The implementation of a law

Based on a course by Victor Monnier

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Introduction to law

Introduction to the Law : Key Concepts and Definitions ● The State: Functions, Structures and Political Regimes ● The different branches of law ● The sources of law ● The great formative traditions of law ● The elements of the legal relationship ● The application of law ● The implementation of a law ● The evolution of Switzerland from its origins to the 20th century ● Switzerland's domestic legal framework ● Switzerland's state structure, political system and neutrality ● The evolution of international relations from the end of the 19th century to the middle of the 20th century ● The universal organizations ● European organisations and their relations with Switzerland ● Categories and generations of fundamental rights ● The origins of fundamental rights ● Declarations of rights at the end of the 18th century ● Towards the construction of a universal conception of fundamental rights in the 20th century

The action and jurisdiction

The effective application of the law in a society depends crucially on the interaction between legal action and the jurisdiction of the courts. Legal action is the process by which an individual or entity initiates legal proceedings to claim a right or remedy a wrong. Without this initiative, many rights would remain theoretical. For example, without legal action by environmental groups, important environmental protection laws might not be enforced.

Jurisdiction, on the other hand, refers to the power of a court to hear and decide a case. This authority is essential if legal action is to be effective. Take the example of a copyright dispute. If such a case is brought before a court that does not have the appropriate jurisdiction, copyright could not be effectively protected. When these two elements work together effectively, they form the basis of a strong legal system. The courts, by hearing actions and rendering decisions, play a central role in the application and interpretation of the law. These decisions, in turn, form the case law that guides the future application of the laws. For example, historical civil rights decisions in the United States have shaped the way in which equality laws are interpreted and applied today.

A critical aspect of this process is the enforcement of court decisions. A court decision loses its value if it is not effectively enforced. Take the case of a judgment for damages in favour of a victim of a road accident. If this decision is not enforced, the victim does not receive the compensation due, which calls into question the effectiveness of the law. Public perception of the fairness and effectiveness of the legal system also plays a major role in the application of the law. If citizens believe in the justice and fairness of the legal system, they are more inclined to respect the law and use the legal system to defend their rights. Conversely, a lack of confidence can lead to a reluctance to seek redress through legal channels, thereby weakening the application of the law.

Legal action plays a crucial role in the effective implementation of the law. This notion is based on the fundamental idea that the right really exists only when the holder of a right is able to enforce it with the help of the State or other authorities. In other words, a right, however formulated in the law, only has value if it can be actively asserted and defended by those to whom it is granted. In this context, the courts serve as essential mechanisms for sanctioning the right. When a person or entity is faced with a violation of their rights, they can turn to a court to obtain redress. For example, in a case of breach of contract, the right-holder may take the matter to a civil court to demand performance of contractual obligations or to obtain damages. This dynamic underlines the importance of access to justice. For rights to be truly effective, it is essential that individuals not only have knowledge of their rights, but also the practical ability to assert them before the relevant courts. This includes aspects such as the availability of courts, the affordability of legal costs, and an understanding of legal processes. The state plays a decisive role in this process. It is not just a question of legislating and creating rights, but also of putting in place an efficient and accessible judicial system capable of handling disputes and enforcing decisions. The existence of independent and fair judicial mechanisms is therefore a fundamental pillar of the rule of law.

The concept of jurisdiction is essential to the operation of the legal system. It represents the activity of the State which, through its judicial bodies, has the task of judging and dispensing justice by applying the law. This concept encompasses not only tribunals and courts, but also judges and other judicial actors who are mandated to resolve conflicts and enforce the law. Jurisdiction refers to the authority conferred on these judicial bodies to hear and decide cases. This authority may be determined by geographical criteria (the place where the dispute arose), by the nature of the dispute (such as civil, criminal or administrative cases), or by the level of jurisdiction (courts of first instance, appeal courts, etc.). The role of the judiciary in this process is crucial. As a pillar of democracy, the judiciary acts independently of other branches of government, such as the legislature and the executive. This independence is fundamental to ensuring fair and impartial justice. For example, in the event of a dispute between a citizen and the State, it is imperative that the court is able to judge the case without outside influence or pressure. The court, through its judging activity, contributes to the resolution of conflicts by applying laws and issuing decisions that are then implemented. This includes imposing penalties for criminal offences, resolving civil disputes by ruling on the rights and obligations of the parties, and reviewing administrative decisions.

The legal system offers a general right of action, a fundamental concept that ensures that any holder of a subjective right can take legal action to enforce that right or establish its existence. This right of action is a pillar of the rule of law and ensures that individual rights are not merely theoretical declarations, but real and enforceable prerogatives. In practice, this means that when a person or entity feels that their rights have been violated or disregarded, they can turn to the State's judicial bodies to seek redress or recognition. For example, in the case of a violation of property rights, the owner can take legal action to recover his or her property or obtain damages. Similarly, in matters of employment rights, an employee can go to an employment tribunal to assert his or her rights in the event of unfair dismissal or failure to comply with statutory working conditions. This general right of action is essential for several reasons. Firstly, it provides a concrete means for individuals to defend their rights and interests. Secondly, it helps to prevent abuses and illegal behaviour, given that such actions can be challenged in the courts. Finally, it strengthens confidence in the legal system and government, because it shows that rights can be enforced and that citizens have a remedy if those rights are violated. Thus, the right of action is an essential feature of any functional legal system, reflecting the state's ability and willingness to support and enforce the rights of its citizens.

In the legal field, the classification of legal actions into civil, criminal and administrative categories reflects the diversity and complexity of the conflicts and disputes that can arise in a society. Each type of action meets specific needs in terms of resolving disputes and maintaining social and legal order. Civil actions are those where individuals, businesses or other entities clash over issues such as contractual disputes, personal injury claims or property disputes. For example, if one person suffers loss as a result of the negligence of another, they may bring a civil action to recover damages. Similarly, in the event of a contractual dispute, the parties involved may resort to a civil court to resolve the dispute. The emphasis in civil actions is on redressing the harm suffered, often through financial compensation. Criminal actions, on the other hand, concern cases where the state takes action against an individual or entity for behaviour considered harmful to society. For example, in the case of theft or assault, it is the state, through the public prosecutor, that prosecutes the alleged offender. Criminal sanctions may include imprisonment, fines or community service, and are designed to punish and deter criminal behaviour, while protecting the community. Administrative actions often involve disputes between citizens or businesses and government authorities. These actions may be brought, for example, by individuals challenging decisions on building permits, environmental regulations or tax issues. Administrative actions are used to challenge the legality or correctness of decisions taken by government agencies and to ensure that these decisions respect the law and the rights of citizens. The existence of these different categories of legal action is a manifestation of the way in which the legal system adapts to the many facets of life in society. They offer a variety of ways of seeking justice, whether in the private sphere, in relations with the State, or in the context of protecting public order and social interests. This diversification of legal actions is crucial if we are to respond adequately and fairly to different types of conflict and ensure a balance between individual rights and collective needs.

Alternative dispute resolution

An important feature of the modern legal system is the possibility of having recourse to different jurisdictions other than those of the State. These alternative jurisdictions offer additional options for resolving disputes, without undermining the authority or legitimacy of the state judge. One notable example of an alternative jurisdiction is arbitration. In arbitration, the parties to a dispute agree to submit their dispute to one or more arbitrators, whose decision is generally binding. This mechanism is often used in international commercial disputes, where the parties prefer a more flexible and faster procedure than that offered by the traditional courts. Arbitration is particularly appreciated for its confidentiality, specialised expertise and ability to cross national jurisdictional boundaries. Another form of alternative jurisdiction is mediation. Unlike arbitration and court proceedings, mediation is a more collaborative method, where a mediator helps the parties reach a mutually satisfactory agreement. Mediation is often used in family disputes, such as divorce, where a less confrontational approach is desired.

These alternative jurisdictions do not seek to replace the state courts, but rather to offer complementary ways of resolving disputes. Indeed, they can lighten the load of traditional courts and provide more appropriate solutions to certain types of conflict. What's more, decisions reached through arbitration or mediation can often be enforced by state courts, demonstrating a certain harmony and complementarity between these systems. The existence of these alternative jurisdictions illustrates the diversity and adaptability of the legal system to meet the varied needs of society. They operate in tandem with the state courts, reinforcing the overall legal framework and offering litigants a wider range of options for resolving their disputes.

Although alternative jurisdictions such as arbitration and mediation offer complementary options for resolving disputes, their use is often conditional on the authorisation or legal framework established by the State. This regulation ensures coherent interaction between alternative jurisdictions and state courts, while guaranteeing the protection of fundamental rights and compliance with legal standards. In the field of private law, for example, the parties to a commercial contract may include an arbitration clause stipulating that any dispute arising from the contract will be submitted to arbitration rather than to the ordinary courts. However, this stipulation must comply with national laws governing arbitration, which define the criteria and conditions under which arbitration is authorised and recognised by the State.

In public law, particularly in disputes involving government entities, the use of arbitration or mediation can be more complex and is often limited by considerations of sovereignty and public interest. For example, certain disputes involving the State or its agencies may not be eligible for arbitration, due to the need to protect public interests and to comply with established administrative procedures. In international law, arbitration plays a significant role, particularly in resolving cross-border commercial disputes or disputes between investors and states. International conventions, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, facilitate the use and enforcement of arbitration awards across national borders. However, even in this context, states retain control over the application of international arbitration through their national legislation. Thus, although alternative jurisdictions enrich the legal landscape and offer specific advantages, their implementation remains governed by state law. This regulation is crucial to ensure the fairness, legitimacy and effectiveness of these alternative dispute resolution mechanisms, while preserving the established legal order and the protection of fundamental rights.

Negotiations and talks

Negotiation plays a crucial role in public international law. It is a method of conflict resolution in which the parties involved engage in direct dialogue to resolve their differences. This approach is particularly relevant in international relations, where states and international organisations often seek to resolve their differences by diplomatic means rather than through litigation.

In negotiation, representatives of the conflicting parties meet to discuss the issues in dispute, explore possible compromises and reach a mutually acceptable agreement. This process can cover a wide range of subjects, from territorial disputes and trade agreements to environmental issues and peace treaties. The advantage of negotiation in international law lies in its flexibility and its ability to produce tailor-made solutions that take account of the specific interests of all the parties involved. Unlike arbitration or litigation, where a third party (such as a court or arbitrator) imposes a decision, negotiation allows the parties to control the process and the outcome.

A notable example of the successful use of negotiation is diplomacy leading to international agreements, such as arms control treaties or climate change agreements. In these cases, state representatives negotiate the terms of the agreement, seeking to balance their own national interests with those of other nations and the international community as a whole. However, negotiation requires the willingness of the parties to engage in dialogue and compromise, which is not always present. In addition, power imbalances between the parties can affect the negotiation process and outcome. Despite these challenges, negotiation remains an essential tool in the field of public international law for managing relations between states in a peaceful and constructive manner.

In international negotiations, the use of a third party to act as "good offices" is a common and often beneficial practice. This third party, usually a state, an international organisation or sometimes an individual with a reputation for experience and impartiality, acts as a facilitator to help the parties in conflict to engage in dialogue and find common ground. The role of this third party in good offices is distinct from that of a mediator or arbitrator. Rather than participating directly in negotiations or proposing solutions, the third party offering good offices focuses on creating an environment conducive to discussion. This may involve organising meetings between the parties, providing a neutral space for discussions, or offering logistical resources. The intervention of a third party through good offices is particularly useful in situations where relations between the parties are strained or where direct communication is difficult. By simply facilitating the negotiation process, without getting involved in the content of the discussions, the third party helps to re-establish or maintain open channels of communication, which is essential for reaching an agreement.

Historical examples of the use of good offices include situations where a neutral country or international organisation has helped to facilitate peace talks between nations in conflict. For example, a third country may offer its capital as a meeting place for peace talks, or an international organisation may provide technical assistance for the negotiation process. By providing a neutral framework and facilitating dialogue, good offices play an important role in the peaceful resolution of international conflicts. They enable the parties to overcome obstacles to communication and to work together more constructively to resolve their differences.

