deny court members re-election for political reasons, it naturally also restricts their ability to exert pressure on court members to be re-elected.
39 The willingness in Switzerland to accept the risks associated with court members having to face periodic re-election by political bodies can be explained by the Swiss constitutional culture and its understanding of the separation of powers. In this country, there is traditionally a certain skepticism towards "elite" bodies that are not subject to political, i.e. majority-democratic, control, or only to a limited extent. The legislative powers (parliament as well as the people and the cantons), which are supposed to have the "last word", are regarded as sovereign. In an international comparison, political accountability (the potential to be held accountable) and the democratic legitimacy of the courts are therefore weighted heavily, while the independence of the judiciary from the legislature is given comparatively little weight. As constitutional counterparts to majority democracy and its political actors, the Swiss courts are therefore in a comparatively weak position.
40 The ability of the political electoral bodies to influence the courts via their re-election competence presupposes knowledge of the individual decision-making behavior of the court members. For this reason, the comparatively low level of transparency of the individual decision-making behavior of judges in Switzerland mitigates the problem. Firstly, the individual voting behavior within a panel of judges is usually not clearly visible. Secondly, the vast majority of Swiss courts do not publish so-called special votes in which the individual court members explain their individual legal opinion. As a result, the political electoral authorities are likely to regularly lack the knowledge necessary to make it difficult or even impossible to re-elect individual judges they do not like.
41 Conversely, it is argued that the problem under discussion is exacerbated by the fact that members of the judiciary are de facto required to belong to a political party and to pay an "obolus" (i.e. a mandate fee as a percentage of salary, which is at least not entirely voluntary). Because in Switzerland, in particular, the judgeships at the highest courts are filled according to parliamentary party proportional representation, the party membership associated with a mandate contribution constitutes a de facto eligibility requirement.
42 The party affiliation of court members, which is subject to a contribution requirement, is mainly a problem of the appearance of a lack of openness in the decision-making process rather than one of judicial independence. Financial support and party affiliation give the appearance of a certain ideological, political and ideological bias. The system is justified by the fact that it ensures the balanced representation of different world views (social pluralism) in the courts. Of course, this justification loses its plausibility to the extent that the internal court divisions that make up the adjudicating bodies lack party-political heterogeneity.
43 The political-ideological bias of court members at issue here is a subjective phenomenon inherent in the person of the court member. Irrespective of the electoral system and the (lack of) party affiliation of court members, they have personal convictions and world views. In my opinion, it is therefore appropriate to try to reflect these different attitudes as broadly as possible in the judiciary. The current system is no guarantee that this will succeed, but there is an obvious lack of alternatives superior to party affiliation to reflect the different political and ideological worldviews represented in the political community in the judiciary.
44 However, the ideological plurality of the courts could also be ignored or left to chance. For example, the "Justice Initiative" wanted to appoint the members of the Federal Supreme Court by drawing lots after a pre-selection by an expert commission (rejected in the referendum). As Ammann points out, the "arational" drawing of lots, i.e. without any human influence, would be suitable for strengthening judicial independence. However, there are also weighty arguments against the appointment of courts by drawing lots. Firstly, a lottery procedure carries the risk of a one-sided selection of candidates, regardless of statistical probabilities. The initiative committee was well aware of this. The text of the initiative stated that the lottery procedure should be designed in such a way "that the official languages [but only the official languages and not other criteria such as gender, parts of the country, political views, etc.] are adequately represented in the Federal Supreme Court". are adequately represented in the Federal Supreme Court". Secondly, the attempt to guarantee chance and diversity together poses the following problem: if a pre-selection were to be made for an office at the highest Swiss court, for which there are a priori only a few qualified candidates, on the basis of various personal characteristics such as language, gender, origin, etc., the lack of remaining names would mean that the decision would be made less by lot and more by the pre-selection of the expert commission. In addition to new risks regarding judicial independence, this would also reduce the democratic legitimacy of the pre-selection committee. A middle way between the current system and the responsibility of a panel of experts could be desirable. An idea from the Council of States' Legal Affairs Committee went in this direction. An "expert advisory board" was to advise the Judicial Committee of the Federal Assembly in the preparation of the Federal Supreme Court elections. However, the Council of States Legal Affairs Committee shelved the matter, although it admitted that the current election procedure could be improved.
45 Finally, the problem of internal court organizational and power structures must be considered in the present context. If the ideological views of individual court members are known, there is a risk that leading court members will attempt to fill panels "appropriately" or make promotions and appointments in their interests. It is questionable whether the legislator could prevent this problem. It could ensure party proportionality (perhaps the best of all inadequate options for ensuring politically plural courts) not only in the appointment of judges, but also within the framework of the statutory court organization. However, this would entail other significant disadvantages, for example with regard to the professionally and linguistically adequate appointment of judges and the self-organization of the judiciary as an expression of its independence from politics.
