The Swiss Federal Supreme Court: A Constitutional Assessment of Control and Management Mechanisms

Even the highest courts are under pressure to perform effectively and efficiently. In some instances, the pressure comes from supervisory and elected authorities, such as parliaments, which demand information regarding judicial output. In Switzerland a decision has been made by the Parliament to apply “steering instruments”, which were introduced as part of general administrative reforms. These procedures also include mechanisms for “controlling” 2 judicial activity. In this article, we examine reforms relating to the Swiss Federal Supreme Court , and the compatibility of those reforms with separation of powers principles.


Introduction
Even the highest courts are under pressure to perform effectively and efficiently. In some instances, the pressure comes from supervisory and elected authorities, such as parliaments, which demand information regarding judicial output. In Switzerland a decision has been made by the Parliament to apply "steering instruments", which were introduced as part of general administrative reforms. These procedures also include mechanisms for "controlling" 2 judicial activity. In this article, we examine reforms relating to the Swiss Federal Supreme Court, and the compatibility of those reforms with separation of powers principles.

General Overview of the Swiss Judicial System
In keeping with its political system, the Swiss judicial system is shaped by federalism 3 . In the 26 cantons, there are generally several lower district courts, as well as a single supreme court or cantonal court that has jurisdiction over civil and criminal matters. Each canton also has a cantonal administrative court that also has jurisdiction over tribunals of lower instance which are often, though not exclusively, bodies within the relevant government authorities. For civil and criminal cases, the current cantonal procedural codes are in the process of being harmonized throughout Switzerland 4 . The administration of justice is governed by the procedural law of each canton.
At federal level, the Federal Criminal Court, as court of first instance, decides criminal cases that fall within federal jurisdiction (e.g. offences involving explosives, organized crime) 5 . In such cases, the proceedings are governed by the Federal Criminal Justice Act 6 . There is also a Federal Administrative Court, which hears appeals on rulings by federal administrative authorities 7 , and these appeals are governed by the Administrative Procedure Act 8 .
The decisions of the highest cantonal judicial authorities, as well as those of the Federal Criminal Court and the Federal Administrative Court, are appealable to Federal Supreme Court 9 . The proceedings are largely governed by the Federal Supreme Court Act 10 .

Status and Duties of the Swiss Federal Supreme Court
The Federal Supreme Court is the supreme judicial authority of the Swiss Confederation (Art. 1 para. 1 Federal Supreme Court Act [SCA]) 11 . The Court has 35 -45 regular federal judges (Art. 1 para. 3 SCA), as well as part-time federal judges, whose number may not exceed two-thirds of the number of regular judges (Art. 1 para. 4 SCA). The Parliament 12 establishes the number of judges by ordinance (Art. 1 para. 5 SCA).
Although the Federal Supreme Court functions independently, and is constrained only by the law (Art. 2, para. 1, SCA), the Parliament oversees the Court's finances and organizational functioning 13 . In particular, the Parliament is responsible for approving the Federal Supreme Court's budget, accounts, and annual report (Art. 3 SCA), and appoints the judges (Art. 5 para. 1 SCA) to their six year terms (Art. 9 para. 1 SCA) 14 . The Federal Supreme Court is responsible for administering itself in that it organizes its own structure, appoints its own personnel, and maintains its own accounts (Art. 25 SCA).
The duties of the Federal Supreme Court are described in the Federal Supreme Court Act as follows 15 : The Federal Supreme Court is the regular appeal court in civil cases (Art. 72 ff. SCA), in criminal cases (Art. 78 ff. SCA), and in cases governed by public law (Art. 82 ff. SCA). The Court has the power to hear cases alleging violations of federal law, international law, cantonal constitutional law, cantonal ordinances governing political voting rights, elections and votes, as well as inter-cantonal law (Art. 95 SCA). In exceptional circumstances, where none of these grounds for appeal exist, (e.g. in the areas of internal and external security), decisions of the highest cantonal court of appeal on violations of constitutional rights may still be contested before the Federal Supreme Court by means of a subsidiary constitutional appeal (Art. 113 ff. SCA). Within its exclusive jurisdiction are cases involving issues relating to conflicts of competence between federal and cantonal authorities, civil law and public law disputes between the Federal Government and the cantons (as well as between cantons), and liability claims relating to the official activities of federal government ministers and federal judges (Art. 120 SCA). Finally, the Federal Supreme Court is responsible for revising, explaining, and rectifying its decisions (Art. 121 ff. SCA).

