Speech of Federal Councillor Sommaruga_St. Gallen

Ladies and Gentlemen

I am delighted that you are holding your meeting in Switzerland and will have the opportunity to visit the still young Federal Administrative Court here in St. Gallen. Welcome to Switzerland! Locating the court in St. Gallen was highly controversial.

For some, however, it was clear from the beginning: the location was ideal simply because St. Gallen is located so far away from the political centre of Switzerland, the federal capital Bern.

Ladies and Gentlemen, I am under the impression that politicians are taking more notice of the judiciary than before – and here in Switzerland too. Individual decisions of our highest court and also those of the Federal Administrative Court increasingly attract a widespread response among politicians.

There are many examples. One is the Federal Supreme Court’s decision yesterday on the “Second Home Initiative”. The Court upheld the direct application of the constitutional provision – this was hardly surprising but it provoked rather fierce reactions from some politicians. Judgments of the European Court of Human Rights in Strasbourg also regularly make the headlines here in Switzerland: For example, the Court’s decision in mid-April this year that the expulsion from Switzerland of a convicted drug courier was illegal.

Politicians in the European Union also appear to be taking an increasing interest in the judiciary. This is shown by the fact that the European Commission recently published a Eurobarometer on the judicial system for the first time. One effect of the financial crisis certainly is that politicians are becoming increasingly aware of how important a functioning judicial system is for a country’s economic well-being.

In certain European states, the highest courts have come into the spotlight because they have had to deal with the legality of austerity programmes or participation in international aid programmes. In some states, some well-known politicians have even tried to abolish judicial review powers that might interfere with their political projects or their careers.

What does this growing interest on the part of politicians and journalists mean for you as judges? No doubt, it is better to be noticed than not to be noticed at all.

However, increased attention and criticism from politicians could also be intimidating or be construed as interference in the  independence of the judiciary. Judicial independence is a requirement that is not simply fulfilled by a state ratifying the European Convention on Human Rights (with its Article 6) or enshrining the independence of the courts in its Constitution. Rather, it is a principle that must be applied, respected and defended on a day-to-day basis. The risks to the independence of the judiciary are many and  varied. Clearly, corruption and nepotism cannot be tolerated. But when it comes to other forms of influence over the judiciary, it can be  difficult to draw a distinction between what is acceptable or even desirable and what is unlawful. One delicate issue, for example, is the appointment of judges by the legislature or the executive.

How far should one consider not only the candidates’ professional competence and personal integrity, but also their beliefs or previous ourt judgments? In Switzerland, federal judges face re-election every six years. Some people, however, claim that reelection could  jeopardize the independence of judges.Another point of contention is that our parliament rarely appoints a judge who is not a member of a political party represented in parliament.

Criticising the decisions of the courts is not in itself tantamount to interfering with judicial independence. On the contrary, one of the cornerstones of a democratic constitutional state is that all authorities, including the courts, must be open to criticism. Anyone who criticises a court decision, must, however, understand the rules that bind the judges; in other words, the applicable legislation. If the law cannot be interpreted in a more favourable way, then the only option for politicians is to ensure that similar cases are settled differently in the future. And this turns the spotlight on the politicians. Ladies and gentlemen, politicians and the courts have completely different roles. But they both have the challenging task of finding a balance, each in their own way, between social change and social stability.

I wish you the peace and equanimity you need for your important task. For you are the guarantors of the rule of law and ultimately you  invariably ensure the protection of those who are most vulnerable. I am deeply grateful to you. And therefore, it is my great pleasure to greet and congratulate you on behalf of the Swiss government.