Regina Kiener, Richterliche Unabhängigkeit, Verfassungsrechtliche Anforderungen an Richter und Gerichte, Bern 2001, pp. 294 – 309
Zur Tragweite der parlamentarischen Oberaufsicht über die Gerichte – Positionen in der Rechtslehre, Bericht der Parlamentarischen Verwaltungskontrollstelle zuhanden der Geschäftsprüfungskommission des Ständerates vom 11. März 2002, Bundesblatt 2002 7690-7726
Kiener – Richterliche Unabhängigkeit
Background
Certain principles of the judicial framework of the Federal Supreme Court are regulated in federal legislation. This establishes, next to the Constitution, the legal framework within which the Federal Supreme Court enjoys autonomy and self-governance. Parliament has certain substantial powers regarding the organization of the Federal Supreme Court, such as the election of federal judges (see Part I C. 3.4). Parliament adopts the budget proposed by the Federal Supreme Court and approves its annual financial statements, although the Federal Supreme Court represents itself in submitting its budget and the annual accounts before the Federal Assembly. Lastly, the Federal Assembly has had ultimate supervisory authority over the Federal Supreme Court since founding of the state in 1848. These powers and responsibility of Parliament are unique in Europe, if not beyond, again reflecting the dominance of Parliament in the Swiss legal tradition. There is an evident tension between parliamentary supervision and judicial independence. Limitations on the supervision of the courts are thus more narrowly drawn than supervisory powers over the government, the federal administration and other federal agencies. Tricky questions of delineation however persist as were examined in greater detail following the adoption of the new Federal Constitution in 1999 in connection with amendment of the Federal Act on the Federal Assembly and the Federal Act on the Federal Supreme Court. A recapitulation of the views on the subject held in legal doctrine is outlined below.
Regina Kiener, Professor of Constitutional, Administrative and Procedural Law at the University of Zurich, wrote the standard work on judicial independence as it results from the Federal Constitution and the human rights catalogues. Her habilitation thesis is still leading on the subject. In addition to the issue of personal independence of judges, she also addresses the institutional angle of independence of courts and, in this context, of judicial supervision.
The Business Audit Commission of the Council of States (Senate) which performs top-level supervision on behalf of the Council of States, submitted a report. The Commission concluded that it is fully utilizing its powers in auditing the annual reports and respects the independence of the courts. The Commission identified modern court management, well-organized internal supervision structures and ensuring a high degree of transparency in conducting business as high-priority concerns. A summary of the Federal Supreme Court’s comments in response to this report is found in the Federal Supreme Court’s 2002 Annual Report on its official activities:
“On 10 December, the Court outlined its opinion on supervision of the federal courts to the Business Audit Commission of the Council of States. The Court advocated that there be an equal, horizontal partnership with the highest courts co-existing with the vertical supervisory structure. In the view of the Federal Supreme Court, parliamentary control concerns external management of the Federal Supreme Court, which is absolutely limited in that any control of rulings is excluded. This external business management also includes monitoring of the Court’s functioning capacity, particularly to prevent general delays in handling case load resulting from structural factors. Parliament has clear directive power in this respect. There is at least one grey area in which court rulings may be impacted, thus concerning the guaranteed independence of the court: instances where Parliament substantively addresses a supervisory complaint in a specific case on the basis of alleged denial or delay of justice and/or alleged violation of procedural principles. Because of the requirement of judicial independence, guaranteed as an individual constitutional right, supervision of the Federal Supreme Court is more limited in nature than supervision of the executive.
Horizontal interaction between legislation and judicial application of law, in contrast, requires dialogue, proposals and discussions of a critical nature. Parliament should follow trends in case law as closely as the Court follows legislation because this allows conclusions of pertinence to their own activities to be drawn. In the view of the Federal Supreme Court, subordination and obligation to follow directives are not characteristic of a horizontal cooperation of two constitutional bodies on equal footing. …”
The Federal Supreme Court reports to Parliament annually on the conduct of its business administration in the previous year. The structure of the Annual Report has evolved over the decades so as to ensure that such reporting remains meaningfully indicative. The annual report outlines information on the composition and organization of the court and its case load (showing various statistics), on opinions submitted to Parliament, the Federal Council and the Federal Administration, on coordination of court rulings between the various court divisions, the court administration (in particular staff, IT, information management, relations with cantonal courts, Parliament and foreign courts and finance), supervisory activities and cooperation with federal courts of first instance (intra-organ supervision), ECtHR rulings relevant to Federal Supreme Court judgements and Federal Supreme Court advisories to the legislature. The annual report is discussed at a meeting between the Federal Supreme Court and the audit committees of both chambers of Parliament.
