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The Swiss Legal System and Research

 

By Gregory M. Bovey

 

Gregory M. Bovey holds a Ph.D. (University of Lausanne), and an LL.M. in International Legal Studies (New York University). He is an Attorney-at-Law at Schellenberg Wittmer (Geneva).

 

Published November 2006
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Table of Contents

The political structure of Switzerland

In general

The federal level

The cantonal level

The municipal level

Languages

Legislation

Case Law

Law Schools and the Legal Profession

Legal Literature

National Law Journals

Cantonal Law Journals

Swiss Law Books

Legal Publishers

Law Reform in Switzerland

 

 

The political structure of Switzerland[1]

In general

Switzerland is a nation shaped by the resolve of its citizens: it is not an ethnic, linguistic or religious entity. Since 1848, it has been a federal state - one of 23 in the world and the second oldest after the United States of America.

 

Switzerland is a Confederation of 26 cantons and half-cantons (States): Aargau (AG), Appenzell Ausserrhoden (AR), Appenzell Innerrhoden (AI), Basel-Landschaft (BL), Basel-Stadt (BS), Bern (BE), Fribourg (FR), Genève (GE), Glarus (GL), Graubünden (GR), Jura (JU), Luzern (LU), Neuchâtel (NE), Nidwalden (NW), Obwalden (OW), St. Gallen (SG), Schaffhausen (SH), Schwyz (SZ), Solothurn (SO), Thurgau (TG), Ticino (TI), Uri (UR), Valais (VS), Vaud (VD), Zug (ZG), and Zürich (ZH).

 

Switzerland has a federal structure with three different political levels:

 

(i)            the Confederation (Federal State),

(ii)          the Cantons (States), and

(iii)        the Municipalities (Local Authorities), which are subordinated to the Cantons, although they are granted a certain autonomy.

 

The federal level

The Federal Constitution is the legal foundation of the Confederation. It contains the most important rules for the good functioning of the State. It guarantees the basic rights of the people and the participation of the public. It distributes the tasks between the Confederation and the Cantons and defines the responsibilities of the authorities.

 

The Confederation has authority in all areas in which it is specifically empowered by the Federal Constitution - for example, foreign and security policy, customs and monetary policy, legislation that is valid through the country and in other areas that are in the common interest of all Swiss citizens. Tasks which do not expressly fall within the enumerated areas of competence of the Confederation are handled at the next lower level, i.e. by the Cantons.

 

At the federal level, there are three authorities:

 

(i)            the Federal Assembly (Federal Parliament),

(ii)          the Federal Council (Executive), and

(iii)        the Federal Tribunals (Judiciary).

 

The Swiss Federal Parliament has two “Chambers”:

 

(i)            the National Council (House of Representatives), comprising 200 elected Representatives (representation is proportional to the resident population of each canton), and

(ii)          the Council of States (Senate), comprising 46 elected Senators (two by canton, one by half-canton).

 

The Swiss Federal Parliament website has more information.

 

The Swiss Federal Government consists of the seven members of the Federal Council (Federal Councilors) who are elected by the Federal Assembly for a four-year term. Each Federal Councilor (Secretary) heads a Department. There are, therefore, seven Federal Departments:

 

(i)            Federal Department of Foreign Affairs

(ii)          Federal Department of Home Affairs

(iii)        Federal Department of Justice and Police

(iv)         Federal Department of Defense, Civil Protection and Sports

(v)           Federal Department of Finance

(vi)         Federal Department of Economic Affairs

(vii)       Federal Department of Transport, Communications and Energy

 

The Swiss Federal Council website has more information, as does the Swiss Federal Authorities website.

 

The Swiss Federal Judiciary is composed by the Swiss Federal Tribunal (Supreme Court of Switzerland), the Swiss Federal Criminal Court, and the Swiss Federal Administrative Court.

 

The Swiss Federal Tribunal – who generally sits as either 3 or 5 judges, depending on the matter being heard – acts as an appellate court, reviewing cases which have been previously decided by lower federal and/or cantonal courts. The Swiss Federal Tribunal is not given the power to strike down unconstitutional laws.

