The judicial authorities are independent in the exercise of their judicial powers and are bound only by the law.
#Overview
Art. 191c BV protects the independence of all judges in Switzerland. The provision applies to both federal courts and cantonal courts. It ensures that judges are bound only by the law and may not receive instructions from other state organs, parties or third parties.
Judicial independence has two important dimensions: External independence protects against outside influence. Internal independence guarantees that each judge in a collegiate body (court with multiple judges) can form his or her own opinion.
Concretely, this means: A member of the executive cannot dictate to a judge how to decide a case. A parliamentarian may not put pressure on a judge. Even within the court, no one may order another judge to make a particular decision.
The rule protects the separation of powers (separation of legislative, executive and judicial branches). It ensures that courts can decide fairly and neutrally. If a judge had to follow instructions, his decision would no longer be independent.
In cases of violations of judicial independence, judgments can be overturned. The Federal Court, for example, overturned a judgment because a judge had exerted improper pressure on a lawyer. The provision thus acts as an important guarantee for fair court proceedings.
Art. 191c BV complements the right to an independent court under Art. 30 BV and strengthens the principle of the rule of law under Art. 5 BV.
#Doctrine
#1. Legislative History
N. 1 Art. 191c FC was inserted into the Federal Constitution in the context of the comprehensive revision of federal judicial system (judicial reform) by the popular vote of 12 March 2000. The provision anchors judicial independence expressly at constitutional level for the first time (BBl 1997 I 1, 522 ff.). The constitutional legislator intended thereby to strengthen the institutional guarantee of the judiciary and to constitutionally secure the separation of powers between the legislative, executive and judicial branches (BBl 1997 I 575).
N. 2 The message on the new Federal Constitution (BBl 1997 I 522) emphasised that judicial independence had already been recognised as an unwritten constitutional principle before, but its explicit anchoring seemed necessary with regard to the judicial reform and the reorganisation of federal jurisdiction. The formulation «bound only by law» was intended to clarify that judges may not be subject to any instructions irrelevant to the matter.
#2. Systematic Classification
N. 3 Art. 191c FC stands in Title 5 (Federal Authorities), Chapter 3 (Federal Supreme Court and other judicial authorities), Section 2 (Judicial authorities of the Confederation and the cantons). The provision supplements the procedural guarantees of Art. 29 FC (general procedural guarantees) and Art. 30 FC (court proceedings) through an institutional safeguarding of the judiciary.
N. 4 The systematic position clarifies that Art. 191c FC applies to both federal courts and cantonal courts. The norm is closely connected with:
- → Art. 30 para. 1 FC (right to an independent court)
- → Art. 5 para. 1 FC (rule of law principle as the foundation of state action)
- → Art. 190 FC (applicable law)
- ↔ Art. 191a and 191b FC (organisation and competences of the courts)
#3. Elements of the Offence / Normative Content
N. 5 Judicial authorities: The concept encompasses all state organs entrusted with judicial activity, regardless of their designation. According to the case law of the Federal Supreme Court, this includes not only ordinary courts, but also administrative justice authorities and special courts such as the Federal Patent Court (BGE 147 III 577). What is decisive is the material function, not the formal designation.
N. 6 Judicial activity: Covered is the sovereign decision of legal disputes in individual cases with binding effect. Judicial administration does not fall under the scope of protection, as the Federal Supreme Court clarified in BGE 151 I 93. In distinguishing between judicial activity and judicial administration, the concrete factual context must be considered.
N. 7 Independence: Judicial independence has two dimensions:
- External independence: Protection from influence by other state powers, parties or third parties
- Internal independence: Autonomy of the individual judge in collegial courts, protection from informal hierarchies (BGE 149 I 14)
N. 8 Bound only by law: Judges are bound exclusively to the legal order. They may neither receive instructions nor be guided by considerations irrelevant to the matter. The binding to law includes, according to Art. 190 FC, also international treaties and federal acts, even if these should be unconstitutional.
#4. Legal Consequences
N. 9 Art. 191c FC establishes an objective constitutional norm with several legal consequences:
- Prohibition of any instructions to judges in concrete proceedings
- Duty of organisational separation of the judiciary from the legislative and executive
- Unconstitutional interference in judicial independence can lead to the annulment of judgments
N. 10 The violation of judicial independence can constitute grounds for recusal in individual cases, as BGE 137 I 227 shows. The Federal Supreme Court annulled a judgment because the higher court had exerted impermissible pressure on the defence counsel to withdraw the appeal.
N. 11 The institutional guarantee also has a preventive effect: The legislator must ensure judicial independence when designing court organisation. This concerns in particular election and re-election procedures (BGE 143 I 211), remuneration and disciplinary proceedings.
#5. Points of Controversy
N. 12 Scope for special courts: It is disputed to what extent part-time judges enjoy the same independence protection as full-time judges. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 895) represent a restrictive position, according to which certain restrictions would be permissible for part-time judges. In contrast, Kiener (in: BSK BV, 2nd ed. 2024, Art. 191c N. 8) emphasises that independence protection applies regardless of person for all judicial functions.
