How the federal judge’s election turned into a showdown

Detail of the Swiss Federal Court in Lausanne.

Annick Ramp / NZZ

Power games and outright threats have put the relationship between the legislature and the judiciary to the test not only since the dispute over the re-election of Yves Donzallaz. In 1990, discontent with the legendary but nervous SP federal judge Martin Schubarth even led to his surprising removal. The background remains vague, politics and the public are shocked. A week later, Schubarth was re-elected. But the punitive action is not the only scandal on this historic election morning: Three other justices also received remarkably low votes.

All three were involved in a controversial trial, the famous crucifix case: three months before election day, the federal court ruled that crucifixes cannot be hung in the classrooms of the Cadro municipality in Ticino. Classrooms should be designed to be religiously neutral, the federal court said, and thus angry Catholic circles, who sometimes describe the trial as an act of persecution of Christians.

The store refuses to serve

For the first time, a federal judge involved in the crucifix decision publicly describes what happened behind the scenes in the run-up to the confirmation election by the Federal Assembly: Although Karl Spühler is a member of the SVP, he is considered a federal judge liberal on many issues. A day before the decisive negotiation in the crucifix case, a colleague CVP judge from Lausanne named Spühler, the now 85-year-old told the NZZ. At the time, the CVP opposed the trend to remove religious symbols from schools. Spühler suspects the reason for the call.

But this is not a legal discussion between colleagues: the caller tells Spühler that he will be sorry when he is re-elected if he is not sorry about the crucifix: “They threatened me bluntly,” recalls the lawyer. . According to Spühler, the aggressive CVP judge does not even shy away from revealing the background of the action: he is calling in the interests of the party, he explains. Spühler is stunned, remains silent and judges as he sees fit. But the consequences are bitter, as he recalls: in the elections, he and the other judges involved are punished. And in the CVP press, Spühler is attacked so harshly for his attitude that he will no longer be served at certain stores in his Toggenburg resort.

To this day, the punitive actions of December 5, 1990 against Schubarth, Spühler and their colleagues are seen as a turning point in the interaction between the legislative and judicial branches. Something like this “was not worthy of the Federal Assembly,” writes the NZZ the day after the elections.

SVP plays powerplay after powerplay

Fourteen years later, the next high-profile incident occurs. After the Federal Supreme Court in 2004 evaluated a skinhead conference in a cabin in the woods as a public event in relation to the criminal rule against racism, the SVP was enraged by the alleged abolition of privacy. And he is turning to a new means: the open threat against federal judges. A statement on the unpopular decision ends with the fatal sentence: “The next election of the Supreme Federal Court will have drastic consequences.”

It is a new dimension for Switzerland. These are generally nervous and politically charged times: Christoph Blocher is a member of the Federal Council and the senior vice president plays one power game after another on the political floor. The discussion about respect for state institutions continues. The federal judges of the SVP at that time also defended themselves against the attack of the party secretariat: in the “NZZ am Sonntag”, the SVP judge Peter Karlen described the statements as unsustainable: “The limits have been exceeded. We can’t just go back to business. “

In hindsight, Karlen, who resigned as a federal judge in 2019, is more relaxed about the incidents. A federal judge can be expected to resist pressure from politics and the public, she told NZZ: “You just have to draw the lines clearly.” He and his fellow judges held talks with the SVP at the time to clear up any misunderstandings: “We met on good terms and in the end the MPs understood our point of view,” Karlen said.

Political and media pressure on the third power has been on the rise for some time: for example, a year ago, a judge in Zurich was ridiculed with her full name through Facebook and Co. after defending the deprivation clause and against in a case of social fraud. she had pronounced deportation. When a single judge acquitted twelve climate activists at the beginning of the year who had to answer for raids after occupying a CS branch, there was a barrage of insults and threats. The verdict was in the headlines for days.

Pressure becomes a burden for the judges

“The pressure places an additional burden on the judges,” Patrick Guidon, president of the Swiss Association of Judges, recently declared. In a 2009 study, at least 10 percent of judges surveyed said that in proceedings that are particularly controversial in the media, they think “hard” about public acceptance of their judgment. If political parties create additional pressure, the delicate balance between state powers can easily become unbalanced; the Donzallaz case demonstrates this particularly well.

Never before has a single federal judge been pressured by his party so systematically and for as long a period of time as Donzallaz in the run-up to this year’s reelection. The dispute started as early as 2015 when the Federal Supreme Court decided that the mass immigration initiative adopted did not take precedence over the free movement agreement with the EU. Among the judges who have reached this conclusion is also: Yves Donzallaz. The verdict is diametrically opposed to SVP’s policy.

In November 2017, SVP general secretary Donzallaz requested a meeting with party chairman Rösti, head of strategy Christoph Blocher and new parliamentary group leader Thomas Aeschi. Without makeup, the invitation makes clear what it is about: “How the attitude of the SVP can also be better brought to our highest court.” Donzallaz is outraged by the outright attempt to exert influence and refuses, citing judicial independence. Donzallaz also evaded a meeting of the federal SVP judges with the parliamentary group the following March.

Donzallaz offends SVP again

But the judge remains a thorn in the side of his party, even more so since he is involved in another controversial trial in 2019. It involves the delivery of 45,000 records of UBS customer data to France. For the senior vice president, it’s the next slap in the face. Several bourgeois politicians harshly criticized the verdict, and Aeschi attacked Donzallaz head-on: “We must seriously ask ourselves if we want to re-elect the federal judges of our party if they do not represent our ideas in any way,” he said in an interview. Shortly thereafter, the leader of the Aeschi parliamentary group took a seat on the otherwise rather unpopular National Council’s judicial commission and made choosing the judge a top priority.

Now Donzallaz is also receiving unpleasant emails from his cantonal party, SVP Wallis: three months before re-election, this asks the judge to clarify whether and how he wants to represent his party’s positions in the Federal Supreme Court. . A copy of the letter is sent to Rösti and Aeschi. Even a debate in the parliamentary group does not produce a turning point: the SVP decides not to vote for Donzallaz again, unless he leaves the party. For the first time, a party officially puts the knife to the chest of a federal judge from its own ranks. From the point of view of former federal judge Vice President Karlen, the party has clearly gone too far: “This crosses a red line.”

Secret phone calls, hidden acts of revenge during elections, and open attacks on lecterns and from party headquarters: how free are parliament and politics in dealing with the judiciary, and when do attacks become a threat? for the separation of powers? The harsh action taken by the SVP against its own judge is causing waves of commotion in federal Bern: government partners openly and behind closed doors are discussing the concordance. The parties are thinking about how the proven electoral process for federal judges can be revamped and protected against politically motivated attacks. Even if Election Day ends with no surprises: the Swiss judicial system is being put to the test.