 

The Swiss Federal Criminal Court acts as a trial court of first instance in certain matters of federal criminal law, specifically attributed to federal jurisdiction.

 

The Swiss Federal Administrative Court acts as an appellate body, reviewing decisions of the Swiss Federal Administration and, in certain cases, of cantonal authorities.

 

Federal Judges in Switzerland are appointed by the Federal Assembly (both chambers of Parliament) for six-year terms.

The cantonal level

Each canton and half-canton has its own constitution, parliament, government and courts. The cantonal parliaments have between 58 and 200 seats, while the cantonal governments have 5, 7 or 9 members.

 

Direct democracy in the form of the “Landsgemeinde”, or open-air meetings of citizens, is now confined to Appenzell-Innerrhoden and Glarus. In all the other cantons, voters make their decisions at the ballot box.

 

The cantons exercise all the sovereign rights which the Federal Constitution has not explicitly or implicitly assigned to the Confederation or does not forbid them to exercise by a specific rule.

 

In the Cantons, the judiciary is usually organized in two levels:

 

(i)            civil, criminal or administrative courts of first instance, generally sitting with a single judge, and

(ii)          civil, criminal or administrative courts of appeals, sitting usually with 3 judges.

 

Each canton has an official website, containing a presentation of the different cantonal authorities and an access to online cantonal legislation and, sometimes, case law:

 

 

See also “The Cantons Online” website (also at http://www.ch.ch/verzeichnis/index.html?lang=en&viewpage=kanton).

The municipal level

All the cantons are divided into municipalities or communes, of which there are at present 2760. Their number is tending to diminish as these municipalities merge.

 

Around one-fifth of these municipalities have their own parliament; in the other four-fifths, decisions are taken by a process of direct democracy in the local assembly.

 

In addition to the tasks entrusted to them by the Confederation and the canton – such as the population register and civil defense - the local authorities also have specific tasks of their own for education and social welfare, energy supply, road building, local planning, taxation, etc. To a large extent, these powers are self-regulated.

 

The scope of municipal autonomy is determined by the individual cantons, and therefore varies widely.

 

See also “The Local Authorities Online” website.

 

 

Languages

Switzerland has three official languages: German, French and Italian. As such, federal legislation is published in each official language (which are all considered equally authoritative). Besides, Romanche “is a ‘national language’ used by the Confederation in its relations with Romanche natural persons” (Voyame, in Dessemontet/Ansay, p. 11). The decisions of the Swiss Federal Tribunal are rendered in the language of the parties. At the cantonal level, legislation from the Cantons of Vaud, Neuchâtel, Genève and Jura is published in French. In the Cantons of Fribourg and Valais, legislation is published in both French and German. Legislation from the Canton of Ticino is published in Italian. Legislation of the other cantons is published in German (as well as Romanche and Italian for the Canton of Graubünden).

 

The Swiss-American Chamber of Commerce publishes unofficial English translations of some of the most important federal laws.

 

 

Legislation

Switzerland has a civil law legal system. Therefore, enacted or written law is the primary source of law.

 

As in all other civil law legal systems, Swiss law is divided into public and private law.

 

Public law governs the organization of the State, as well as the relationships between the State and private individuals (or other entities such as companies). Constitutional Law, Administrative Law, Tax Law, Criminal Law, Criminal Procedure, Public International Law, Civil Procedure, Debt Enforcement and Bankruptcy law are sub-divisions of public law (see Voyame in Dessemontet/Ansay, p. 9).

 

Private law governs the relationship between individuals. Swiss civil law is mainly comprised in the Swiss Civil Code (which governs Status of Individuals, Family Law, Inheritance Law, and Property Law) and in the Swiss Code of Obligations (which governs Contracts, Torts, Commercial Law, Company Law, Law of checks and other payment instruments). Intellectual property law (copyright, patents, trademarks, etc.) are also areas of private law. Labor law is governed by private and public law (see Voyame in Dessemontet/Ansay, p. 9).

