Le citoyen et la justice constitutionnelle, 6e congrès de l’Association des Cours constitutionnelles ayant en partage l’usage du français (ACCPUF) à Marrakech 2012, Länderbericht Schweiz des Bundesgerichts, Paris 2015
ACCPUF – Länderbericht Schweiz
Background
The Federal Supreme Court is established by the Constitution as the supreme judicial authority of the Swiss Confederation. As set out, and unlike the supreme courts of most other nations however, it does not have full constitutional powers of review. According to the Federal Constitution, the federal laws and international law enacted by Parliament are in fact binding law for the Federal Supreme Court (and other authorities which administer law). This heavily weighted democratic element is characteristic of Swiss legal culture. Constitutional powers are thus limited to reviewing the constitutionality of cantonal decrees and at federal level of ordinances issued by Parliament and the Federal Council, as discussed in Part I A. 2., The Federal Supreme Court in Relation to Parliament and in Part I A. 4., The Federal Supreme Court in Relation to the Cantons. A kind of constitutional review can be ascribed to the interpretation of federal laws in conformity with the constitution. This is dealt with in more detail in the following Part II G. Federal Supreme Court Interpretation and Gap Filling Method. Within the framework of its constitutional jurisdiction over the cantons, the Federal Supreme Court developed a number of unwritten fundamental rights, deriving important procedural basic rights from the general principle of equality. Groundbreaking texts on this subject are provided below in Part II E. Fundamental Rights. Finally, in its more recent rulings the Federal Supreme Court has given precedence to international law over federal law where international law norms serve to protect human rights. This is addressed in further detail in Part II I. International Law. As human rights and fundamental freedoms under the ECHR were included in the catalogue of fundamental rights of the Federal Constitution of 1999, federal laws are indirectly subject to constitutional review due to international law. Switzerland, at least to the extent that fundamental rights under the Constitution are guaranteed under international law (which is not the case for all fundamental rights under the Constitution), recognises the obligation that all statutes, including federal acts, need to be compliant with internationally protected human rights. International interested parties seeking answers regarding current Swiss practices of constitutional review may consult the country focus report provided in summarized form below, which the Federal Supreme Court itself drafted for purposes of international dialogue (see Part I B. 3., The Federal Supreme Court in Dialogue with Foreign and International Courts).
Summary
The 2015 Federal Supreme Court’s report to ACCPUF opens by referring to the characteristically Swiss binding of the Federal Supreme Court to uphold federal laws enacted by Parliament, to the principle of interpretation in conformity with the Constitution and to its own rulings on the precedence of international law. Despite the obligation to apply the law, the Federal Supreme Court may declare the provisions of a law unconstitutional, thereby drawing legislators’ attention to the need for amendment. The Federal Supreme Court decides on constitutionality only after the adoption of a norm. It does not issue an advisory opinion on constitutionality during the ongoing legislative process. Natural and legal persons may file a law suit over violation of constitutional rights. This does not include public authorities, except for municipalities on the basis of their constitutionally anchored regulatory autonomy. Suits claiming unconstitutionality are customarily filed over a specific case. Complaint against a legal norm in cantonal decrees may also be filed directly with the Federal Supreme Court. The requirements for filing a complaint are the existence of an interest worth protecting and a direct concern on the part of the complainant. Complaints merely in the public interests are not admissible. The Federal Supreme Court cannot select complaints the be heard (certiori), but is obliged to deal with all cases submitted and to issue a ruling, provided the formal requirements are all met. Complaint may be filed for infringement of fundamental rights and freedoms under the Federal Constitution, a cantonal constitution, the ECHR, The International Covenant on Civil and Political Rights (ICCPR) or the Convention on the Rights of the Child. If the Federal Supreme Court rules in favour of an appeal of a decree, the decree is categorically reversed with effect for all parties. The reversal of a decision in connection with a specific act of application only has effect for the parties to the proceedings. In contrast to the ECtHR, for example, the Federal Supreme Court cannot grant satisfaction in the same ruling a unconstitutionality is established.