46 In summary, it can be said that it is complex to assess the independence and impartiality of courts, which are difficult to separate. Ensuring judicial independence and impartiality is as challenging as it is difficult and potentially controversial to assess. As Kiener writes, it would be "naïve" to believe "that there are 'political' and 'apolitical' electoral bodies", or that electoral bodies and procedures exist that are free of problems. A conclusive assessment can only be made on a case-by-case basis and depends on various criteria, including the election procedure, the term of office and the (non-)recallability of court members, as well as measures to protect against attempts to influence the court externally and the appearance of its independence. It would therefore be wrong to draw the general conclusion that the Swiss courts do not meet the requirements of political independence and impartiality due to their (party) political appointment. In practice, the Swiss rule of law, including the functioning of its courts, is in good shape. This is also shown by the (seemingly) paradoxical assessment of the Groupe d'Etats contre la corruption (GRECO), which states that although Swiss election procedures hardly meet international standards, "judges of the federal courts do not appear to be subjected to direct political pressure in the performance of their duties".
47 Nevertheless, the systemic problem of the undeniable appearance of a political coloration of local court members must not be negated. In order to mitigate it, some changes to the system of elections to the Swiss courts would be welcome. As GRECO recommends, the practice of all parties levying mandate fees should be discontinued and long, fixed terms of office (ideally while maintaining a retirement age) should be introduced. Although the accusation of non-material or political bias could still be made in principle, this type of bias alone seems too abstract to call into question judicial impartiality in individual cases, at least as long as no other circumstances arise. The latter was evidently the case recently with a district judge in Zurich, who not only openly sympathized with climate activists in the courtroom, but also announced that he would consistently acquit them in future unless they became violent. However, these relatively modest changes would put an end to the (apparent) existence of quasi-mandate relationships and political influence via re-election requirements. This would strengthen confidence in the judiciary while maintaining its high level of democratic legitimacy.
48 Finally, the following should be noted: The current system only works - and is therefore only tenable - as long as Switzerland's political order is based on a concordant multi-party system in which the risk of political monopolization of judgeships remains theoretical.
5. Lack of restrictability
49 Art. 30 para. 1 FC provides a minimum guarantee as a fundamental procedural right. The rights flowing from Art. 30 para. 1 FC may not be restricted. Art. 36 FC is therefore not applicable to this provision. They are "resistant to interference" in the sense that any restriction constitutes an impermissible violation of Art. 30 para. 1 FC (cf. n. 50). This does not mean, however, that these claims apply without preconditions, nor that their protective content does not allow any scope for implementation, nor that conflicting interests would be meaningless in their concretization. A valid arbitration agreement and the submission to arbitration is considered a permissible waiver of the constitutionally guaranteed procedure before the legally competent court (see n. 16).
6. Legal consequences
50 Art. 30 para. 1 FC confers a claim of a formal nature. Its violation leads "irrespective of the substantive merits of the appeal, to the upholding of the appeal and the annulment of the contested decision". To ensure that this claim is not forfeited, procedural defects must be asserted at the earliest possible time, whether before, during or after the proceedings, i.e. without waiting as soon as knowledge of them exists or should exist (requirement to act in good faith, Art. 5 para. 3 FC). However, it should not be lightly assumed that a party to the proceedings has become aware of a procedural defect and has waived its objection or has insufficiently substantiated it. In the case of serious procedural defects, the claims arising from Art. 30 para. 1 FC should not be forfeited even if they were not asserted in good time. In particularly serious cases, the decision concerned is null and void, for example if a member of the court has pursued personal interests.
C. Claim to the place of residence of the civil defendant
51 Art. 30 para. 2 FC basically guarantees a civil defendant that he or she will be sued in the court with territorial and substantive jurisdiction over his or her domicile (see n. 22 et seq.). However, legislation has regulated the local jurisdiction of the civil courts in detail (Art. 30 para. 2 sentence 2: "The law may provide for a different place of jurisdiction."). The principle of Art. 30 para. 2 sentence 1 FC is therefore only of limited significance (see n. 54).
52 Art. 30 para. 2 FC has a broad scope of application. In personal terms, it covers all natural persons and legal entities with their domicile or registered office in Switzerland. In substantive terms, it covers all actions with substantive civil law subject matter, not just compulsory claims.
53 Art. 30 para. 2 sentence 1 FC confers the justiciable right of the civil law defendant to be sued in his canton of residence at the court that has jurisdiction according to the cantonal court organization. The claim may have international, intercantonal and intra-cantonal effect.
54 Art. 30 para. 2 sentence 2 FC provides for a far-reaching reservation of this principle. It leaves it up to the legislature to provide for exceptions to the guarantee of the judge of domicile (including by means of international treaties), without specifying the conditions under which such exceptions are permissible. Due to the comprehensive codification of civil procedure, including international proceedings, there is little room for the principle of the judge of domicile under Art. 30 para. 2 sentence 1 FC.