Legal and Conceptual Principles for Controlling Court Management
Based on the Federal Supreme Court Act, the Parliament issued the Ordinance on Judges of the Federal Supreme Court on June 23, 2006 16 which established the following: Art. 2 Controlling and Reporting 1 The Federal Supreme Court shall establish a controlling procedure that shall serve as the basis for Parliamentary oversight, as well as for determining the number of judges. 2 It shall comment in its Annual Report on its caseload statistics and in general terms on the results of the controlling procedure.
The Federal Supreme Court, together with the Swiss Parliament's Audit Commissions, subsequently issued a report on implementing this Ordinance: Concept for Controlling at the Federal Supreme Court for the attention of the Audit Commissions, 5 March 2007 (see below).

Constitutional Principles for Controlling Court Management
The implementation of court management systems might seem inappropriate in a constitutional system that is based on separation of powers principles. Indeed, in order to preserve the essence of those principles, the management structure should adhere to the following constitutional principles 17 : • Parliament is responsible for appointing the judges (Art. 168 para. 1 Federal Constitution) 20 : In order to determine the required number of judges, the Parliament and the preparatory Court Commission 21 rely on information regarding the Federal Supreme Court's workload. The Parliament and Commission also rely on performance profile information in appointing judges.
• Judicial independence (Art. 30,191c Federal Constitution) 22 : In the present context, the constitutional principle of judicial independence forbids Parliament from exercising any direct or indirect influence over judicial decisionmaking. In addition, the principle prohibits the Parliament from reviewing judgments other than appeal decisions.
• The Federal Supreme Court's Right of   23 : The right of self administration, an essential component of judicial independence, is simultaneously a right and an obligation of the Federal Supreme Court.
• Economical use of resources (Art. 126 para. 1 Federal Constitution): Both the administration and the courts are obliged to make efficient use of the funds at their disposal.
• Efficacy of the measures taken by the Federal Government (Art. 170 Federal Constitution): The Federal Supreme Court guarantees legal protection, uniform application of the law, and continuing development of the law within the context of its competency (on the latter, see Art. 189 Federal Constitution), taking procedural safeguards into account (Art. 29 ff. Federal Constitution).
In certain cases, these various constitutional principles conflict with one another. A conflict exists in particular between judicial independence and the right of self-administration, on one hand, and the oversight and (re-)appointment powers of the Parliament. Apparently, there is also tension between guaranteeing the exercise of judicial functions and the economical use of resources. Despite the formal equality of the respective constitutional provisions, the guarantee of adjudication and the independence of the courts, which is absolutely essential for this, must be awarded special significance.

Consequences of Management Control
The obligation to guarantee the management structures and instruments required for administering justice is derived from the right of the Federal Supreme Court to administer itself. This includes primarily the provision and maintenance of a system that plans the activities of the Court and allocates the necessary resources. Such a system must be capable of periodically determining the differences between planned and actual values, in order to be able to make any adjustments that are required. Accordingly, control mechanisms are needed as a management support instrument to enable the achievement of targets.
With regard to the organization of control mechanisms in the courts, two key questions arise: the question of what is made subject to the control mechanisms and the question of the addressees of those mechanisms. With regard to the subject matter of control mechanisms, it must in particular be clarified whether, in addition to average case numbers and the average duration of proceedings, it should also include judicial performance or the time expended by individual judges. In order to be able to ensure a fair workload balances within the court, such indicators or person-specific case statistics appear to be essential. This does not mean, however, that such information must also be provided to the supervisory authorities, since the supervisory function must primarily be focused on ensuring that the court functions as a whole and that there are not, as a rule, delays in proceedings or obvious inefficiencies. For this purpose, general statistical data on the management of the caseload and the resources utilized for this are sufficient. A different issue arises with regard to the (re-)appointment power of Parliament: in this connection, more specific information on the performance of judges standing for re-appointment is necessary if re-appointment is not to become automatic. Even here, however, the information can generally be limited to a basic assessment by court management without disclosure of a particular judge's performance details. Only if a judge has an accumulation of objectively inexplicable deficiencies over a longer period of time are the (re-)appointment authorities or the responsible commission entitled to receive more detailed information.
These considerations lead to the following basic requirements for court controlling: 20 See also Art. 1 para. 5, and Art. 5 SCA. 21 The Audit Commissions and the Financial Delegation inform the Court Commission of any issues that seriously call into question the professional or personal qualification of judges (Art. 40a Parliament Act). 22 See also Art. 2 SCA. 23 See also Arts. 13 and 25 SCA.
• Management control is an indispensable consequence of the Court's right to self-administration and a necessary prerequisite for an efficient judiciary. • Management control must also record the performance of judges.
• The information prepared as part of management control is made available primarily to the courts themselves or to the court management for use in fulfilling their managerial roles. • The data from management control must also be provided in summarized form to the supervisory or (re-)appointment authorities, whereby this must be limited to the responsible commissions. • The information from management control is provided in an even more summarized form in the Annual Report, and thus also to the public.
From this one can draw the following general conclusions: the information generated by controlling activities differs depending on the body to which it is addressed; as we move from court management to the commissions, Parliament, and the public, less information is provided at each level. The establishment of court control mechanisms in itself fosters trust, without the necessity to provide full access to its organization and findings to the supervisory or (re-)appointment authorities. It would therefore also be worth considering the possibility of allowing the courts to have their own self-administration certified -and thus permit the professional certification of their controlling functions.