Good offices" represent a form of intermediation in which a third country, or sometimes an international organisation, plays a facilitating role to help two parties in conflict to negotiate under optimum conditions. The concept of good offices is distinct from mediation or arbitration, as the third party does not intervene directly in the content of the negotiations. Rather, their role is to create an environment conducive to dialogue and conflict resolution. In the context of good offices, the third country or organisation offering its services generally acts by providing a neutral venue for talks, helping to establish channels of communication between the parties, and offering logistical resources or technical assistance. The aim is to reduce tensions and facilitate a calmer and more constructive negotiation process. An important aspect of Good Offices is that the parties to the conflict retain full control over the negotiations. They are free to define the terms of the discussion, to choose the subjects to be addressed and to decide on the agreements to be reached. The role of the country or organisation providing the good offices is to support this process without directly influencing it. This approach is particularly useful in situations where the parties are unable or unwilling to engage in direct dialogue because of tensions or mistrust. Good offices can help overcome these obstacles by providing a neutral framework and logistical support, thereby encouraging more constructive engagement. Historically, the use of good offices has been crucial in many diplomatic contexts, particularly in peace negotiations or international agreements. For example, a neutral country can host peace talks between two conflicting nations, facilitating discussions without taking part in the content of the negotiations.

Switzerland is recognised for its traditional role in providing good offices, particularly in situations of international crisis. Its history of neutrality and its reputation as an impartial mediator have enabled it to play this facilitating role in several international conflicts. One notable example of Switzerland's use of good offices concerns its relations with Cuba. During the Cold War, Switzerland acted as an intermediary between Cuba and the United States. After diplomatic relations between the United States and Cuba broke down in 1961, Switzerland agreed to represent American interests in Cuba, assuming the role of a protective power. In this capacity, Switzerland facilitated communication between the two countries, which was particularly crucial during periods of high tension, such as the Cuban missile crisis in 1962. As a protecting power, Switzerland was not involved in the content of discussions between the United States and Cuba, but it provided an essential channel of communication that enabled both sides to maintain a dialogue, even in the absence of formal diplomatic relations. This role was maintained for several decades, until the resumption of relations between the United States and Cuba in 2015. The case of Switzerland and Cuba is a good example of how a third country, through its neutral position and commitment to diplomacy, can make a significant contribution to easing international tensions and facilitating communication between countries in conflict. This Swiss tradition of providing good offices continues to play an important role in world diplomacy, offering a valuable avenue for the peaceful resolution of conflicts.

Mediation

Mediation is a conflict resolution process in which disputing parties rely on a mediator to facilitate discussions and propose solutions. The mediator, often chosen for his or her expertise, impartiality and prestige, plays a crucial role in helping the parties to explore options for resolution and to understand each other's points of view. Unlike a judge or arbitrator, the mediator does not have the power to impose a solution. Rather, their role is to guide the parties towards a mutually acceptable agreement. He helps to clarify the issues in dispute, identifies common interests, and encourages the parties to find common ground. The mediator may propose solutions, but it is up to the parties to decide whether to accept or reject these proposals.

The advantage of mediation lies in its flexibility and non-confrontational nature. As the parties have direct control over the outcome of the negotiations, they are often more inclined to adhere to the final agreement. In addition, mediation makes it possible to preserve or even improve relations between the parties, which is particularly important in contexts where they need to continue interacting after the dispute has been resolved, such as in family or commercial cases. Mediation is used in a variety of contexts, including commercial disputes, employment disputes, family disputes, and even in some cases of international diplomacy. For example, in the context of a divorce, a mediator can help a couple reach agreement on issues such as child custody or the division of property, without going through a potentially lengthy and costly trial.

Mediation is a dispute resolution tool that finds application in both private and international law, offering a flexible and often more collaborative approach to resolving disputes. In the context of private law, mediation is frequently used to resolve employment disputes, family disputes and other disputes between private parties. For example, in employment disputes, a mediator can help resolve disputes between employers and employees or between unions and management, often by finding common ground that avoids the costs and publicity of a trial. Similarly, in family disputes, such as divorces or child custody disputes, mediation helps parties reach agreements on sensitive issues in a less confrontational and more personalised way than litigation. In the field of international law, mediation is also a valuable tool, especially in resolving conflicts between states or disputes involving international actors. Mediators in these cases may be third-party states, international organisations or individuals with recognised expertise and authority. International mediation aims to find diplomatic and peaceful solutions to conflicts that could otherwise have serious consequences, ranging from political tensions to armed conflict.

The advantage of mediation in all these contexts lies in its ability to offer tailor-made solutions that take into account the specific interests and needs of the parties. It also fosters communication and mutual understanding, which can be crucial to maintaining ongoing relationships or ensuring lasting peace in the case of international conflicts. Mediation is therefore a versatile and effective method of conflict resolution, adaptable to a multitude of situations, whether they involve private or international law.

The conciliation

Conciliation is a dispute resolution process that aims to bring disputing parties together to find an amicable solution. The term "amicable" is derived from the Latin word "amicabilis", which means "capable of being resolved by friends" or "in a friendly manner". In the legal context, the word "amicable" emphasises the cooperative, non-confrontational aspect of dispute resolution. In a conciliation process, a conciliator, who is often neutral, helps the parties to discuss their differences and find a mutually acceptable solution on their own. Unlike a mediator, the conciliator's role can sometimes be more active in proposing solutions. However, as in mediation, the final decision always rests with the parties, and the conciliator has no power to impose an agreement.

Conciliation is particularly valued in situations where maintaining or restoring good relations between the parties is important. It is frequently used in contexts such as commercial disputes, labour disputes and family disputes. For example, in a business, a conciliator can help resolve a dispute between an employer and an employee, finding an agreement that meets the needs of both parties without resorting to a formal trial. The term "amicable" reflects the essence of conciliation: finding a resolution in a spirit of cooperation and mutual understanding, rather than through litigation. This often helps to preserve positive relationships and to find more creative and personalised solutions to problems.

Conciliation refers to a method of conflict resolution in which a solution is negotiated between the parties, with the help of a conciliator, often in a less formal setting and less strictly bound by precise legal rules. The main aim of conciliation is to reach an amicable agreement, rather than to determine who is 'right' or 'wrong' according to strict law. In this process, the conciliator (who may sometimes be a judge in some legal systems) plays the role of facilitator. Rather than deciding the dispute as a judge would in a trial, the conciliator helps the parties to explore the possibilities of agreement and to understand each other's perspectives and interests. The idea is to encourage the parties themselves to find a mutually acceptable solution.

This approach is particularly useful in situations where the parties need to maintain an ongoing relationship after the dispute has been resolved, such as in family or commercial cases. By enabling a more flexible and less confrontational resolution, conciliation helps to preserve relationships and often to find solutions that are better suited to the specific needs of the parties. One of the advantages of conciliation is that it allows aspects of a dispute that are not strictly legal to be addressed. For example, emotional, relational or practical considerations can be integrated into the negotiation, which would not be possible in a more formal legal framework.

Conciliation, as a preliminary measure in dispute resolution, is often encouraged, and sometimes even required, in certain legal systems, particularly in the area of family law. When a judge is seized of a dispute, particularly in sensitive cases such as divorce, child custody or inheritance disputes, he or she may first try to guide the parties towards an amicable solution before initiating formal legal proceedings. This approach reflects the recognition that, in many cases, a negotiated and consensual resolution may be more beneficial to all parties involved, especially where personal relationships are at stake. Conciliation not only resolves the current dispute, but also preserves and even improves future relationships between the parties, which is crucial in contexts such as family law. However, it is important to stress that acceptance of the solution proposed in conciliation depends entirely on the will of the parties. The judge or conciliator can facilitate discussion and encourage the parties to find common ground, but cannot force them to accept an agreement. The parties retain their autonomy and have the right to refuse the conciliation solution if they feel it does not meet their interests or needs. In some legal systems, conciliation may be a mandatory step before legal proceedings can be commenced. This obligation is intended to reduce the number of disputes that reach the courts and to encourage a quicker and less confrontational resolution of disputes. However, if the parties fail to reach an agreement through conciliation, they retain the right to have their dispute decided by a judge.

Arbitration

Arbitration is a method of dispute resolution in which one or more arbitrators, chosen by the disputing parties, are responsible for settling the dispute. This process differs from traditional legal proceedings in a number of respects, including the ability of the parties to choose their arbitrators, which is a major advantage of arbitration. In arbitration, the parties agree, often through an arbitration clause in a contract or through an arbitration agreement after the dispute has arisen, to submit their dispute to one or more specifically appointed arbitrators. These arbitrators may be experts in the field involved in the dispute, offering technical expertise that traditional judges may not possess. A crucial aspect of arbitration is that the decision made by the arbitrators, known as the award, is generally final and binding on the parties. This award has a legal force similar to that of a court decision and, in most jurisdictions, can be enforced in the same way as a court judgment.

Arbitration is particularly popular in international commercial disputes, as it offers several advantages over traditional state courts. These advantages include confidentiality, speed, flexibility of procedures, and the possibility for parties to choose arbitrators with specific expertise relevant to their dispute. In addition, due to international conventions such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, arbitral awards are more easily recognised and enforced internationally than judgments of national courts. However, it is important to note that, unlike judicial processes where the judge is assigned by the legal system, arbitration relies on the agreement of the parties for the selection of the arbitrators, which underlines the importance of mutual consent in this process. By allowing the parties to choose their "judge", arbitration offers a degree of personalisation and specialisation that is often not possible in ordinary court proceedings.

Arbitration, as a method of dispute resolution, can be established well in advance of the emergence of a specific dispute through the use of an arbitration clause in a contract. This clause is an anticipatory provision which stipulates that, in the event of a dispute arising out of the contract, the parties undertake to resolve it by arbitration rather than by the ordinary courts. This practice is common in many types of contracts, particularly international commercial agreements, where it is favoured for its ability to provide a more predictable and specialised dispute resolution.

The inclusion of an arbitration clause in a contract demonstrates careful planning on the part of the parties. By anticipating the possibility of future disagreements, the parties seek to ensure a method of resolution that is effective and tailored to their specific needs. This approach is particularly useful in complex areas such as international trade, where disputes may require specific expertise and the parties wish to avoid the uncertainties associated with different national legal systems. For example, in an international construction contract, an arbitration clause could stipulate that any dispute relating to the interpretation of the contract or the performance of the work will be resolved by arbitrators specialising in construction law and the relevant international standards. This specificity ensures that the arbitrators chosen will have the necessary expertise to understand and settle the dispute effectively. The existence of an arbitration clause also reflects the parties' mutual consent to alternative dispute resolution. This preference for arbitration shows a desire to maintain a degree of control over the dispute resolution process, while benefiting from a more personalised and potentially less confrontational approach.

Ad hoc arbitration is a form of arbitration that is applied specifically to a particular case, after a dispute has arisen. In this type of arbitration, unlike arbitration under an arbitration clause in a contract, the parties decide to opt for arbitration as a dispute resolution method only after the dispute has arisen. In such a situation, the disputing parties mutually agree to submit their dispute to ad hoc arbitration. They must then agree on a number of important aspects of the arbitration process, such as the choice of arbitrators, the rules of procedure to be followed, the place of arbitration and the language in which the arbitration will be conducted. This flexibility allows the parties to tailor the arbitration process to the specifics of their dispute, which can be a considerable advantage. For example, in a commercial dispute arising after the conclusion of an agreement without a prior arbitration clause, the companies involved may choose to use ad hoc arbitration to resolve the problem. They may decide to appoint a panel of arbitrators made up of experts in their specific business sector, thus establishing a tailor-made process that meets their particular needs. Ad hoc arbitration is often perceived as being more flexible than institutional arbitration, which follows the pre-established rules of a specific arbitration institution. However, this flexibility can also lead to additional complexities, particularly with regard to the organisation and management of the arbitration process. The parties must therefore be careful and clear when establishing the terms of the ad hoc arbitration to avoid complications later on.

An arbitration agreement is an agreement between the parties involved in a dispute that has already arisen, deciding to submit that specific dispute to arbitration. This type of agreement differs from an arbitration clause, which is drawn up before a dispute arises and included in a contract. An arbitration agreement, on the other hand, is an ad hoc agreement, drawn up specifically to settle an existing dispute. In an arbitration agreement, the parties define precisely the subject matter of the dispute to be submitted to arbitration and agree on the specific terms of the arbitration, such as the number of arbitrators, the procedure to be followed, the place of arbitration, and sometimes the law applicable to the dispute. This agreement is usually contractual and must be carefully drafted to ensure that all relevant aspects of the dispute and the arbitration process are clearly defined.

