Botschaft des Bundesrates an die Bundesversammlung über die Anerkennung des Rätoromanischen als Nationalsprache (of 1 June 1937), Bundesblatt 1937 II 1-33 (excerpt: pp. 12-16, 30)
Background
Switzerland is a multilingual country in several respects. It comprises four linguistic areas which themselves to the largest extent only recognize one official language. German, French, Italian and Romansh are recognized as national languages of equal status of the federation and as official languages − Romansh however only for interactions between speakers of Rhaeto-Romanic. German is the primary language used by approximately 63% of the population, followed by French at around 23%, Italian at 8% and Romansh at 0.5%. Many residents of the country are multilingual, learning at least one second national language in school in addition to their native language. Multilingualism is an important element of Swiss identity, and fundamental to Swiss legal culture. For example, all federal decrees are published simultaneously in the official languages German, French and Italian, and all three versions are equally binding. This distinguishes Switzerland from countries where traditionally only one language is spoken or officially recognized. It goes without saying that in today’s globalized world, all countries have residents who are native speakers of different languages. In Switzerland, freedom of language guarantees every individual’s right to communicate in their own native language. In the spirit of federalism, the cantons decide about the recognition of official languages within their territory. In doing so, they respect the existing linguistic composition of the population and accommodate the country’s traditional linguistic minorities. The cantons of Bern, Fribourg and Valais are bilingual (German and French), while the canton of Graubünden is trilingual (German, Italian and Romansh). Cantonal court personnel are appointed by cantonal bodies, ensuring that these individuals know the official languages.
The importance of multilingualism is reflected as well in Federal Supreme Court proceedings, case law, and related organizational structures. The Federal Supreme Court conducts proceedings in an official language, generally the language of the decision appealed. Court opinions must be drafted in one of the official languages, albeit not necessarily in the language of the appealed decision. If the parties utilize another official language, the proceedings may be conducted in that language instead. Legal documents in other languages may also be permitted. If a party files documents in a language that is not in one of the official languages, the Federal Supreme Court orders a translation unless the other parties waive their right to insist thereupon and the instructing court member is versed in that other language. The judgement is pronounced in the language in which the proceedings were conducted. It is not officially translated. In 2017, a full 61% of complaints were filed in German, approximately 34% in French and 5% in Italian. Differing procedural rules apply in the multilingual cantons. The first-instance Federal Patent Court, which is a lower instance of the Federal Supreme Court, allows the use of the English language.
Of the 38 members of the Federal Supreme Court, 23 are native speakers of German (60.5%), 12 of French (31.6%) and 3 of Italian (7.9%). French thus enjoys disproportionately higher representation than the German speaking legal community. The fact that judges not only understand the other languages, but that they represent the different parts of the country and national languages is of great importance for linguistic peace in Switzerland.
The Federal Supreme Court is devided into jurisdictional sections. Given its size, this is a necessity and makes sense, albeit the ideal of the unity of the law is more difficult to achieve and the risk of fragmentation looms large. It would be theoretically possible to have separate sections for each language, so cases in French could be decided exclusively by French-speaking judges. Such proposals, however have always been rejected, from the very beginning for good reasons. Today the various court sections are responsible for distinct legal subjects. Judges are assigned on the basis of their specialized knowledge and competency in the respective official languages. At least one French-speaking member and at most one Italian-speaking member are assigned to each of the currently seven sections. This means that judges competent in all of the official languages are involved in cases of fundamental importance which are decided by a panel of five judges, although this is not always the case with Italian due to the small number of Italian-speaking judges, which is a function of the small Italian-speaking minority in the population.
The following government report of 1937 illustrates the importance of multilingualism as an element of Swiss identity and the implications thereof for the Federal Supreme Court.
Summary
Formal parity between the national languages is a fundamental principle of the Swiss Confederation. In contrast to the principle of “one territory – one people – one language”, and thus a single culture, Switzerland is a nation of peoples of diverse languages and cultures willing to live together in harmony. The legal principle of parity between the three main languages accords with the structure of the federal nation and upholds the individual’s personal freedom and right to use his or her native language. This is why mutual relations in Switzerland have never suffered from a lasting dispute over language. Even back in the Helvetic Republic, the proposal of granting one state language a preferred status over the other two was rejected. The Federal Constitution of 1848 expressly declared German, French and Italian to be the country’s national languages, a status that evolved over time into these becoming state and official languages. Thus all decrees are published in the three national languages, which are equal in rank. In case of linguistic discrepancy, all means of legal interpretation must be exhausted to determine which of the three texts is closest to the correct meaning of the law and corresponds to the legislative will. In sessions of the Federal Council, Federal Assembly and Federal Supreme Court, any member may speak in his or her native national language. Communication with the federal authorities is permitted in any one of the national languages. It is a matter of constitutional importance in Federal Supreme Court appointments to ensure that all three languages are appropriately represented. This rule goes back to a petition by a member of the Ticino Council of States that originally called for the creation of three sections within the Federal Supreme Court: one comprising citizens of German-speaking Switzerland, one comprising citizens of French-speaking Switzerland and one comprising citizens of Italian-speaking Switzerland. When the Federal Council objected to this proposal, the Council of States amended it into the form in which it was finally adopted. The aforementioned guarantees only apply however to the Confederation and its relations with the cantons. They do not affect internal cantonal law.