55 If the defendant waives his or her right to the judge of domicile, Art. 30 para. 2 sentence 1 FC naturally loses its meaning. This is the case in the event of a plea of lack of jurisdiction and where there is a valid jurisdiction or arbitration agreement.
56 Art. 30 para. 2 sentence 1 FC is therefore today merely a catch-all fundamental right and an aid to interpretation. The provision plays the role of a fallback guarantee in the absence of a statutory or constitutional provision. Art. 30 para. 2 sentence 1 FC fulfills the function of an aid to interpretation when provisions of laws, treaties or jurisdiction agreements need to be interpreted (constitutional interpretation of the law).
D. Public court proceedings
57 Art. 30 para. 3 FC guarantees the public nature of the judiciary, specifically of court hearings and the pronouncement of judgments. This creates transparency that allows the "general public" to scrutinize the judiciary while respecting the separation of powers. This section deals with the publicity of proceedings; the next section deals with the public pronouncement of court judgments (E. below).
1. Scope and scope of application
58 According to the wording of the heading of Art. 30 FC ("Judicial proceedings") and its para. 3 (sentence 1: "Court hearings and the pronouncement of judgments are public."), the principle of the public nature of court hearings applies across jurisdictions. Nevertheless, the Federal Supreme Court assumes that the scope of application of this principle is limited to civil and criminal proceedings, namely in accordance with Art. 6 no. 1 ECHR. This interpretation of the law must be rejected. Neither can a corresponding narrowing of the scope of application of Art. 30 para. 3 FC be inferred from the 1999 Dispatch on the Federal Constitution, nor are there any objective reasons why the concern for transparency and the possibility of judicial review should be less relevant in the area of public law than in the area of civil and criminal law. This is not altered by the fact that the legislature acted in accordance with the Federal Supreme Court (but, in my opinion, unconstitutionally) when it provided for the principle of written form for proceedings before the Federal Administrative Court.
59 According to Federal Supreme Court practice and literature, the principle of public hearings does not apply to arbitration proceedings. This is justified by the fact that their public nature would contradict the meaning and purpose of arbitration clauses. However, Schefer/Schaub show that there are good reasons against making a fundamental distinction between arbitration proceedings and proceedings before state courts in this area. An arbitral award is an act of sovereignty, which should therefore be subject to the same transparency as state court decisions for the same reasons. Especially in far-reaching commercial law disputes, there can be a high level of public interest in arbitration proceedings on the part of consumers, employees, insured persons and others.
60 The scope of the right to a public procedure must then be determined horizontally (stages of the proceedings) and vertically (instances). From a horizontal perspective, only the hearing in which the parties face each other and the court is covered. Excluded are the preliminary proceedings, the court's deliberation on the judgment and the vote in the collegial court. This is subject to conflicting procedural laws which, for example, require the Federal Supreme Court to hold public deliberations on a judgment if there is no unanimity in a case.
61 The public nature of court hearings is particularly important in the lower courts. This is where the jurisdiction for the determination of facts and factual issues usually lies, where the central discovery processes and party submissions usually take place. If at least one public hearing has taken place, the right to public (oral) hearings before appellate courts is only limited. It presupposes that an oral hearing appears justified in the individual case in view of conflicting interests, for example the speedy assessment of the case.
62 With regard to the protective effect, the Federal Supreme Court has greatly reduced the scope of the public nature of court hearings with its case law, according to which there is no right to a public hearing, but only a right to the public nature of the hearings provided for by procedural law. As Steinmann correctly points out, the protection of Art. 30 para. 3 FC is thus left entirely to the discretion of the procedural legislator. This cannot be the task of a constitutional fundamental right. Steinmann therefore calls for an independent "right to the holding of public hearings ... which are necessarily oral". Such a right is guaranteed by international law in civil and criminal proceedings, where Art. 6 no. 1 ECHR generally requires a public hearing. Matters of public law are generally excluded from this Convention right, meaning that they only have to be heard in public (orally) if this is provided for by procedural law. However, this legal protection gap under fundamental rights has become smaller: Art. 6 no. 1 ECHR covers many matters considered to be administrative disputes under national law, either because they fall within the scope of "civil claims and obligations" as broadly interpreted by the ECHR or (more rarely and mainly in the area of disciplinary measures) because they are considered "criminal" under Convention law.
63 Publicity of the hearing means public and media publicity. However, this does not include the right to audio and video recordings.
64 In this context, the fundamental right to be heard must be explained. The parties to the proceedings themselves are holders of fundamental rights insofar as Art. 30 para. 3 FC protects their interests. For example, it may be a concern of the accused under criminal law to be able to defend themselves at a public hearing, while conversely it is also conceivable that the accused does not wish to be heard in public. However, the public (uninvolved third parties) and the media are also holders of fundamental rights (see also Art. 16 para. 3 FC, "Freedom of information"). They are entitled to demand access to a court hearing, but not to demand a hearing. Because it is not only the parties to the proceedings who are entitled to fundamental rights under Art. 30 para. 3 FC and because this provision also protects the interests of third parties, the parties to the proceedings cannot waive the public nature of the hearing ("no right to non-publicity"); i.e. the courts do not have to comply with the parties' request to exclude or restrict the public.