The advantage of an arbitration agreement lies in its ability to offer a tailor-made solution for a specific dispute, allowing the parties to choose a process that meets their particular needs. For example, if two companies are disputing the quality of goods delivered, they may decide to use an arbitration agreement to resolve the dispute, choosing arbitrators with expertise in international trade and product quality. Compromise arbitration is often chosen for its advantages such as confidentiality, speed and flexibility, as well as for the possibility of obtaining specific expertise through the arbitrators. In addition, as arbitration awards are generally final and enforceable, the parties can resolve their dispute efficiently and conclusively.

Arbitration has become an increasingly favoured means of resolving disputes, particularly in the field of international law and in the corporate sphere. Its growing popularity is attributable to a number of advantages it offers over traditional legal proceedings. In the international context, arbitration is particularly appreciated for its neutrality. Parties from different backgrounds can avoid submitting to the jurisdiction of the other party's national courts, which may be perceived as an advantage or an apprehension of bias. In addition, international arbitration overcomes language barriers and differences in legal systems, providing a more consistent and predictable framework for resolving disputes.

In the business world, and more particularly in international commercial contracts, arbitration is favoured for a number of reasons. Its procedure is generally simpler, faster and more discreet than that of the ordinary courts. Confidentiality is a major advantage of arbitration, enabling companies to resolve their disputes without attracting public attention or exposing sensitive business details. This discretion is essential to preserve commercial relations and the reputation of companies. Indeed, it is estimated that up to 80% of international commercial contracts include an arbitration clause, testifying to the strong preference for arbitration in international trade. These clauses enable the parties to agree in advance on arbitration as a means of resolving disputes, thereby guaranteeing a more controlled and predictable process.

As for the organisation of arbitration, many Chambers of Commerce throughout Europe and the world have set up their own arbitration institutions. These institutions provide frameworks and rules for arbitration, contributing to its standardisation and efficiency. Notable examples include the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA), which are widely recognised and used in international commercial disputes. Arbitration has thus firmly established itself as a crucial tool in the resolution of disputes in international law and the business world, offering an efficient, flexible and discreet alternative to traditional court systems.

One of the distinctive and attractive features of arbitration, particularly in commercial disputes, is the possibility for the parties to choose arbitrators with specific expertise and experience in the field concerned. This contrasts with the traditional court system, where judges are assigned to cases without the parties having any direct control over their selection or specific expertise. In commercial arbitration, the parties enjoy the flexibility of selecting arbitrators who possess not only legal knowledge, but also an in-depth understanding of the specific industry or sector of activity related to the dispute. This practical expertise is particularly valuable in complex cases where technical knowledge or an in-depth understanding of business practices is essential to assess the issues in dispute and make informed decisions. For example, in a dispute involving technical issues relating to construction, the parties may choose to include individuals with engineering or construction experience on their panel of arbitrators. Similarly, in a dispute involving international financial transactions, the parties may prefer arbitrators with expertise in finance or international business law. This ability to choose arbitrators with relevant expertise offers several advantages. It ensures that decision-makers understand the nuances of the dispute and are better equipped to assess the technical or specialist arguments presented. In addition, it can lead to a more efficient resolution of the dispute, as competent arbitrators are likely to identify key issues more quickly and propose appropriate solutions.

The Alabama arbitration is a famous case in the history of international arbitration and played an important role in the development of international law. The case dates back to 15 September 1872, when Great Britain was ordered to pay substantial compensation to the United States for breaching its neutrality obligations during the American Civil War.

During this war, Great Britain, which had officially adopted a position of neutrality, had allowed warships, including the CSS Alabama, to be built and delivered to Confederate (Southern) forces from its shipyards. These ships were then used by the Confederates to attack the Union (Northern) merchant marine, causing considerable damage. The United States argued that these actions violated British neutrality and demanded reparations for the damage caused by these ships, particularly the Alabama. After the end of the war, to avoid an escalation of tensions and a possible military confrontation, the two nations agreed to submit the dispute to an international arbitration tribunal in Geneva, Switzerland. The arbitration tribunal, composed of representatives of several nations, concluded that Great Britain had been negligent in its duty of neutrality by allowing the construction and delivery of these ships to the Confederates. As a result, Great Britain was ordered to pay significant compensation to the United States. The importance of the Alabama arbitration lies in its impact on international law and the peaceful resolution of international disputes. Not only did the case contribute to the normalisation of arbitration as a means of resolving international disputes, it also strengthened Geneva's position as an important centre for diplomacy and international law. Moreover, this event marked a turning point in the recognition of the importance of the laws of neutrality and influenced the subsequent development of international conventions and treaties relating to the rights and duties of neutral nations.

The parties at the trial

In a civil lawsuit, the role and dynamics between the parties involved, i.e. the plaintiff and the defendant, are crucial to the progress and outcome of the case. The plaintiff is the party who initiates the legal proceedings. This initiative is generally motivated by a feeling of having suffered a loss or a violation of rights, thus prompting the plaintiff to seek some form of redress or justice from the legal system. For example, in a contractual dispute, the claimant might be a company suing a business partner for breach of contractual terms. On the other hand, the defendant is the party against whom the legal claim is made. This implies that he is supposed to have caused harm or violated the rights of the plaintiff. The defendant's role in a civil lawsuit is to respond to the accusations made against him. This response can take several forms, such as disputing the facts alleged by the plaintiff, presenting a different version of events, or advancing legal arguments to refute the plaintiff's claim. Take the example of a property dispute: the defendant could be a landlord accused by a tenant of failing to comply with the terms of the lease.

The court process provides a platform where these two parties can present their arguments, evidence and possibly testimony, either in writing or orally at hearings. This ensures that both sides of a dispute are heard and assessed fairly by a judge or panel of judges, depending on the legal system in place. After considering all the information and arguments presented, the judge makes a decision that settles the dispute. This structure of the civil trial, with clearly defined roles for the plaintiff and defendant, is designed to ensure that each case is dealt with fairly and impartially, thereby promoting justice and the proper resolution of disputes within society.

The task of repressing offences and maintaining public order is one of the fundamental responsibilities of the State, and is clearly manifested in criminal proceedings. Unlike civil litigation, where individuals or private entities seek redress for wrongs or disputes, criminal action focuses on society's response to behaviour that is considered to be in breach of its laws.

In the criminal justice system, it is the state that takes the initiative in prosecuting criminal offences. This action is often taken by the public prosecutor, who acts as the representative of society. The aim of criminal proceedings is not only to repair the harm caused to the victim, but also to prevent future crimes by punishing the offender and deterring others from committing similar offences. Criminal proceedings can be initiated in various ways. In many cases, it is initiated ex officio by the state, often following an investigation by the police or another law enforcement agency. For example, in a case of robbery or assault, the police investigate the crime and report their findings to the public prosecutor, who then decides whether there is sufficient evidence to prosecute.

In some legal systems, the victims of a crime or other parties can also play a role in initiating criminal proceedings. They can do this by lodging a complaint with the relevant authorities. However, even in these cases, it is the public prosecutor who ultimately decides whether or not to prosecute the case on behalf of society. The distinction between criminal proceedings and civil cases is therefore fundamental. Whereas civil cases involve disputes between private parties, criminal action involves society as a whole, represented by the state, which seeks to punish criminal behaviour and maintain public order. This approach reflects the understanding that certain behaviour harms not only specific individuals, but also society as a whole.

The public prosecutor is a key institution in the judicial system, playing a crucial role in representing the law and defending the interests of the State before the courts. Made up of magistrates, such as public prosecutors or state lawyers, the public prosecutor's office is responsible for criminal prosecutions and enforcing the law, focusing on maintaining public order and prosecuting offences. The structure of the public prosecutor's office varies between legal systems, and a concrete example of this variation can be seen in Switzerland, where the federal legal system affects the organisation of the public prosecutor's office. In each Swiss canton, the public prosecutor's office operates autonomously and is headed by a public prosecutor. The Attorney General, who is often directly elected by the people, reflects the Swiss democratic tradition and ensures that public interests are represented in a transparent and accountable manner. At cantonal level, the Attorney General is responsible for overseeing criminal investigations and prosecutions, ensuring that the laws are applied fairly and effectively. At federal level, the Public Prosecutor's Office takes a different form. It is headed by the Attorney General of the Confederation, a figure elected by the Federal Assembly. This position is of particular importance, as it deals with criminal cases that go beyond cantonal jurisdiction or involve federal crimes. For example, in large-scale cases such as terrorism, corruption at federal level, or crimes against state security, it is the Attorney General of the Confederation who takes the reins. This Swiss model illustrates how a legal system can be structured to meet the needs of a federal country, where regional autonomy is balanced with coordination at national level. It ensures that, whether for local cases or crimes of a wider scope, there is a competent and accountable institution to prosecute and represent the interests of society. This ensures a consistent application of justice, reflecting the principles of democracy and the rule of law.

In the criminal justice system, the public prosecutor plays a proactive and autonomous role in initiating criminal proceedings. Unlike in civil cases, where a party must initiate the process, in criminal cases the public prosecutor can initiate proceedings ex officio, i.e. without a prior request from a victim or another party. This ability to act ex officio is a fundamental element of the authority and responsibility of the public prosecutor. It reflects the notion that criminal offences are not just attacks on individuals, but transgressions against public order and society as a whole. As such, the public prosecutor, as the representative of the State and the interests of society, has the duty and power to prosecute these offences in order to maintain lawful order and protect public welfare. This autonomous action may be triggered by various means, including police reports, complaints from citizens, or investigations by the authorities themselves. For example, if a crime such as theft or homicide is discovered, the police investigate and pass on their findings to the public prosecutor. On the basis of this information, the public prosecutor can decide to prosecute, even if the victim does not wish to press charges or if no one has officially requested such action. This approach ensures that serious crimes or breaches of public order do not go unpunished, even in the absence of a private initiative to prosecute. It reinforces the principle that certain reprehensible acts require a response from the State in order to maintain justice and security in society.

The criminal procedure

Criminal procedure is governed by a set of mandatory rules of law, designed to ensure justice and the protection of the rights of all parties involved, in particular the person accused or charged. These strict rules serve to ensure that proceedings are conducted fairly and transparently, and that the rights of the accused are respected throughout the judicial process.

In the criminal justice system, every stage from investigation to trial is governed by precise legal standards that must be scrupulously respected by the authorities. These standards include, for example, rules on how evidence can be gathered, how suspects are questioned, and how trials are conducted. Failure to comply with these rules can result in the invalidation of evidence or even the annulment of the proceedings. Let's take the example of a search. For a search to be legal, it must generally be authorised by a warrant issued by a judge, based on sufficient evidence that a crime has been committed and that relevant evidence can be found at the location specified in the warrant. This warrant requirement is intended to protect the rights of the accused against arbitrary or abusive searches. In addition, there are strict rules regarding the manner in which the search must be conducted, in order to protect the individual's property and privacy.

These mandatory rules of criminal procedure reflect the fundamental principles of the rule of law, including respect for human rights and procedural safeguards. They aim to balance the need to investigate and prosecute criminal offences with the need to protect individual liberties and ensure fair and equitable treatment for the accused. By maintaining these high standards, the criminal justice system seeks to preserve public confidence in the integrity and fairness of the judicial process.

The adversarial procedure and the inquisitorial procedure

Criminal procedure, often referred to as criminal investigation, is an essential legal process centred on the search for and administration of evidence relating to a crime or offence. This phase of the judicial process is crucial for establishing the facts of a criminal case and determining the liability of the accused.

Criminal investigation generally begins after a crime or misdemeanour has been reported or discovered. The relevant authorities, such as the police, then undertake investigations to collect evidence, interview witnesses and gather all the information needed to establish what actually happened. This phase may involve various activities, such as searches, seizures, forensic analysis and other investigative methods. During the criminal investigation, the public prosecutor, representing the state and society, oversees the process and works closely with investigators to build a case against the accused. The aim is to gather sufficient evidence to prove, beyond a reasonable doubt, that the accused is guilty of the crime or offence with which he or she is charged.

It is important to note that throughout the criminal investigation, the rights of the accused must be respected. This includes the right to a fair trial, the right to a lawyer, and the right not to incriminate oneself. In addition, all evidence must be collected and processed in accordance with the laws and procedures in force to ensure its admissibility in court. Once the criminal investigation is complete, if sufficient evidence is gathered to support a charge, the case can be brought before a court for trial. If the evidence is deemed insufficient, the case may be dismissed or the accused may be released.

