Art. 30 Federal Constitution

#Doctrine

#1. Historical Development

N. 1 Art. 30 Federal Constitution continues and expands the guarantees of the lawful judge from Art. 58 old Federal Constitution. The total revision of the Federal Constitution provided an opportunity to systematically organise and substantively clarify judicial procedural guarantees (Federal Gazette 1997 I 1, 162). The constitutional legislator aimed for comprehensive anchoring of the guarantees contained in Art. 6 para. 1 ECHR, going beyond the minimal guarantees of the ECHR in several points.

N. 2 The Federal Council's message emphasised the central constitutional significance of independent courts as «cornerstones of the rule of law» (Federal Gazette 1997 I 162). While Art. 58 old Federal Constitution merely guaranteed the independence of judges, Art. 30 Federal Constitution now also expressly codifies impartiality, the prohibition of exceptional courts, and the principles of open justice. The domicile jurisdiction in civil matters (para. 2) was adopted from Art. 59 old Federal Constitution and systematically integrated into the judicial procedural guarantees.

#2. Systematic Classification

N. 3 Art. 30 Federal Constitution stands at the centre of judicial fundamental rights (Art. 29-32 Federal Constitution). While Art. 29 Federal Constitution regulates general procedural guarantees, Art. 30 Federal Constitution concretises specifically judicial guarantees. The demarcation follows the stage of proceedings: Art. 29 Federal Constitution applies to all official procedures, Art. 30 Federal Constitution only applies when a dispute reaches a court (BGE 127 I 196 E. 2b).

N. 4 The norm is closely connected with:

• → Art. 5 Federal Constitution (rule of law principle): The independence of courts is an expression of the separation of powers
• → Art. 29 Federal Constitution: General procedural fundamental rights apply complementarily to specific judicial guarantees
• ↔ Art. 191b Federal Constitution: Judicial independence as institutional guarantee
• → Art. 6 para. 1 ECHR: Parallel international guarantee with identical scope of protection

#3. Elements of the Offence / Normative Content

a) Court Created by Law (para. 1)

N. 5 The requirement of a court «created by law» demands a formal-legal basis for the organisation and jurisdiction of courts. According to Müller/Schefer (Fundamental Rights, 905), creation by ordinance is insufficient. The legal basis must exist before the emergence of the dispute (prohibition of «judge ad hoc»).

N. 6 A court is «competent» when the matter is assigned to it according to abstract rules of jurisdiction. Kiener (St. Gallen Commentary Federal Constitution, Art. 30 N. 17) emphasises that internal case distribution must also follow predictable rules. Arbitrary allocations violate the guarantee of the lawful judge.

b) Independence and Impartiality (para. 1)

N. 7 Independence has an institutional and an individual dimension. Institutionally, it requires organisational separation from other state powers, appropriate tenure, protection from dismissal and adequate financial resources (BGE 140 I 271 E. 8). Steinmann (Basel Commentary Federal Constitution, Art. 30 N. 21) emphasises that factual dependencies such as re-election procedures can also be problematic.

N. 8 Impartiality concerns the inner attitude of the judge. The Federal Supreme Court distinguishes between subjective bias (actual prejudice) and objective bias (appearance of prejudice). The latter suffices to affirm grounds for recusal (BGE 131 I 113 E. 3.4).

c) Exceptional Courts (para. 1)

N. 9 The prohibition of exceptional courts forbids the creation of courts for a concrete case or a specific person. Biaggini (Federal Constitution Commentary, Art. 30 N. 9) clarifies that specialised courts such as commercial or rental courts remain permissible as long as they are established in general-abstract terms. Decisive is the prior abstract regulation of jurisdiction (BGE 136 I 207 E. 3.2).

d) Domicile Jurisdiction (para. 2)

N. 10 Constitutional jurisdiction at the domicile applies only to defendant natural and legal persons in civil matters. Schweizer (St. Gallen Commentary Federal Constitution, Art. 30 N. 42) points out that the federal legislator may provide numerous exceptions (Art. 10-46 Civil Procedure Code). The guarantee primarily protects against arbitrary removal from the natural judge.

e) Open Justice (para. 3)

N. 11 The publicity of proceedings and judgment delivery serves democratic control of the judiciary and protection against secret justice (BGE 143 I 194 E. 3.1). Kley (Bern Commentary Federal Constitution, Art. 30 N. 67) emphasises the dual protective direction: transparency for the public and fairness for the parties.

