UPDATE: The Swiss Legal System and Research

 

By Gregory M. Bovey

Update by Martin Molina and Alisa Burkhard

 

Martin Molina holds a license en droit (law degree) from the University of Geneva and an LL.M. in International Legal Studies from New York University. He is admitted to the bar in Switzerland and in New York and is a Partner at the law firm Kellerhals Carrard in Zurich.

 

Alisa Burkhard holds a Master of Arts degree from New York University and a Master of Law degree from the University of Fribourg, Sw. Currently, she is a lawyer trainee at Kellerhals Carrard in Zurich, Switzerland.

 

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

 

Published November/December 2015

(Previously updated by Martin Molina in February 2013)

See the Archive Version

 

 

1.     The Political Structure of Switzerland [[1]]

 

2.     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 27 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 certain autonomy.

 

2.1.         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 Courts (Judiciary).

 

The Swiss Federal Parliament or Federal Assembly 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 per Canton, one for each 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, Education and Research

(vii)       Federal Department of Environment Transport, Energy and Communications

 

The Swiss Federal Council website as the official website of the Swiss Government has more information.

 

The Swiss Federal Judiciary is comprised of the Swiss Federal Supreme Court, the Swiss Federal Criminal Court, the Swiss Federal Administrative Court  and the Swiss Federal Patent Court.

 

The Swiss Federal Supreme Court – which generally sits as a panel of 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 Supreme Court is not empowered to review the constitutionality of federal statutes.

 

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.

 

The Swiss Federal Patent Court is the Swiss Confederation’s court of first instance in matters relating to patents and decides on civil law disputes concerning patents, for instance in litigation over patent validity or patent infringement.

 

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

 

2.2.         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 assemblies 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 and administrative courts of first instance, generally with a single judge presiding over cases, and

(ii)          civil, criminal and administrative courts of appeals, usually sitting as a panel of3 judges.

 

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

 

 

See also the Directory of cantonal authorities available here.

 

2.3.         The Municipal Level

All the Cantons are divided into municipalities or communes, of which there are at present 2,324. Their number is diminishing as these municipalities merge.

 

Around one-fifth of the municipalities have their own parliament; in the other four-fifths, legislative decisions are taken by a process of direct democracy in the municipal 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 Directory of local administrative authorities available here.  

 

3.     Languages

Switzerland has three official languages: German, French and Italian. As such, all federal legislation is published in each of the official languages (which are all considered equally authoritative). In addition, Romansh is a “national language” used by the Confederation in its relations with Romansh-speaking persons (Voyame, in Dessemontet/Ansay, p. 11).

 

The decisions of the Swiss Federal Supreme Court are rendered in the language used by the parties or, where the parties use different languages, in the language used by the plaintiff or appellant. At the cantonal level, legislation of the Cantons of Vaud, Neuchâtel, Genève and Jura is published in French. In the Cantons of Bern, Fribourg and Valais, legislation is published in both French and German. Legislation of the Canton of Ticino is published in Italian. Legislation of the other Cantons is published in German (as well as in Romansh and Italian in the Canton of Graubünden).

 

4.     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 and debt enforcement and bankruptcy Law are sub-divisions of public law (see Voyame in Dessemontet/Ansay, p. 9).

 

Private law governs the relationships between individuals. Swiss civil law is mainly comprised in the Swiss Civil Code (which governs the 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 and securities law). Intellectual property law (copyright, patents, trademarks, etc.) is also an area of private law. Labor law is governed by both private and public law (see Voyame in Dessemontet/Ansay, p. 9).

 

Swiss laws respect a certain hierarchical order 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 responsible 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)”; in 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 make their legislative materials available 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, including a limited selection of unofficial English translations. The Swiss-American Chamber of Commerce also publishes unofficial English translations of some of the most important federal laws.

