1Der Bund bestellt ein Strafgericht; dieses beurteilt erstinstanzlich Straffälle, die das Gesetz der Gerichtsbarkeit des Bundes zuweist. Das Gesetz kann weitere Zuständigkeiten des Bundesstrafgerichts begründen.
2Der Bund bestellt richterliche Behörden für die Beurteilung von öffentlich-rechtlichen Streitigkeiten aus dem Zuständigkeitsbereich der Bundesverwaltung.
3Das Gesetz kann weitere richterliche Behörden des Bundes vorsehen.
Art. 191a BV — Further federal judicial authorities
Art. 191a BV creates the constitutional basis for federal courts below the Federal Supreme Court. This provision enables specialised courts for specific areas of law and relieves the burden on the Federal Supreme Court.
What does the norm regulate? The Constitution obliges the Confederation to establish a Federal Criminal Court for criminal proceedings. In addition, judicial authorities must be created for disputes with the federal administration. Furthermore, the law may provide for additional specialised federal courts.
Who is affected? All persons and companies who sue or are sued before federal courts. This particularly concerns serious criminal proceedings, disputes with federal authorities, and special areas of law such as patent law.
Which federal courts exist today? Based on Art. 191a BV, three courts were created: The Federal Criminal Court in Bellinzona adjudicates serious crimes such as terrorism or money laundering. The Federal Administrative Court in St. Gallen decides on disputes with the federal administration, for example in asylum procedures or tax disputes. The Federal Patent Court adjudicates disputes concerning patents and trademarks.
Concrete example: A company receives a fine from the Federal Tax Administration for value added tax evasion. It can file an appeal against this decision with the Federal Administrative Court. If it disagrees with the judgment, it can file a further appeal with the Federal Supreme Court.
What are the legal consequences? These federal courts adjudicate as first instance courts. Their decisions may be appealed to the Federal Supreme Court. The judges are elected by the Federal Assembly and are independent.
N. 1 Art. 191a BV was inserted into the Federal Constitution by the judicial reform of 12 March 2000 (BBl 2000 2990). The provision created the constitutional basis for establishing first-instance federal courts below the Federal Supreme Court. Previously, the Swiss legal order only knew the Federal Supreme Court as the sole permanent federal court.
N. 2 The message concerning the total revision of the Federal Constitution emphasised the necessity of relieving the Federal Supreme Court and creating specialised speciality courts (BBl 1997 I 1, 482). The judicial reform aimed to establish an efficient and appropriate justice system at federal level that meets the requirements of modern administration of justice.
N. 3 The three paragraphs of Art. 191a BV were deliberately formulated openly to grant the legislature flexibility in organising federal jurisdiction. This openness allowed the later creation of the Federal Criminal Court (2004) and the Federal Administrative Court (2007) as well as the Federal Patent Court (2012) based on para. 3.
N. 4 Art. 191a BV is systematically placed between Art. 191 BV (Federal Supreme Court) and Art. 191b/c BV (cantonal judicial authorities). This position clarifies the hierarchical structure of Swiss court organisation: Federal Supreme Court as supreme instance, other federal courts as first-instance or lower instances, cantonal courts in the federal system.
N. 5 The provision is closely linked with → Art. 29a BV (guarantee of access to courts), which guarantees access to a court. Art. 191a BV concretises this guarantee for the federal level. Moreover, there is a close connection with → Art. 188 BV, which regulates the competences of the Federal Supreme Court, since Art. 191a BV creates the lower instance courts.
N. 6 In the context of separation of powers (→ Art. 148ff. BV), Art. 191a BV guarantees judicial independence at federal level. The federal courts are organisationally and functionally separated from the executive, but are subject to the supreme supervision of the Federal Assembly (→ Art. 169 BV).
N. 7 The term «criminal court» encompasses all courts that adjudicate in first instance on federal criminal proceedings. The Federal Criminal Court in Bellinzona was established by the Criminal Court Act of 4 October 2002 (SGG, SR 173.71) and began its activities in 2004.