2. Restrictability
65 Contrary to the principle that fundamental procedural rights are non-restrictable minimum standards, the right to publicity of court hearings is subject to restrictions, provided that these serve an overriding public interest and are proportionate. Like all restrictions on fundamental rights, restrictions on the publicity of court hearings must be examined separately for their proportionality and admissibility in each individual case. Blanket provisions such as those in Art. 54 para. 4 CPC, according to which family law proceedings are not public, do not stand up to this standard. Admissible public interests include public order and safety, morality, national interests, the protection of privacy interests as well as children and young people and the administration of justice itself. Proportionality requires the conflicting interests to be weighed up in each individual case, taking particular account of the importance of media court reporting ("watchdog function" of the media, media as "public watchdogs").
66 In general, public law proceedings are largely characterized by the written form for reasons of procedural economy, so that no public hearings regularly take place. This does not violate the international procedural guarantees, which are only applicable to civil and criminal proceedings, but in my opinion this is not compatible with the current Art. 30 para. 3 FC (see n. 7, n. 58). Assuming that the current administrative procedural law gives due weight to procedural economy, the wording of Art. 30 para. 3 FC should be clarified to this effect, i.e. administrative proceedings should at least be excluded from the scope of application of public court hearings.
67 If the right to a public hearing is inadmissibly restricted (i.e. violated), the legal consequence is that the judgment is set aside, unless the defect can be remedied in the appeal proceedings by holding the public hearing before this instance at a later date. This presupposes that the appellate instance has the same (full) cognizance as the lower court authority. In proceedings before the Federal Supreme Court in particular, it should therefore not normally be possible to remedy a violation of the principle of publicity. In any case, curing procedural errors by lower courts in appeal proceedings is problematic. In particular, it shortens the appeal process, because in this constellation the appellate instance decides for the first time in a correct procedure.
E. Public pronouncement of judgment
68 The public should be informed not only of the trial, but also of the outcome of court proceedings in order to be able to exercise a control function over the judiciary (see N. 3, N. 57). Art. 30 para. 3 FC therefore stipulates that court judgments must be publicly announced or published. In practice, there is currently still a huge problem, especially at the cantonal level, with the online publication of all court judgments covered by the scope of this provision (see n. 69), which is actually to be expected today.
1. Scope of application and scope
69 The public nature of the judiciary and its judgments has a broad scope in two respects. Firstly, it applies to all judicial proceedings in all areas of law, even those before lower courts and/or of objectively minor importance (including penalty orders, orders to discontinue proceedings and orders not to prosecute); here too, the principles of democratic control, legality and procedural fairness must be fully respected. It is also not appropriate to restrict the publicity of judgments to judgments that are not yet legally binding or have been overturned by an appeal court. With regard to arbitral awards, the statements made in N. 59 apply mutatis mutandis. Secondly, the duty of disclosure under Art. 30 para. 3 FC is comprehensive insofar as it covers court judgments in their entirety; i.e. in addition to the recitals, the findings on the facts of the case, the dispositive with the court's decision, including the cost consequences, and the rubric with the file number and the date of the decision, the details of the dispute, the panel and its composition as well as the parties and their legal representatives must be published.
70 Traditionally, the publicity of a judgment requires "that at the end of court proceedings the judgment is announced in the presence of the parties as well as the public and media representatives", but the meaning and purpose of the constitutionally required public announcement of court judgments can also be ensured by means of other forms of announcement, such as public circulation, official publication or online publication of a judgment. The latter forms of publication are equivalent and not subsidiary alternatives to the oral reading of a judgment. The obligation to publicly announce a judgment is of particular importance in the (many) proceedings in which there is no public hearing and oral deliberation of the judgment. However, a right to be served with a copy of a judgment does not follow from Art. 30 para. 3 FC.
71 In view of the purpose of the public nature of judgments, which is to enable trust in and control over the judiciary, the circle of holders of fundamental rights is also broad. The parties to the proceedings are generally entitled to knowledge of their judgment due to their direct involvement. The specific fundamental right to the publication of court judgments also protects in particular the legitimate interests of the general public and, above all, of media court reporting, which in principle do not require any further justification. Consequently, the parties can neither waive the publication of judgments nor demand the non-publication of their (anonymized) judgment.
