1The Cantons shall appoint judicial authorities to judge civil and public law disputes and criminal law cases.
2They may appoint joint judicial authorities.
Art. 191b BV
#Overview
Art. 191b BV obliges the cantons to establish courts. Each canton must appoint judicial authorities (courts) that decide on legal disputes. This concerns all important areas of law: civil law, criminal law and public law.
The cantons have great freedom in designing their courts. They can determine themselves how many instances they have and how these are organized. The only important thing is that the courts are independent and decide according to legal principles.
Several cantons may also establish joint courts. This is particularly practical in special areas of law where an individual canton has too few cases. For example, intercantonal appeal commissions for universities of applied sciences or in the lottery sector are created in this way.
Example: The Canton of Zurich must have a civil court that decides on contractual disputes. However, it can establish a special court for higher education matters together with other cantons if this makes more sense.
The provision ensures that every person in Switzerland has access to an independent court. The Federal Supreme Court reviews whether the cantonal courts meet the minimum requirements. It is particularly important that judges can decide independently of politics and administration.
Cantons must establish courts even when they would prefer to use administrative authorities. The right to an independent court is a fundamental right that cannot be waived.
Art. 191b BV
#Doctrine
#1. Legislative History
N. 1 Art. 191b BV was inserted into the Federal Constitution as part of the judicial reform of 12 March 2000. The provision gives concrete form to the constitutional obligation of the cantons to establish judicial authorities, which already results from the guarantee of legal remedies (Art. 29a BV) and the right to an independent court (Art. 30 para. 1 BV). The Federal Council Message on the total revision of the Federal Constitution of 20 November 1996 (BBl 1997 I 1, 475) emphasised that the cantons have extensive autonomy in organising their court system, although this is limited by federal minimum requirements.
N. 2 The inclusion of para. 2 was intended to provide express constitutional foundation for the already existing practice of intercantonal judicial authorities. The constitutional legislator thereby wanted to create the legal basis for common judicial instances, as required for example in the area of lottery regulation or for intercantonal universities of applied sciences (BBl 1997 I 1, 476).
#2. Systematic Classification
N. 3 Art. 191b BV is systematically classified in Title 3 (Confederation, Cantons and Communes), Chapter 5 (Federal Judicial Authorities). The provision is closely connected with:
- → Art. 29a BV (guarantee of legal remedies)
- → Art. 30 para. 1 BV (right to an independent and impartial court)
- → Art. 191c BV (judicial independence)
- → Art. 48 BV (intercantonal treaties)
- → Art. 86 para. 2 BGG (lower courts of the Federal Supreme Court)
N. 4 The provision forms the constitutional foundation of cantonal court organisation and supplements the federalist allocation of powers (→ Art. 3 BV). It gives concrete form to the requirements for cantonal judicial organisation flowing from procedural fundamental rights.
#3. Elements of the Offence / Content of the Norm
3.1 Obligation to establish judicial authorities (para. 1)
N. 5 The term «judicial authorities» is to be understood functionally. What is decisive is not the formal designation as a court, but the material fulfilment of the requirements for judicial independence and impartiality (BGE 151 I 93 consid. 2.1.1). A judicial authority is characterised by:
- institutional independence from the executive and legislative
- personal and substantive independence of the judges
- decision-making according to legal standards
- binding only by law (→ Art. 191c BV)
N. 6 The cantons must establish judicial authorities in particular for:
- civil law disputes
- public law disputes
- criminal matters
- disputes under cantonal law (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Commentary on BV, 4th ed. 2023, Art. 191b N 8)
3.2 Intercantonal judicial authorities (para. 2)
N. 7 Para. 2 empowers the cantons to establish common judicial authorities. This competence supplements the general power to conclude intercantonal treaties (→ Art. 48 BV). The provision has a clarifying function and removes constitutional doubts about the admissibility of common court instances (Waldmann/Belser/Epiney, Basel Commentary BV, 2nd ed. 2024, Art. 191b N 15).
N. 8 Requirements for intercantonal courts:
- treaty basis between the participating cantons
- compliance with the requirements for judicial authorities
- respect for federal requirements for court organisation
#4. Legal Consequences
N. 9 From Art. 191b para. 1 BV follows the constitutional duty of the cantons to maintain a functional court system. This duty is justiciable: if a required judicial instance is missing, there is a violation of the guarantee of legal remedies (Judgment 2E_2/2015 of 22.5.2015 consid. 2.2).
N. 10 Cantonal organisational autonomy finds its limits in:
- federal requirements (e.g. Art. 86 para. 2 BGG for lower courts of the Federal Supreme Court)
- fundamental rights requirements (Art. 29a, 30 BV)
- procedural minimum standards of the ECHR (Art. 6 ECHR)
N. 11 Heightened requirements apply to judicial administration matters: the supreme cantonal court cannot decide as an independent instance on its own administrative acts (BGE 151 I 93 consid. 2.3). Here the cantons must take special measures to ensure impartiality.
#5. Controversies
N. 12 Scope of cantonal organisational autonomy: While Häfelin/Haller/Keller/Thurnherr (Swiss Federal Constitutional Law, 10th ed. 2020, N 1915) emphasise cantonal freedom in court organisation, Müller/Schefer (Fundamental Rights in Switzerland, 4th ed. 2008, p. 982) demand stronger consideration of fundamental rights requirements. The Federal Supreme Court follows a mediating approach that recognises organisational autonomy but sets clear limits (BGE 151 I 93).
N. 13 Requirements for judicial independence: Rhinow/Schefer/Uebersax (Swiss Constitutional Law, 3rd ed. 2016, N 3640) represent a formal view according to which the designation as a court and the statutory design are decisive. Recent doctrine (Tschannen/Zimmerli/Müller, General Administrative Law, 4th ed. 2014, § 10 N 25) and case law follow a functional approach that focuses on actual independence.