 

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

 

 

5.     Case Law

For access to (mainly free) online Swiss case law, the best website is the Swiss Federal Supreme Court 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, provides the most important decisions of the Swiss Federal Supreme Court (“leading cases”), organized into five different areas (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 reporter. Most other case law reporters, such as “Praxis des Bundesgerichts”, “Journal des Tribunaux” and “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 “National Law Journals”).

 

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

 

There are very few commercial providers of online law-related information in Switzerland that allow searching for information for a fee. The major Swiss online provider is Swisslex. This database provides access to extensive full-text Swiss case law searchable by keyword in various fields or segments within the judgments. This commercial database has much more depth and a much wider scope than what is available for free on the Swiss Federal Supreme Court website in addition to having full-text legislation, journals, textbooks and newspapers.

 

The decisions of cantonal courts are sometimes difficult to find. The official websites of some Cantons provide access to some decisions of cantonal courts and it is also possible to check, if existing, the website of a particular court to see what, if any, access is provided to its decisions. However, Swisslex  provides the most extensive online access to cantonal court decisions.

 

6.    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 be admitted to a Swiss law school, one only needs to have graduated from high school (“Matura”/“Maturité fédérale”); no previous higher education degree is required. A Bachelor of Law degree is obtained after three years of study, with which it is possible to work as a lawyer (e.g. in companies or public service). After one and a half to two more years of study, a Master of Law degree is obtained, which evidences more qualification or specialization. A Master’s degree is required for admittance to the bar, and is the standard diploma sought by students, who do not commonly start a professional career directly after obtaining a Bachelor of Law degree. Further postgraduate education is available (Master of Advanced Studies or LL.M., e.g. in Business Law at the Universities of Geneva, Lausanne, St. Gallen and Zurich). 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, a Swiss law school graduate must complete traineeships in a Canton, usually in the one in which he or she wishes to take the bar exam. After passing the bar exam, however, Swiss attorneys are free to practice in any Canton. Although bar admission requirements vary from Canton to Canton, they generally involve working for one to two years under the supervision of a qualified lawyer, and sometimes further training at a court or government office, followed by passing the bar exam in that Canton (there is no “federal” bar exam 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. Set out below is a select list of some of the larger Swiss law firms (in alphabetical order):

 

·       Pestalozzi

 

7.     Legal Literature

Legal literature in Switzerland generally comprises of commentaries, annotated versions of the Codes and most important laws, treatises, Ph.D. theses, and 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).

 

7.1.         National Law Journals

Law journals in Switzerland range from academic and scholarly to more practitioner-oriented. Many can be found online on paid commercial databases such as Swisslex. There are, however, a limited number of Swiss law journals available on the Internet for free.

 

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

 

 

7.2.         Cantonal Law Journals

 

 

7.3.         Swiss Law Books

There is a relatively healthy market in Switzerland for 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 provide online catalogues to their own publications.

 

Summaries of selected Swiss legal topics (in German) can be found on the website of the publisher LawMedia. Information on some topics is available in English.

 

8.    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 and the Law Library of the University of Zurich websites. The Swiss Federal Institute of Comparative Law operates a large library for legal systems around the world, including Switzerland.

 

Academic law libraries in Switzerland will generally loan books to other libraries.

 

The website of the Swiss Network of Libraries provides a list of member libraries. See also the website of the Library Network of Western Switzerland.

 

Helveticat is the online database of the Swiss National Library. The catalogue of the Swiss Federal Administration’s library network is also available online.

 

9.    Law Reform in Switzerland

The Federal Department of Justice and Police provides information on current law reforms in Switzerland. There also exist a number of websites and blogs that publish news on law reform as well as remarkable case law, such as Swissblawg and strafprozess.ch.

 



[[1]] General references: “The Swiss Confederation – a brief guide”, Official website of the Federal Chancellery (available at: https://www.bk.admin.ch/dokumentation/02070/index.html?lang=en). See also the following website: http://www.ch.ch. Further recommended reading: “Introduction to Swiss Law” edited by F. Dessemontet and T. Ansay (3d ed., Kluwer/Schulthess, 2004).