Legal System and Courts – Swiss Citizenship Test

Switzerland follows civil law (also called continental law), not common law:

Civil Law System (Switzerland, most of Europe):

• Laws are codified in comprehensive written codes
• Judges apply written law to cases
• Precedent (past court decisions) is not binding, though influential
• Main sources: Federal Constitution, federal laws, cantonal laws, ordinances
• Emphasis on written statutes and codes

Common Law System (UK, USA, Canada):

• Law develops through court decisions (precedents)
• Judges create law through their rulings
• Precedent is binding on lower courts (stare decisis)
• More flexible, case-by-case approach

Key Swiss Legal Codes:

• Swiss Civil Code (ZGB/CC) - governs private law (contracts, property, family, inheritance)
• Code of Obligations (OR/CO) - governs commercial transactions, employment, liability
• Swiss Criminal Code (StGB/CP) - defines crimes and punishments
• Swiss Criminal Procedure Code - governs criminal proceedings
• Federal Constitution - supreme law, all other laws must conform to it

Switzerland has a three-level court system with federal and cantonal courts:

Federal Level:

1. Federal Supreme Court (Bundesgericht/Tribunal fédéral) - Lausanne:

   • Highest court in Switzerland
   • Final court of appeal for most cases
   • Reviews cantonal court decisions and some federal administrative decisions
   • Ensures uniform application of federal law
   • Cannot review constitutionality of federal laws (only cantonal laws)
   • Judges elected by Federal Assembly for 6-year terms

2. Federal Criminal Court (Bundesstrafgericht) - Bellinzona:

   • Handles serious federal crimes (organized crime, money laundering, corruption)
   • First instance for federal criminal cases
   • Also handles administrative criminal law

3. Federal Administrative Court - St. Gallen:

   • Reviews decisions of federal administrative authorities
   • Handles asylum, immigration, customs, tax disputes with federal authorities

4. Federal Patent Court - St. Gallen:

   • Specialized court for patent disputes

Cantonal Level:

Each canton has its own court system with three levels:

1. Lower Courts (District/Regional courts):

   • First instance for most civil and criminal cases
   • Small claims, minor crimes
   • Varies by canton in structure and name

2. Cantonal Courts (Obergericht/Cour cantonale):

   • Appeal courts for cantonal cases
   • First instance for serious crimes
   • Highest cantonal judicial authority

3. Specialized Courts:

   • Commercial courts, labor courts, administrative courts
   • Handle specific types of cases
   • Structure varies significantly by canton

Key Legal Principles:

Rule of Law (Rechtsstaat/État de droit):

• All government actions must be based on law
• No one is above the law, including government officials
• Legal certainty and predictability
• Protection against arbitrary state action

Separation of Powers:

• Legislature (Federal Assembly) makes laws
• Executive (Federal Council) implements laws
• Judiciary (courts) interprets and applies laws
• Each branch checks the others

Federalism in Justice:

• Cantons have primary responsibility for law enforcement and lower courts
• Federal courts handle federal law and ensure uniformity
• Cantonal police enforce laws locally
• Federal police (fedpol) handle specific federal crimes

Legal Protections:

Presumption of Innocence (Article 32 Constitution):

• Everyone is presumed innocent until proven guilty
• Burden of proof is on the prosecution
• Right to remain silent

Right to Fair Trial (Article 29-31 Constitution):

• Right to be heard in legal proceedings
• Right to legal representation (provided free if necessary)
• Right to trial within reasonable time
• Right to appeal
• Public hearings (with exceptions)
• Independent and impartial tribunals

Ne bis in idem (Double jeopardy protection):

• Cannot be tried twice for the same crime after acquittal or conviction

Criminal Law:

• State prosecutes crimes against public order
• Prosecutor represents the state
• Crimes defined in Criminal Code: theft, assault, fraud, murder, etc.
• Punishments: fines, imprisonment, suspended sentences
• Higher burden of proof: "beyond reasonable doubt"
• Cannot be imprisoned for debt in Switzerland

Civil Law:

• Disputes between private parties (individuals, companies)
• Plaintiff sues defendant seeking remedy
• Matters: contracts, property disputes, family law, inheritance, torts
• Remedies: monetary damages, injunctions, specific performance
• Lower burden of proof: "preponderance of evidence"
• Parties usually bear their own legal costs unless court orders otherwise

Administrative Law:

• Disputes between individuals and government authorities
• Matters: taxes, building permits, professional licenses, immigration
• Specialized administrative courts handle these cases
• Important for residents dealing with cantonal/federal administration

Swiss Tax System:

Switzerland has a three-level tax system:

1. Federal taxes:

   • Federal income tax (progressive rates)
   • Value-added tax (VAT - currently 8.1% standard rate)
   • Withholding tax on certain income
   • Stamp duties, customs duties

2. Cantonal taxes:

   • Cantonal income and wealth taxes
   • Rates vary significantly by canton (tax competition)
   • Some cantons have low taxes (Zug, Schwyz), others higher (Geneva, Basel)

3. Communal taxes:

   • Municipal surcharges on cantonal taxes
   • Local taxes for services

Tax Declaration:

• Swiss tax system is based on self-declaration
• Residents must file annual tax returns declaring all income and assets
• Honesty is expected and legally required
• Tax evasion (not declaring income) is a crime
• Tax fraud (falsifying documents) is more serious
• Foreign bank accounts must be declared

Tax Differences:

• Switzerland has NO inheritance tax at federal level (some cantons do)
• NO capital gains tax on private investments (with exceptions)
• Wealth tax exists in some cantons
• Church tax exists in some cantons (can opt out of church)
• Tax rates vary enormously: total income tax burden can be 15-45% depending on canton and income