 

Swiss laws are hierarchically ordered, according to the following rules (see Voyame, in Dessemontet/Ansay, p. 5):

 

(i)            federal law takes precedence over cantonal constitutions and law,

(ii)          constitutional rules prevail over ordinary statutes, and

(iii)        legislative statutes take priority over regulations promulgated by the government or administrative authorities.

 

Legislation in Switzerland is officially published in print by the applicable federal or cantonal Chancellery. Federal laws are published in two main collections: (i) the “Official Collection of Federal Laws” (“Amtliche Sammlung des Bundesrechts (AS)”/“Recueil officiel des lois fédérales (RO)”; by chronological order) and (ii) the “Systematic Collection of Federal Law” (“Systematische Sammlung des Bundesrechts (SR)”/“Recueil systématique du droit fédéral (RS)”; by content). Similar collections exist in the cantons (see Voyame, in Dessemontet/Ansay, p. 6).

 

Federal and cantonal governments are putting their legislative materials online, although most governments also include disclaimers stating that the online versions are not official.

 

The Swiss Federal Administration provides online access to Swiss Federal legislation.

 

The Cantons also provide access to online cantonal legislation at the following websites:

 

 

 

Case Law

For access to (mainly free) online Swiss case law, the best website is the Swiss Federal Tribunal website.

 

The traditional method of finding relevant cases on a particular topic is to use a case law reporter, with the most well known being the “Official Collection of the Decisions of the Federal Tribunal” (“Amtliche Sammlung der Entscheidungen des schweizerischen Bundesgerichts (BGE)”/“Recueil des Arrêts du Tribunal Fédéral Suisse (ATF)”). ATF/BGE, which is also available on Swisslex Westlaw, provides the most important decisions of the Swiss Federal Tribunal (“leading cases”), organized into discrete parts (I. Constitutional Law, II. Administrative and Public International Law, III. Civil Law, Debt Enforcement and Bankruptcy, IV. Criminal Law, V. Social Security).

 

In Switzerland, the ATF/BGE is technically the only official reporters. Most print-based case law reporters, such as, e.g., “Praxis des Bundesgerichts”, “Journal des Tribunaux”, “La Semaine Judiciaire”, are “unofficial” but are widely used by most lawyers and judges. There are many case law reporters in print, ranging from cantonal reporters to topical reporters (see below under “Swiss Law Journals”).

 

The federal administrative authorities also publish their decisions in the collection named “Decisions of the Administrative Authorities of the Confederation (“Verwaltungsentscheide der Bundesbehörden (VPB)”/“Jurisprudence des autorités administratives de la Confédération (JAAC)”). These decisions are available online.

 

There are very few commercial providers in Switzerland of online law-related information, for a fee. The major Swiss online provider is Swisslex Westlaw. This database has extensive full-text Swiss case law searchable by keyword on various fields or segments within the judgments. This commercial database has much more depth and scope than what is freely available on http://www.bger.ch/ in addition to often also having full-text legislation, journals, textbooks and newspapers.

 

The decisions of cantonal tribunals are sometimes difficult to track down. The official websites of some cantons provide access to some decisions of cantonal tribunals and it is also possible to check, if existing, the website of the particular tribunal to see what, if any, access is provided to their decisions. Swisslex Westlaw probably has the most extensive online access to cantonal tribunal decisions.

 

 

Law Schools and the Legal Profession

There are 9 schools of law in Switzerland, all of which are faculties of cantonal universities; there are no “private” law schools in Switzerland. To enter a Swiss law school, one usually needs to have graduated from high school (“Matura”/“Maturité fédérale”). Previously, a full legal education was evidenced with a degree obtained in four years (“Lizentiat der Rechtswissenschaft”/“Licence en droit”). With the new “Bologna” system being implemented in Switzerland, after three years of study, a bachelor’s degree is delivered, with which it is possible to work as a lawyer (e.g. in enterprises or public service), and to train as an attorney (but not to maintain a bar practice afterwards). After two more years of study (not mandatory, but generally recommended), a master’s degree is obtained, which evidences more qualification or specialization. A master’s degree is required to be admitted to the bar, and is likely to be the standard diploma sought by students, which are not expected to commonly start a professional career after obtaining a bachelor’s degree in law. Further postgraduate education is available (Masters of Advanced Studies, e.g. in Business Law at the Universities of Lausanne and Geneva). After completing legal studies, it is also possible to complete a Ph.D. in law (“Doktor der Rechtswissenschaft”/“Doctorat en droit”), which is the highest diploma delivered in this field in Switzerland.

