User:Sandstein/Drafts/Law of Switzerland

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The law of Switzerland is the constitutional, statutory and case law made by the people, legislatures, governments and courts of the Swiss Confederation, of the 26 Swiss cantons and of the 2'740 Swiss municipalities. It also includes the international and intercantonal treaties that the Confederation and the cantons have entered into.

In its general outlines, Swiss law is representative of mainstream continental Western European law. Its principal influences have been French, German and more recently European law, even though Switzerland is not a member of the European Union. Some of the particularities of Swiss law, to be explained below, include federalism and municipal autonomy, lack of judicial review of federal statutes, legislation through direct democracy and multilingualism.

History[edit]

Sources of law[edit]

The body of rules constituting the law of Switzerland (that is, the sources of law) comprises:

  • applicable public international law, including the international treaties to which Switzerland is a party;
  • federal law (applicable in all of Switzerland):
  • the federal constitution,
  • federal statutes (Bundesgesetze / lois fédéraux),
  • other federal law made by federal authorities under authority delegated by the Constitution or statutes, including decrees of Parliament and ordinances (Verordnungen / ordonnances) issued by the Federal Council or the federal executive departments, or (rarely) customary law;
  • cantonal law (applicable only in the respective cantons):
  • intercantonal treaties (Konkordate / concordats),
  • the cantonal constitutions,
  • cantonal statutes,
  • other cantonal law as with federal law above;
  • municipal law, where and to the extent provided for by cantonal law, normally also:
  • municipal constitutions,
  • municipal statutes,
  • other municipal law as with federal law above.

In the event of conflict, these sources of law take precedence over one another in this order (lex superior derogat legi inferiori). However, because the federal constitution forbids the judicial review of federal statutes, these in practice take precedence even over the federal Constitution and international law.

In the continental European legal tradition to which Switzerland belongs, judicial decisions (case law) are not formally considered sources of law and are not binding on individuals or on lower courts. But in legal practice, decisions of superior courts have a strong precedential effect.

Branches of Swiss law[edit]

Constitutional and public law[edit]

Since the founding of the federal state in 1848, Switzerland is constituted as a federal republic of 26 cantons on the model of the United States of America. The federal and cantonal constitutions as well as the European Convention on Human Rights guarantee the human rights of people in Switzerland, including the right to a fair trial.

International law[edit]

Civil law[edit]

Swiss civil law is based on the civil law system in the tradition of Roman law, incorporating the principles of good faith, liberty of contract and pacta sunt servanda.

Criminal law[edit]

As in other constitutional democracies, Swiss criminal law is governed by the maxims of nulla poena sine (praevia) lege, ne bis in idem and in dubio pro reo.

Sources of law[edit]

Legislation on criminal law is in the competence of the Confederation, although the cantons remain competent to legislate with regard to misdemeanors. The bulk of Swiss criminal law is codified in the federal Criminal Code of 1937.[1] Special criminal codes exist for members of the military[2] and for youth.[3] In addition, numerous federal and cantonal statutes provide for criminal sanctions.

Sanctions[edit]

Criminal sanctions include fines, community service and imprisonment. The most severe punishment is life imprisonment with a possible release on parole after 15 years.[4] Dangerous pathological offenders can be detained even if not legally culpable or after having served their sentence.[5]

The death penalty was abolished with the introduction of the Criminal Code in 1942,[6] although it remained on the books for military crimes in times of war up until 1992.[7] The 1999 Constitution explicitly prohibits the death penalty.[8]

Criminal procedure[edit]

Swiss criminal procedure combines inquisitorial and adversarial elements. Criminal procedure is a matter of cantonal law (but is set to be federalised at around 2010) and substantial variations in procedure exist between cantons. Judges are generally legal professionals elected by the people, parliaments or upper courts of the cantons, although the participation of lay judges is not uncommon in courts of first instance. Jury trials are no longer used in most cantons and will be definitely phased out with the federalisation of criminal procedure.

Prosecution and law enforcement[edit]

Jurisdiction and procedure[edit]

The federal structure of Swiss law[edit]

Legislation[edit]

Judiciary[edit]

Legal education and practice[edit]

Jurisprudence can be studied at all Swiss universities except in Lugano. Swiss jurists graduate with a Bachelor of Law (BLaw) after three years or with a Master of Law (MLaw; previously: licentiatus iuris, lic.iur.) after roughly five years of study. They have the option to write a dissertation (PhD thesis) to attain the title of doctor of laws (doctor iuris, Dr.iur.).

To hold the title of an attorney at law (avocat, avvocato, Rechtsanwalt or Fürsprecher), a jurist must undergo at least a year of practical education (up to 24 months in some cantons) and pass a challenging, usually week-long bar exam. The actual practice of law, i.e. the representation of parties before court, requires the attorney to be registered in a cantonal register of attorneys (registre d' avocats / Anwaltsregister), which is also open to attorneys from a EU member state. Registered attorneys may practice before any court in Switzerland.[9]

Draft space[edit]

  • Switzerland is a federal republic of 26 cantons, whose municipalities also enjoy a high degree of autonomy (e.g. to raise taxes). This has produced a To any one legal issue,
  • Unlike in most other Western nations, there is no .
  • The people as a whole are highly involved in legislation. They can veto the passage of a federal, cantonal or communal statute by popular referendum, or they can

Swiss law is practiced in the country's three principal official languages


References[edit]

  1. ^ Criminal Code / Strafgesetzbuch (StGB) / Code pénal (CP) / Codice penale (CP) of 1937-12-21, SR/RS 311.0 (E·D·F·I)
  2. ^ Militärstrafgesetz (MStG) / Code pénal militaire (CPM) / Codice penale militare (CPM) of 1927-06-13, SR/RS 321.0 (D·F·I)
  3. ^ Jugendstrafgesetz (JStG) / Droit pénal des mineurs (DPMin) / Diritto penale minorile (DPMin) of 2003-06-20, SR/RS 311.1 (D·F·I)
  4. ^ Criminal Code , SR/RS 311.0 (E·D·F·I), art. 86 (E·D·F·I) par. 5
  5. ^ Criminal Code , SR/RS 311.0 (E·D·F·I), art. 64 (E·D·F·I)
  6. ^ See the report of the Petition Commission on the Parliamentary Initiative Pini, BBl 1991 II 1462, 1467.
  7. ^ Abolished by law of 20 March 1992 (AS 1992 1679 1683; BBl 1991 II 1462, IV 184)
  8. ^ Federal Constitution (Cst.) , SR/RS 101 (E·D·F·I), art. 10 (E·D·F·I) par. 1
  9. ^ See in general the Federal Law on the Freedom of Attorneys / Anwaltsgesetz (BGFA) / Loi sur les avocats (LLCA) / Legge sugli avvocati (LLCA) of 2000-06-23, SR/RS 935.61 (E·D·F·I). The Swiss Lawyers' Association provides information on Swiss law as relating to attorneys on the website http://www.bgfa.ch.