1The Federal Supreme Court is the supreme judicial authority of the Confederation.
2Its organisation and procedure are governed by law.
3The Federal Supreme Court has its own administration.
Art. 188 BV — Federal Supreme Court
Art. 188 BV regulates the foundations of the Federal Supreme Court as the highest court in Switzerland. The Federal Supreme Court is the supreme judicial authority (supreme court instance) of the Confederation. It decides as the final instance on legal questions and ensures the uniform application of federal law throughout Switzerland.
The organisation and procedure of the Federal Supreme Court are determined by law. The most important law is the Federal Supreme Court Act (BGG). It regulates how the court is structured, what divisions it has and according to what rules the procedures are conducted. No substantial changes may be made without a legal basis.
The Federal Supreme Court administers itself. This self-administration means that it can regulate its internal affairs independently. This includes personnel management, budget planning and the distribution of business. This independence protects the court from political influence and ensures the separation of powers (separation of state power).
Example: A citizen loses her civil case before the cantonal court. She can file an appeal with the Federal Supreme Court. This examines whether the cantonal court has correctly applied federal law. The decision of the Federal Supreme Court is final and binding on all other courts in similar cases.
All persons and authorities who go to court are affected. The Federal Supreme Court can also review decisions by administrative authorities if these violate federal law. Its judgments have precedential effect (exemplary character) for future cases.
Doctrine
#1. Legislative History
N. 1 Art. 188 Cst. was introduced as part of the total revision of the Federal Constitution of 1999 and replaces Art. 106-114 of the Federal Constitution of 1874. The Dispatch on a New Federal Constitution of 20 November 1996 (BBl 1997 I 1) emphasised the need to clearly establish the position of the Federal Supreme Court as the supreme judicial authority at the constitutional level.
N. 2 The constitutional provision was intentionally formulated in general terms to leave the legislator scope for designing the court organisation (BBl 1997 I 496). The guarantee of self-administration in para. 3 was inserted to institutionally secure judicial independence and strengthen the separation of powers.
#2. Systematic Classification
N. 3 Art. 188 Cst. forms, together with Art. 189-191c Cst., the section on the federal administration of justice. The provision is closely connected with:
- → Art. 189 Cst. (Jurisdiction of the Federal Supreme Court)
- → Art. 191a Cst. (Other federal judicial authorities)
- → Art. 191b Cst. (Cantonal judicial authorities)
- → Art. 191c Cst. (Judicial independence)
N. 4 The norm is also linked with the rule-of-law principles in → Art. 5 Cst. and the procedural guarantees in → Art. 29-30 Cst. It concretises the principle of separation of powers for the judiciary at the federal level.
#3. Elements of the Offence / Normative Content
#3.1 Supreme Judicial Authority (Para. 1)
N. 5 The Federal Supreme Court is the highest instance of the judicial power at the federal level. According to Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1752, this position encompasses:
- The final-instance decision-making competence in federal matters
- The guarantee of uniform application of law
- Supervision over lower federal courts
N. 6 The formulation «of the Confederation» delimits the jurisdiction from the cantonal courts. The Federal Supreme Court is not the supreme instance of the entire Swiss court system, but only of the federal administration of justice (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3502).
#3.2 Legal Basis for Organisation and Procedure (Para. 2)
N. 7 The reservation of law in para. 2 concretises the principle of legality for court organisation. According to Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 188 N 8, this encompasses:
- The internal organisation of the court (divisions, chambers)
- The rules of procedure (FSCA, procedural regulations)
- The distribution of business and formation of judicial panels
N. 8 The Federal Supreme Court Act (FSCA) constitutes the primary implementing legislation. Ordinances may only regulate organisational details, but not shift jurisdictions (BGE 148 III 172).