Implementation of the Federal Supreme Court's Management Control Mechanisms
With regard to reporting, the Concept for Controlling at the Federal Supreme Court differentiates between three different levels: • public data in the Annual Report • special data for the commissions • internal controls Level 1: Data available to the public includes information on the duration of proceedings, settlement rates, trends in caseload by division, and also data on administrative matters, such as human resources, finances, or information technology. Using the statistics section of the Annual Report, supervisory authorities can obtain an overview of the business activities of the Federal Supreme Court, and the public can perform its oversight function.
Level 2: Supplementing this, the Audit Commissions and the Court Commission collect data on the number of pending cases and the caseload by legal field, as well as additional information on the length and duration of proceedings by division and legal field. The data also includes information regarding average case costs, as well as the ratio of time on adjudication and court management or administration, and average case numbers and processing times. For judges, in particular, the data includes information regarding the average time required to draft an opinion and average case numbers for the presiding judge and when participating, though not as presiding judge (by division and entire court). Reported only to the Court Commission, however, are significant deficiencies that could call into question whether a particular judge should be reappointed. These various statistics and reports provide the basis for a more-detailed understanding of court operations and a foundation for the re-appointment process.
Level 3: Finally, the Court uses internal management tools in order to further efficient case flow management. Using an information technology-based statistical program, the court management and divisional presidents can access various types of management information (e.g. case allocation, the number of pending cases, the status of the proceedings, the duration of the proceedings, the load according to language, the load profile of the court clerks, and the number of settled dossiers of individual judges). As part of the Court's internal control processes, the performance of court clerks (based on quantitative performance goals) and judges are periodically discussed (self-controlling mechanisms).

Preliminary Assessment
First, the creation of the Concept for Controlling at the Federal Supreme Court itself must be highlighted. 24 There is a constructive relationship between the Federal Supreme Court and the Parliament on sensitive issues such as oversight of the Supreme Court, which is handled through the framework of a joint working group. This is therefore an example of a cooperative handling of separation of powers issues between the legislature and the judiciary.
These new approaches to the management and control of the Federal Supreme Court exhibit a high degree of maturity with regard to self-administration, as well with regard to Parliamentary supervisory and (re-)appointment functions. The finely tuned system attempts to take account, as far as possible, of the tense relationship that sometimes exists between the constitutional imperative of separation of powers and the need for parliamentary oversight.
It seems appropriate to withhold information from the Court Commission regarding the number of dossiers processed by individual judges and the time expended on each case 25 , even if this information provides indicators that may be relevant to Parliament's (re-)appointment function or its task of determining the number of judges that should sit on the Court. It should be noted that the decisions of the Federal Supreme Court (including the names of those on the bench) are published on the internet anyway. With this information it is relatively easy to calculate the number of cases dealt with by each judge.
What is now a rather well-balanced model for organizing oversight of the Federal Supreme Court might also provide a model for oversight of the cantonal supreme courts. In various cantons, efforts are being made to optimize court organization, with particular emphasis on judicial management and it's positioning within the system of separated powers. Furthermore, this concept may well be of interest in exercising oversight over the Federal Criminal Court and the Federal Administrative Court, both of which are subject to the managerial supervision of the Federal Supreme Court 26 . The Swiss oversight approach has the potential for exerting important international influence.
For this reason, the initial experiences with the new oversight concepts at the Federal Supreme Court are eagerly awaited. This, however, may take a while, since the more refined statistical data will not be available until fiscal year 2008.

Federal Supreme Court
Administrative Commission

Concept for Controlling at the Federal Supreme Court for the attention of the Audit Commissions 5 March 2007
1. Public Data in the Annual Report 1.1. Purpose: The publicly accessible data of the Federal Supreme Court provides the supervisory authorities with the basic data for assessing the business activities of the Federal Supreme Court. This data also provides the basic data on the judicial system to interested members of the public and to the academic community.

Means:
Statistics section in the Annual Report. b) Adjustment for the combined court: consolidation of statistics for the Federal Supreme Court and those of the Federal Insurance Court. c) Uniform structure of the statistics of the federal courts of first instance and the Federal Supreme Court, in order to make them more comprehensible and comparable d) Information on the administration of the judiciary relating to human resources, finances, projects, information technology, buildings, services, and provision of information e) Summary report on oversight activities relating to the courts of first instance f) General report on controlling in accordance with Art. 2 para. 2, of the Ordinance of 23 June 2006 on Judges at the Federal Supreme Court.