Code pénal suisse — article 10

Under Swiss criminal law, the Criminal Code makes a fundamental distinction between crimes and misdemeanours, a classification based on the severity of the penalty associated with each offence. This distinction is crucial because it determines the nature of the penalties applicable and guides the corresponding judicial process.

Under the Swiss Penal Code, crimes are serious offences punishable by a custodial sentence of more than three years. These offences represent acts considered particularly harmful to society, such as homicide, serious sexual assault or acts of terrorism. For example, an individual convicted of murder in Switzerland would be charged with a felony under the Penal Code and could face a lengthy prison sentence, reflecting the seriousness of his or her act. Misdemeanours, on the other hand, are defined as less serious offences punishable either by a custodial sentence not exceeding three years or by a pecuniary penalty. These offences include acts such as petty theft, small-scale fraud or serious road traffic offences. For example, a person convicted of shoplifting could be charged with a misdemeanour and receive a lighter sentence, such as a fine or a short period of detention.

This classification between felonies and misdemeanours reflects a key principle of the Swiss justice system: the proportionality of the punishment in relation to the seriousness of the offence committed. It ensures that the heaviest penalties are reserved for the most serious offences, while providing an appropriate legal framework for dealing with less serious offences. By clearly defining these categories, the Swiss Criminal Code aims to balance the protection of society, crime prevention and respect for individual rights.

Accusatory

The historical origins of criminal procedure, particularly in societies where citizen participation in the governance and administration of justice was highly valued. This ancient approach to criminal procedure is characterised by a form of judicial 'combat', where the prosecution and the defence confront each other in a formal and solemn setting, overseen by a judge. In these systems, criminal proceedings were often initiated by a formal accusation. The plaintiff, or accuser, presented his or her accusations and evidence against the defendant, i.e. the person accused of the crime or offence. The defendant was then given the opportunity to defend himself against these accusations, often by presenting his own evidence and arguments. The role of the judge, or judges, was to referee this legal 'battle'. They ensured that the procedural rules were respected, listened to the arguments on both sides, and finally ruled in favour of one or other of the parties. This decision could result in the conviction or acquittal of the defendant.

This type of procedure reflects an era when justice was seen as a more direct and participatory form of conflict resolution. It is characteristic of political systems where the active participation of citizens in public affairs, including justice, was encouraged. A classic example of this system can be found in ancient Greece, particularly Athens, where citizens played an active role in the conduct of judicial affairs. Over time, as societies and legal systems evolved, criminal procedure became more complex and institutionalised, incorporating more modern principles of justice such as the presumption of innocence, legal representation and the rights of the defence. Nevertheless, the foundations of this procedure - an adversarial debate and the intervention of an impartial judge to decide the dispute - remain essential elements of criminal justice in many contemporary legal systems. In the context of criminal procedure, the concept of indictment is a key moment in the judicial process. When a prosecution is launched, the accused is formally charged, which means that he or she is formally informed of the charges against him or her and must answer for them in court.

In this context, the judge's role is often compared to that of an arbitrator. His main responsibility is to ensure that the 'fight' between the plaintiff, usually represented by the public prosecutor, and the defendant takes place fairly and in accordance with the law. The judge ensures that both parties have the opportunity to present their arguments, evidence and testimony, and that the trial is conducted with due respect for the rights of the defendant and the principles of justice. One of the judge's most important tasks during a criminal trial is to rule on the evidence presented. This involves assessing its relevance, reliability and admissibility according to the rules of evidence. The judge must also ensure that the evidence is presented and considered fairly, allowing both sides to challenge or support it. This approach reflects the fundamental principles of criminal justice in many legal systems: the right to a fair trial, the presumption of innocence and the right to a defence. The judge, as impartial arbiter, ensures that these principles are respected and that the final verdict, whether conviction or acquittal, is based on a fair and rigorous assessment of the evidence presented during the trial.

Criminal procedure, as it is conceived in many legal systems, is based on a structure that is at once oral, public and adversarial, each of these elements playing a crucial role in guaranteeing a fair and transparent trial. The oral nature of criminal proceedings means that most of the exchanges during the trial take place in person. The testimony of witnesses, the arguments of defence and prosecution lawyers, and the statements of the accused are presented orally before the judge and jury, if any. This form of communication allows for dynamic and direct interaction in court. It is essential for assessing the credibility of witnesses and the effectiveness of the arguments presented. For example, in a robbery trial, eyewitnesses will verbally recount what they saw, allowing the judge and jury to assess their reliability and consistency. The publicity of the trial is another fundamental pillar. It ensures that legal proceedings are open to the public, which promotes transparency and enables society to monitor the operation of the legal system. The public nature of trials serves to prevent injustice and maintain public confidence in the integrity of justice. However, there may be exceptions to protect specific interests, such as the privacy of victims in certain sensitive cases. The adversarial nature of the proceedings ensures that all parties have the opportunity to present their version of the facts, to challenge the other party's evidence and to respond to the charges. This approach ensures that the accused has a fair opportunity to defend himself. In a fraud trial, for example, the defence has the right to refute the evidence presented by the prosecution, to question the prosecution's witnesses and to present its own witnesses and evidence. These principles of criminal procedure - orality, publicity and adversarial proceedings - combine to form a balanced and fair judicial framework, essential for the fair administration of justice. They help to ensure that the trial is conducted in a transparent and fair manner, respecting the fundamental rights of the accused while seeking to establish the truth of the facts.

The essence of criminal procedure is to give fair consideration to the interests and arguments of both sides - the prosecution and the defence - without taking partisan initiatives. This principle of impartiality is essential to guarantee a fair and just trial. The judge, who plays the role of impartial arbiter in these proceedings, ensures that both parties have the opportunity to present their case, respond to the other party's arguments and submit their evidence. He also ensures that the proceedings are conducted in accordance with the rules of law and the principles of justice. The public nature of the proceedings is another crucial aspect that reinforces the transparency and impartiality of the judicial process. By being open to the public, criminal proceedings enable citizens to follow the progress of legal cases and check that justice is being done fairly. This transparency plays a key role in maintaining public confidence in the judicial system. It ensures that the trial is not only fair in theory, but also fair in practice, observable by any interested party. For example, during a trial for a serious offence, the possibility for citizens to attend hearings makes it possible to monitor whether the rights of the accused are respected and whether legal procedures are correctly followed. This serves as a democratic check on the operation of justice and helps prevent abuses or miscarriages of justice. Criminal procedure is designed to balance the interests of all parties involved and to ensure a transparent, fair and accountable administration of justice. The combination of an impartial judge and public proceedings makes a significant contribution to achieving these objectives.

The prosecution and investigation of offences are left to the initiative of private individuals, as the prosecution's resources are insufficient. The administration of evidence is deficient because the judge cannot intervene directly. As a result, the interests of the accused are somewhat prejudiced. In such a context, the judge's role is limited, which can affect the way in which evidence is administered and potentially harm the interests of the accused.

Where private parties, such as victims or their representatives, are responsible for conducting the investigation and gathering evidence, there may be a risk of bias or inadequacy in the gathering and presentation of evidence. If the prosecution does not have the resources or expertise to conduct a thorough investigation, some key evidence may be overlooked, which could lead to an incomplete representation of the facts at trial. Furthermore, if the judge does not have the power to intervene directly in the taking of evidence, it may be difficult to ensure that all relevant and necessary evidence is considered. This could put the accused at a disadvantage, particularly if the defence does not have the means or the ability to effectively challenge the evidence presented by the prosecution.

In a fair judicial system, it is essential that the interests of the accused are protected, in particular by guaranteeing the right to a fair trial, the right to be presumed innocent, and the right to an adequate defence. This means that evidence must be gathered and administered impartially and completely, and that the judge must be able to ensure that the rules of evidence are correctly applied. To remedy these shortcomings, some legal systems have strengthened the role of the public prosecution, such as the ministère public, by giving it responsibility for conducting criminal investigations. This allows for a more balanced and systematic approach to the gathering of evidence, reducing the risk of bias and ensuring better protection of the rights of the accused.

The absence of a formal pre-trial phase is a notable feature of certain legal systems, particularly that of the United States. In criminal procedure, the pre-trial phase is typically a phase preparatory to the trial, during which an investigating magistrate conducts a thorough investigation. The purpose of this investigation is to gather evidence, identify the offender, understand his or her personality, and establish the circumstances and consequences of the offence. On the basis of this information, the magistrate decides what action to take, in particular whether the case should be brought before a court for trial. In the US legal system, the investigation phase as it is known in other systems (such as France or Italy) does not exist in the same way. In the United States, the investigation is generally carried out by law enforcement agencies, such as the police, and supervised by prosecutors. Once the accused has been arrested and charged, the case is directly prepared for trial. Evidence is presented by the prosecution and defence during the trial itself, and there is no dedicated investigating magistrate to conduct an independent preliminary investigation.

This difference in procedure can have significant implications for the conduct and fairness of the trial. In systems with a formal investigation phase, the investigating magistrate plays a key role in establishing the facts before the trial, which can contribute to a more thorough understanding of the case. In contrast, in the American system, the burden of proof rests primarily with the prosecution and defence during the trial, with a more limited role for the judge in the preparatory phase. This absence of a formal pre-trial phase in the United States highlights the fundamental differences between the legal systems and underlines the importance of the methods of investigation and preparation of criminal cases in determining the truth and ensuring a fair trial.

Procedural law is essential in the resolution of disputes and offences that affect the community, particularly where crime is concerned. This branch of law defines the rules and methods by which disputes and offences are dealt with and resolved within the judicial system. The main aim of procedural law is to ensure that all trials are conducted in a fair and orderly manner, protecting the rights of the individuals involved while serving the public interest.

The history of procedural law dates back to ancient times and has evolved over the centuries. For example, in his work "Germania", the Roman historian Tacitus mentions the existence of courts among the Germanic peoples. According to Tacitus, these courts were responsible for settling disputes within the community. The principles, or leaders, were obliged to include members of the people in the judicial process. This practice bears witness to an ancient form of popular participation in justice, in which the leaders did not pass judgement alone, but were assisted or advised by members of the community. This method of dispute resolution, where judicial decisions were made with the involvement of the community, reflects an early understanding of the importance of fairness and representativeness in justice. Although modern justice systems are far more complex and formalised, the fundamental idea of participatory and representative justice remains a key principle. Today, this manifests itself through the presence of juries in certain legal systems, the election of certain judges, or the participation of the community through popular assemblies or public hearings.

In the time of the Salian Franks, around 500 AD, the judicial system involved a judge who oversaw the entire legal process. This judge was responsible for all stages of the process, from summoning the parties to enforcing the sentence. However, proposing the sentence itself was the responsibility of the "rachimbourgs", a group of seven men chosen from the community affected by the dispute. Their sentence then had to be approved by the Thing, an assembly of free men with the right to bear arms. This structure reflects a system of participatory justice, in which the community played an active role in the judicial process.

In the kingdom of the Alamanni, as stipulated in the Alamanni law (lex Alamannorum) around 720, the judge had to be appointed by the duke but also approved by the people. This requirement underlines the importance of community acceptance and legitimacy in the selection of judges. The Carolingian judicial reform, initiated around 770 under the reign of Charlemagne, made significant changes to this system. The power to pass judgement was entrusted to aldermen, who were permanent judges. This reform reduced the role of the Thing in approving sentences, thereby further centralising judicial power. The distinction between low justice (causae minores) and high justice or criminal justice (causae majores) established at this time is particularly noteworthy. It laid the foundations for the modern distinction between civil and criminal procedure. The lower courts dealt with minor cases, often of a civil nature, while the higher courts dealt with criminal cases, which were considered more serious and involved harsher penalties. These historical developments in the management of justice reflect a transition from a judicial system based on community participation to a more centralised and organised system, paving the way for contemporary judicial structures. They also show how fundamental principles of law, such as legitimacy, representativeness and the distinction between different types of dispute, have evolved and taken shape over time.

Inquisitory

The inquisitorial procedure has its origins in ecclesiastical jurisdictions and canon law, before spreading to secular legal systems, particularly from the 13th century onwards. In an inquisitorial procedure, the judge or magistrate plays an active role in the search for the truth. Unlike adversarial proceedings, where the emphasis is on an adversarial confrontation between the defence and the prosecution, in inquisitorial proceedings the judge conducts the investigation, questions the witnesses, examines the evidence and determines the facts of the case. The main objective is to discover the objective truth, rather than relying solely on the arguments and evidence presented by the opposing parties.

