The Court's origins: the Federal Justice Reforms
Until 2004, only two independent (non-military) courts existed at federal level: the Federal Supreme Court, founded in 1848 and located in Lausanne since 1875, and the Federal Insurance Court, founded in 1917 and based in Lucerne ever since. The Supreme Court was created after the Swiss Civil War (Sonderbundskrieg) as part of Switzerland's transition from a loose federation of states, known as cantons, to a single federal state. The Federal Insurance Court was established following the introduction of mandatory federal accident insurance. In 2007, these two courts were unified, with neither court giving up its traditional seat.
Over the years, however, and especially in recent times, the caseload of the Federal Supreme Court has constantly increased. Since the 1980s, its excessive workload has been a permanent topic of political discussion. The need for action was undisputed.
The Justice Reforms of 2007 introduced various measures to reduce the Federal Supreme Court's caseload and to improve judicial safeguards for individuals. Part of the answer was to create three new federal courts. These new courts have distinct areas of legal operation and are considered courts of lower instance to the Federal Supreme Court: the Federal Criminal Court was the first to begin its work early in 2004. It was later followed by the two St. Gallen-based courts, the Federal Administrative Court in 2007 and the Federal Patent Court in 2012. In keeping with the reform objectives, all three of these new courts are intended to reduce the Federal Supreme Court's caseload so as that it can exercise its role as the highest court of the land. With regard to criminal law, the reform relieved the Federal Supreme Court of its trial court obligations. In addition, the Prosecution Chamber of the Federal Supreme Court was discontinued and its procedural review responsibilities were transferred to the Appeals Chamber of the new Federal Criminal Court. As of 1 January 2019, the Appeals Chamber is now split into two chambers: the Lower Appeals Chamber and the Higher Appeals Chamber. The Justice Reforms were also intended to improve judicial safeguards for citizens and simplify appeal procedures.
The Justice Reforms, by expanding federal criminal jurisdiction and by creating a federal criminal court, achieved another important policy objective: they created new powers and capacities at federal level for the prosecution of complex criminal cases with international aspects. In line with this, what was known as the Efficiency Bill comprehensively reorganised the Office of the Attorney General of Switzerland and expanded its activities as an investigating and prosecuting authority.
On 12 March 2000, the People and the cantons by large majorities approved the constitutional amendment required to implement the Justice Reforms. On 1 August 2003, the Federal Act on the Federal Criminal Court came into force (and has since been replaced by the Federal Act on the Organisation of Federal Criminal Justice Authorities). On 1 October 2003, the Federal Assembly appointed the first eleven members of the new court. The Federal Criminal Court began its activities in Bellinzona in April 2004. In 2007, its jurisdiction was expanded to cover the judicial review of proceedings in the field of international mutual assistance in criminal matters. For this reason, the Federal Assembly approved and appointed four additional judges.
In October 2013, the Federal Criminal Court inaugurated its new courthouse at Viale Stefano Franscini 7 in Bellinzona. The new building replaced the premises provisionally leased at two locations in Bellinzona since 2004 and provides an ideal environment for the proper, up-to-date handling of cases and administration of justice. At the same time, it gives this still young institution a discreet yet imposing presence in downtown Bellinzona.
On 1 January 2019, the new Higher Appeals Chamber was created following completion of a parliamentary process on 17 March 2017 that resulted in amendment of the Federal Act on the Organisation of Federal Criminal Justice Authorities.
Jurisdictions – a broad spectrum
The Federal Criminal Court is currently divided into three chambers. The Criminal Chamber, tries in first instance those criminal cases that the Criminal Procedure Code expressly makes subject to federal jurisdiction – by way of derogation from cantonal jurisdiction, which normally applies in principle in matters of criminal prosecution. Federal criminal cases primarily comprise felonies and misdemeanours against federal interests (certain criminal offences by or against federal officials, against federal institutions or persons protected under international law, corruption cases, etc.), crimes involving explosives, and cases of white-collar crime, organized crime and money laundering with intercantonal or international connections. The Criminal Chamber is also the first instance for criminal offences covered by other federal acts, such as the Civil Aviation Act, the Nuclear Energy Act, financial markets legislation and the War Material Act.
Before 1 January 2019, judgments of the Criminal Chamber of the Federal Criminal Court could only be appealed directly to the Federal Supreme Court. This entailed a limited review, as the Federal Supreme Court was only able to overturn the lower court's assessment of the evidence and findings in fact if they were patently incorrect or based on a violation of federal law. Unlike at cantonal level, there was no second instance at federal level that could analyse first-instance judgments with full power of appreciation.
With the creation of the Higher Appeals Chamber of the Federal Criminal Court, judicial protection has also been further consolidated at federal level: starting from 1 January 2019, the facts of all federal criminal cases may be examined by two instances. Therefore, judgments of the Criminal Chamber that terminate proceedings in whole or in part can now be appealed. The Higher Appeals Chamber has full power of examination both in fact and in law. It also considers petitions for review of judgments of the Criminal Chamber and res judicata judgments by the Higher Appeals Chamber itself, as well as against indictment decrees, subsequent judicial decisions and decisions issued in separate measures procedures. The decisions of the Higher Appeals Chamber may in turn be appealed to the Federal Supreme Court.