N. 13 Relationship to Art. 30 para. 1 FC: Doctrine is divided about the relationship between the institutional guarantee (Art. 191c FC) and the individual fundamental right (Art. 30 para. 1 FC). Steinmann (in: St. Galler Kommentar BV, 4th ed. 2023, Art. 191c N. 5) sees Art. 191c FC as lex specialis for the organisation of courts. Waldmann (BSK BV, Art. 30 N. 15) represents in contrast a complementary understanding of both norms.
N. 14 Judicial administration: The distinction between judicial activity and judicial administration is controversially discussed. The Federal Supreme Court excluded its own judicial administration from the scope of protection in BGE 151 I 93. In legal literature, Biaggini (BV Kommentar, 2nd ed. 2017, Art. 191c N. 4) and Ehrenzeller (St. Galler Kommentar BV, Art. 191c N. 12) criticise this narrow interpretation as too restrictive.
#6. Practical Guidelines
N. 15 In case of suspected violation of judicial independence, the following procedure is recommended:
- Documentation of all relevant incidents (conversations, letters, instructions)
- Examination of a recusal application based on Art. 30 para. 1 FC
- In case of systematic problems: Appeal to the supervisory authority or judicial administration
N. 16 For court organisation, concrete requirements arise from Art. 191c FC:
- Term of office must offer sufficient protection from arbitrary dismissal
- Remuneration may not be dependent on individual cases (avoidance of perverse incentives)
- Disciplinary proceedings must meet rule of law requirements
N. 17 The SEM approval procedure according to Art. 99 FNA was qualified as a violation of judicial independence in BGE 151 I 382. Executive authorities may not override final court judgments. This case law has far-reaching consequences for the interaction between administration and judiciary in migration law.
#Case Law
#External Independence of Judges
BGE 137 I 227 of 4 May 2011
Judicial influence on counsel to withdraw appeal is inadmissible.
Defines external limits of judicial independence through prohibition of improper influence.
«Judicial influence on the defendant's representative to induce him to withdraw the appeal is inadmissible. A court practice that does not meet the requirements for the constitutional judge and judicial independence can give rise to the appearance of bias of all members of an adjudicating body.»
BGE 143 I 211 of 30 March 2017
Solothurn re-election system for district court presidents protects judicial independence.
Stability of term of office serves judicial independence and is constitutional.
«Incumbent judges can therefore rely on a certain stability. This serves judicial independence and is compatible with freedom of election and voting, especially as removal from office remains possible.»
#Internal Independence and Informal Hierarchies
BGE 149 I 14 of 9 September 2022
Appointment of court clerks as judges in the same chamber violates judicial independence.
Landmark decision on internal independence and problematic dual functions.
«The scope of protection of Art. 30 para. 1 Federal Constitution and Art. 6 no. 1 ECHR encompasses not only judicial independence directed against external influence, but also the internal independence of court personnel, notably the autonomy of individual court members in a collegial court. The appointment of a court clerk and a court clerk of the deciding chamber as judge and judge in that very chamber to be assessed in the present case is not compatible with the right to an independent court.»
#Administration of Justice and Institutional Independence
BGE 151 I 93 of 22 August 2024
Courts do not possess the requisite judicial independence in the area of their own administration of justice.
Defines limits of judicial self-administration in light of the independence guarantee.
«In the area of their own administration of justice, courts do not possess the requisite judicial independence within the meaning of Art. 30 para. 1 Federal Constitution.»
BGE 137 I 1 of 17 January 2011
Refusal to disclose judicial daily allowances for protection of judicial independence.
Transparency must be balanced with protection of independence.
«The disclosure of daily allowances paid to a judge would lead to his working methods and thus also the outcome of proceedings being influenced by elements extraneous to the proceedings and thus the independence of the court being called into question.»
#Separation of Powers and Independence
BGE 151 I 382 of 19 March 2025
SEM consent procedure for cantonal court judgments violates separation of powers and judicial independence.
Latest landmark decision on limits of executive control over judicial decisions.
«The SEM's authority to override legally binding decisions of cantonal judicial instances violates the principle of separation of powers and the right to judicial independence.»
#Organizational Law Aspects
BGE 119 V 375 of 29 October 1993
Election by government council does not automatically call judicial independence into question.
Early landmark decision on permissible forms of appointment of judicial authorities.
«The appeals commission for unemployment insurance of the Canton of Zurich is a court based on law within the meaning of Art. 6 no. 1 ECHR. The fact that its members are elected by the government council does not in itself call their judicial independence into question.»
#Specialized Courts and Part-time Judges
BGE 147 III 577 of 30 August 2021
At the Federal Patent Court, particular attention must be paid to judicial independence due to its part-time organization.
Specifies requirements for specialized courts with mixed judicial organization.
«At the Federal Patent Court, a specialized specialist court with predominantly part-time judges, particular attention must be paid to judicial independence, although the organization desired by the legislature must also be taken into account.»
#Relationship to Art. 30 Federal Constitution
BGE 127 I 196 of 19 September 2001
Independence of investigating magistrates is assessed according to Art. 29 para. 1 Federal Constitution, not according to Art. 30 para. 1 Federal Constitution.
Distinction between different types of proceedings and corresponding independence guarantees.
«The independence of an investigating magistrate performing his criminal investigation and prosecution function is not assessed according to Art. 30 para. 1 Federal Constitution and Art. 6 no. 1 ECHR, but according to Art. 29 para. 1 Federal Constitution.»