Historically, this method has been strongly influenced by the practices of Church tribunals, which sought to establish spiritual and moral truth through a thorough process of investigation by ecclesiastical authorities. In canon law, the search for truth was seen as a moral and spiritual duty, and this influenced the way investigations were conducted. In the 13th century, the inquisitorial procedure began to be adopted in the secular judicial systems of Europe. This adoption was stimulated by the desire for more systematic and centralised justice, in contrast to traditional judicial methods that often relied on oral evidence and direct confrontation between the parties. In modern systems that follow the inquisitorial procedure, such as those in many European countries, the judge retains a central role in investigating the facts and conducting the trial. However, it is important to note that contemporary judicial systems have evolved to incorporate procedural safeguards designed to protect the rights of the accused, while allowing for a thorough and objective investigation of the facts.

The perception that the inquisitorial procedure meets the needs of an authoritarian regime, by placing the interests of society above those of the individual, stems from the very nature of this procedure. Indeed, in an inquisitorial system, the judge or magistrate plays a central and active role in the investigation, the gathering of evidence and the establishment of facts, which can sometimes be seen as a concentration of power likely to favour the interests of the State or society more broadly. In authoritarian regimes, this type of judicial system can be used to reinforce state control, with an emphasis on preserving public order and security, sometimes to the detriment of individual rights. The significant power given to the judge in the conduct of the investigation and in decision-making can lead to an imbalance, where the rights of the accused to a fair trial and an adequate defence are compromised. However, it is important to stress that the inquisitorial procedure, in its modern form, is practised in many democratic countries, where it is governed by laws and regulations designed to protect the rights of individuals. In these contexts, mechanisms are in place to ensure that the rights of the accused, such as the right to a lawyer, the right to a fair trial and the right to be heard, are respected. The evolution of modern judicial systems shows that inquisitorial procedure can coexist with respect for individual rights, provided that it is balanced by appropriate procedural and judicial safeguards. It is therefore crucial to consider not only the structure of the inquisitorial procedure, but also the legal and institutional context in which it is implemented.

The inquisitorial procedure takes its name from the "inquisitio", an initial formality that defines the conduct of an investigation and, by extension, of the entire trial. In this type of procedure, the magistrate plays a predominant role from the outset of the investigation, which is often initiated ex officio, i.e. without a specific complaint being lodged by a private party. The investigation may be initiated by the magistrate himself or by a public official, such as a public prosecutor or police officer. The magistrate is responsible for collecting and examining evidence, interviewing witnesses and, in general, conducting the investigation to establish the facts of the case. This approach differs significantly from adversarial proceedings, where the investigation is often conducted by the parties (prosecution and defence), who then present their evidence and arguments before a judge or jury. In addition to conducting the investigation, in an inquisitorial procedure the magistrate also directs the proceedings during the trial. He or she asks questions of witnesses, examines the evidence and guides the discussion to ensure that all relevant aspects of the case are addressed. This active role of the magistrate is designed to ensure a full understanding of the facts and to help the court reach a judgment based on a complete analysis of the evidence. This system has its historical roots in canon law and ecclesiastical jurisdictions, where the search for truth was seen as a moral and spiritual imperative. In contemporary judicial systems that use the inquisitorial procedure, although the role of the magistrate is central, procedural safeguards are generally put in place to protect the rights of the accused and ensure the fairness of the trial.

In the inquisitorial procedure, the magistrate has considerable investigative powers, which are exercised in a manner distinct from the adversarial procedure more familiar in other legal systems. The investigation conducted by the magistrate is often characterised by its secrecy, its written nature and its lack of adversarial nature.

The secret nature of the inquisitorial investigation allows the magistrate to gather evidence without external intervention, which can be crucial in preventing the concealment or destruction of evidence, especially in complex or sensitive cases. For example, in a large-scale corruption case, the confidentiality of the initial investigation can prevent suspects from tampering with evidence or influencing witnesses. The predominance of written documentation in this system means that statements, investigation reports and evidence are recorded and stored primarily in written form. This method ensures an accurate and durable record of information, but can limit the dynamic interactions that occur in oral exchanges, such as those observed in hearings or interrogations. In addition, the lack of adversarial character during the investigation phase can raise questions about the fairness of the trial. In an inquisitorial procedure, the opposing parties, particularly the defence, do not always have the opportunity to challenge or respond directly to the evidence gathered by the magistrate during this phase. This situation can lead to imbalances, particularly if the defence does not have access to all the information gathered or cannot challenge it effectively. It is therefore essential that control mechanisms and procedural safeguards are in place to balance the magistrate-centred approach of the inquisitorial procedure. These mechanisms must ensure respect for the rights of the accused, including the right to a fair trial and the right to an adequate defence, while allowing for a thorough and objective investigation of the facts. The aim is to ensure that the judicial system achieves a balance between the effectiveness of the investigation and respect for fundamental rights.

The inquisitorial procedure, characterised by an investigation conducted mainly by judges, has significant advantages and disadvantages that influence its effectiveness and fairness. One of the major advantages of this system is that it reduces the risk of guilty parties escaping justice. Thanks to the judge's proactive and thorough approach to conducting the investigation, it is more likely that relevant evidence will be uncovered and those responsible for offences identified. This methodology can be particularly effective in complex or sensitive cases, where a thorough investigation is required to uncover the truth. However, the disadvantages of the inquisitorial procedure are not negligible. One of the most worrying risks is the possibility of convicting innocent people. Without a robust defence and the opportunity for adversarial debate during the investigation phase, defendants may find themselves at a disadvantage, unable to effectively challenge the evidence against them. This can lead to miscarriages of justice, where innocent people are convicted on the basis of one-sided investigations. On a technical level, the inquisitorial procedure is often criticised for its length. The thorough and written nature of the investigation can lead to considerable delays in the resolution of criminal cases, prolonging the time that defendants and victims wait for the case to be resolved. Furthermore, the emphasis on written documentation and the lack of direct interaction during the trial can lead to a dehumanisation of the judicial process. This approach can neglect the human and emotional aspects of a case, focusing strictly on written evidence and formal procedures. To mitigate these drawbacks, many judicial systems that use the inquisitorial procedure have introduced reforms to strengthen the rights of the defence, speed up proceedings and incorporate more interactive and humane elements into the judicial process. These reforms aim to balance the effective search for the truth with respect for the fundamental rights of defendants and victims.

In a judicial system dominated by an inquisitorial investigation, it is true that the outcome of the trial can often appear to be largely determined by the results of the investigation. Where the magistrate or judge plays a central role in conducting the investigation and administering the evidence, the trial hearing can sometimes be perceived as a formality, rather than a real opportunity for the accused to challenge the evidence and arguments presented against him. In such a configuration, the accused may find himself in a disadvantageous position, as the investigation phase, largely controlled by the magistrate, occupies a predominant part of the judicial process. If the evidence and conclusions accumulated during the investigation are highly incriminating, the accused may find it difficult to reverse these perceptions at the time of trial, especially if the procedure does not guarantee sufficient opportunity for a full and complete defence. This dynamic raises concerns about the fairness of the trial, particularly with regard to respect for the right to be presumed innocent and the right to a fair trial. When the trial hearing is reduced to a mere formality, the principles of adversarial justice and balance between prosecution and defence can be compromised. To mitigate these drawbacks, many judicial systems have sought to reform their inquisitorial procedures. These reforms aim to increase the role and rights of the defence, ensure greater transparency during the investigation, and guarantee that the trial hearing is a substantial stage where the accused has a real opportunity to challenge the evidence and present his version of the facts. The aim of these changes is to ensure a balance between the effectiveness of the investigation and respect for the rights of the accused, in accordance with the principles of a fair trial.

The history of criminal procedure in Europe is marked by a significant evolution, particularly influenced by the ideals of the Enlightenment and the social and political changes that followed. Over the course of the second millennium, and particularly since the nineteenth century, European legal systems have undergone a process of transformation, aimed at incorporating the most effective and fair aspects of inquisitorial and adversarial procedures.

During the Enlightenment, a period characterised by the questioning of traditions and the promotion of individual rights and reason, criticism of the most rigid and oppressive aspects of the inquisitorial procedure intensified. Philosophers and reformers of the time, such as Voltaire and Beccaria, highlighted the flaws in the system, in particular its lack of fairness and its often arbitrary treatment of the accused. They called for judicial reforms that would ensure a better balance between the powers of the state and the rights of individuals. In response to these pressures and to political developments, notably the revolutions that swept across Europe, many countries undertook to reform their judicial systems. These reforms aimed to adopt elements of adversarial procedure, such as strengthening the role of the defence, the presumption of innocence, and the adversarial nature of trials, while retaining the structured and exhaustive approach to investigation characteristic of inquisitorial procedure. The result of these changes has been the creation of hybrid judicial systems. In France, for example, judicial reform has led to a system where, although the preliminary investigation is conducted by magistrates or prosecutors (an inquisitorial feature), the rights of the defence are strongly protected and the trial itself is conducted in an adversarial manner, in the presence of an impartial judge or jury (an adversarial feature). These hybrid systems seek to balance efficiency and justice, allowing a thorough investigation while ensuring that the rights of the accused are respected. Although these systems vary from one European country to another, this tendency to merge the best practices of the two procedures has become a dominant feature of modern judicial systems in Europe.

Criminal proceedings in modern judicial systems generally take place in two distinct phases, which incorporate features of both the inquisitorial and adversarial approaches, thus meeting different objectives and principles of justice. The preliminary phase is typically inquisitorial. It begins with a police investigation in which the law enforcement agencies carry out an initial gathering of evidence, interviewing witnesses and carrying out investigations to establish the facts of the case. This stage is crucial, as it lays the foundations for the legal case. For example, in a theft case, the police will gather material evidence, interview witnesses and collect surveillance videos. This phase continues with the judicial investigation, conducted by an examining magistrate in some countries. The investigating judge takes the investigation further, ordering expert reports, interviewing witnesses and taking steps to gather additional evidence. This phase is characterised by its secretive, written and non-adversarial nature, aimed at gathering all the information needed to decide whether the case should go to trial. The decisive phase, on the other hand, is adversarial in nature. It is during this phase that the actual trial takes place, followed by the judgment. This stage is public, oral and adversarial, allowing direct confrontation of evidence and arguments. During the trial, the defence and prosecution lawyers have the opportunity to present their cases, question witnesses and challenge the other side's evidence. For example, in a fraud case, the defence may question the validity of the financial evidence presented by the prosecution or provide contradictory testimony. The judge or jury, after listening to all the parties, makes a judgement based on the evidence and arguments presented, thus guaranteeing the right to a fair trial. This two-phase structure reflects an attempt to balance the efficiency and rigour of the investigation with the principles of fair justice and protection of the rights of the accused. It shows an evolution towards judicial systems that seek to integrate the best of both approaches, guaranteeing a thorough investigation while respecting fundamental rights and the democratic process of justice.

The emergence of a mixed system in criminal procedure, combining the advantages of the inquisitorial and adversarial approaches, is a notable development that began to crystallise around the time of the Enlightenment. This period, marked by a renewed emphasis on reason, human rights and fair justice, led to significant reforms in many aspects of society, including the judicial system. This mixed system seeks to build on the strengths of the two traditional methods of criminal procedure. On the one hand, the inquisitorial approach is recognised for its effectiveness in gathering and thoroughly examining evidence, with the judge or magistrate playing an active role in the investigation. On the other hand, the adversarial approach is valued for its adversarial and transparent nature, ensuring that the accused has a fair and equitable opportunity to defend himself against the charges. In the decisive phase of the mixed system, we therefore find elements of both approaches. For example, although the judge can play an active role in assessing the evidence (an inquisitorial feature), the accused and the defence also have the opportunity to challenge this evidence and present their own arguments (an adversarial feature). This phase is typically public, with hearings where the evidence is presented and examined openly, allowing direct confrontation and debate between the defence and the prosecution. The adoption of this mixed system represents an attempt to balance the efficiency and rigour of the investigation with respect for the rights of the accused and the principles of a fair trial. This development reflects a major evolution in legal and judicial thinking, influenced by the ideals of the Enlightenment, aimed at promoting fairer and more balanced justice.

The principles governing criminal procedure

The principle of legality plays a central and essential role in criminal law, governing both substantive rules and procedures. This principle, which is fundamental in many legal systems, ensures that criminal actions and sanctions are based on the law.