Purpose:
The special controlling data provide the parliamentary oversight authorities with a detailed view of the work load, court operations and oversight activities, as well as the information required for re-appointment that is forwarded to the Court Commission 27 . This data should specifically mention problems and weaknesses related to the Federal Supreme Court.

Means:
Additional statistics and reports to the parliamentary commissions 2.3. Organisation: Statistics and reports relating to divisions, judges, court clerks (mid-level), and the administration of the courts.

Divisional Level a) General statistics section: 1) Statistics section of the Annual Report (see 1/3/a and APPENDIX 2) 2) Table on trends in pending cases (four-Year overview by Division) 3) Detailed Statistics V on the type of settled cases according to legal field 4) Statistics on connected cases (from 2007 -serial cases and parallel subsidiary constitutional appeals recorded separately) 5) Statistics on standard appeals with constitutional reprimands 6) Duration of the cases including information as specified in the Annual Report (one month, three months, six months, one year, two years, more than two years), as well as the longest and average duration of proceedings -for the Audit Commissions 7) Additional breakdown by division 8) Additional breakdown by legal field (main raster numbers) b) Additional Indicators:
1) Settlement coefficients by division and for the entire court 2) Average case cost by division and for the entire court (based on staff costs, net adjudication operations, and gross operations including proportionate allocation of infrastructure costs) 3) Ratio of time expended on adjudication to that needed for administration and court management (central reporting based on the function of staff members) 4) Frequency of appeal and consistency of judgment by canton and legal field (general) c) Report on the Creation of Judicial Panels: Based on the statistics in accordance with Art. 42 of the Regulation of the Federal Supreme Court.

Judicial
Level a) Report on significant deficiencies in judges that are possibly relevant for reselection (Art. 40a para. 6 Parliament Act). b) Additional statistical information: 1) Average time taken to prepare opinion on case 2) Average number of cases as presiding judge by division and for the entire court 3) Average participation, without being presiding judge, by division and for the entire court, as well as breakdown into three-person and five-person panels (basic judgments) 2.6. Court Clerk Level a) General report on the status b) Additional statistical information for the Audit Commissions: 1) Average number of cases 2) Average processing time for the assigned judgment, as well as for the drafting following the decision

General Judicial Administrative Level
Information in the Annual Report on human resources, finances, projects, information technology, buildings, services, and provision of information If necessary, special report on the problems and status of resources sent to the Audit Commissions

Oversight over the Courts of First Instance
General report on oversight (Annual Report of the courts of first instance, budget, accounts, and staffing trends) Report on special controlling areas and special occurrences

Internal Controlling
For the sake of completeness, it will be demonstrated to the Audit Commissions that, in addition to public statistics and certain statistics for the oversight authorities, the Federal Supreme Court has an effective internal controlling mechanism and efficient internal management tools. In this regard, reference is made to APPENDIX 3.

Implementation
This concept cannot be implemented without the required information in a suitable form. The statistics must to some degree be completely re-structured. This entails a medium-size information technology project. Public Statistical Data according to Annual Report Number and type of activities with new cases, cases carried forward, and outcomes of proceedings, organised according to the nature of the dispute (Statistic I.1) Duration of the settled and carried-forward proceedings, specifying the longest and average duration, classified according to the duration of proceedings and drafting, organized according to the nature of the dispute (Statistic I.2) Settlement rates: Rate 1 = Settlement of new cases, 2 = Settlement of cases carried forward from the previous year, 3 = Ratio of settled cases to new cases (Statistic I.3) Type of settlement: by correspondence, sessions listing attendees, simplified proceedings, proceedings with single judges, organized according to the nature of the dispute (Statistic I.4) Assessment of caseload: cases carried forward from the previous year, new cases, settlements, cases carried forward to the following year, everything compared to the previous year, organized according to type of proceedings (Statistic II) Tabular overviews: disputes according to language, type of settlement, and ratio of the new cases, settlements, and cases carried forward, partially shown in different formats (Statistic III) Number and type of proceedings by division: cases carried forward from the previous year, new cases, settlements, cases carried forward to the following year, organized according to legal remedy (Statistic IV.1) Trends in cases by division in a five-year overview (Statistic IV.2) Number and type of proceedings according to legal field (Statistic V) Constitutional and administrative law broken down by subject and legal remedy (Statistic V.1) Civil law broken down by subject and legal remedy (Statistic V.2) Debt collection and bankruptcy law (Statistic V.3) Criminal law broken down by subject and legal remedy (Statistic V.4)