#4. Legal Consequences

N. 12 Violations of Art. 30 para. 1 Federal Constitution lead to nullity of the judgment. In case of bias of a judge, the entire proceedings from his participation must be repeated (BGE 139 III 120 E. 3). Seiler (Basel Commentary Federal Constitution, Art. 30 N. 34) argues that even with structural independence defects, no cure is possible.

N. 13 The violation of domicile jurisdiction can be cured if the defendant party enters an appearance without objection. The violation of open justice only leads to annulment in serious cases, whereby Rhinow/Schefer/Uebersax (Constitutional Law, N. 2894) demand a balancing of interests.

#5. Controversies

N. 14 Bias in Social Media: The scope of social media contacts is disputed. While Schindler (Judicial Independence, 156) advocates for generous handling, Lienhard (Recusal, 89) demands differentiated consideration according to the intensity of the digital relationship. The Federal Supreme Court follows a pragmatic middle path (BGE 144 I 159).

N. 15 Judicial Independence in Re-election: Kiener/Kälin/Wyttenbach (Fundamental Rights, § 41 N. 12) see a structural threat to independence in periodic re-elections. Mastronardi (St. Gallen Commentary Federal Constitution, Preliminary remarks to Art. 188-191c N. 28) counters that democratic legitimacy also requires re-elections. Lienhard/Kettiger (Justice between Management and Rule of Law, 178) demand longer terms of office as a compromise.

N. 16 Scope of Open Justice: The reach of publicity is controversial. Oberholzer (Principles of Criminal Procedure Law, N. 156) advocates for comprehensive media publicity. Vest/Höhener (Basel Commentary Criminal Procedure Code, Art. 69 N. 8) urge protection of proceedings participants. The Federal Supreme Court weights transparency higher (BGE 143 I 194).

#6. Practice Notes

N. 17 Recusal motions must be filed immediately upon knowledge of the recusal ground. Anyone who does not immediately assert a known ground forfeits the right of challenge (BGE 134 I 20 E. 4.3.1). With newly emerging grounds, immediate reaction is required.

N. 18 Composition of Specialised Courts: In designing specialised courts, attention must be paid to balanced composition and clear independence guarantees. The combination of professional judges and specialist judges is permissible, provided the specialist judges enjoy the same independence guarantees (BGE 136 I 207).

N. 19 Exclusion of Publicity must be handled restrictively and requires a legal basis as well as overriding interests. Complete exclusion of media requires particularly weighty reasons. Partial restrictions (e.g., anonymisation) are to be preferred to complete exclusion (BGE 143 I 194 E. 3.6).

Case Law

#Principles of the Constitutional Judge

BGE 131 I 113 of 3 May 2005 E. 3.4 Fundamental guideline on the judicial guarantee under Art. 30 para. 1 Cst. Confirms comprehensive right to an impartial, unprejudiced and unbiased judge without influence from extraneous circumstances.

«According to the guarantee of the constitutional judge contained in Art. 58 para. 1 old Cst. and in Art. 30 para. 1 Cst., which was transferred materially unchanged to the new Federal Constitution of 18 April 1999, as well as in Art. 6 no. 1 ECHR, the individual has the right to have his case decided by an impartial, unprejudiced and unbiased judge without the influence of extraneous circumstances.»

BGE 140 I 271 of 2014 E. 8.1-8.4 Structural independence in specialized courts (Tax Appeal Commission Valais). The independence guarantees provided for in Art. 30 para. 1 Cst. also apply to auxiliary organs of judicial authorities with decision-making powers.