 

List of Swiss schools of law:

 

 

Graduation from a Swiss school of law does not guarantee the right to practice law as an attorney in Switzerland. To be admitted to the Bar, the Swiss law school graduate must “apprentice” in a canton, usually in the one in which he or she wishes to mainly practice law. Although articling requirements can vary slightly from canton to canton, it generally involves working for two years under the supervision of a qualified lawyer, followed by passing the bar examination for that canton (there is no “federal” bar examination in Switzerland).

 

It is not mandatory for a Swiss lawyer to join the Cantonal Bar Association of the Canton where he or she practices and/or the Swiss Bar Association, but many lawyers do join for the benefits.

 

Many Swiss law firms have websites. Some of these sites are a valuable source of information where lawyers at the firm have published law-related articles on their websites. Set out below is a select list of some of the larger Swiss law firms:

 

·       Pestalozzi Lachenal Patry

 

 

Legal Literature

Legal literature in Switzerland generally comprises commentaries, annotated versions of the Codes and most important laws, treatises, manuals as well as articles published in professional journals. These materials are not binding on courts but “the judge often bases his opinion on the works of legal scholars” (Voyame, in Dessemontet/Ansay, p. 8).

 

 

National Law Journals

Law journals in Switzerland range from academic and scholarly to more practitioner-oriented. Until recently, Swiss law journals were print-based but can increasingly be found online on commercial databases such as Swisslex Westlaw. There are, however, a limited number of Swiss law journals freely available on the Internet. The Law Library of the University of Geneva School of law maintains a list of law journals with indication of their availability on the Internet.

 

List of selected Swiss law journals (some are available online):

 

 

 

