Geschäftsbericht 2017 des Bundesgerichts (excerpt: chapter Gerichtsverwaltung/Beziehungen zu ausländischen Gerichten, p. 11)
Geschäftsbericht BGer 2017, p. 11
Background
The Federal Supreme Court participates in dialogue between supreme courts, as has been practised worldwide since the 1990s. The Court reports on such talks in its annual report to Parliament on its business activities. The first report of this type was issued in 1997 upon joining the Association des Cours constitutionnelles ayant en partage l’usage du français (ACCPUF), formed that same year, and attendance of the Association’s first conference. The Federal Insurance Court reported for the first time in 1999 on its visit of a foreign court, the German Federal Social Court. (At that time the Federal Insurance Court was still an organizationally independent social security department of the Federal Supreme Court.).
The Federal Supreme Court has made it a principle to align its international relations primarily with neighbouring countries and the international judicial associations of which it is a member. In addition to the ACCPUF mentioned above, the Association des Hautes Juridictions de Cassation des Pays ayant en partage l’usage du français (AHJUCAF), the Association internationale des Hautes Juridictions administrative (AIHJA)/International Association of Supreme Administrative Jurisdictions (IASAJ), the Conference of European Constitutional Courts and the World Conference of Constitutional Jurisdiction – organized by a Commission of the Council of Europe – should be mentioned. With varying degrees of emphasis, these are aimed at strengthening the rule of law and human rights through judicial dialogue. Since 2010, the Federal Supreme Court has been an “invited member” to meetings of the Association des Conseils d’Etats et des Juridictions administratives supérieures de l’Union européenne/Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union (ACA Europe).
The Federal Supreme Court maintains dialogue with the supreme courts of neighbouring countries at meetings of the German-speaking administrative courts of last instance, with the Constitutional Court of Austria, the German Federal Constitutional Court, the German Federal Finance Court and the French Conseil d’Etat in bilateral working meetings. Talks with the EFTA Court and delegations from the Supreme Court of the People’s Republic of China, the Supreme Courts of the Russian Federation and judges of the Supreme Court of the United States have also been specifically reported on.
The dialogue between the Federal Supreme Court and the European Court of Human Rights is special in nature. The ECtHR reviews alleged breaches of human rights and fundamental freedoms guaranteed by the ECHR in Switzerland by rulings of the Federal Supreme Court. Reversing a decision frequently implies changes to Swiss laws. But the Federal Supreme Court also has to revise judgement if the ECtHR finds a breach of the ECHR and such revision is necessary to remedy the breach. Lastly, the Federal Supreme Court is obligated to take ECtHR rulings against other states into account. The ECtHR leaves member states of the Council of Europe a certain margin of discretion in application of the ECHR, thus the Federal Supreme Court has an interest in the ECtHR understanding its point of view (and vice versa). The Court communicates its views by outlining the reasoning behind its rulings, in hearings on individual complaints and in meetings with justices of the ECtHR. Topics discussed in recent years have included the enforcement of ECtHR judgements by nation states, the monitoring of constitutionality and conformity with the Convention, the exhaustion of national remedies and the impact of certain ECtHR judgements on Swiss laws. Dialogue with ECtHR justices also takes place within the framework of the regular meetings of the constitutional courts of the German-speaking nations (Germany, Austria, Liechtenstein, Switzerland), of the ECtHR and of the ECJ. The ECtHR invites the supreme courts of the member states to an annual “Dialogue Between Judges” at the start of each judicial year. A federal judge represents Switzerland at the Council of Europe on the Conseil consultatif des juges européens/Consultative Council of European Judges. Furthermore, a representative of the Federal Supreme Court sits on the Commission européenne pour l’efficacité de la Justice/European Commission for the Efficiency of Justice (CEPEJ), and the deputy Swiss member of the so-called Commission de Venise/Venice Commission, which is the Council of Europe’s advisory body on constitutional issues, was elected as a federal judge. The Federal Supreme Court cultivates dialogue with the ECJ within the framework of regular meetings with and occasional visits to the aforementioned constitutional courts of the German-speaking nations. Such contact is of particular importance to the Federal Supreme Court because in accordance with the Agreement on the Free Movement of Persons, the Court is obligated to take the case law of the European Court of Justice into account when interpreting terms of Community law. There is no reporting on any dialogue with UN bodies in the annual reports of the Federal Supreme Court. The President of the Federal Supreme Court generally attends the above-mentioned meetings, along with select members of the governance bodies or members with special expertise, depending on the discussion topics.
Summary
In the 2017 annual report, from which the excerpt is taken, the Federal Supreme Court reports on its relations with foreign and international courts. The principle applies that international relations conducted by the Federal Supreme Court primarily with the neighbouring countries and the international court associations of which the Federal Supreme Court is a member. Contact is specifically mentioned with the Association des Cours constitutionnelles ayant en partage l’usage du français (ACCPUF), of the President of the Federal Supreme Court was chair from 2016-2018, with the Conference of European Constitutional Courts, the World Conference of Constitutional Courts, the EFTA Court, the ECtHR, the Supreme Court of the People’s Republic of China and the Constitutional Court of Austria.