With their motion of 20 March 2015, Ruedi Lustenberger and 34 co-signatories from different parliamentary groups of the National Council wanted to entrust the Federal Council to set barriers to the European Court of Human Rights (ECtHR) in its case law. In recent years the Court has overridden law and legal understanding of the Member States in many cases with its very wide interpretation of some articles of the European Convention on Human Rights (ECHR). By doing so, it violated the fundamental principle of subsidiarity (see box: “For a greater focus on the national legal systems of the European Court of Human Rights”).
The Federal Council requested parliament on 8 May 2015 to adopt the motion, but at the same time the Council claimed they had already worked sufficiently in this direction. Indeed, the Member States of the Council of Europe, with active participation of Switzerland, pasted the subsidiarity principle in the preamble of the ECHR (Protocol No. 15 to the ECHR of 24 June 2013). Although a preamble has great importance as an expression of the ethical and moral content of a treaty or a constitution, however, it has no substantive legal effect.
The authors of the motion therefore request that the Federal Council commits to a legally binding requirement of the principle of subsidiarity in the ECHR.
The motion was adopted by the National Council on 19 June 2015. The Committee for Legal Affairs of the Council of States advocated it on 8 October 2015 with 7 to 3 with 2 abstentions. On 15 December, the Council of States will decide about it.
Current Concerns: Mr Lustenberger, with your motion you want to achieve that in its judgments the ECtHR takes increasingly into account the national law of each defendant. Would a withdrawal of Switzerland from the ECHR be an option for you?
National Councillor Ruedi Lustenberger: No. Despite my criticism of the practice of the European Court and the defensive attitude of the Federal Council so far, I do not believe that Switzerland should withdraw from the ECHR.
Why is your motion necessary?
In the “dynamic jurisprudence” of the ECtHR I find a creeping and inappropriate interference in national affairs. The goal of the judges in Strasbourg is clear: They want to create a uniform European law bypassing national legislation. So whole Europe will become a state of the Strasbourg judges’ grace. For Switzerland with its direct democratic instruments, this fact represents more than just a wasteful nuisance. From the point of view of the separation of powers, such a judicial intervention is basically unacceptable. In addition, it leads to a loss of sovereignty, whose extent we can still not correctly estimate. Ultimately, the national competence to make law by the legislature is shifted onto an international panel of judges which themselves presume to make national law via court judgments in the Member States. Former federal judge Martin Schubarth put it like this a year ago: “The accession to the ECHR 40 years ago didn’t take place in order to introduce constitutional jurisdiction through the back door.”
In the summer session the Federal Council requested the National Council to adopt the motion and explained that Switzerland has been committed for the strengthening of the ECtHR ever since and will continue doing so. Does the Federal Council take your concern into consideration with this response?
Only partially. The Federal Council’s proceeding is too defensive. The Council will have to engage much more in “my” direction just in terms of the upcoming popular initiative “National law before international law”. Otherwise, a defeat in the vote of historic proportions is threatening.
The Federal Council finds it “neither appropriate nor realistic” to engage more for the principle of subsidiarity at the European Court. But what your motion requires is an additional commitment of the Federal Council. What’s next in case of the adoption of the motion by the Council of States, especially if the Federal Council declares already in advance it won’t do more than before?
The implementation of the motion is clearly outlined in the Parliament Act [see box “Motion”]. The two Control Committees of the National Council and the Council of States are in charge of it. But, again, the Federal Council must be interested in anticipating the political climate and adopting the input of my motion, and then change its uncritical attitude towards the ECtHR. I hope that the newly elected parliament will assist in favour of my motion and remind the Federal Council of its responsibilities in this matter. It doesn’t make sense for the Swiss Confederation to speak fine words at international conferences and at the same time ignore the general lack of understanding about incomprehensible judgments of the ECtHR on a national level.
National Councillor Mr Lustenberger, thank you very much for the interview. •
(Interview Marianne Wüthrich)
Art. 120 Subject matter
1 A motion instructs the Federal Council to submit a bill to the Federal Assembly or to take certain action.
2 If the Federal Council is responsible for taking action, it shall do so or submit to the Federal Assembly the draft bill by means of which the motion may be implemented. [...]
1 If a motion is still pending after two years, the Federal Council shall report to the Federal Assembly each year on what it has done in relation thereto and on how it intends to deal with the mandate. This report shall be submitted to the committees responsible.
2 A committee or the Federal Council shall request the abandonment of a motion if its mandate has been fulfilled. [...]
5 If a request for abandonment is rejected by both Councils, the Federal Council must fulfil the mandate contained in the motion within one year or within the period fixed by the two Councils on rejecting the request. […]
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