Cantonal Law Journals

  • AG – AGVE Aargauische Gerichts- und Verwaltungsentscheide (Staatskanzlei des Kantons Aargau)
  • AR – ARGVP Ausserrhodische Gerichts- und Verwaltungspraxis (jusqu'en 1987: Rechenschaftsbericht über die Rechtspflege im Kanton AR) (Obergericht des Kts. AR)
  • BE – BVR Jurisprudence administrative bernoise (Herausgeberkollegium der Bern. Verw.rechtsprechung)
  • BE – ZBVL Zeitschrift des Bernischen Juristenvereins (Stämpfli Verlag AG)
  • BL – BLVGE Basellandschaftliche Verwaltungsgerichtsentscheide (Verwaltungsgericht des Kts. BL)
  • BL/BS – BJM Basler Juristische Mitteilungen
  • FR – RFJ/FZR Revue Fribourgeoise de Jurisprudence (depuis 1992) Extraits des arrêts du tribunal cantonal de l'Etat de Fribourg (jusqu'à 1992) RFJ / FZR
  • GE – SJ La Semaine Judiciaire (Société genevoise de droit et de legislation)
  • GR – PKG Die Praxis des Kantonsgerichts von Graubünden (Kantonsgericht GR)
  • GR – PVG Praxis des Verwaltungsgerichts des Kantons Graubünden (Verwaltungsgericht des Kantons Graubünden)
  • JU – RJJ Revue Jurassienne de Jurisprudence (Tribunal cantonal du Jura)
  • LU – LGVE Luzerner Gerichts- und Verwaltungsentscheide (Staatskanzlei des Kts. LU)
  • NE – RJN Recueil de Jurisprudence Neuchâteloise (Tribunal cantonal (NE))
  • OW – AbR Amtsbericht über die Rechtspflege des Kantons Obwalden (Obergericht des Kts. OW)
  • OW - OW OWVVGE Verwaltungs- und Verwaltungsgerichtsentscheide des Kantons (Staatskanzlei des Kts. OW)
  • SG – SGGVP St. Gallische Gerichts- und Verwaltungspraxis (Staatskanzlei des Kt. SG)
  • SH – SH ABSH Amtsbericht des Obergerichts an den Grossen Rat des Kantons (Obergericht des Kts. SH)
  • SO – SOG Solothurnische Gerichtspraxis (Obergericht des Kts. SO)
  • SZ – EGVSZ  Entscheide der Gerichts- und Verwaltungsbehörden des Kantons Schwyz (Justizdepartement Kt. SZ)
  • TG – RBOG Rechenschaftsbericht des Obergerichts des Kantons Thurgau (Obergericht des Kts. TG)
  • TI – Rep Repertorio di Giurisprudenza Patria
  • UR – RBUR Rechenschaftsbericht über die Rechtsprechung des Kantons (Justizdirektion des Kts. UR)
  • VD – JT Journal des Tribunaux (Partie III = droit cantonal (Société du Journal des Tribunaux)
  • VS – RVJ Revue valaisanne de jurisprudence (Tribunal Cantonal du Valais)
  • ZG – ZGGVP Gerichts- und Verwaltungspraxis des Kantons Zug (Staatskanzlei des Kt. ZG)
  • ZH – BEZ Baurechtsentscheide Kanton Zürich (Verein Zürcher Gemeindeschreiber und Verwaltungsfachleute)
  • ZH – PBG Zürcher Zeitschrift für öffentliches Baurecht (Verein Zürcherischer Gemeindeschreiber und Verwaltungsfachleute)
  • ZH – ZR Blätter für Zürcherische Rechtsprechung (Schulthess Juristische Medien AG)
  • ZH – RB Rechenschaftsbericht des Verwaltungsgerichts Zürich (Verw.gericht des Kts. ZH)

 

 

Swiss Law Books

There is a relatively healthy market for Swiss law-related books covering all legal topics, most of which are published in German; there is also a good selection of Swiss legal books in French. The individual legal publishers listed in the next section below provide online catalogues to their own publications.

 

For a selected listing of legal research resources by topic, including legal textbooks, see this site.

 

For summaries of selected Swiss legal topics see the website of Fiches juridiques suisses/ Schweizerische Juristische Kartothek.

 

 

Legal Publishers

The largest legal publishers in Switzerland include Stämpfli Verlag AG, Schulthess Juristische Medien AG, and Helbing & Lichtenhahn Verlag. Other important publishers of law-related material include, inter alia, Dike Verlag, Haupt Verlag, Cosmos Verlag, and Orell Füssli.

 

Law libraries in Switzerland are generally publicly accessible. They include large academic law libraries, courthouse libraries, legislative law libraries and law society libraries. See in particular the Law Library of the University of Geneva School of Law website. The Swiss Federal Institute of Comparative Law operates a large library for legal systems around the world, including Switzerland.

 

Academic law libraries in Switzerland generally offer interlibrary loan services to other libraries (i.e., they will loan books to other libraries).

 

The website of the Swiss Federal Administration provides a list of libraries, as does the Law Library of the University of Geneva School of Law.  See also the website of the Library Network of Western Switzerland.

 

The catalogue of the Swiss Federal Administration is available online.

 

 

Law Reform in Switzerland

The Federal Department of Justice and Police provide information on the current law reforms in Switzerland.

 

In particular, the Federal Judicial Organization is under a complete revision process, which will be effective January 1st, 2007. This text already takes this reform into account.

 



[1] General references: “Switzerland: a brief guide”, Official website of the Swiss Federal Authorities (http://www.admin.ch/ch/e/schweiz/index.html). See also the following website: http://www.ch.ch. Further recommended reading: “Introduction to Swiss Law” edited by F. Dessemontet and T. Ansay (3rd ed., Kluwer/Schulthess, 2004).