Council of Europe/Conseil de l’Europe, Group of States against Corruption/Groupe d’Etats contra la corruption (GRECO), Vierte Evaluationsrunde: Prävention von Korruption bei Mitgliedern von Parlamenten, Gerichten und Staatsanwaltschaften, Evaluationsbericht Schweiz, vom 2. Dezember 2016 (excerpt: pp. 7, 27-31)
GRECO – Vierte Evaluationsrunde: Prävention von Korruption
Background
The appointment of judges for a fixed term of office is increasingly being questioned by academics, including the Swiss Association of Judges, particularly with reference to other countries and international best practices. In 1990 a federal judge had to stand twice before being re-appointed and then in 1995 a federal judge was not re-appointed. Or justices of sections who had passed judgements unpopular with a political party and disapproved of received fewer votes for re-appointment. Departing from the tradition of appointment for a fixed term of office, judges in the canton of Fribourg have been appointed for an unlimited period (subject to an age limit) since 2008, with a possibility of early de-appointment being introduced. There is also criticism of the fact that, in view of the lack of state funding of political parties, parties expect federal judges who are members to pay a special annual levy, and this expectation is complied with. A detailed description of the process of appointing and de-appointing federal judges is provided below along with a discussion of the points of criticism noted above from the perspective of a commission of the Council of Europe. It is found however that Switzerland ranks near the very top in terms of de facto independence of judges compared with other countries. With reference to criticism from GRECO, the federal popular initiative entitled “Appointment of Federal Judges by Lottery (Judicial Initiative)” was filed for in 2018. The constitutional initiative sought that the members of the Federal Supreme Court no longer be elected by parliament, but be chosen by lot among candidates found suitably qualified. An expert commission elected by the Federal Council should examine applications to the rooster and decide on admission to the lottery. Federal judges would no longer be elected for a relatively short term of office with the possibility of re-election, but for a term ending five years after reaching ordinary retirement age. In the event of a serious breach of official duties or permanent loss of official capacity, recall should be possible. Overall, the initiative was directed against the influence of political parties on the election of federal judges. It was rejected in the 2021 referendum, but may give raise to certain reforms. Since there is also a certain degree of malaise in professional circles regarding the influence of political parties on the election of judges and the de facto requirement of a political party affiliation for eligibility, future changes to the election procedure cannot be ruled out. But they are unlikely to go as far as the failed popular initiative.
Summary
The report finds first of all that the Swiss public has great confidence in its institutions. Switzerland is top-ranked in the Transparency International Corruption Perceptions Index, the Control of Corruption Index and the World Bank Rule of Law Index among other international indices, and of all governmental institutions the judiciary is the least affected by corruption. There have been no major political or judicial scandals connected with corruption in the broadest sense. Given the context of direct democracy, consensual decision-making, the concordance system and a culture of trust and discretion being essential elements in the striving for balance which is characteristic of Swiss democracy, the report expresses the view that from the Swiss perspective there is no urgent need to question the system or to introduce additional safeguards, such as particular ethical standards. The procedure for appointing federal judges is described in detail. The Judicial Committee of Parliament advertises vacancies, and a sub-committee on which all parties are represented conducts a preliminary evaluation of all nominations received to determine which candidates are to be personally interviewed by the full Committee. On the basis of these discussions the Judicial Committee makes an appointment recommendation to the parliamentary groups (fractions), obtains their respective opinions and submits its appointment proposal to the Federal Assembly. In addition to professional and personal suitability, the Committee attaches importance to balanced gender and party political representation, the latter of which is an unwritten principle of Swiss democracy. Linguistic criteria furthermore play a role. The practice has been for nominees to be appointed by the Federal Assembly. Before elapse of the six-year term of office, federal judges announce whether they intend to stand for another term of office. The Judicial Committee inquires with the parliamentary committees which have general and financial oversight of the Federal Supreme Court regarding any issues which substantially call into question the professional qualifications of a judge. If the Judicial Committee of the Federal Assembly should request the non-re-appointment of an individual, that individual must be guaranteed due process with a fair hearing outlined in detail. The Judicial Committee may petition that the Federal Assembly completely reconstitute the Court. The Swiss representatives made it clear to the GRECO delegation that judges are considered representatives of the people, their languages and political parties, irrespective of popular elections. Judges’ personal and political views affect court rulings, thus is important that such influence be balanced and transparent to the public at large. Despite broad public and academic acceptance and comprehension of the historical background and political traditions in play, GRECO finds the appointment system to be in need of improvement. Preference should be given to the most competent candidates instead of the best-conntected ones, and it should be avoided that competent individuals cannot be appointed as judges because their political orientation is not known or they are otherwise effectively forced to join a political party in order to be eligible. To this end, it was recommended that the Federal Courts structure the process to ensure more balanced representation between individuals more or less closely affiliated to a political party and individuals who are not. GRECO therefore recommends measures to improve quality and objectivity in appointing of judges, giving these considerations greater weight within the process.
According to GRECO, judges are not subject to direct political pressure in their professional activities, but remain nonetheless in contact with political forces, contributing for example a flat amount or a percentage of their salary to the political party that supported their appointment, albeit without any legal obligation to do so. The system of re-appointment after a relatively short term of office of only six years makes judges already appointed dependent on politics, which is hardly compatible with principles of judicial independence. While in long-standing practice all Federal Supreme Court justices are always re-appointed, their re-appointment has not always been unanimous. By refusing to support certain judges, a party expressed its disapproval of decisions handed down by the Court section responsible for asylum law. In the view of GRECO, questioning the material content of decisions runs clearly contrary to the principle of an independent judiciary. To date, the stability of the system, the principle of concordance and proportional representation in parliament have been important and effective safeguards, but as the political debate becomes more polarized, such practices could spread and jeopardize the re-election of judges. In light of Swiss history and tradition, characterized by the “spirit of concordance”, the election of judges by Parliament through the political process is legitimate, but the judiciary should not be dependent on the activities or decisions of political groups. GRECO therefore recommends
- abandoning the practice of federal court judges contributing a percentage of their salary to a political party
- ensuring that the Federal Assembly does not argue that refusal to re-appoint federal court judges is justified due to opposition to the decisions made by them
- reviewing and potentially changing or eliminating the procedure for re-appointment of these judges by the Federal Assembly.