With regard to substantive rules, the principle of legality stipulates that no one can be found guilty or punished for an action that was not defined as an offence by the law at the time it was committed. This principle is crucial to ensuring justice and predictability in the application of the law. For example, if a person commits an act that is not considered a crime under the laws in force at the time, they cannot be criminally prosecuted for that act if the law later changes. This reflects the maxim "nullum crimen, nulla poena sine lege", which means that there can be no crime or punishment without a pre-existing law. The principle of legality also applies to criminal proceedings. This means that all stages of the judicial process, from investigation to conviction, must be conducted in accordance with the procedures established by law. This ensures that the rights of the accused are respected throughout the judicial process. For example, the right to a fair trial, the right to a defence and the right to be tried within a reasonable time are aspects of criminal procedure that must be clearly defined and guaranteed by law.

Respect for the principle of legality in substantive and procedural rules is a safeguard against judicial arbitrariness and a pillar of human rights protection. It ensures that individuals are not subjected to the retroactive imposition of criminal sanctions or to judicial proceedings without a proper legal basis. This principle strengthens public confidence in the criminal justice system and ensures that individuals are treated fairly and in accordance with the law, thereby contributing to the integrity and legitimacy of the judicial process.

The principle of legality

The principle of legality, as far as administrative action is concerned, is a crucial foundation of the rule of law in many legal systems. This principle requires the public administration to act only within the framework set by the law. It has two fundamental aspects: the primacy of the law and the requirement of a legal basis for administrative actions.

The principle of the primacy, or supremacy, of the law stipulates that the administration must comply with all the legal provisions that govern it. This means that in all its activities and decisions, the administration is bound by existing laws and must act in accordance with these laws. This principle ensures that the government's actions are not arbitrary, but are guided and limited by the legal framework. In practice, this means that administrative decisions, such as the granting of permits or the imposition of sanctions, must be based on clearly established laws and may not derogate from legislative norms. Furthermore, the principle of the legal basis requirement requires that any action by the administration must have a basis in law. In other words, the authorities can only act if they are explicitly authorised to do so by a law. This principle limits the scope of administrative action by ensuring that every measure taken by the administration has a solid legal basis. For example, if a government agency wishes to impose new regulations, it must ensure that these regulations are authorised by existing legislation or that they are instituted under a new law.

Together, these two aspects of the principle of legality - the primacy of the law and the legal basis requirement - work to ensure that the administration acts in a transparent, predictable and fair manner. They help to protect citizens against abuses of power and strengthen confidence in administrative and governmental institutions. In short, the principle of legality is essential to ensure that the administration operates within the limits of the authority conferred on it by law, thereby preserving democratic principles and the rule of law.

Code pénal suisse — article 1

Article 1 of the Swiss Criminal Code sets out a fundamental principle of criminal law, commonly known as the principle of legality in criminal matters: "No punishment without law". This principle stipulates that a penalty or measure may only be imposed for acts that are expressly defined and punishable by law. This provision ensures that individuals can only be prosecuted and punished for behaviour that was clearly defined as an offence at the time it was committed. This ensures a degree of predictability in criminal law and protects citizens from judicial arbitrariness.

The principle of "no punishment without law" is an essential element of legal certainty and respect for human rights. It prevents the retroactive application of criminal law and ensures that criminal sanctions are based on clear, precise and publicly accessible laws. For example, if a new criminal law is enacted, it does not apply to acts committed before its entry into force. Similarly, if an existing law is repealed, it can no longer be used as a basis for prosecution or conviction. Article 1 of the Swiss Criminal Code reflects an essential legal principle that protects individual rights by ensuring that only acts specifically prohibited by law can give rise to criminal sanctions. This principle is a cornerstone of the rule of law and contributes to public confidence in the criminal justice system.

In criminal law, the law plays a primary and exclusive role as the source defining offences and applicable penalties. This principle, which is central to many legal systems, ensures that only legislation established by parliament or the relevant legislative body can specify what constitutes criminal behaviour and determine the corresponding penalties. This approach has several important implications for the justice system and society as a whole. Firstly, it ensures that the criminal law is clear and transparent. For example, if legislation specifically defines theft and its variants as criminal offences, and establishes ranges of penalties such as imprisonment or fines, then citizens have a precise and accessible understanding of what behaviour is illegal and the potential consequences of these acts. This methodology also protects individuals against arbitrariness and abuse of power. It prevents judicial or administrative authorities from creating or applying laws retroactively or imposing penalties for acts that were not considered offences at the time they were committed. This means that judicial decisions must be based strictly on pre-existing laws. The non-retroactivity of criminal law is a crucial aspect of this approach. It ensures that individuals can only be tried and punished on the basis of the laws in force at the time the alleged act was committed, thus avoiding unpredictable and unjust penalties.

The principle of legality in criminal law, a cornerstone of many legal systems, is underpinned by three fundamental maxims that together guarantee the fair and predictable application of the law. These maxims, deeply rooted in legal doctrine, form a bulwark against arbitrariness and ensure that the State's power in criminal matters is exercised with respect for individual rights.

The first maxim, "nullum crimen sine lege" (no crime without law), states that an act cannot be considered criminal unless it is clearly defined as such by the law before it is committed. This rule is essential to the predictability of criminal law, enabling citizens to know the limits of the legality of their actions. For example, if a legislator decides to criminalise a new type of online behaviour, that act only becomes a crime after the new law is enacted, and similar actions prior to that law cannot be prosecuted. The second maxim, "nulla poena sine lege" (no punishment without law), ensures that no punishment can be imposed other than that expressly provided for by law. This ensures that individuals are informed of the potential consequences of criminal behaviour and prevents judges from imposing penalties not authorised by existing legislation. This rule protects individuals from unexpected sanctions or judicial inventions of new penalties. Finally, the maxim "nulla poena sine crimine" (no punishment without a crime) emphasises that a punishment can only be imposed if an act has been legally recognised as a crime. This rule confirms that a criminal conviction requires proof of an offence defined by law. For example, an individual can only be convicted of fraud if his or her behaviour corresponds to the legal definition of fraud and the offence is proven beyond reasonable doubt. These principles play a crucial role in protecting citizens' rights and ensuring that criminal justice is applied fairly and transparently. By requiring that crimes and penalties be clearly defined by law, these rules strengthen public confidence in the criminal justice system, while ensuring that judicial authority is not exercised in an abusive or arbitrary manner.

The consequences of the principle of legality, as expressed by the maxims "nullum crimen sine lege", "nulla poena sine lege", and "nulla poena sine crimine", also extend to the rules of criminal procedure, underlining the crucial importance of legality in the administration of justice. According to this principle, not only must offences and penalties be defined by law, but the rules of procedure themselves must also be rooted in legislation and comply with fundamental rights. This requirement ensures that the entire judicial process, from investigation to judgment and execution of sentence, is governed by clear and precise rules established by law. This includes aspects such as the rights of the accused during the investigation and trial, how evidence is gathered and presented, interrogation procedures, and the conditions under which a trial may be conducted or postponed. The importance of having laws to underpin criminal proceedings is crucial for a number of reasons. Firstly, it ensures that the rights of the individuals involved in the judicial process, particularly those of the accused, are respected. For example, laws often define the right to legal assistance, the right to a fair trial, and the right to be tried within a reasonable time. Secondly, by requiring that procedures be established by law, this prevents arbitrariness and abuse of power in the judicial system. Judges and prosecutors are obliged to follow predefined rules, which limits the risk of subjective or unfair decisions. Finally, adherence to procedural rules based on the law strengthens the legitimacy and transparency of the judicial system. Citizens thus have a guarantee that legal proceedings are conducted fairly and in accordance with democratic principles.

The principle of legality, rooted in the foundations of the Constitution, plays an essential role in the structure and functioning of the legal and democratic order. This principle is based on a number of key concepts which together ensure fair and transparent governance. At the heart of this principle is the supremacy of the law, which stipulates that all actions, whether undertaken by individuals, companies or agents of the State, must comply with established laws. This supremacy ensures that the State's authority is exercised within the limits defined by the legislative framework, thereby protecting citizens from arbitrariness. For example, if a government wishes to introduce new environmental regulations, these must be established in accordance with existing laws and cannot be imposed unilaterally without legal basis. At the same time, the legal basis requirement dictates that all state action must be founded in law. This means that government decisions, whether they concern public policy or individual interventions, must have a basis in pre-existing laws. This requirement for a legal basis is essential to maintain the accountability and transparency of public administration. For example, if a municipality decides to increase local taxes, this decision must be supported by legislation that authorises such an increase. Finally, the application of procedural rules based on the principle of good faith is an additional guarantee of justice and fairness. This requires the parties involved in judicial or administrative proceedings to act with integrity and honesty. This principle prevents the abuse of procedures for unfair gain or to obstruct the course of justice. In a trial, for example, this means that lawyers on both sides must present their arguments and evidence honestly, without seeking to mislead the court or manipulate the proceedings to their advantage. Together, these aspects of the principle of legality create an environment where the authority of the state is exercised responsibly, with a deep respect for the rights and freedoms of citizens. They strengthen the rule of law and public confidence in institutions, ensuring that laws are applied fairly, uniformly and transparently.

The observation that procedure must not become an end in itself is crucial in the context of the judicial system. When procedure takes over to the point of supplanting justice itself, the legal system risks losing sight of its primary objective: to ensure fair and impartial justice. The danger of an overemphasis on procedure is that it can lead to situations where form takes precedence over substance, i.e. strict adherence to formalities and procedural rules can overshadow the quest for truth and justice. In such a scenario, minor procedural details could invalidate crucial evidence or impede the fair conduct of the trial, leading to miscarriages of justice or unjustified delays in resolving cases. To prevent procedure from supplanting justice, it is essential that the agents responsible for applying it, such as judges, prosecutors and lawyers, adhere firmly to the principle of good faith. This means that they must use procedural rules as tools to facilitate the discovery of the truth and the administration of justice, rather than as means to gain technical advantages or to obstruct the judicial process. Judicial officers must therefore ensure that procedures serve the interests of justice and are applied in a way that protects the rights of the parties involved, while striving to achieve a fair and timely resolution of cases. This includes ensuring that procedures are not abused or overused in ways that undermine the fairness of the trial or unduly delay justice.

The principle of good faith

The principle of good faith, particularly in Swiss law, is an essential concept that guides interactions and behaviour within the legal framework. This principle applies both to the State and to private individuals and is enshrined in the Swiss Constitution (see art. 5 para. 3 of the Constitution) and in the Swiss Civil Code (CC) (see art. 2 para. 1 CC).

Good faith in the objective sense, as stipulated by law, imposes a duty to behave honestly and fairly in all legal relationships. This means that in transactions, negotiations, the performance of contracts, legal proceedings and all other legal interactions, the parties are required to observe standards of honesty, loyalty and transparency. For example, in the context of a contract, parties should not only strive to respect the letter of the agreement, but also the spirit of cooperation and fairness that underlies the agreement. In contrast, good faith in the subjective sense, referred to in art. 3 CC, concerns a person's state of knowledge or ignorance of a legal defect affecting a specific state of affairs. This refers to the situation where a person acts without being aware that he or she is violating a right or committing a legally reprehensible act. For example, a person may purchase property in the belief that it is legally available for sale, without knowing that it is in fact stolen or encumbered by a right of ownership held by a third party.

The distinction between objective and subjective good faith is important in legal practice, as it influences the assessment of the parties' behaviour and intentions in various legal contexts. While objective good faith focuses on compliance with standards of behaviour in legal interactions, subjective good faith deals with a person's state of knowledge or ignorance in relation to a given legal situation. Together, these two aspects of good faith contribute to fairness and justice in the legal framework, fostering transparent and equitable interactions between the parties.

