Judge's resignation takes pressure off parliament

Swiss parliament has been saved from getting involved in the Schubarth case Keystone

Martin Schubarth, a federal judge accused of spitting at a journalist, has given in to pressure to step down from his post six months earlier than planned.

This content was published on November 6, 2003 minutes

His announcement saves parliament from having to take the unprecedented step of giving its own opinion on whether he should leave.

Schubarth found himself at the heart of a scandal in February when he was accused of spitting at a journalist from the German-language newspaper, “Neue Zürcher Zeitung".

Shortly after the incident, the other federal judges called for his resignation and suspended him from his duties. The decision was unprecedented in the history of Switzerland’s Federal Court, the highest court in the country.

With pressure mounting on him to step down, Schubarth announced his resignation at the start of October.

But his decision to leave by June 2004 was not considered soon enough by some judges, mainly because the court would have to operate until that date with one less judge.

Shortly after his announcement, a parliamentary management committee report concluded Shubarth should leave as soon as possible. However, the committee can only make recommendations.

Now he has agreed to leave earlier - by the end of January – parliament has been relieved of making a historic decision concerning its powers over federal judges.

Separation of powers

If Schubarth had insisted on staying in his post, parliament would have had to give its opinion on Monday on whether the judge should step down early.

This would have been an unprecedented step, as, under the tradition of the separation of powers, federal judges cannot be fired while in their post - a period of six years.

Although parliament appoints the federal judges, once in place they operate independently, so that the course of justice cannot be influenced by political motives.

But while the federal judges remain untouchable for now, the debate over whether parliament should be able to step in and remove them has not gone away.

The House of Representatives - one of the two parliamentary chambers - is due to consider the issue next year.

Meanwhile, the other parliamentary chamber, the Senate, despite refusing to discuss the matter until the Schubarth case had been resolved, seems favourable to the idea of making the judges more accountable for their actions.

The house’s judicial commission is of the opinion that those who appoint the judges should have the power to remove them.

Two precedents

Parliament has already stretched the separation of powers rule prior to the Schubarth incident.

A year ago, parliamentarians adopted a measure which gives parliament the power to fire judges of the future Federal Criminal Court in Bellinzona – due to begin operating in April 2004.

This new measure, the first of its kind for 130 years, gives parliament the right to dismiss judges who seriously abuse their powers or fail to fulfil their responsibilities.

Then on September 22, the Senate approved a similar measure for judges of the future Federal Administrative Court in St Gallen. The House of Representatives is also widely expected to approve the measure.

swissinfo, Michel Walter (Translation: Joanne Shields)

In brief

In February, Martin Schubarth was accused of spitting at a journalist.

Since the incident, he has been under pressure to step down from his post by the other federal court judges.

Although Schubarth said he would leave next June, there have been increasing calls for him to leave earlier.

If Schubarth hadn't decided to leave in January, parliament would have taken the unprecedented step of giving its opinion on the matter on Monday.

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Key facts

The Federal Court is in Lausanne.
There are 30 federal judges who hold their position for six years.
The federal judges are appointed by parliament.
Schubarth's replacement will be chosen on December 17.

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