Wrongly composed adjudications – the trouble of the courts with themselves
The federal courts make a striking number of mistakes in the composition of the judging bodies. There is a surprising lack of care.
They are extremely important for the accused: the bodies of judges who sit in front of them and make the judgment, the so-called jury. How the verdict comes out can largely depend on their composition. Whether an acquittal results or a conviction, whether an appeal is upheld or dismissed, and so on.
For example, the first federal special investigator in the “Schweizerhof” affair, Stefan Keller, was surprisingly dismissed by a jury at the Federal Criminal Court, which was composed unilaterally when viewed from the outside. A complaint by FIFA boss Gianni Infantino was successful. His lawyer, David Zollinger, is a member of the Zurich SVP jury, as are two of the three judges.
Article 30 of the Federal Constitution states: “Any person whose case requires a judicial hearing has the right to a competent, independent and impartial tribunal created by law. Exceptional courts are prohibited.”
It is therefore all the more astonishing how careless to arbitrary some courts or court departments approach the formation of the jury. The appellate chamber of the Federal Criminal Court in Bellinzona recently had to correct a panel of judges twice in the same case (request for revision in the proceedings concerning the Czech coal company MUS). Among other things, because members of the court at her former employer, the Federal Prosecutor’s Office, had already dealt with the case.
Another problem is evident in the case of David Wenger (SVP), federal administrative judge in St. Gallen, who has become known as an allegedly particularly tough asylum judge. The judiciary commission of the Federal Parliament is examining impeachment proceedings against him. He is said to have unlawfully changed the composition of a panel in an asylum case. According to the accusation, Wenger changed a judge he allegedly did not like.
However, the fact that Wenger used the name of the judge who had already judged in the preliminary proceedings of this case speaks against it. He seems to have corrected a mistake made by the law firm. Because the Federal Administrative Court confirms on request that in the two asylum departments according to the regulations “in the case of new complaint procedures that are received after a previous cassation, the same panel of judges from the previous procedure is usually used”.
In Wenger’s department, until recently it was actually the law firm that used the “Bandlimat” software to form the adjudication body. However, it would have been the task of the department president, a Green Party judge, to check in all cases whether the composition of the judges corresponded to the regulations. The allegations against Wenger seem far-fetched, own omissions are hidden.
The case illustrates a problem that also occurs in other courts: the capacity for self-criticism is in a small place. Internal critics are quickly seen as polluters instead of dealing with them and their objections, for example on questions of court organization. This happened to several people at the Federal Criminal Court in Bellinzona; Discussions about bullying and moral decay underline this. The Federal Supreme Court, as the supervisory authority, also played its role only partially. You protect each other.
Even judges are not always right. There has been progress, but there is still a lack of a culture of dispute and error in the courts. This also affects the internal organization of the selection of judges. Ultimately, this basic attitude endangers the constitutional right to a legally compliant, independent and impartial judiciary.