2. Restrictability
72 Like the publicity of court proceedings, the publicity of judgments is not absolute (see N. 65). It can be restricted in individual cases as part of a balancing of interests (proportionality test) if conflicting public or private interests prevail and the law itself provides for a corresponding exception. In particular, court judgments are regularly only made accessible to the public in anonymized form due to the protection of the privacy of the parties to the proceedings. The possibility that anonymized persons remain identifiable does not have to be ruled out. In particular, the comprehensibility of the judgment sets limits to its anonymization. Within these limits, the merely abridged publication of judgments is also permissible. There are hardly any conceivable circumstances that would justify the complete omission of publication of even an abridged and anonymized version of a judgment. In civil and criminal proceedings within the meaning of Art. 6 ECHR, this would in any case be incompatible with no. 1 of this provision.
73 A violation of the right to the publicity of a judgment can be remedied comparatively easily, namely by the appeal court obliging the lower court to publish the judgment retrospectively.
About the author
Reto Walther, Dr. iur., lawyer, Federal Office of Justice, has published and taught in constitutional, administrative and international law. He is currently working on the book project "Subsidiarity, Legitimacy, and the European Court of Human Rights" for Oxford University Press on the basis of his dissertation.
Recommended further reading
Bühler Alfred, Die Stellung von Experten in der Gerichtsverfassung – insbesondere im Spannungsfeld zwischen Gericht und Anwaltschaft, SJZ 105 (2009), S. 329 ff.
Eichenberger Kurt, Die richterliche Unabhängigkeit als staatsrechtliches Problem, Bern 1960.
Fonjallaz Jean, Garantie pour le justiciable d’un tribunal indépendant et impartial et contrôle de l’activité des tribunaux par la haute surveillance exercée par le pouvoir législatif, une coexistence difficile, AJP 2011, S. 49 ff.
Gass Stephan/Kiener Regina/Stadelmann Thomas (Hrsg.), Standards on Judicial Independence, Bern 2012 (Textsammlung).
Haesler Frey Mirjam, Aufsicht über die Justiz, Basel 2017.
Hottelier Michel, Les garanties de procédure, in: Thürer Daniel/Aubert Jean-François/Müller Jörg Paul (Hrsg.), Verfassungsrecht der Schweiz, Zürich 2001, S. 809 ff.
Hürlimann Daniel, Publikation von Urteilen durch Gerichte, sui-generis 2014, S. 82 ff.
Reiter Catherine, Gerichtsinterne Organisation: Best Practices, Zürich 2015.
Santschi Kallay Mascha, Externe Kommunikation der Gerichte: Rechtliche und praktische Aspekte der aktiven und reaktiven Medienarbeit der Judikative, Bern 2018.
Saxer Urs, Vom Öffentlichkeitsprinzip zur Justizkommunikation: Rechtsstaatliche Determinanten einer verstärkten Öffentlichkeitsarbeit der Gerichte, ZSR 125 (2006), S. 459 ff.
Schindler Benjamin, Wer wacht über die Wächter des Rechtsstaates? Das Bundesgericht im Spannungsfeld zwischen Unabhängigkeit und Verantwortlichkeit, AJP 2013, S. 1017 ff.
Thurnherr Daniela, Verfahrensgrundrechte, in: Diggelmann Oliver/Hertig Randall Maya/Schindler Benjamin (Hrsg.), Verfassungsrecht der Schweiz, Zürich/Basel/Genf 2020, S. 1477 ff.
Uhlmann Felix, Verfahrensgrundrechte, in: Biaggini Giovanni/Gächter Thomas/Kiener Regina (Hrsg.), Staatsrecht, 3. Aufl., Zürich 2021, S. 616 ff.
Valois Martine, L’indépendance judiciaire: La justice entre droit et gouvernement, Zürich 2012.
Bibliography
Ammann Odile, Sollten die höchsten Richterinnen und Richter im Losverfahren bestimmt werden? Überlegungen zur richterlichen Unabhängigkeit unter besonderer Berücksichtigung der schweizerischen «Justiz-Initiative», in: Urbanik Jakub/Bodnar Adam (Hrsg.), Law in a Time of Constitutional Crisis, Warschau 2021, S. 7 ff.
Auer Andreas, Staatsrecht der Kantone, Bern 2016.
Baldegger Mirjam, Der wiederkehrende Ruf nach dissenting opinions am Bundesgericht: Wünschbarkeit, Auswirkungen und Ausgestaltung richterlicher Sondervoten in der Schweiz, ZBl 118 (2017), S. 131 ff.
Biaggini Giovanni, BV Kommentar, 2. Aufl., Zürich 2017.
Bohnet François, Kommentar zu Art. 30, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire romand: Constitution fédérale, Basel 2021.
Borghi Marco, Etat et autorités – La mainmise des partis politiques suisses sur l’élection des juges, in: Belser Eva Maria/Waldmann Bernhard (Hrsg.), Mehr oder weniger Staat?, Bern 2015, S. 175 ff.
Brunner Arthur, Verfassungsrechtliche Vorgaben an die Besetzung gerichtlicher Spruchkörper, ZBl 122 (2021), S. 307 ff.