The Federal Criminal Court's Lower Appeals Chamber hears federal appeals against procedural acts by the police and the Office of the Attorney General of Switzerland, and against court decisions to apply coercive measures, and pre-trial detention in particular. The Lower Appeals Chamber's jurisdiction encompasses other matters, namely the appeals and disputes assigned to it by the Federal Act on Administrative Criminal Law. In addition, it rules on conflicts of jurisdiction between different cantons or between cantons and the Confederation. Finally, the Lower Appeals Chamber hears appeals in the area of international mutual assistance in criminal matters. These primarily relate to the extradition of suspects or convicted persons, mutual assistance in the course of foreign criminal proceedings, the delegation of prosecution and enforcement, and the enforcement of foreign criminal judgments.
Certain decisions made by the Lower Appeals Chamber of the Federal Criminal Court may be contested in the Federal Supreme Court, depending on the applicable legal framework and specific conditions.
Although the Federal Criminal Court is a court of the Swiss Confederation, i.e. a federal court, and although certain proceedings are judged conclusively in Bellinzona, the Federal Criminal Court must not be mistaken for the Federal Supreme Court: Even in the field of criminal law, the Federal Criminal Court is not the highest legal review authority in Switzerland.
No two cases alike
Today, the Federal Criminal Court handles around 70 criminal cases and 750 appeal cases per year; as regards the newly established Higher Appeals Court, there are still no statistics available. Given the diverse responsibilities of the Federal Criminal Court, it is easy to understand why these figures cover a wide variety of cases.
In criminal cases, the preparation and holding of public hearings, with the participation of all parties involved and the often challenging phase of the administration of evidence, are an important part of the judicial activity.
The judges then deliberate on their verdict and after they have reached a decision, they issue their verdict: guilty or not guilty. If the verdict is guilty, they impose a sentence, which must fall within the limits prescribed by law, and they also rule on the incidental legal consequences (e.g. the forfeiture of assets or liability for the costs of the proceedings). At the Federal Criminal Court, especially in the case of white-collar crimes or cases of organised crime, very lengthy indictments with numerous accused and additional parties are commonplace; during trials, translations are regularly provided from several languages. The hearings not infrequently last for several days or even weeks. Often a written judgment explaining the reasons for the verdict is required. Judgments running to several hundred pages are not uncommon.
The Lower Appeals Chamber operates primarily as an appellate court. Its task is to verify that the decisions and procedural acts of the police, investigating authorities, the Criminal Chamber itself are compliant with federal and international law. In cases concerning international mutual assistance in criminal matters, decisions made by the Federal Office of Justice and the cantonal or federal enforcement authorities are also reviewed to ensure compliance with federal or international law.
The Swiss Criminal Procedure Code specifies the procedures before the Federal Criminal Court. Matters pertaining to international mutual assistance and administrative criminal law are handled in accordance with the Federal Act on International Mutual Assistance in Criminal Matters, the Federal Act on Administrative Procedure or the Federal Act on Administrative Criminal Law.
Since the Federal Criminal Court is a federal institution, case records may be kept and the public hearings may be conducted in any one of the three official languages (French, German, or Italian).
The administration of justice requires organisation
The primary task of any court is to dispense justice. At the Federal Criminal Court, this task is entrusted to its three chambers, or more precisely to the judges who are assigned to each chamber. The judges adjudicate their cases either sitting alone or in three-judge panels. They are comprehensively and indispensably assisted by legal clerks. One judge in each Chamber is elected Chamber President, serving a two-year term of office. The Chamber President may be re-elected on two occasions, making the maximum term six years.
Several bodies are responsible for the organisation and the internal administration of the court. The General Secretariat is responsible for the administrative management of the court and runs the court services (chancellery, accounting, human resources, library, IT, logistics and security). It is responsible both for the general organisation of the court and for providing the services required to run the court. The General Secretariat is represented in a consultative capacity in the court's management bodies, does the preparatory work for their meetings and takes the minutes. The Secretary General also acts as press officer for the court.
As laid down by statute, the management bodies of the Federal Criminal Court are the Plenary Assembly of all judges (the full court) and the Administrative Committee – both chaired by the President of Court. The President of Court is appointed from among the court's judges by the Plenary Assembly, which is also responsible for issuing important regulations, appointing certain court officials, and approving significant transactions. The President of Court represents the Court in its external dealings, especially in relation to the supervisory authorities and the parliamentary committees. The Administrative Committee consists of the President of Court, the Vice-President and a maximum of three other judges. The Administrative Committee is responsible for all administrative tasks, unless these are delegated to another body, normally the General Secretariat.
While the judges and the court's President and Vice-President are appointed by the Federal Assembly, it is the full court that appoints chamber judges and presidents for each two-year term.
On 1 January 2019, approximately 80 staff worked at the Federal Criminal Court, including 19 judges and 25 clerks.
The administration of justice has to be independent and impartial
Only well-trained, experienced and above all independent judges are able to make decisions that are objective, impartial, and free of irrelevant external influences. From time to time, judges must also have the courage to take unpopular decisions. Their decisions have to be based on a fair, impartial, and transparent process. Compliance with such fundamental principles at the Federal Criminal Court is not simply a formality to be met for the sake of appearances; rather, it is the firm conviction of all of the members that this is the only way that the judicial system can deserve and claim credibility, both in the eyes of the parties to the proceedings and the general public.
Information and accountability create transparency
Each court is assessed first of all on the basis of the degree of acceptance of its judgments by the parties involved and by the general public. For this reason, the Federal Criminal Court is particularly attentive to external communication. Case law is made fully accessible through the regular publication of decisions on the Internet and the annual publication in hardcopy of its official collection (Decisions of the Swiss Federal Criminal Court). In addition, an annual report is submitted to the Swiss Parliament. This report contains detailed information on essential aspects of the court's activities.