N. 14 Scope of para. 2: Ehrenzeller/Schindler/Schweizer/Vallender (St. Galler Commentary BV, Art. 191b N 12) see in para. 2 a constitutive empowerment. Waldmann/Belser/Epiney (Basel Commentary BV, Art. 191b N 16) regard the provision as declaratory, since the competence already results from Art. 48 BV. The Federal Supreme Court has left this question open (BGE 135 II 338 consid. 1).
#6. Practice Notes
N. 15 When organising the cantonal court system, the following must be observed:
- Independence must be guaranteed institutionally, personally and substantively
- For disputes with federal law relevance, the requirements of the BGG apply (esp. Art. 86 para. 2)
- For intercantonal courts, legal protection must be equivalent to purely cantonal instances
N. 16 Special attention is required for:
- Administrative justice proceedings against acts of the supreme cantonal court
- Disciplinary proceedings against judges
- Organisation of specialised courts with part-time judges
N. 17 Practice shows that intercantonal courts are particularly successful in the following areas:
- Lottery regulation (Appeals Commission of the Intercantonal Lottery and Betting Commission)
- Higher education (intercantonal appeals commissions)
- Concordats in specialised areas of law
Art. 191b BV
#Case Law
The case law on Art. 191b BV primarily addresses three core areas: cantonal organisational autonomy in court organisation, requirements for judicial authorities in the implementation of federal law, and the guarantee of legal remedies in judicial administration matters.
#Leading Decisions
Cantonal Organisational Autonomy and Court Organisation
Judgment 9C_38/2023 of 21.4.2023 consid. 5.1 Principle of cantonal competence in court organisation and its limits. The Federal Supreme Court places cantonal organisational autonomy at the forefront of court organisation.
«The organisation of cantonal jurisdiction thus lies fundamentally within the competence of the cantons (Art. 191b BV). This means that it is also incumbent upon the cantons, within the framework of any federal legal requirements, to create and designate judicial authorities, to assign them business, and to regulate any delimitation/assignment questions, whether between instances or within instances.»
BGE 151 I 93 of 22.8.2024 consid. 2.1.1 Relationship between Art. 191b BV and Art. 29a BV and Art. 86 para. 2 FSCA. This new leading decision specifies the constitutional requirements for lower instances of the Federal Supreme Court.
«Art. 86 para. 2 FSCA specifies Art. 191b para. 1 BV and the guarantee of legal remedies under Art. 29a BV. Both provisions require the cantons to establish judicial authorities for legal disputes.»
Intercantonal Judicial Authorities
BGE 135 II 338 of 10.8.2009 consid. 1 Admissibility of intercantonal judicial authorities under Art. 191b para. 2 BV in the lottery sector. The decision confirms the federal legal admissibility of common intercantonal appellate instances.
«The cantons are empowered in the areas left to them in the Lottery Act to adopt corresponding cantonal legal rules individually; based on Art. 48 para. 1 BV, they may also cooperate contractually in this regard.»
#Requirements for Judicial Authorities
BGE 151 I 93 of 22.8.2024 consid. 2.3 Judicial administration and judicial independence - Imperfect hierarchy of instances. The judgment clarifies the requirements for independence in judicial administration matters.
«The supreme courts in their capacity as appellate instance in administrative justice matters [decide] at the higher instance level, but also in their own cause and thus functionally as administrative appeal authority and not as an independent court.»
Judgment 2E_2/2015 of 22.5.2015 consid. 2.2 Obligation to establish judicial authorities in specification of Art. 29a BV. The judgment emphasises the constitutional dimension of Art. 191b BV.
«Art. 191b BV [...] prescribes to the cantons in specification of Art. 29a BV to establish judicial authorities, particularly for the adjudication of civil law and public law disputes.»
#Other Important Decisions
Judgment 2C_646/2014 of 6.2.2015 Intercantonal university appeal commissions as judicial authorities under Art. 191b para. 2 BV. The decision concerns common judicial authorities in the higher education sector.
Judgment V 13 43 of 22.4.2013 (Administrative Court Lucerne) Cantonal organisational autonomy and ECHR compatibility. The judgment addresses the compatibility of cantonal court organisation with constitutional and ECHR principles.
«The Lucerne regulation in § 201 para. 2 VRG is based on the extensive organisational autonomy of the cantons, insofar as they apply their own administrative law. It is compatible with constitutional and ECHR principles.»
Judgment 8C_609/2014 of 24.11.2014 consid. 2.3 Functional jurisdiction of the Federal Supreme Court as federal law. The decision clarifies that cantonal organisational autonomy finds its limits in federal law.
Judgment 5D_110/2016 of 15.9.2016 Constitutional limits for non-entry and single-judge decisions. The judgment addresses the compatibility of certain procedural forms with Art. 191b BV.
#Methodological Notes
The case law on Art. 191b BV shows a clear line of development: Initially, recognition of cantonal organisational autonomy was in the foreground (BGE 135 II 338). With the current BGE 151 I 93, the constitutional limits of this autonomy are now being clarified, particularly in relation to the guarantee of legal remedies and judicial independence.
The Federal Supreme Court applies a functional approach: What is decisive is not the formal designation of an authority as a "court", but its actual independence and impartiality (BGE 151 I 93 consid. 2.1.1). This case law is particularly relevant for judicial administration matters, where the functional approach leads to a stricter examination of independence requirements.
Practice shows that Art. 191b para. 2 BV forms an important basis for intercantonal cooperation in the judicial system, whereby the minimum federal legal requirements must be respected (BGE 135 II 338). Recent case law tends towards enhanced review of material independence requirements, regardless of the formal classification of the deciding authority.