#3.3 Self-Administration (Para. 3)
N. 9 The guarantee of self-administration secures judicial independence at the institutional level. According to Kiener/Kälin/Wyttenbach, Grundrechte, 4th ed. 2024, § 37 N 15, it encompasses:
- Administrative autonomy (personnel, finances)
- Organisational autonomy (business regulations, formation of divisions)
- Procedural autonomy (case management, distribution of business)
N. 10 The limits of self-administration lie where the principle of transparency and democratic control are affected (BGE 133 II 209). Administrative acts are subject to the Freedom of Information Act; judicial activities are exempted therefrom.
#4. Legal Consequences
N. 11 From the position as supreme judicial authority follows:
- Finality of decisions (Art. 61 FSCA)
- Precedential effect for lower instances
- Competence for abstract review of norms
- Supervisory function over federal courts of first instance
N. 12 The reservation of law in para. 2 has the consequence that essential organisational questions may not be regulated at the ordinance level. This concerns in particular shifts in jurisdiction between areas of law.
N. 13 The guarantee of self-administration establishes a right to adequate personnel and financial resources as well as protection from interference by the executive or legislature in judicial activity.
#5. Points of Controversy
N. 14 The scope of the supervisory powers of the Federal Supreme Court over the federal courts of first instance is disputed. While Seiler, in: St. Galler Kommentar BV, 4th ed. 2023, Art. 188 N 12, affirms comprehensive supervision, Biaggini, BV Kommentar, 2nd ed. 2017, Art. 188 N 6, advocates a more restrictive position that encompasses only administrative supervision.
N. 15 The extent of self-administration regarding budgetary authority is also controversially discussed. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 962, demand complete budgetary autonomy, while the prevailing doctrine (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 11 N 28) considers parliamentary budgetary authority to take constitutional precedence.
N. 16 The scope of the reservation of law for procedural regulations is also contentious. Part of the doctrine (Waldmann/Belser/Epiney, BSK BV, 2nd ed. 2024, Art. 188 N 15) requires explicit legal authorisation, while others (Kley, ZSR 2020, p. 215) consider the guarantee of self-administration as sufficient basis.
#6. Practice Notes
N. 17 In the case of appeals against organisational decisions of the Federal Supreme Court, a distinction must be made between judicial activity and administrative action. Only the latter can be the subject of requests for access under the Freedom of Information Act.
N. 18 The formation of judicial panels must be based on abstract criteria established in advance. An ad-hoc assignment of judges to specific cases violates Art. 30 para. 1 Cst. in conjunction with Art. 188 Cst.
N. 19 Ordinances that shift jurisdictions between different areas of law (e.g. assignment of public law disputes to civil courts) violate the reservation of law of Art. 188 para. 2 Cst. and are void.
N. 20 The guarantee of self-administration does not protect against parliamentary investigations or high-level supervision, insofar as these do not interfere with pending proceedings. The limit lies in the independence of concrete adjudication.
Caselaw
#Position of the Federal Supreme Court as supreme judicial authority
BGE 139 IV 314 E. 2.3.1 of 22 October 2013 The Federal Supreme Court clarified its role as the supreme judicial authority of the Confederation and its distinction from cantonal criminal authorities. The decision clarifies the application of different procedural codes at various judicial levels.
«The Federal Supreme Court, unlike the public prosecutor's office and the Criminal Appeals Court, is not such a criminal authority (Art. 12 and 13 CrimPC e contrario). [...] The case law on the right to appeal of the public prosecutor's office under the Criminal Procedure Code is therefore not applicable to the procedure for criminal appeals to the Federal Supreme Court, because this is based on a different legal foundation - the Federal Supreme Court Act. [...] Furthermore, as the supreme judicial authority of the Confederation (Art. 188 para. 1 Cst.), the Federal Supreme Court is particularly entrusted with ensuring the uniform and proper application of federal law.»
BGE 148 III 172 E. 3 of 1 January 2022 The Federal Supreme Court emphasised its constitutionally founded position in the judicial system and the limits of regulatory powers in matters of jurisdiction. The ruling clarifies the hierarchical order of the judiciary.