N. 8 The «federal jurisdiction» in criminal matters is concretised by Art. 23–28 CrimPC. It includes in particular offences against federal interests, organised crime, economic crime with intercantonal connection and terrorism. The formulation «The law may establish further competences» enables flexible adaptations without constitutional amendment.
Paragraph 2: Federal Administrative Court
N. 9 «Public law disputes within the area of competence of the federal administration» covers all administrative law disputes between private parties and federal authorities as well as between federal authorities. The Federal Administrative Court was created by the Administrative Court Act of 17 June 2005 (VGG, SR 173.32).
N. 10 The term «judicial authorities» (plural) permits several administrative courts. However, the legislature decided on a single Federal Administrative Court with its seat in St. Gallen, which is structured into divisions.
Paragraph 3: Other Federal Courts
N. 11 The general clause in para. 3 enables the creation of other specialised federal courts. Based on this, the Federal Patent Court was established by the Patent Court Act of 20 March 2009 (PatGG, SR 173.41). It has exclusive jurisdiction for patent law civil disputes.
N. 12 The formulation «may provide for» makes clear that the creation of further courts lies within the discretion of the legislature. It must thereby observe the principles of proportionality and efficiency.
N. 13 Art. 191a BV establishes a constitutional obligation to establish a Federal Criminal Court (para. 1) and at least one administrative court instance (para. 2). This obligation was fulfilled with SGG and VGG. For other courts there exists only an authorisation, no obligation (para. 3).
N. 14 The provision grants the Confederation exclusive competence to establish these courts. The cantons cannot create their own courts for federal criminal matters or federal administrative law disputes. This follows from the principle of federal loyalty (→ Art. 44 BV).
N. 15 For the judges concerned, the constitutional guarantees of judicial independence apply (→ Art. 191c BV). They are elected by the Federal Assembly and are subject only to the law.
N. 16 In doctrine it is disputed whether Art. 191a para. 3 BV also permits the creation of speciality courts in civil law outside patent law. Ehrenzeller/Schweizer (SGK BV, Art. 191a N. 18) affirm this with reference to the open wording. Kiener (BSK BV, Art. 191a N. 25) advocates a more restrictive interpretation and demands a clear factual reason for speciality courts.
N. 17 The question of minimum requirements for the organisation of federal courts is controversially discussed. Griffel (in: Verfassungsrecht der Schweiz, § 73 N. 45) demands a minimum size and organisational independence. Biaggini (BV Kommentar, Art. 191a N. 8) considers smaller units also permissible, as long as judicial independence is guaranteed.
N. 18 The admissibility of arbitration courts as «judicial authorities» within the meaning of Art. 191a para. 3 BV is assessed differently. The prevailing doctrine (Seiler, Bundesgerichtsbarkeit, N. 234; Steinmann, SGK BV, Art. 191a N. 22) denies this, since arbitration courts do not have the institutional guarantees of state courts.
N. 19 In determining the subject matter jurisdiction of federal courts, the respective organisation act (SGG, VGG, PatGG) must be consulted primarily. Art. 191a BV only provides the constitutional framework, the details are regulated by the legislature.
N. 20 For the appeal of decisions of the lower federal courts, → Art. 86 FSCA applies. The Federal Supreme Court reviews decisions of the Federal Criminal Court, Federal Administrative Court and Federal Patent Court as appeal instance.
N. 21 The choice between cantonal and federal court jurisdiction is determined by the special acts. In case of doubt, cantonal jurisdiction is to be assumed, since federal jurisdiction is the exception (principle of cantonal residual competence according to → Art. 3 BV).
N. 22 For organisational questions (formation of judicial panels, distribution of business), the regulations of the respective courts must be observed. These must meet the requirements for the lawful judge (→ Art. 30 para. 1 BV) and establish abstract criteria in advance.