«As a judicial authority, the Tax Appeal Commission of the Canton of Valais must fulfill the independence guarantees provided for in Art. 30 para. 1 Cst. These guarantees also apply to the clerk of this commission due to his duties.»

BGE 126 I 68 of 1 January 2000 E. 4 Demarcation between Art. 29 and Art. 30 Cst. for investigating judges. Art. 30 para. 1 Cst. applies primarily to adjudicating, not investigating activities.

#Appearance of Bias

#Personal Relations

BGE 134 I 20 of 29 November 2007 E. 4.2-4.3 Key judgment on objective bias in personal conflicts. Judge who filed criminal charges and civil action against a party to proceedings must recuse himself.

«La garantie d'un tribunal indépendant et impartial instituée par les art. 30 al. 1 Cst. et 6 par. 1 CEDH [...] n'impose pas la récusation seulement lorsqu'une prévention effective est établie, car une disposition interne de la part du juge ne peut guère être prouvée; il suffit que les circonstances donnent l'apparence d'une prévention et fassent redouter une activité partiale du magistrat.»

BGE 144 I 159 of 14 May 2018 E. 4 Facebook "friendship" as ground for disqualification. Social media connections must be assessed according to the intensity and quality of the relationship.

«'Friendship' on Facebook can constitute a ground for disqualification if there is a connection which, by its intensity and quality, objectively gives reason to fear that the judge will be influenced in the conduct of proceedings.»

#Professional Conflicts of Interest

BGE 139 III 120 of 26 February 2013 E. 3.2 Secondary office as judge and simultaneous legal practice. Lay judge appears biased when representing the opposing party of a party litigating before this instance in another proceeding.

«A lawyer who holds the function of a lay judge in an appellate instance in rental matters appears objectively biased when he represents the opposing party of one of the parties litigating before this instance in another pending proceeding.»

BGE 133 I 1 of 7 December 2006 E. 5.2-5.3 Membership in appellate instance with party representation. Review of compatibility of judicial office and legal practice under the aspect of equality of arms.

#Multiple Functions in the Same Proceeding

BGE 131 I 113 of 3 May 2005 E. 3.7-3.8 Rejection of application for legal aid as ground for bias. Judge does not appear prejudiced merely because he rejected application for legal aid due to lack of prospects of success.

«A judge does not appear prejudiced merely because he rejected an application for legal aid due to lack of prospects of success of the legal claims. Rather, additional reasons must be present to assume bias of the judge in question.»

#Waiver of Disqualification Rights

BGE 134 I 20 of 29 November 2007 E. 4.3.1 Time limit rules for asserting grounds for disqualification. Motif de récusation must be asserted immediately after gaining knowledge.

BGE 136 I 207 of 19 April 2010 E. 3.4 Waiver through late assertion in commercial courts. Those who exercise statutory choice do not per se waive the right to disqualification.

«Those who, in exercise of a statutory choice, invoke not the ordinary court but the commercial court, do not thereby waive the right to disqualification of the same. Waiver through late invocation of grounds for disqualification.»

#Statutory Judge and Exceptional Courts

BGE 136 I 207 of 19 April 2010 E. 3.2-3.5 Special courts and constitutional judge. Composition of commercial court with professional and expert judges does not violate Art. 30 para. 1 Cst.

«The composition of the commercial court with two full-time senior judges and three expert judges, who must be company owners or senior employees and are designated as far as possible taking into account their expertise, does not give rise to the appearance of bias or partiality.»

BGE 139 I 72 of 29 June 2012 E. 2 Cartel sanctions proceedings and Art. 30 Cst. Guarantees of Art. 30 Cst. are applicable to criminal or criminal-like sanctions.

«Cartel sanctions under Art. 49a Cartel Act have a criminal or criminal-like character. The guarantees of Art. 6 and 7 ECHR as well as Art. 30 and 32 Cst. are applicable to such sanctions.»

#Medical Assessment Centers (MEDAS)

BGE 137 V 210 of 31 March 2011 E. 1-2 MEDAS and guarantee of the impartial judge. Constitutional objections to assessments by MEDAS under aspects of independence.

