September 2016 Bar Bulletin
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Spetember 2016 Bar Bulletin

Swiss Justice

In response to Larry Johnson’s article in the July issue of the Bar Bulletin, “Declaring Independence from a Flawed Legal System,”

Johnson’s friend, Ernst Weilenmann, who works for the Ministry of Justice of the Canton of Zurich, shed some light on the Swiss justice system.

 

Thanks for mailing me your article from the KCBA Bar Bulletin. Interestingly enough, some of the points you deal with are being discussed in Switzerland, too, but with some differences as to scope or causes.

You can quite often hear the complaint that justice is too expensive in Switzerland, but rarely people have the lawyer’s fee in mind. People rather feel that the court costs are too high, and particularly unpopular is the rule that in a large part of civil cases, the plaintiff has to guarantee the court costs for his case to be taken at hand.

Especially consumer cases, where people have to face big companies, are a problem in that respect, and this has often raised the question whether Swiss civil law should be changed to permit class actions. On the other hand, that the losing party has to pay the court fees and the attorneys’ fees of the winner in the end, except for some special procedures mainly in family law cases, is a tradition of Swiss civil law.

The complaint that civil procedures are too complicated and offer too much possibilities to complicate or lengthen a procedure has more or less disappeared in Switzerland with the introduction of the federal law on civil procedure, which replaced the 26 different cantonal laws with their partially, very complicated rules. And of course, we profit from the fact that Switzerland never knew the jury system for civil cases, and that the American idea of discovery in civil procedure does practically not exist here.

All Swiss judges have to be reelected, usually after four years, and to be elected a first time you are more or less forced to be a member of a political party. But the complaint that this influences the decision of the judges is practically never heard, except at the highest level, when politicians, usually of the Schweizerische Volkspartei, complain about some decision of the federal court. And judges do not have to be afraid of that kind of complaint either; the consequence would not be that they would not be reelected; they just might have a lower number of votes for their reelection.

Plea bargaining, which was introduced in Switzerland with the federal law on criminal procedure a few years ago, has become a matter of discussion in the press during the last two years, but not because of the point of its giving the prosecutors too much power (which it does in my opinion). The point which is being criticized is the fact that it leads to a kind of secret justice without any control by the public or the press — while justice in Switzerland is meant to be public — because the procedure, in which the competent court checks and accepts the result of the plea bargaining, leads just to one public hearing, in which very little is said about the case and the reason for the penalty.

And finally, while we have not managed yet to deal even more sensibly with the drug issue, the change in public opinion, permitting methadone and even drug programs, has led to one important change: While we still use too much money, people and prison places for drug smugglers and dealers, drug users are not sent to prison anymore, and drug therapies are not ordered very often anymore by the courts.

Of course, the right side of the political spectrum still dreams of a drug-free society and would like a change to the former ways of trying to deal with the drug problem, but in reality, the majority would not accept such a backward step. But even with that positive development here, we are far away from seeing the drug issue correctly.

If anyone ever wants to solve it, it has to be accepted as a health and economic issue and not one of criminal law, with which you can deal in manners accepted in those two fields. But neither the U.S., who were concerned directly, nor states like Switzerland, who could watch from the outside, seems to have learned anything from the experience with prohibition.

 

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