Constitution fédérale de la Confédération suisse du 18 avril 1999 — article 5

Article 5 of the Swiss Constitution establishes fundamental principles that guide the activity of the State, ensuring that it is conducted in accordance with the law, the public interest and high ethical standards. These principles reflect the values of Swiss democracy and the rule of law, and they play a crucial role in maintaining fair and accountable governance. The first principle emphasises that the law is both the basis and the limit of state activity. This means that all actions taken by the state must be based on existing laws and cannot exceed the limits set by those laws. For example, if the Swiss government wishes to introduce a new tax policy, that policy must be based on existing or new legislation, and it cannot violate other existing laws. The second principle addresses the notion that state actions must serve the public interest and be proportionate to the intended purpose. This means that measures taken by the authorities must be justified by a common good and must not be excessive in relation to their objectives. For example, when implementing public security measures, the State must ensure that these measures are no more restrictive than necessary to achieve the security objective. The third principle of Article 5 concerns good faith, requiring State bodies and individuals to act honestly, fairly and transparently in their legal relations. This principle is essential for maintaining confidence in public institutions and ensuring fair interactions between the State and citizens. In the context of public administration, this means that civil servants must make decisions and act transparently and ethically, without favouritism or corruption. Finally, respect for international law is a crucial commitment for Switzerland, reflecting its adherence to international norms and agreements. The Confederation and the cantons are obliged to respect international treaties and the principles of international law, which strengthens Switzerland's position and credibility on the world stage. For example, in its foreign policy, Switzerland must respect international conventions on human rights and the rules of international trade. Article 5 of the Swiss Constitution provides a clear framework for state action, rooted in the principles of legality, public interest, good faith and respect for international law. These principles ensure that the State acts responsibly and ethically, protecting the rights and freedoms of its citizens and honouring its international commitments.

Code civil suisse — article 2

Article 2 of the Swiss Civil Code is a fundamental piece of legislation that defines the way in which rights and obligations must be exercised and enforced within the Swiss legal framework. According to this article, rights must be exercised and obligations fulfilled in accordance with the principles of good faith, which implies honest, fair and equitable behaviour on the part of all individuals. This principle of good faith plays a crucial role in maintaining a fair and equitable legal system. For example, when a person enters into a contract, he or she is obliged not only to respect the literal terms of the agreement, but also to behave in a way that is consistent with the spirit of fairness and mutual cooperation. This means that a party must not intentionally conceal important information or mislead the other party. In addition, Article 2 also states that manifest abuse of a right is not protected by law. This provision serves to prevent situations where legal rights could be exercised in an abusive or unfair manner. The intention of this clause is to prevent individuals from using their rights in a way that contravenes the original intention of the law or causes unjustified harm to others. For example, in the case of a property owner using his or her property rights to deliberately harm neighbours without valid justification, this could be considered an abuse of rights and therefore not protected by law. Article 2 of the Swiss Civil Code emphasises the importance of exercising rights and fulfilling obligations responsibly and fairly, adhering to the principles of good faith. It aims to encourage fair and reasonable use of legal rights, and to prevent abuses that might occur in legal relationships. This framework contributes significantly to the creation of a society where the law is used not only as an instrument to protect rights, but also as a means to promote justice and fairness.

Code civil suisse — article 3

Article 3 of the Swiss Civil Code deals in depth with the concept of good faith, an essential element in legal relationships. According to this article, good faith is not only a presumed principle in legal interactions, but its scope is also limited in certain circumstances to prevent abuse. The first aspect of this article states that in legal situations where the law bases the creation or effects of a right on good faith, good faith is automatically presumed. This means that in everyday transactions, contracts and other legal relationships, individuals are presumed to act with honesty and integrity, unless proven otherwise. For example, when a person signs a contract, it is presumed that he or she understands and accepts the terms of the contract in good faith. This presumption simplifies transactions by establishing a basis of mutual trust, which is essential for the smooth functioning of legal and commercial relationships. However, good faith cannot be invoked to justify ignorance or non-compliance with obligations that should be obvious in a given context. The second aspect of Article 3 makes it clear that good faith is no excuse for ignoring standards of behaviour that circumstances make reasonable. If, for example, a person buys an object at a derisory price that suggests that the object might be stolen or acquired illicitly, that person cannot claim good faith for ignoring legitimate suspicions about the origin of the object. In short, Article 3 of the Swiss Civil Code balances the presumption of good faith with the need for responsibility and due diligence. This legal framework ensures that good faith remains a vital principle in facilitating honest and fair dealings, while preventing its misuse to circumvent obvious legal or moral obligations. This approach helps to maintain trust and integrity in the legal system, while protecting parties from negligent or dishonest behaviour.

Legislation, particularly in the area of criminal law, must strike a delicate balance between the interests of individuals and those of society. This balance is essential to ensure that laws and judicial procedures are fair, equitable and effective. On the one hand, procedural provisions must not be excessively harsh on defendants. Procedures that are too rigid or punitive may infringe the fundamental rights of the accused, in particular the right to a fair trial and an adequate defence. For example, if the rules of procedure are so strict that they prevent a lawyer from effectively presenting a defence or challenging the evidence, this could lead to injustice. On the other hand, procedures should not be so excessively formalistic as to undermine the efficiency and speed of the judicial system. Procedures that are too complicated or cluttered with formalities can delay justice and make the judicial process unnecessarily difficult and time-consuming for all concerned. A crucial aspect of this balance is to ensure that the defence can express itself freely. Criminal procedure must provide a framework in which the rights of the accused to defend themselves are fully respected and protected. This means giving the accused and their lawyer the opportunity to challenge evidence, present witnesses and participate fully in the trial. However, this must not compromise the State's ability to carry out its task of maintaining law and order and punishing crime. The aim is to achieve a balance where criminal justice is delivered effectively, while protecting individual rights and freedoms. Criminal laws and procedures must harmonise the interests of individuals with the imperatives of society. This balance is essential to maintain a criminal justice system that is fair, effective and respectful of the fundamental rights of the individual. Well-designed legislation and fair court procedures are crucial to ensuring public confidence in the legal system and to promoting an orderly and just society.

Criminal procedure, a crucial aspect of the justice system, is guided by fundamental principles that impose essential duties on criminal authorities. These principles ensure that the judicial process is conducted fairly and equitably, while respecting the fundamental rights of individuals. One of these fundamental principles is the principle of legality, which requires that all the actions of the criminal authorities be based on clearly established laws. For example, criminal investigations must be conducted in accordance with defined legal procedures, and the sentences handed down must be those laid down by law for the offences concerned. Another pillar is the right to a fair trial, which guarantees that anyone accused of a crime has the benefit of an adequate defence, the right to be heard and the right to an impartial judgement. This principle is fundamental to preventing miscarriages of justice and ensuring fairness. Accused persons must therefore have access to a lawyer and be informed of their rights from the outset of criminal proceedings. The presumption of innocence is also a central principle of criminal law. Anyone accused of a crime is considered innocent until proven guilty. This means that the burden of proof lies with the prosecution, not the accused. The criminal authorities must therefore treat the accused fairly and impartially during the investigation and trial. Protection against inhuman or degrading treatment is another essential requirement. Defendants must not be subjected to torture or cruel, inhuman or degrading treatment at any time during their detention or trial. This principle is crucial to maintaining human dignity and the integrity of the judicial system. Respect for privacy is also important. Criminal authorities must ensure that the privacy rights of individuals are respected during investigations, except where justified and proportionate. The principle of proportionality is also vital. The measures taken, whether in terms of detention, questioning or sentencing, must be proportionate to the objective sought and the seriousness of the offence. For example, the use of preventive detention must be justified and proportionate to the nature of the alleged offence. Finally, the right of appeal is an essential aspect, allowing defendants to challenge decisions taken at first instance. This possibility of appeal is an additional guarantee against miscarriages of justice and allows decisions to be reviewed by higher authorities. Together, these principles contribute to the creation of a fair and balanced criminal justice system, in which the rights of individuals are protected while the law is effectively enforced. They strengthen public confidence in the integrity of the justice system and respect for the rule of law.

The fundamental principles governing criminal procedure have their origins not only in national legislation, such as the Swiss Federal Constitution, but also in international treaties. These multiple sources ensure overall consistency and conformity of judicial practices with international human rights standards. The Swiss Federal Constitution provides a frame of reference for fundamental rights and freedoms, as well as for the principles of justice. It sets out clear guidelines on how legal proceedings should be conducted, emphasising aspects such as the right to a fair trial, the presumption of innocence and protection against inhuman or degrading treatment. These principles are essential to ensure that the actions of the state remain within the law and respect the rights of individuals. At the same time, international treaties play a crucial role in setting standards for human rights and judicial procedures. The European Convention on Human Rights, for example, is a major instrument that influences the legal systems of its member states, including Switzerland. It stipulates rights such as the right to life, the prohibition of torture, the right to a fair trial, and the right to respect for private and family life. Similarly, UN human rights covenants, such as the International Covenant on Civil and Political Rights, set international standards for a range of fundamental rights, including those relating to criminal proceedings. These documents set out commitments for signatory states to respect and protect human rights and to ensure that their judicial systems comply with these commitments. The combination of these national and international sources ensures that the principles of criminal procedure are not only anchored in national law, but are also aligned with international standards. This contributes to the protection of individual rights and the integrity of the judicial system, while promoting respect for and adherence to international standards of justice and human rights.

The stages of criminal proceedings

1 January 2011 marked a significant change in the Swiss legal system with the entry into force of new procedural codes, in particular the Swiss Code of Criminal Procedure (SCCP). This reform represented an important step in the unification and modernisation of judicial procedures in Switzerland. Prior to this reform, Switzerland had a highly decentralised judicial system, with each canton having its own code of criminal procedure. This diversity of systems led to a degree of inconsistency and complexity, making legal proceedings potentially complicated and uneven across the cantons.

The introduction of the Swiss Code of Criminal Procedure unified procedural practices across the country, creating a more coherent and efficient system. The Code established uniform rules and standards for the conduct of criminal investigations, prosecutions and trials throughout Switzerland. It also introduced improvements in terms of the rights of the defence, appeal procedures and evidence management. The adoption of this federal code has strengthened the rule of law in Switzerland, by ensuring that all citizens are subject to the same judicial procedures, regardless of the canton in which they live or where the offence was committed. This standardisation has also made it easier for legal professionals, litigants and citizens to understand and apply the law.

The amendment of the Swiss Constitution in March 2000, approved by the people and the cantons, marked a crucial stage in the transfer of criminal jurisdiction from the cantonal to the federal level. This constitutional revision reflected a democratic desire to centralise and standardise the criminal justice system in Switzerland. This constitutional change was a response to the need to harmonise judicial procedures across the country. Prior to this change, Switzerland had a highly decentralised judicial system, with codes of criminal procedure varying considerably from one canton to another. This diversity led to inconsistencies and complications, sometimes making the judicial system difficult to navigate for both legal professionals and litigants.

The adoption of the constitutional amendment by the people and the cantons therefore laid the legal foundations for the Confederation to take over responsibility for criminal procedure. As a result, the federal government exercised this new power by drafting and implementing the Swiss Code of Criminal Procedure, as well as a Code of Civil Procedure. The effect of this initiative was to unify and standardise legal procedures throughout the country, enhancing the fairness, consistency and efficiency of the justice system. This reform therefore represented a major step forward in Swiss judicial history, illustrating a democratic approach to judicial reform and a commitment to improving and modernising the criminal justice system. The centralisation of criminal jurisdiction at federal level has helped to ensure a more uniform application of the law across Switzerland, to the benefit of Swiss society as a whole.

In civil proceedings, which deal with non-criminal disputes such as commercial disputes, family matters or property issues, the judicial process generally takes place in two distinct phases, each with specific objectives and characteristics. The first phase, known as the preliminary phase, is devoted to preparing and organising the dispute. During this period, the parties involved, often assisted by their lawyers, engage in the collection and exchange of evidence, the clarification of claims and defences, and the preparation of arguments for the trial. For example, in a dispute concerning a breach of contract, this phase may include exchanging contractual documents, gathering witness testimony, or consulting experts to assess damages. This stage is also an opportunity to explore out-of-court settlement options, which may enable the dispute to be resolved without going to full trial. If the dispute is not resolved during this preliminary phase, the case moves on to the decisive phase. This second phase is marked by hearings before the court, where evidence is presented and the arguments of both parties are heard. The judge, or sometimes a jury, examines the evidence, applies the relevant laws and renders a decision on the dispute. In our breach of contract example, this phase would involve pleadings before the court where each party would present their arguments and evidence, and the judge would then make a ruling on whether there has been a breach and what remedies may be available. By combining these two phases, civil procedure aims to ensure that disputes are managed fairly and efficiently. The preliminary phase allows for thorough preparation and the possibility of resolving disputes in a less formal manner, while the decisive phase provides a platform for impartial and detailed judicial assessment. This structure ensures that civil disputes are handled in a balanced way, taking into account both the need for careful preparation and the importance of a fair and transparent judicial resolution.

