The independence of judges at the Federal Supreme Court

The independence of judges at the Federal Supreme Court

Is it normal for a Vaud judge on our Federal Court to rule on a Vaud case? Do other cantons allow such a practice?

Daniel

The right to be judged by a competent, independent and impartial court is guaranteed by Article 30 of the Federal Constitution, and is therefore binding throughout Switzerland. To give practical effect to this fundamental freedom, the laws governing judicial proceedings applicable in the cantons provide for grounds for challenge in all areas of law (civil, criminal and administrative). This means that the judge (or one of his or her assistants) must, of his or her own accord, refrain from acting when he or she is likely to have a conflict of interest. This is particularly the case if the judge is close to one of the parties or has a personal interest in the case. It goes without saying that if the judge does not act on his own initiative, the parties to the proceedings may request that he be recused.

As far as our Supreme Court is concerned, article 34 of the Federal Supreme Court Act sets out the grounds for disqualification of judges and court clerks, which include having a personal interest in the case, having acted in the same case in another capacity, being married to or living with a person who acted in the same case or with his or her representative, being related to the same person to a certain degree or having friendly ties, being married to or living with a person who has acted in the same case or with his agent, being related up to a certain degree, or having close ties of friendship or enmity with a participant in the proceedings or his agent.

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The law therefore does not prohibit a federal judge from intervening in proceedings originating in his or her home canton. Similarly, cantonal judges who are domiciled in the canton in which they serve are not presumed to be biased! The judges of our High Court may therefore, provided there are no grounds for recusal, judge a case originating in their canton of origin.

In addition, a judge who does not request his or her disqualification - when he or she should - could see all the operations he or she carried out in the proceedings purely and simply annulled, if a party so requests within five days of learning of the reason for disqualification. The consequences can therefore be serious, and judges must exercise all due care and caution in this area.

Of course, in the event of an application for disqualification being contested by the potential judge being disqualified, the Court will rule on the matter in the absence of the latter.