«Art. 5 para. 5 of the Electricity Supply Ordinance (ElSO) violates Art. 164 and Art. 182 para. 1 Cst., insofar as it refers disputes concerning public law relationships to civil proceedings.»
#Self-administration of the Federal Supreme Court
BGE 133 II 209 of 25 May 2007 Landmark decision on the self-administration of the Federal Supreme Court and application of the Freedom of Information Act to administrative acts of the court. The judgment defines the limits of self-administration and transparency obligations.
«Access to official documents of the governing bodies of the Federal Supreme Court is possible under the general conditions of the Federal Act on the Principle of Public Access based on Art. 28 FSCA, when an administrative act is under discussion that does not directly affect the core competencies of the court.»
The Federal Supreme Court distinguished between judicial activity and administrative action:
«The appointment of individual divisions is an organisational act connected with adjudication, which is why there is no right to access the corresponding documents; however, the foundations and discussions about the court regulations are to be regarded as legislation and are therefore to be made accessible upon request based on the Freedom of Information Act.»
Judgment 13Y_1/2007 of 25 May 2007 Procedure for the practical implementation of access to minutes of the Plenary Court and the Administrative Commission. The decision specifies the modalities of self-administration in practice.
The court explained that the Administrative Commission and the Plenary Court as governing bodies of the Federal Supreme Court have different functions subject to different transparency obligations.
#Organisation and procedure according to law
BGE 144 I 70 of 13 March 2018 The Federal Supreme Court clarified the requirements for the formation of judicial panels and their legal regulation. The decision shows the connection between Art. 188 para. 2 Cst. and procedural guarantees.
«Art. 30 para. 1 Cst. and Art. 6 no. 1 ECHR require that abstract criteria be defined in advance and in a transparent manner for the formation of judicial panels. This can also be done in the form of established practice.»
Judgment 8C_602/2022 of 25 May 2023 Decision on the organisation of the Federal Administrative Court and its relationship to supervision by the Federal Supreme Court. The ruling clarifies the implementation of Art. 188 para. 2 Cst. in Federal Supreme Court supervisory practice.
The Federal Supreme Court emphasised the importance of legal foundations for court organisation and referred to the constitutional requirements for procedure.
#Powers of case management
Judgment 1B_185/2014 of 27 May 2014 The Federal Supreme Court set out the principles for procedural decisions and referred to its special position in the judicial system.
«As the supreme judicial authority of the Confederation, the Federal Supreme Court should generally only have to deal with the same dispute once.»
Judgment 9F_4/2014 of 29 April 2014 Decision on grounds for revision and the res judicata effect of Federal Supreme Court judgments as an expression of supreme judicial power.
«The Federal Supreme Court is the supreme judicial authority of the Confederation (Art. 188 para. 1 Cst.; Art. 1 para. 1 FSCA). Its decisions acquire res judicata effect on the day they are rendered according to Art. 61 FSCA. A renewed review of the dispute underlying a Federal Supreme Court judgment is fundamentally excluded.»
Judgment 6B_1481/2021 of 10 February 2022 The Federal Supreme Court defined its review powers and the limits of fact-finding as the supreme judicial authority.
«As the supreme judicial authority, the Federal Supreme Court reviews the contested decisions solely for their correct application of law and does not conduct evidence proceedings (Art. 105 para. 1 FSCA).»
#Distinction from other judicial authorities
Judgment RR.2021.116 of 14 September 2022 (Federal Criminal Court) Decision on the supervisory function of the Federal Supreme Court over federal courts of first instance and their organisational autonomy.
The Federal Criminal Court stated regarding the Administrative Commission of the Federal Supreme Court and its supervisory activities that it has special supervisory powers based on the regulations of the Federal Supreme Court.
Judgment CA.2025.8 of 9 May 2025 (Federal Criminal Court) Decision on the independence of judges and organisational separation between different judicial levels within the framework of Federal Supreme Court supervision.
The Federal Criminal Court addressed the limits of self-administration and the role of superior supervisory instances in ensuring judicial independence.