Burgener Martin, Die Richterwahlen im Kanton Zürich unter den Aspekten der richterlichen Unabhängigkeit und der Gewaltenteilung, Zürich 2022.
Diggelmann Oliver/Pangrazzi Sara, Die Kritik an der Rechtsprechung des EGMR in «alten» Demokratien, in: Pöschl Magdalena/Wiederin Ewald (Hrsg.), Demokratie und Europäische Menschenrechtskonvention, Wien 2020, S. 107 ff.
Dunoff Jeffrey L./Pollack Mark A., The Judicial Trilemma, American Journal of International Law 111 (2017), S. 225 ff.
Engi Lorenz, Was heisst Menschenwürde? Zum Verständnis eines Verfassungsbegriffs, ZBl 109 (2008), S. 659 ff.
Epiney Astrid, Kommentar zu Art. 5, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Epiney Astrid, Kommentar zu Art. 190, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar zur Bundesverfassung, Basel 2015.
Fellmann Walter, Kommentar zu Art. 12, in: Fellmann Walter/Zindel Gaudenz G. (Hrsg.), Kommentar zum Anwaltsgesetz, Zürich 2011.
Fischbacher Alain, Richterwahlen durch das Parlament, Chance oder Risiko?, Mitteilungsblatt der Schweizerischen Gesellschaft für Parlamentsfragen 8 (2005), S. 4 ff.
Garoupa Nuno/Ginsburg Tom, Guarding the Guardians: Judicial Councils and Judicial Independence, American Journal of Comparative Law 57 (2009), S. 103 ff.
Gass Stephan, Professionalisierung des Richteramts, AJP 2010, S. 1143 ff. (zit. Professionalisierung).
Gass Stephan, Wie sollen Richterinnen und Richter gewählt werden?, AJP 2007, S. 593 ff. (zit. Wahl).
Gertsch Gabriel, Richterliche Unabhängigkeit und Konsistenz am Bundesverwaltungsgericht: eine quantitative Studie, ZBl 122 (2021), S. 34 ff.
Glaser Andreas, Die Justiz-Initiative: Besetzung des Bundesgerichts im Losverfahren?, AJP 2018, S. 1251 ff.
Habegger Philipp/Landbrecht Johannes, Zwischen vertraglichem Konsens und grundrechtlichem Zwang – Die unfreiwillige Schiedsgerichtsbarkeit, in: Portmann Wolfang et al. (Hrsg.), Gedenkschrift für Claire Huguenin, Zürich 2020, S. 123 ff.
Häfelin Ulrich et al., Schweizerisches Bundesstaatsrecht, 10. Aufl., Zürich 2020.
Hangartner Yvo, Bundesgericht, II. Zivilrechtliche Abteilung, 15.11.2007, 5A.369/2007, AJP 2008, S. 368 ff.
Hangartner Yvo/Looser Martin E., Kommentar zu Art. 190, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Heermann Peter W., «Beipackzettel» für Schiedsklauseln zum Court of Arbitration for Sport, CaS 15 (2022), S. 15 ff.
Huber Roland, Mit der Organisation der Justizverwaltung verbundene Risiken für die richterliche Unabhängigkeit, Justice - Justiz - Giustizia 2023.
Jahn Jannika, Die Dritte Gewalt in der Medienöffentlichkeit, in: Mülder Marje et al. (Hrsg.), Richterliche Abhängigkeit – Rechtsfindung im Öffentlichen Recht: 58. Assistententagung Öffentliches Recht, Baden-Baden 2018.
Keller Helen, Schweizerische Rechtsstaatlichkeit im internationalen Vergleich, in: Diggelmann Oliver/Hertig Randall Maya/Schindler Benjamin (Hrsg.), Verfassungsrecht der Schweiz, Zürich/Basel/Genf 2020, S. 935 ff.
Keller Helen/Walther Reto, 20 Jahre «neue» Bundesverfassung: Plus ça change, plus c’est la même chose?, ZSR 140 (2021), S. 259 ff.
Keller Helen/Zimmermann Laura, Dissenting Opinions am Bundesgericht – Individuelle Transparenz oder Gefährdung der richterlichen Unabhängigkeit?, ZSR 138 (2019), S. 137 ff.
Kiener Regina, Richterliche Unabhängigkeit, Bern 2001 (zit. Richterliche Unabhängigkeit).
Kiener Regina, Bundesgericht, II. zivilrechtliche Abteilung, 17.12.2012, 5C_2/2012, ZBl 114 (2013), S. 265 ff. (zit. Urteilsbesprechung 5C_2/2012).
Kiener Regina, Bundesgericht, I. öffentlich-rechtliche Abteilung, 16.7.2020, 1C_295/2019, 1C_357/2019, ZBl 122 (2021), S. 161 ff. (zit. Urteilsbesprechung 1C_295/2019).
