From condoms to vaccines: The most controversial rulings by Switzerland’s highest court
The Swiss Federal Court, the highest judicial authority in the country, has ruled on some highly contentious issues over the years.
Before we get to actual cases, it is important to understand how Switzerland’s justice system is set up.
There are different court levels.
When people file their cases with the legal system, their first contact are district courts, which group together judiciary authorities by local areas.
Many Swiss towns are too small to have their own courts, so a district court is just that — a court that covers several neighbouring communities.
If, say, you become involved in a civil lawsuit, a divorce case, or any kind of litigation or dispute, the case will be first be heard at the district court.
Most often, its rulings are final.
However, if you are not happy with the verdict of your district court, you can appeal it within 30 days, at which point your case will go to the higher judicial level, that is, the cantonal court.
Each canton has its own high court — Switzerland's second most important judicial entity hierarchically.
Besides criminal cases, cantonal high courts hear civil claims, and there are also courts on cantonal level for administrative cases.
The next is the Federal court, the highest judicial authority in Switzerland.
Headquartered in Lausanne, it is the final instance on all appeals against decisions of the highest cantonal courts, as well as the three other federal courts, which deal with criminal, administrative and patent cases, respectively.
This chart shows how the judicial system is organised in Switzerland.
READ ALSO: What you should know about Switzerland's courts
This means that by the time a case (that is to say, the appeal) comes before federal judges, it has already been ruled on by lower courts.
This is what happened in these three recent controversial cases as well.
The condom
You might think that taxpayer-funded federal court should not spend its valuable time (and public money) on a case involving a condom, but it has done so nevertheless.
As Swiss media reported, on September 14th, the highest court ruled on a case that has been heard in the lower courts in Zurich since 2017.
It involved a young man (19 at the time), who took off his condom during sex with an 18-year-old woman, without, however, informing her or asking for her consent to do so.
This practice is called ‘“stealthing’ in English.
The woman filed a complaint in a district court of Bülach (Zurich) and, after a series of rulings and appeals through higher courts (see above), ended up before the federal tribunal.
The case took so long because it had many twists and turns.
Stealthing is not punishable by Swiss law, which is why both the district and cantonal court acquitted the young man
The Federal Court also acquitted him, but reassessed the case from the perspective of sexual harassment. That ruling had stuck, and the young man must now pay a 2,500-franc fine, in addition to 7,200 francs in court costs.
Forced vaccine
In the most recent case, which The Local reported last week, the Federal Court sided with the man who wanted his ex-wife to be forced to vaccinate their two children against measles.
The mother, an anti-vaxxer, had refused to do so, and the long-winded battle between the parents, which made its way through the lower courts, eventually landed in the federal tribunal.
As it had done in several previous similar cases when parents didn't see eye to eye about vaccinating their children, the court followed the public health guidelines, which are clearly in favour of childhood immunisations.
Therefore, judges sided with the father, giving the mother an order to immunise her children against measles.
Parents can be made to vaccinate their children court ruled. Photo by charlesdeluvio on Unsplash
Assisted suicide
In another recent case, from June, the court acquitted a Swiss doctor, Erika Preisig, who was charged with homicide for helping a mentally ill patient die in a Basel assisted suicide clinic.
Previously, predominantly people suffering from physical ailments could benefit from voluntary suicide, which is legal but well-regulated in Switzerland.
However, Preisig was charged because she had violated the previous Federal Court ruling, from 2006, which required a psychiatric evaluation on the patient before helping them die.
In June, the court overturned its old decision, finding that although Preisig had not obtained a psychiatric report, she had studied the medical records, had intensive discussions with the patient, questioned relatives, and obtained a second opinion. The mentally ill person was understood to have made a well-considered decision and was capable of judgement.
The Federal Court had therefore confirmed that Preisig could assume, even without a psychiatric expert opinion, that the patient had a permanent wish to die, as she suffered from an incurable, permanent, severe mental impairment.
READ ALSO: What to know about Switzerland's latest court judgement on assisted suicide
Naturalisation
While obtaining Swiss citizenship is a long and complicated process, and rejections at communal level are often made arbitrarily, the Federal Court had sided with applicants on several occasions.
For instance, in 2018, the court ordered the commune of Trimmis in canton Graubünden to grant Swiss citizenship to an Iranian refugee who had lived in the community for 30 years.
