In the 20th century, the European Court of Human Rights found Switzerland, more than any other country, guilty of failing to ensure fair judicial proceedings. One example was the case of Marlène Belilos, seen here with her lawyer in front of the Federal Supreme Court in Lausanne on 27 April 1988. Swiss National Museum / ASL

Right to fair proceedings a latecomer to Switzerland

What rights does a person have in judicial proceedings? It was 2011 before Switzerland had a standard set of rules on how those proceedings are to be conducted. Previously, the Federal Supreme Court had derived procedural rights from the Federal Constitution and made them enforceable.

Numa Graa

Prof. Dr. Numa Gaa is an associate professor at the University of Geneva. His specialist areas are the history of public law and criminal law in Switzerland.

In addition to fundamental rights, Switzerland's current Federal Constitution contains numerous procedural guarantees for judicial proceedings. Most of these rights were not enshrined explicitly in the Constitution prior to 1999. This does not mean, however, that the courts ignored them.

The Federal Constitution of 1848 scarcely mentions procedural guarantees and fundamental rights. It provided, for example, that certain criminal cases – and political offences in particular – would be tried by a jury in the Federal Supreme Court. Since abolished, jury courts were seen at the time as a guarantee of the proper administration of justice, controlled by citizens themselves. This had long been the case in England, and also in France since the Revolution. The Constitution also guaranteed everyone access to the courts at their place of residence. The primary aim was to prohibit ad hoc tribunals, such as those convened in certain cantons following the political unrest of the 1840s. The canton of Valais in 1844 is one such example. Following the defeat of the liberal Jeune Suisse at the Battle of the Trient, the victorious conservatives set up a special court, the Tribunal central. It ruled on political offences and effectively suppressed the opposition.

In the wake of attempts by volunteer troops to overthrow the government of the canton of Lucerne, liberals in the canton of Valais took up arms against the conservative Catholic government there, resulting in a massacre on the banks of the Trient river on 25 May 1844. Survivors were tried before a special court. The Constitution of 1848 prohibits such judicial proceedings conducted by the administrative authorities. The Battle of the Trient, attributed to Martin Disteli, 1844. Swiss National Museum

Article 4 of the 1848 Federal Constitution was subsequently to play an important role in the drafting of procedural guarantees. It was originally intended in the main to safeguard political equality, by ensuring that the civic rights due in principle to all (male) citizens were upheld.

The Federal Constitution of 1874 did little to expand the list of procedural rights. It nonetheless established the Federal Supreme Court as a permanent institution that would rule on breaches of citizens’ constitutional rights. This task had previously been the preserve of the Federal Council and the Federal Assembly.

For example, from 1877 onwards the Federal Supreme Court recognised the opportunity to pursue justice as a fundamental right. It declared that an authority’s denial of justice to citizens violated the principle of equality before the law. In subsequent years it would also derive protections against arbitrary decisions by the courts from Article 4. Consequently, decisions that effectively constituted a refusal to apply the law would be regarded as a breach of constitutional law. Somewhat later, the Federal Supreme Court even derived from the principle of equal treatment before the law that a party without sufficient resources of their own was entitled to free legal assistance. They could not be denied access to a court or the gathering of certain evidence because they were unable to bear the associated costs themselves.

Little by little, the Federal Supreme Court granted the parties to civil or criminal proceedings, in particular, the right to be heard before any judgment concerning them was made. This right to be heard rested on the defendant being able to inspect the documents relating to the proceedings, especially those showing the identities of the witnesses who had been questioned. The highest court in the land also indicated that a defendant could not be found guilty if they had not been duly summoned to the main hearing so that they could defend themselves. From decision to decision, the Federal Supreme Court thus gradually established the right to be heard, as now provided for in the Federal Constitution of 1999 for all court or administrative proceedings. Today, this right allows all of those involved in judicial proceedings to state their case before a judgment is made, to inspect the files, to present relevant evidence and to receive the reasoning behind the judgment.

In some cases, the Federal Supreme Court corrects shortcomings in the decisions made by the cantonal courts. This produces a certain uniformity in the patchwork of Swiss justice. Switzerland did not have a standard code of judicial procedure until the 21st century. The ‘old’ Federal Supreme Court building in Lausanne, August 1912. Swiss National Museum

Unlike the Constitutions of 1848 and 1874, the Federal Constitution of 1999 contains provisions that limit government intervention in criminal cases. They are found in Article 31 on deprivation of liberty and in Article 32 on criminal proceedings, which specifically sets out the presumption of innocence. This principle has been introduced into modern constitutional law since the end of the 18th century, one example being the French Declaration of Human and Civic Rights of 1789. In Switzerland, French revolutionary law inspired Ludwig Snell, a German liberal living in Zurich. He incorporated the presumption of innocence in his draft constitution, published in 1831. In fact, some cantons such as Bern and Basel-Stadt enshrined the right in their own constitutions at the beginning of the 1830s. It was not, however, included in the Federal Constitutions of either 1848 or 1874. It was only at the end of the 20th century that the Federal Supreme Court clarified that, under the Constitution, the defendant must be given the benefit of the doubt – in dubio pro reo. At the time, however, the principle was already to be found in the European Convention on Human Rights (ECHR) and the UN’s International Covenant on Civil and Political Rights, to which Switzerland had acceded in 1974 and 1992, respectively.

Portrait of Ludwig Snell. — German liberal Ludwig Snell arrived in Switzerland as a political refugee. He put forward the principle that an accused person should remain innocent until proven guilty. The presumption of innocence is absent from the Federal Constitution of 1848. Swiss National Museum

The Federal Supreme Court thus began especially from 1974 onwards to apply the principles of the ECHR with the guarantees that it had derived from the Federal Constitution. From 1978 it then indicated that the guarantees of the ECHR concerning the right to a fair trial would take precedence over its own jurisprudence where the right to be heard before a court was concerned. This was the first time that the highest court in Switzerland had acknowledged that defendants must have the opportunity at least once during proceedings to be present at the hearings of incriminating witnesses and to ask them questions.

As we can see, the Federal Constitutions of 1848 and 1874 granted the individual only very modest procedural guarantees. The extension of these guarantees is the product of increasingly extensive jurisprudence on the part of the Federal Supreme Court. From the 1970s onwards, conventions and covenants under international law also prompted the highest court in Switzerland to broaden these rights, which were ultimately codified to a large extent in the Federal Constitution of 1999.

Every person has the right to equal and fair treatment in judicial and administrative proceedings and to have their case decided within a reasonable time.

Federal Constitution of 1999, Article 29, paragraph 1

More of: Federal Constitution 20th / 21st century Politics

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