Kiener Regina/Kälin Walter/Wyttenbach Judith, Grundrechte, Bern 2018.
Kiener Regina/Krüsi Melanie, Die Unabhängigkeit von Gerichtssachverständigen, ZSR 125 (2006), S. 487 ff.
Kiener Regina/Medici Gabriela, Anwälte und andere Richter: Zur Befangenheit von Richtern aufgrund anderer Erwerbstätigkeiten, SJZ 107 (2011), S. 373 ff.
Killias Martin, Gastbeitrag zur Justiz-Initiative: Interne Druckversuche waren unangenehmer, in: Solothurner Zeitung vom 29.10.2021, S. 2.
Kley Andreas, Kommentar zu Art. 29a, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Kneubühler Lorenz, Gehörsverletzung und Heilung – Eine Untersuchung über die Rechtsfolgen von Verstössen gegen den Gehörsanspruch, insbesondere die Problematik der sogenanten «Heilung», ZBl 99 (1998), S. 97 ff.
Kosař David, Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe, German Law Journal 19 (2018), S. 1567 ff.
Kradolfer Matthias, Kommentar zu Art. 29a, in: Schlegel Stefan/Ammann Odile (Hrsg.), Onlinekommentar zur Bundesverfassung.
Langer Lorenz, Reform der Richterwahl und die Unabhängigkeit, in: NZZ vom 29. November 2023, S. 19.
Leuenberger Christoph, Kommentar zu Art. 30, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Looser Martin E., Verfassungsgerichtliche Rechtskontrolle gegenüber schweizerischen Bundesgesetzen, St. Gallen 2011.
Luminati Michele/Contarini Filippo, Das Richterbild in der Schweiz: richterliche Unabhängigkeit auf dem Prüfstand, ZSR-II 138 (2019), S. 201 ff.
Mahlmann Matthias, Die Garantie der Menschenwürde in der Schweizerischen Bundesverfassung, AJP 2013, S. 1307 ff.
Mahon Pascal, Kommentar zu Art. 30, in: Aubert Jean-François/Mahon Pascal (Hrsg.), Petit commentaire de la Constitution fédérale de la Confédération suisse: du 18 avril 1999, Zürich/Basel/Genf 2003.
Malinverni Giorgio et al., Droit constitutionnel suisse – Volume II: Les droits fondamentaux, Bern 2021.
Martenet Vincent, Kommentar zu Art. 190, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire romand: Constitution fédérale, Basel 2021.
Marti Arnold, Offenlegen von Minderheitsmeinungen («dissenting opinion») – eine Forderung von Transparenz und Fairness im gerichtlichen Verfahren, Justice - Justiz - Giustizia 2012.
Marti Katrin, Entstehung und Entwicklung des Verfahrens der Gerichtskommission der Vereinigten Bundesversammlung, Mitteilungsblatt der Schweizerischen Gesellschaft für Parlamentsfragen 8 (2005), S. 16 ff. (zit. Entstehung).
Marti Katrin, Die Gerichtskommission der Vereinigten Bundesversammlung, Justice - Justiz - Giustizia (2010) (zit. Gerichtskommission).
Mastronardi Philippe/Schindler Benjamin, Vorb. zu Art. 143–191c, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Meyer Frank, Kommentar zu Art. 6, in: Karpenstein Ulrich/Mayer Franz (Hrsg.), EMRK Kommentar, 3. Aufl., München 2022.
Müller Georg, Gerichtliche Beschwerdeinstanz gemäss Art. 450 ZGB im Kanton Zürich, ZBl 114 (2013), S. 59 ff.
Müller Jörg Paul/Biaggini Giovanni, Die Verfassungsidee angesichts der Gefahr eines Demokratieabsolutismus, ZBl 116 (2015), S. 235 ff.
Müller Jörg Paul/Schefer Markus, Grundrechte in der Schweiz: Im Rahmen der Bundesverfassung, der EMRK und der UNO-Pakte, 4. Aufl., Bern 2008.
Nabold André, Chancen und Risiken richterlicher wissenschaftlicher Publizistik, Justice - Justiz - Giustizia 2013.
Neuenschwander Anouk, Kommentar zu Art. 191c, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire romand: Constitution fédérale, Basel 2021.
Pflüger Michael, Die Legitimation des Gemeinwesens zur Beschwerde in öffentlich-rechtlichen Angelegenheiten, Zürich/St. Gallen 2013.
Poltier Etienne, L’organisation et le fonctionnement interne de l’ordre judiciaire et des tribunaux, AJP 2011, S. 1018 ff.
Racioppi Giuliano, Die moderne «Paulette»: Mandatssteuern von Richterinnen und Richtern, Justice - Justiz - Giustizia 2017.
Reich Johannes, Kommentar zu Art. 191c, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar zur Bundesverfassung, Basel 2015.
Reich Johannes, Kommentar zu Art. 30, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar zur Bundesverfassung, Basel 2015.
