Swiss Federal Supreme Court hears review request over two judges' relationship

A hearing on the relationship

The Federal Supreme Court is holding a public hearing on Thursday, 5 November, to decide whether the relationship between Yves Donzallaz (non-party) and Beatrice van de Graaf (SVP) qualifies as a 'dauernde Lebensgemeinschaft', a permanent cohabitation that the Federal Supreme Court Act does not allow between members of the court. The relationship, which has since ended, was revealed by the Weltwoche. It led to a request for review, which the court is for the first time examining on its merits. Whatever the court decides could affect other pending review requests as well.

Van de Graaf's bid to recuse the panel

Van de Graaf's lawyer has asked that the second civil law division assigned to the review request be recused, and that a panel of cantonal judges rather than the court itself handle the request. He argues that the question was already settled in a coordination procedure involving the assembled judges, which would make the current proceedings pointless. He also says four of the judges sitting on Thursday are prejudiced, because they took part in that coordination procedure and also obtained a superprovisional order from the Zurich Commercial Court. That order was meant to keep certain information from becoming public before the hearing.

Parliament and the court's leadership

The full re-election of the Federal Supreme Court is scheduled for the winter session of Parliament, and the Judicial Committee must decide which judges it recommends. Watson reports that a majority of the court is dissatisfied with how President François Chaix has handled the crisis and wants to replace him. In an interview with Watson, Leo Müller, the Lucerne National Councillor who chairs the Judicial Committee, said the court proposes not to confirm Chaix for another two years as president. Müller added that the committee would have to address this and then submit motions to Parliament.

Calls for disciplinary oversight

Müller told 'Schweiz heute' that he was open to disciplinary oversight of federal judges, although he approached the idea with some reserve. Such a body could impose milder sanctions than non-re-election, such as a reprimand or a transfer. He insisted that no politicians sit on any disciplinary panel and that it must not influence rulings, since otherwise judicial independence would be at risk.

“The credibility of the Federal Supreme Court is at stake.”

Müller warned that the court must solve its internal problems itself. Otherwise, he said, Parliament could gain influence over the judiciary and the separation of powers could falter. In the Watson interview he also said that federal judges who do not follow the rules must draw the consequences.

“If they do not abide by the rules, they must draw the consequences.”

Whether the relationship reached the intensity required for a permanent cohabitation was still open at the time of the reporting, and the court was expected to rule on Thursday.