Summary
Regina Kiener’s comments apply to the entire judiciary and not specifically to the Federal Supreme Court. By way of introduction, she states that all state organs – including the judiciary – form part of the the state’s system of checks and balances, which is intended to ensure that state authorities function in a constitutional sense. In the case of the judiciary, this also includes its independence. Supervision of courts must therefore be exercised in a manner that independence is not impaired, but rather supported. In the Swiss judicial system, the lower courts are supervised by the courts of higher instance (intra-organ supervision), the highest courts by parliament within the framework of inter-organ supervision. Parliamentary supervision reflects the democratic principle which takes precedence over strict separation of powers. The supervision of the judiciary does not mean co-decision in the administration of justice and the discharge of judicial functions in particular cases. It is limited to the supervision of the general course of business and the administration of the court system. Case-related control of lower instance courts can only take place by way of appeal to the higher courts. Where no legal remedy is available, judicial supervision cannot annul or change a ruling. However, parliamentary supervision is allowed to discuss trends in the case law with the court, which can provide an impetus for changes in the law. If a denial of justice or delay in justice is complained of in a supervisory submission, the supervisory authority may investigate the causes as the delay may be of a structural nature and the legislature or the financially competent authority should learn about it and take appropriate structural measures. The violation of official duties by a judge justifies an intervention by the supervisory body. Judicial supervision may always intervene only after the fact. Measures available include observation, admonition and recommendation. This should be sufficient to improve the situation. Disciplinary proceedings may be initiated in the case of reproachable conduct by a judge. Such proceedings should be formally regulated by law and should provide for a possibility of appeal; the discontinuation in office may only be pronounced by a court or a council of judges.
In the introduction of the report of the Business Audit Commission of the Council of States it is observed that in international comparison the Swiss judicial supervision model represents a special case. In most European countries, judicial councils are charged with supervision which are not subordinate to either parliament or government. The power of top-level supervisory instance however, is recognised to be limited by the independence of the judiciary, which in this context primarily means independent pronouncing of judicial rulings and that the law is exclusively binding. Swiss legal literature distinguishes between three concepts of supervision based on diverging views of the importance of the separation of powers and judicial independence. In a narrow view, monitoring must focus on formal legality, whereas in the wider view, addressing the substance of judgements is not ruled out if the Federal Supreme Court unduly restricts appeals provided for by the Constitution. In the intermediate and moderate view, which largely reflects the actual practice of the audit commissions, judicial independence is respected. But to monitor the effectiveness of legislative work it is possible to observe and assess the outcomes of judicial proceedings. Intervention in pending proceedings is only permitted in cases of alleged denial or delay of justice and of highly protracted proceedings. It is undisputed that Parliament cannot instruct the court as to how it should decide a particular case, nor overturn or amend a court ruling (except in cases provided for by law, such as pardons). Nor can it discipline judges for deciding a case a particular way. Undisputed subjects of supervision are the judicial administration (administrative activities ensuring adequate resources and staff to enable the courts to pronounce rulings) and the general proper functioning of the federal judiciary (effectiveness of internal organizational structure, handling of obvious mistakes, such as denial of justice or improper judicial behaviour), despite potential delineation issues in a specific case. Regarding the question of top-level supervision of court rulings in terms of content, monitoring of effectiveness and efficiency as part of observing judicial application of the law is increasingly being regarded permissible with a view to assess whether legislative action may be necessary. In rare cases, top-level supervision may also include reviewing the files of a concluded court case, although judgements along with the documents outlining the legal grounds at any rate have been published on the internet since 2000 and are freely accessible. The question of setting up a particular parliamentary commission of inquiry into a particular incidence has never been raised as of today.