It reversed a ruling made previously by the lower court, which sided with local authorities who denied the man the right to become Swiss.
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Before we get to actual cases, it is important to understand how Switzerland’s justice system is set up.
There are different court levels.
When people file their cases with the legal system, their first contact are district courts, which group together judiciary authorities by local areas.
Many Swiss towns are too small to have their own courts, so a district court is just that — a court that covers several neighbouring communities.
If, say, you become involved in a civil lawsuit, a divorce case, or any kind of litigation or dispute, the case will be first be heard at the district court.
Most often, its rulings are final.
However, if you are not happy with the verdict of your district court, you can appeal it within 30 days, at which point your case will go to the higher judicial level, that is, the cantonal court.
Each canton has its own high court — Switzerland's second most important judicial entity hierarchically.
Besides criminal cases, cantonal high courts hear civil claims, and there are also courts on cantonal level for administrative cases.
The next is the Federal court, the highest judicial authority in Switzerland.
Headquartered in Lausanne, it is the final instance on all appeals against decisions of the highest cantonal courts, as well as the three other federal courts, which deal with criminal, administrative and patent cases, respectively.
This chart shows how the judicial system is organised in Switzerland.
READ ALSO: What you should know about Switzerland's courts
This means that by the time a case (that is to say, the appeal) comes before federal judges, it has already been ruled on by lower courts.
This is what happened in these three recent controversial cases as well.
The condom
You might think that taxpayer-funded federal court should not spend its valuable time (and public money) on a case involving a condom, but it has done so nevertheless.
As Swiss media reported, on September 14th, the highest court ruled on a case that has been heard in the lower courts in Zurich since 2017.
It involved a young man (19 at the time), who took off his condom during sex with an 18-year-old woman, without, however, informing her or asking for her consent to do so.
This practice is called ‘“stealthing’ in English.
The woman filed a complaint in a district court of Bülach (Zurich) and, after a series of rulings and appeals through higher courts (see above), ended up before the federal tribunal.
The case took so long because it had many twists and turns.
Stealthing is not punishable by Swiss law, which is why both the district and cantonal court acquitted the young man
The Federal Court also acquitted him, but reassessed the case from the perspective of sexual harassment. That ruling had stuck, and the young man must now pay a 2,500-franc fine, in addition to 7,200 francs in court costs.
Forced vaccine
In the most recent case, which The Local reported last week, the Federal Court sided with the man who wanted his ex-wife to be forced to vaccinate their two children against measles.
The mother, an anti-vaxxer, had refused to do so, and the long-winded battle between the parents, which made its way through the lower courts, eventually landed in the federal tribunal.
As it had done in several previous similar cases when parents didn't see eye to eye about vaccinating their children, the court followed the public health guidelines, which are clearly in favour of childhood immunisations.
Therefore, judges sided with the father, giving the mother an order to immunise her children against measles.
Assisted suicide
In another recent case, from June, the court acquitted a Swiss doctor, Erika Preisig, who was charged with homicide for helping a mentally ill patient die in a Basel assisted suicide clinic.
Previously, predominantly people suffering from physical ailments could benefit from voluntary suicide, which is legal but well-regulated in Switzerland.
However, Preisig was charged because she had violated the previous Federal Court ruling, from 2006, which required a psychiatric evaluation on the patient before helping them die.
In June, the court overturned its old decision, finding that although Preisig had not obtained a psychiatric report, she had studied the medical records, had intensive discussions with the patient, questioned relatives, and obtained a second opinion. The mentally ill person was understood to have made a well-considered decision and was capable of judgement.
The Federal Court had therefore confirmed that Preisig could assume, even without a psychiatric expert opinion, that the patient had a permanent wish to die, as she suffered from an incurable, permanent, severe mental impairment.
READ ALSO: What to know about Switzerland's latest court judgement on assisted suicide
Naturalisation
While obtaining Swiss citizenship is a long and complicated process, and rejections at communal level are often made arbitrarily, the Federal Court had sided with applicants on several occasions.
For instance, in 2018, the court ordered the commune of Trimmis in canton Graubünden to grant Swiss citizenship to an Iranian refugee who had lived in the community for 30 years.
It reversed a ruling made previously by the lower court, which sided with local authorities who denied the man the right to become Swiss.
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