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The most important cases in the Swiss legal system are the decisions of the Swiss Federal Supreme Court in Lausanne/Lucerne and the decisions of the European Court of Human Rights in Strasbourg.63
The Federal Supreme Court has a statutory duty to inform the public about its jurisprudence (Article 27 I Federal Supreme Court Act). According to Article 57 of the Federal Supreme Court’s own rules of procedure,64 this information is provided in four different ways: in the official compilation of the Federal Supreme Court decisions (1.), on the internet (2.), by making judgments physically accessible to the public (3.), and through press releases (4.).
The Federal Supreme Court publishes landmark cases in its official compilation of decisions.65 This official compilation of the Supreme Court’s decisions must not be confused with the official compilation of federal laws of the confederation, discussed above.66 By virtue of their publication in the official compilation, decisions are regarded as de facto binding precedents. The decisions included in the official compilation are edited, printed, and published in yearly volumes. They are cited as BGE, e.g. “BGE 113 IV 58”.67 “BGE” stands for Bundesgerichtsentscheid, i.e. Federal Supreme Court decision. In French, this decision would be referred to as ATF 113 IV 58. “ATF” stands for Arrêt du Tribunal fédéral. In Italian, the case would be cited as “DTF 113 IV 58” Decisione del Tribunale federale.
The first three digits of the citation indicate the yearly volume. The first volume was published in 1874 when the Federal Supreme Court was founded as a permanent institution of the confederation.68 Thus, using the example of BGE 113 IV 58, the first three digits, “113”, indicate that this decision was rendered 113 years after 1874, in 1987. The Roman Numerals in the middle indicate the field of law the case relates to:
I. Constitutional law
II. Administrative and public international law
III. Civil law, bankruptcy law
IV. Criminal law, enforcement of sanctions, and criminal procedure
V. Social security law69
Thus, for example, BGE 113 IV 58 is a case regarding criminal law (co-offending in negligent homicide). The last group of digits designates the relevant page(s) within the volume, so in this example, pp. 58. Sometimes more specific citations can be found, for example: BGE 113 IV 58, E. 2 (60). Here, the citation only refers to consideration (Erwägung) Nr. 2 of the judgment on page 60.
As previously mentioned, it is only the landmark cases that are published in the official compilation. In 2016, the Swiss Federal Supreme Court handled 7’811 cases: only 319 or 4 % of these were published in the official compilation. Whether or not a case ought to be considered a landmark case is decided by the Justices involved in the relevant case. The rationale of this rule is not very convincing as their view on the importance of the case is likely to be tainted by their involvement in it. The decisions in the official compilation are only published in the language that was used for the Federal Supreme Court proceedings, i.e. German, French or Italian.70 The language used in the proceedings at the Federal Supreme Court is usually determined by the language used in the cantonal proceedings (Article 54 I Federal Supreme Court Act). There are no official translations of the Supreme Court decisions.71 However, the Court publishes a summary of the main findings of every landmark case, a so-called Regeste, in all three official languages. It is important to note that only part of the judgment rendered by the Federal Supreme Court is published in the official compilation. This compilation only contains the excerpts that the deciding Justices deemed most relevant in the particular case. In order to get access to the full judgment, one needs to know the case number which – from volume BGE 128 (2005) onwards – can be found on the header of the officially published decisions (see below 2.).
For a long time, the publication practice of the Federal Supreme Court was in violation of the European Convention of Human Rights and the Constitution. According to Article 6 I ECHR “[j]udgment shall be pronounced publicly”. Article 30 III Constitution also requires that the delivery of judgments be public. Before the year 2000, only the judgments in the official compilation and a handful of other judgments that had been published in journals were accessible. Hence, less than 5 % of all judgments were made public. Further, such published decisions were still not in compliance with the constitutional requirements, as only small excerpts were published.
From the year 2000 onwards, the Swiss Federal Supreme Court started to make its judgments available online. This change in its publication practice was the result of mounting pressure on the Court from the media and legal practitioners. Since 2007, all final decisions72 are accessible at the Court’s (still) not very user-friendly homepage.73 However, up to this day the Court only publishes its final judgements; not its interim ones. Further, there are several thousand decisions from the 1990s that the Court possesses in electronic form but, for no immediately obvious reason, refuses to make publicly available.
It is not only the approximately 4 % of the decisions published in the official compilation74 that can be found at the Court’s homepage; all final decisions of the Court are available here.75 In the latter category, full decisions can be found which include the header of the judgment with the case number, the date of the judgment, the chamber in charge, the Federal Justices, the clerk of the Court and the parties (anonymised), the facts of the case, the reasoning on the merits of case, and the judgment (non-admissibility, approval or dismissal of complaint):
Figure 10: Modified Screenshot of a Decision of the Federal Supreme Court (with Labels)76
As highlighted in the figure above, every case is assigned a specific case number (6B_300/2017). This case number can be broken down as follows:77
Figure 11: Explanation of the Case Number of a Federal Supreme Court Decision
Hence, the case number 6B_300/2017 indicates that this case was the 300th complaint in criminal matters in 2017 that was addressed to the criminal law chamber of the Federal Supreme Court. The case was decided on 6 June 2017 by the Federal Justices Christian Denys (president of the Criminal Law Chamber), Laura Jacquemoud-Rossari and Niklaus Oberholzer. Walter Briw was the law clerk on this case. X was the defendant: he filed the complaint through his counsel, Thomas Zogg. The responding party was the public prosecutor of the canton of St. Gallen. According to the citation guidelines of the Federal Supreme Court, this “ordinary” case is to be cited as follows:78 Judgment of the Federal Supreme Court 6B_300/2017 of 6 June 2017.