BGE 136 V 376 of 9 September 2010 E. 1.1 Probative value of MEDAS expert opinions. Review of independence and procedural fairness in administrative expert opinions.

#Public Nature of Court Proceedings (Art. 30 para. 3 Cst.)

#Principles of Public Administration of Justice

BGE 143 I 194 of 22 February 2017 E. 3.1 Leading decision on Art. 30 para. 3 Cst. and media exclusion. Constitutional and democratic significance requires very restrictive handling of exclusion of public.

«Art. 30 para. 3 Cst. enshrines the principle of public administration of justice also provided for in Art. 6 no. 1 ECHR and Art. 14 UN Covenant II. This allows insight into the administration of justice and ensures transparency of judicial proceedings. [...] The principle is of central constitutional and democratic significance.»

«The constitutional and democratic significance of the principle of public administration of justice requires that exclusion of the public and media representatives in judicial criminal proceedings be permitted only very restrictively, i.e., in case of overriding opposing interests.»

BGE 147 I 463 of 26 May 2021 E. 3 Public administration of justice and subsequent access to files. Principle of public administration of justice and statutory right to information do not form a unified regime.

#Exceptions to the Principle of Publicity

BGE 143 I 194 of 22 February 2017 E. 3.6.1 Protection of children, young people and victims. Access denial only when less far-reaching restrictions prove inappropriate and in particularly sensitive circumstances.

«To safeguard weighty concerns of child, youth or victim protection, access denial is only considered when less far-reaching restrictions prove inappropriate; it must be limited to those procedural sections in which predominantly particularly sensitive circumstances are discussed that cannot reasonably be expected to be disclosed in public to the affected persons.»

BGE 141 I 211 of 6 November 2015 E. 3 Restriction of court reporting. Prohibition of certain publications without sufficient legal basis is inadmissible.

#Public Nature of Judgments

BGE 143 IV 151 of 6 March 2017 E. 2.4 Public nature in appeal proceedings. Oral hearing and announcement of decision in appeal proceedings are in principle public.

BGE 143 I 194 of 22 February 2017 E. 3.7 Public nature of judgment delivery. Enhanced public interest in knowledge of the procedural outcome, especially after non-public main hearing.

«Exclusion from oral judgment delivery requires separate assessment. As already explained, an enhanced public interest in knowledge of the procedural outcome must be assumed here.»

#Domiciliary Judge (Art. 30 para. 2 Cst.)

BGE 136 I 207 of 19 April 2010 E. 5.5-5.7 Eligibility requirements and statutory judge. Violation of eligibility requirements (domicile requirements) makes decisions challengeable.

«Decisions in which a judge participated whose election is invalid due to lack of an eligibility requirement (requirement of residence in the canton) are challengeable. However, violation of eligibility requirements does not constitute a ground for disqualification or recusal.»

#Procedural Aspects

BGE 139 III 120 of 26 February 2013 E. 3.1 Discovery of grounds for disqualification after completion of proceedings. Procedural consequences of discovering a ground for recusal after communication of the decision.

BGE 138 I 1 of 2012 E. 2 Transitional law for disqualification requests. Applicability of new procedural provisions to proceedings initiated before entry into force.

BGE 141 IV 178 of 27 April 2015 E. 3 Duty to recuse in case of repeated procedural errors. Appearance of bias of the public prosecutor affirmed in case of gross procedural errors.

BGE 138 IV 142 of 8 June 2012 E. 2.1-2.3 Recusal of public prosecutor's office after annulment. Principles for recusal upon remand after annulment of a discontinuation order.

BGE 137 I 227 of 4 May 2011 E. 2.2-2.5 Judicial influence on parties to proceedings. Inadmissibility of judicial influence to withdraw appeal, but no appearance of bias for other chamber members.

BGE 137 I 1 of 17 January 2011 E. 2 Disclosure of judicial daily allowances. No right to disclosure of daily allowances paid to a judge for protection of judicial independence.

«Disclosure of the daily allowances paid to a judge would lead to his working methods and thus also the outcome of proceedings being influenced.»