Reiter Catherine/Stadelmann Thomas, Das Referentensystem, Justice - Justiz - Giustizia 2021 (zit. Referentensystem).
Reiter Catherine/Stadelmann Thomas, Informelle Hierarchien in der Justiz, Justice - Justiz - Giustizia 2021 (zit. Hierarchien).
Russo Alfio, Des juges tirés au sort: réalité ou illusion démocratique?, Justice - Justiz - Giustizia 2019 (zit. Tirés au sort).
Russo Alfio, Les modes de désignation des juges: Etude droit constitutionnel suisse et comparé, Basel 2021 (zit. Désignation).
Schabas William A., The European Convention on Human Rights: A Commentary, Oxford 2015.
Schefer Markus/Schaub Lukas, Nichtöffentlichkeit privater Schiedsverfahren? – Zur Garantie der Gerichtsöffentlichkeit nach Art. 30 Abs. 3 BV, in: Fankhauser Roland et al. (Hrsg.), Das Zivilrecht und seine Durchsetzung: Festschrift für Professor Thomas Sutter-Somm, Zürich 2016, S. 537 ff.
Schindler Benjamin, 16 Jahre Bundesverwaltungsgericht – Zeit zur Beseitigung der Kinderkrankheiten, ZBl 124 (2023), S. 1 f.
Schmid Hans, Parteisteuern zivilrechtlich betrachtet, SJZ 103 (2007), S. 555 ff.
Schweizer Rainer J., Kommentar zu Art. 10, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Schweizer Rainer J., Vorb. zur Justizverfassung, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Schweizerische Vereinigung der Richterinnen und Richter, Richteramt und politische Äusserungen in der Öffentlichkeit, Stellungnahme der Ethik-Kommission, 29. September 2021.
Sendler Horst, Was dürfen Richter in der Öffentlichkeit sagen?, NJW 1984, S. 689 ff.
Spielmann Dean, La liberté d’expression du juge: règle ou exception?, Revue trimestrielle des droits de l’homme 34 (2023), S. 307 ff.
Steinmann Gerold, Kommentar zu Art. 191c, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Steinmann Gerold, Kommentar zu Art. 30, in: Ehrenzeller Bernhard et al. (Hrsg.), St. Galler Kommentar zur Schweizerischen Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
Steinmann Gerold, Denk-würdige Wiederwahl der Bundesrichterinnen und Bundesrichter, ZBl 116 (2015), S. 1 f. (zit. Denk-würdige Wiederwahl).
Steinmann Gerold, Bundesgericht, I. öffentlich-rechtliche Abteilung, 21.6.2016, 1C_123/2016, ZBl 117 (2016), S. 601 ff. (zit. Urteilsbesprechung 1C_123/2016).
Sutter Patrick, Der Anwalt als Richter, die Richterin als Anwältin – Probleme mit der richterlichen Unabhängigkeit und den anwaltlichen Berufsregeln, AJP 2006, S. 30 ff.
Vatter Adrian/Ackermann Maya, Richterwahlen in der Schweiz: Eine empirische Analyse der Wahlen an das Bundesgericht von 1848 bis 2013, ZSR 133 (2014), S. 517 ff.
Villiger Mark E., Handbuch der Europäischen Menschenrechtskonvention (EMRK), 3. Aufl., Zürich 2020.
von Bogdandy Armin/Venzke Ingo, In wessen Namen? Internationale Gerichte in Zeiten globalen Regierens, Berlin 2014.
Walder Beatrice, Erstinstanzliche Urteile noch kaum zugänglich, Plädoyer 4/2023, S. 20 f.
Walter Hans Peter, Interne richterliche Unabhängigkeit, Justice - Justiz - Giustizia 2005.
Walther Reto, Banana Republic Switzerland? On recent attempts to further politicise elections to the Federal Supreme Court, Verfassungsblog, 3.9.2020, <https://verfassungsblog.de/banana-republic-switzerland>, besucht am 17.1.2024 (zit. Banana Republic).
Walther Reto, Courts, in: Grote Rainer/Lachenmann Frauke/Wolfrum Rüdiger (Hrsg.), Max Planck Encyclopedia of Comparative Constitutional Law (November 2020) <https://oxcon.ouplaw.com/home/mpeccol>, besucht am 17.1.2024 (zit. Courts).
Wiprächtiger Stefan, Vom Sprachrohr zum Kommunikator: Gedanken zu einem modernen Richterbild, Justice - Justiz - Giustizia 2023.
Wüthrich Daniela, Bedeutung der Parteizugehörigkeit bei den Bundesrichterwahlen, Justice - Justiz - Giustizia 2015.
Wyss Damian/Schuler Ruben, Europäischer Gerichtshof für Menschenrechte, Dritte Sektion, 13.6.2023, Urteil Nr. 22060/20, Sperisen g. Schweiz, ZBl 124 (2023), S. 659 ff.