As mentioned above (1.), the landmark cases of the Federal Supreme Court are published in the official compilation of decisions. By virtue of this official publication, the decisions acquire legal force as binding precedents. The same is not true for the remaining 96 % of judgments: these are merely published online. Still, the courts of first and second instance, legal practitioners and scholars very frequently utilise these judgments when searching for answers to specific legal questions.
The Federal Supreme Court also enhances public awareness of its jurisprudence by making its judgements publicly available. According to Article 6 I ECHR, “[j]udgment shall be pronounced publicly.” Article 30 III Constitution similarly requires that the delivery of judgments be public. As mentioned above, from the year 2000 onwards, the Court took steps to better meet its obligation to pronounce judgments publicly, by publishing its written judgments online. However, these online decisions are published anonymously.79 For data protection reasons, the Court refused to publish judgments with the name of the parties included. It argued that once these names are out, they will forever be traceable online.
However, this strict anonymisation practice did lead to a key problem: it was impossible for the media and the general public to find out whether a judgment had been rendered against a specific person. Only on the very rare occasion of a public debate, i.e. in less than 1 % of all cases, the names of the parties became public. Thus, in recognition of the problem, the court found a compromise. For four weeks after the decision, the judgments of the Federal Supreme Court are put at public disposal in a non-anonymous manner. In practice, this means that the header of the judgment with the full names of the parties and the finding of the court (non-admissibility, approval, or dismissal) are printed out and are physically displayed at the public visitor’s room of the Court. Thus, everyone can enter the Court and browse through these files. They are, however, not published online.
The fourth way in which the Court informs the public about its jurisprudence is through press releases. Important cases are summarised and explained in short written statements for the press. Since 26 January 2016, the Federal Supreme Court has also been distributing its press releases via Twitter (@bger_CH).
63For the citation of cases by the European Court of Human Rights see their guidelines (https://perma.cc/J7KQ-Y7GN).
64Regulations for the Federal Supreme Court of 20 November 2006, SR 173.110.131.
65German: Amtliche Sammlung der Entscheide des schweizerischen Bundesgerichts (BGE); French: recueil officiel des arrêts du Tribunal fédéral suisse (ATF); Italian: Raccolta ufficiale delle decisioni del Tribunale federale svizzero (DTF).
66See pp. 31.
67This case was about two men who pushed a 52 kg stone down a hill, killing a fisherman at the foot of the slope. It had to consider the question of whether the two men could be held criminally liable as co-offenders for negligent homicide. For a discussion of the merits of this “rolling stones” case see the Chapter on Criminal Law, p. 390.
68See p. 12.
69In the volumes BGE 98 to BGE 120, i.e. for decisions between 1972 and 1994, the Federal Supreme Court temporarily used a different numeration for the Roman middle digits in the official compilation: Ia. Constitutional law, Ib. Administrative law and public international law, II. Civil law, III. Debt enforcement and insolvency law, IV. Criminal law and enforcement of sanctions, V. Social security law.
70Federal Supreme Court decisions in Romansh are extremely rare. See for example: BGE 122 I 93.
71Unofficial German translations of French and Italian Supreme Court decisions can be found in the journal ‘Die Praxis’, Basel. Unofficial French translations of German and Italian decisions are published in: Journal des Tribunaux, Lausanne.
72Interim decisions of the Court are still not available online.
73See the official site of the Federal Supreme Court www.bger.ch (https://perma.cc/Y2PW-BNV9), or, much more user friendly, this privately run site: www.bger.li (https://perma.cc/52DF-9KY4).
74See header on the left „BGE und EGMR-Entscheide“; since 2018 the access to the index of the decisions of the official compilation is no longer free of charge.
75Under the enigmatic header of “further decisions from 2000 onwards” (“weitere Urteile ab 2000; https://perma.cc/Y2PW-BNV9).
76Source of the unmodified screenshot: www.bger.ch (https://perma.cc/YC7Z-TVAU).
77The numeration explained in the figure only applies to cases that have been decided after the enactment of the Federal Supreme Court Act on 1 January 2007.
78Source: www.bger.ch (https://perma.cc/3VP6–8TQG).
79Whereas in the early years of the Court’s jurisprudence even the parties in criminal proceedings were named in the official publication (see e.g. BGE 87 IV 13, OERTLY V. PUBLIC PROSECUTOR OF THE CANTON OF ZURICH), in recent years the Court increasingly began anonymising its written judgments.