Art. 191a BV regulates the organisation and composition of the Federal Supreme Court. As this is an organisational provision, there are only few decisions that directly address this provision. The relevant case law focuses on the application of implementing provisions, particularly Art. 22 Federal Supreme Court Act, and on constitutional principles of judicial panel formation.
#Judicial Panel Formation and Division of Business
Decision 12T_3/2018 of 22 May 2018 — Supervisory notification regarding judicial panel formation at the Federal Administrative Court
The Administrative Commission of the Federal Supreme Court dealt with a supervisory notification concerning judicial panel formation at the Federal Administrative Court. This decision is relevant to Art. 191a BV because it specifies the principles for the division of business at federal courts.
«The statutory requirements are the same at the Federal Administrative Court as at the Federal Supreme Court: Art. 24 Administrative Court Act corresponds to Art. 22 Federal Supreme Court Act. According to this provision, the Federal Administrative Court regulates the distribution of business to divisions by legal areas as well as the formation of judicial panels by regulation.»
The decision confirms that automated judicial panel formation through IT programmes is permissible as long as objective criteria are applied and interventions are transparently documented.
BGE 144 I 70 of 13 March 2018 — Formation of judicial panels in judicial proceedings
Although this BGE does not directly concern Art. 191a BV, it develops the fundamental constitutional requirements for judicial panel formation that also apply to the Federal Supreme Court.
«Art. 30 para. 1 BV and Art. 6 no. 1 ECHR require that abstract criteria for judicial panel formation be defined in advance and in a transparent manner. This can also take the form of established practice. A certain discretion is not excluded; however, it must be exercised according to objective criteria.»
The Federal Supreme Court holds that judicial panel formation must appear as an «act of judicial self-administration» and must not be subject to executive influence.
#Implementation of Division of Business at the Federal Supreme Court
Decisions 6B_63/2018 and 6B_1458/2017 of 21 June 2018 — Application of Art. 22 Federal Supreme Court Act
The Federal Supreme Court clarified the practical application of the rules for division of business:
«According to Art. 22 Federal Supreme Court Act, the Federal Supreme Court regulates the distribution of business to divisions by legal areas, the formation of judicial panels as well as the deployment of part-time judges by regulation.»
Since 2013, the judicial panel in all divisions of the Federal Supreme Court is partially determined by software, whereby the divisional president determines the reporting judge and the computer programme selects the other members.
Decision 12T_1/2019 of 7 June 2019 — Supervisory notification concerning judicial panel formation
The Administrative Commission confirmed its restrictive practice regarding supervisory control of judicial panel formation:
«The subject of supervisory review is here also solely the question whether general organisational or administrative defects exist that contravene statutory requirements or excessively impede their compliance.»
Administrative supervision is limited to the control of general mechanisms and does not cover concrete judicial panel formation in individual cases.
BGE 144 I 70 confirms Federal Supreme Court practice regarding transparency:
«To ensure transparency and control of judicial panel formation, Art. 42 Federal Supreme Court Regulation additionally provides that the Administrative Commission shall submit an annual report to the full court based on information from the divisions regarding compliance with Art. 40 Federal Supreme Court Regulation.»
This control serves to ensure that the judicial self-administration enshrined in Art. 191a BV functions properly.
The sparse case law on Art. 191a BV reflects its character as an organisational provision. The provision guarantees the organisational autonomy of the Federal Supreme Court as an expression of the separation of powers. The Federal Supreme Court organises itself through regulation (Art. 22 Federal Supreme Court Act), which represents an essential implementation of Art. 191a BV.
The case law shows that the self-organisation of the Federal Supreme Court enshrined in Art. 191a BV includes both autonomy and responsibility: autonomy in the division of business and judicial panel formation, but also responsibility for transparent and objective criteria that satisfy the right to a constitutional judge (Art. 30 BV).