"Minor revision" to be made to the Swiss Federal Supreme Court Act

Background

In the years 2008 to 2013, the federal administration of justice was evaluated, leading to the identification of the following three problems: the Federal Supreme Court is overloaded, primarily due to the increase in appeals in criminal cases. The evaluation also exposed a misdirection of the workload, since the Federal Supreme Court must deal with numerous cases lacking practical relevance, while jurisdiction is partially excluded for cases that are crucial for uniformity of law and legal development. Furthermore, certain gaps in legal protection were also identified.

The failure of the "major revision of the FSCA"

The Federal Act on the Federal Supreme Court (FSCA, SR 173.110) contains provisions on the organisation, access to and procedure before the highest court in Switzerland. A revision of the FSCA was planned in 2020 in response to the evaluation results, which identified shortcomings in the federal administration of justice. The concept of the Federal Supreme Court's comprehensive residual jurisdiction was a core component of the proposed revision at that time. The idea behind this concept was to grant the Federal Supreme Court comprehensive residual jurisdiction in fundamental legal issues and other particularly important cases in situations where exceptions and limits on the amount in dispute (Art. 73 f., Art. 79 and 83 ff. BGG) had previously precluded an appeal.

In addition to measures intended to address the specific problems identified in the evaluation, the draft revision at the time also included changes unrelated to the evaluation results. For example, the concept of "dissenting opinions" was to be introduced (i.e. in the case of non-unanimous decisions, minority opinions could be attached to the written decision as an appendix). The draft revision also extended the discretion of the Federal Supreme Court to impose higher court fees.

Although shortcomings in the federal administration of justice identified by the evaluation were recognised, the 2018 draft revision was widely criticised, in particular due to the concept of comprehensive legal competence and its interaction with subsidiary constitutional complaint. The draft revision was rejected in the 2020 spring session of parliament.

The Caroni postulate

The problems identified by the evaluation (i.e. overload, misdirection of the workload and gaps in legal protection) thus continue to exist unchanged. The Federal Council is therefore venturing a second attempt: In fulfilment of the postulate Caroni 20.4399, it published a report on 24 January 2024 outlining the need to revise the current Federal Supreme Court Act. It analyses in particular the concept of comprehensive residual competence, which was a major reason for the failure of the revision in the last attempt, and concludes that it is not promising. Alternative options were also discussed, including the abolition of the subsidiary constitutional complaint and the introduction of a type of ECHR complaint, although the group of experts concluded that this would lead to an additional burden on the Federal Supreme Court.

In its report, the Federal Council is now sticking to those proposals in the 2018 draft  revision that it considers to be "valid and viable" "because they do not significantly increase the workload of the Federal Supreme Court, reduce legal protection or contain other controversial elements". These are merely editorial, technical or organisational changes. For example, federal judges will be allowed to chair the division for three full two-year terms. The draft revision also provides for an internal appeals committee for deciding labour law disputes with Federal Supreme Court staff. In addition to these changes to the organisation of the courts, the draft revision also addresses various individual aspects of the proceedings before the Federal Supreme Court without changing its principles. For example, the Federal Supreme Court should also inform the victim, who is no longer involved in the appeal proceedings, of the dispositive part of the decision and those parts of the reasoning that relate to the offences committed to their detriment. The draft also provides for a ten-year limitation period for federal claims for compensation in cases of legal aid that was not repaid. In addition, the upper limit for court costs in special cases is to be increased.

What happens now

The Federal Department of Justice and Police (FDJP) has been tasked with preparing a consultation draft in the form of a "minor revision of the FSCA" by the end of 2024. The focus should be on the technical improvement of the legal situation and legal certainty. Those proposed amendments in the previous draft revision that were politically controversial and aimed at improving legal protection or reducing the workload of the Federal Supreme Court are not to be included in this partial revision.