Transjudicial Communication: the role of Swiss the Federal Tribunal

Auteur Micol FERRARIO
Directeur /trice Pascal Mahon
Co-directeur(s) /trice(s) Federica De Rossa
Résumé de la thèse

The “roles of the Federal Tribunal in transjudicial communication” is the topic of this survey. Transjudicial communication is intended as the way by which Courts (national and supranational) are now communicating among borders and it varies, enormously, in form, function and degree of reciprocal engagement, as excellently represented by Switzerland, in the clothes of the Federal Tribunal. In the name of their State independence, nearly all of European Courts are hindered (as in the past) from openly refer to a foreign solution; alongside this family, there exists another one whose judges publicly and continuously allude and cite external jurisprudence and Switzerland is a meaningful example. We can assume that this propensity to exchanges relies on its permeable structure: on one side, this porosity is directly reconnected to the features of the States, namely its dimension, multi-cultural spirit and the federal structure. On the other side, it derives from some peculiarities of its internal legal system, among which the role as judge-legislator recognised by the 1st article of the Civil Code to the national jurisdiction which, in a shortage of a legal disposition or custom, can decide as the legislator would. Also the so-called methodological pragmatism (ATF 136 III 283) contributes to this openness, since the judges can interpret the law with the criterion that finally permits to reach the desired outcome. Indeed, the junction between its natural receptiveness and the judges’ potential, allows the Swiss Supreme Court to maintain the whole forms of conveyances: horizontal, when collecting solutions from alien national courts; vertical, whether the traffic prospers with the European Court of Justice (ECJ); mixed vertical-horizontal, once a Swiss’ sharable legal principle is distilled and disseminated by the European Court of Human rights (ECHR) in the other Contracting States’ system. This barter serves different functions: the dialogue with the Court of the same status (the so called interpretative use of comparative law) fosters the interpretation of the national law (argumentative use) and occasionally the filling of domestic gap (normative use), while the repeal to the European Court of Justice, out of these sectors already set under the Bilateral Agreements I and II (also known as the autonomous adaptation), enables a constant euro-compatible development of the Swiss legislation. Oppositely to the latter, the first category isn’t developed under a common methodology: indeed, the harmonization with the ECJ is registered in these economic strategic sectors to which the legislator has voluntarily remodelled the national legislation (i.e. Swisslex) or the jurisprudence has independently adapted its decisions. At a first sight, in terms of reciprocal engagement, this “trade” seems more likely to be a “unilateral collection”, since only Switzerland (permeability of) perpetuates a straightforward one-sided correspondence; notwithstanding, the mixed vertical-horizontal communication with the ECHtR allows identifying, under the doctrine of the emerging consensus, whether a legal rules originated among the Swiss framework is a good contemporary interpretation of human rights, that so far could be defined as a standard that must be followed by the other Contracting parties, that would lastly be influenced by the Helvetic Confederation (permeability to).

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