PHASE 1: Preliminary

The preliminary phase of criminal proceedings, an essential stage in the judicial process, consists of two main parts: the investigation, often carried out by the police, and the inquiry, usually conducted by an examining magistrate or judge.

The investigation, which is the first stage of this phase, involves a thorough enquiry to gather evidence and information about the alleged crime. During this period, the police are actively involved in gathering evidence, interviewing witnesses and examining all available data that may shed light on the circumstances of the crime. For example, in the case of a burglary, the police might collect fingerprints from the scene, interview neighbours or potential witnesses, and examine surveillance videos to identify suspects. Once this first stage of investigation is complete, the case moves on to the investigation stage. This second phase is crucial for building the prosecution's case and deciding whether the case should go to trial. The investigating judge, who is responsible for this phase, carries out a meticulous examination of the evidence gathered, may order additional analyses, summon and question witnesses or suspects, and assess the relevance and solidity of the evidence. The aim is to determine whether the evidence gathered supports the charges sufficiently to justify a trial. The investigation plays a decisive role in ensuring that the rights of the defence are respected and that the case against the accused is fair and complete. These two stages of the preliminary phase of criminal proceedings are therefore fundamental to the proper administration of justice. They ensure that criminal cases are dealt with rigorously and fairly, laying a solid foundation for subsequent prosecutions and judgements. This methodical approach is essential to ensure that judicial decisions are taken on the basis of solid evidence and with respect for the fundamental rights of the individuals involved.

In the Swiss justice system, the cantonal public prosecutor's office plays a crucial role in the conduct of criminal investigations. This institution is responsible for directing investigations, conducting inquiries and drafting the indictment to be presented in court. As the prosecuting authority, the public prosecutor is responsible for investigating criminal offences. This involves supervising the activities of the police and other investigative agencies, gathering the necessary evidence, and determining whether there is sufficient evidence to justify prosecuting a case. In this phase, the public prosecutor ensures that the investigation is conducted rigorously and in accordance with legal standards, while respecting the rights of those involved.

Once the investigation is complete, the public prosecutor moves on to the investigation phase. During this phase, it assesses all the evidence gathered, interviews witnesses and suspects, and decides whether the evidence is sufficient to justify an indictment. If the prosecution considers that the evidence is sufficient, it then draws up the indictment, which formalises the charges against the individual or individuals concerned, and submits it to the court for trial. The centralisation of these functions - indictment, investigation and prosecution - within the Public Prosecutor's Office makes criminal prosecution highly efficient. It allows for coordination and consistency in the management of criminal cases, while ensuring that prosecutions are conducted objectively and fairly. The Public Prosecutor's Office thus plays an essential role in maintaining public order and ensuring justice, by ensuring that offences are properly investigated and that those responsible are held accountable for their actions in accordance with legal principles and human rights.

The Public Prosecutor's Office, in the context of the judicial system, plays a fundamental role as the body representing the law and the interests of the State before the courts. It is made up of magistrates whose main task is to ensure that the law is applied and that criminal offences are prosecuted. Members of the public prosecutor's office, often referred to as public prosecutors or public defenders, are responsible for defending the public interest by investigating criminal offences and deciding whether the evidence gathered warrants prosecution. Their role is not limited to seeking the conviction of suspects; they must also ensure that justice is done fairly and in accordance with the principles of law. During trials, public prosecutors present evidence and arguments to the court in support of the prosecution. They are obliged to present the facts objectively, taking into account not only the evidence against the prosecution but also the evidence against the defendant. In addition, they must ensure that the rights of the accused are respected throughout the judicial process. The public prosecutor also plays a crucial role in supervising police investigations. It ensures that investigations are conducted legally and ethically, and that evidence is collected in a way that is admissible in court. The public prosecutor is an essential pillar of the criminal justice system. Its work is designed to ensure that the law is applied fairly and equitably, that offences are prosecuted effectively and that the public interest is safeguarded while respecting fundamental rights and freedoms.

The investigation is a critical phase of the criminal trial, in which the investigating magistrate plays a central role. During this stage, the magistrate carries out a series of in-depth investigations to clarify various aspects of the criminal case in progress. The main aim of the investigation is to identify the perpetrator of the offence. The investigating magistrate conducts enquiries to gather evidence, question witnesses and, if necessary, call in experts. The aim of this investigation is to determine not only who committed the act, but also how and why. As well as identifying the perpetrator, the investigation aims to gain an in-depth understanding of the personality of the accused. This can include examining their background, motivations and any factors that may have influenced their behaviour. This understanding can be crucial in determining the nature of the sentence or the measures to be taken.

The investigating magistrate also looks at the circumstances surrounding the offence. This involves determining the context in which the act was committed, including the events leading up to the offence and the conditions that may have contributed to it. Finally, the aim of the investigation is to establish the consequences of the offence. The magistrate assesses the impact of the act on the victims, society and even on the accused himself. This assessment is important in deciding what to do next, in particular whether the case should go to trial and what charges should be brought. The decision as to what action should be taken against the accused is taken at the end of this investigation phase. After carefully examining all the evidence and information, the magistrate decides whether the case should go to trial and, if so, what charges should be brought against the accused. The investigation is therefore a decisive phase of the criminal trial, as it establishes the basis on which criminal justice will be dispensed. It requires a balance between a meticulous search for the truth and respect for the rights of the accused, thus guaranteeing a fair and equitable trial.

When a denunciation is received, the competent authorities, usually the police, begin an investigation to determine the veracity of the allegations and gather initial evidence. This investigation is the first step in responding to a possible criminal offence and plays a crucial role in deciding whether or not to initiate legal proceedings. After receiving a tip, investigators begin by gathering information, which may include interviewing witnesses, examining physical evidence and sometimes analysing technical or digital data. The aim is to gather enough evidence to establish whether a criminal act has probably been committed. Once this initial investigation phase has been completed, the case is generally referred to the public prosecutor. At this stage, the public prosecutor, who is responsible for conducting criminal proceedings, assesses the evidence gathered to decide whether to open a formal investigation. This decision is based on whether there is sufficient suspicion that an offence has been committed. If the evidence gathered during the investigation is sufficiently convincing to suggest that a criminal offence has been committed, the public prosecutor will open an investigation. The opening of an investigation means that the case is sufficiently serious and well-founded to warrant an in-depth enquiry. During this phase, the public prosecutor can carry out further investigations, question suspects, order additional expert reports and gather all the evidence necessary to establish the extent and nature of the alleged offence. This procedure shows how the judicial system balances the need to investigate potential offences with the need to ensure that such investigations are justified. It ensures that judicial resources are used appropriately and that the rights of those involved, including suspects, are respected throughout the process.

The opening of an investigation is a decisive stage in the criminal justice process. This phase begins when the public prosecutor, after examining the evidence gathered during the initial investigation, decides that there is sufficient evidence to charge the accused. The decision to prosecute and charge an individual is taken when the prosecution is satisfied that there is credible evidence that an offence has been committed and that the accused is probably responsible. This stage marks the transition from a preliminary enquiry to a formal investigation, where the public prosecutor focuses on preparing the case for a possible trial. When the investigation begins, the public prosecutor carries out a series of actions to consolidate the case against the defendant. This may include gathering additional evidence, questioning witnesses, carrying out forensic examinations and further examining the evidence already in its possession. The accused is also informed of his status and the charges against him. They have the right to know the nature of the charges and to prepare their defence, often with the assistance of a lawyer. This phase is crucial, as it must be conducted in accordance with the principles of fair justice and the rights of the defence. The public prosecutor, as the prosecuting authority, must ensure that the investigation is exhaustive and impartial, making sure that all the evidence, both incriminating and exculpatory, is taken into account. In short, the opening of the investigation by the public prosecutor is a key moment in the criminal process, marking the start of a formal investigation and the preparation of a solid case for a possible trial, while guaranteeing respect for the rights of the accused and the requirements of a fair trial.

PHASE 2: Decisive

The transmission of the indictment by the public prosecutor to the court marks the start of the decisive phase of the criminal judicial process. This phase is crucial, as it leads to the judicial examination of the case and, eventually, to a judgement. When the indictment is presented, the role of the public prosecutor changes. During the investigation phase, it conducted the investigation and prepared the prosecution case, but now it becomes the public prosecutor in court. As such, the public prosecutor is responsible for presenting the case against the accused, setting out the evidence and arguments in support of the charges. Although the public prosecutor is an essential part of the proceedings, it is important to note that he or she must present the case objectively, ensuring that all relevant evidence, including that which could exonerate the defendant, is taken into account.

In this decisive phase, the presiding judge plays a central role. He or she is responsible for directing the proceedings, ensuring that the trial is conducted in an orderly and fair manner and in accordance with the principles of justice. The presiding judge must ensure that the rights of all parties, including those of the defendant, are respected. He supervises the presentation of evidence, witness statements and the arguments of both parties, and ensures that the trial is conducted in accordance with the rules of procedure and legal rights. The role of the presiding judge is therefore essential in guaranteeing the impartiality and effectiveness of the trial. He or she must ensure that the trial takes place in a fair environment, where the facts can be clearly established and a decision can be made on the basis of the evidence and the applicable laws. The decisive phase is a key moment in the judicial process, when the charges against the defendant are formally examined and the court, under the leadership of its president, plays a crucial role in determining guilt or innocence.

The first stage of the criminal judicial process, which consists of the examination of the charge, is fundamental in determining what happens next. This stage is marked by specific actions and follows a rigorous process to ensure justice and fairness. First of all, the public prosecutor transmits the indictment to the court. This indictment is the result of the investigation carried out by the public prosecutor and contains details of the charges brought against the accused, as well as the supporting evidence. Transmission of the indictment marks the transition from the investigation phase to the trial phase. Once the indictment has been received, the court, often under the direction of the judge or presiding judge, carries out a thorough check to ensure that the charge has been properly drawn up. This check includes examining whether the indictment complies with legal procedures and assessing the quality of the evidence presented. The court then assesses whether the conduct described in the indictment is punishable by law and whether there is sufficient suspicion to support the charge. If these conditions are met, the judge then initiates the trial. This decision is crucial as it determines whether the case progresses to a full trial. The presiding judge plays a key role in preparing for the trial. He is responsible for preparing the proceedings, making the files available to the parties involved, setting the trial date and summoning the individuals involved in the case, including witnesses, experts and parties to the proceedings. This first stage of the criminal justice process reflects the inquisitorial approach in which the court plays an active role in examining the evidence and determining the relevance of the charge. It ensures that charges against an accused person are subject to thorough judicial scrutiny before the case progresses to a full trial, thereby ensuring the fairness and legality of the judicial process.

The second stage of the criminal justice process, the hearing in court, marks the transition to an adversarial procedure. This phase is characterised by its public and oral nature, and highlights the crucial role of the judge, not only as the central actor in this phase, but also as the impartial arbiter of the trial. During this phase, the proceedings take on a more interactive and open form. Hearings are held in public, which guarantees the transparency of the judicial process and enables the evidence and arguments presented by both parties to be examined in public. The oral nature of the proceedings is a key element, as it allows the evidence, testimony and arguments of both the prosecution and the defence to be presented directly and vividly. This enables the judge, and possibly the jury, to better assess the credibility and relevance of the information presented. The judge's role in this phase is both active and arbitral. Although he directs the proceedings, asking questions and clarifying points of law where necessary, he must also maintain a position of impartiality, ensuring that the trial is conducted fairly and equitably for all parties. The judge ensures that the proceedings are balanced, making sure that both the prosecution and the defence have equal opportunities to present their cases, question witnesses and respond to each other's evidence and arguments. This phase of the court proceedings is therefore essential to ensure that the rights of the accused are respected and that the truth can be established fairly. It allows for a thorough and transparent assessment of the facts of the case, ensuring that the final decision is based on a full and balanced consideration of all the relevant evidence and information.

In a criminal trial, the proceedings before the court are conducted according to a rigorously structured procedure, ensuring a full and fair assessment of the case. The procedure begins with the presentation of the indictment by the public prosecutor. This sets out the charges against the defendant and summarises the evidence in support of those charges, laying the foundations for further discussion and analysis. After this introduction, the court embarks on the evidentiary phase, where various pieces of evidence are examined in detail. This stage is essential to establish the facts of the case. Testimony plays an important role in this phase. The court hears from witnesses, experts and the defendant himself. Each witness gives a unique perspective on events and helps to build a complete picture of the case. For example, in a robbery case, witnesses may provide details of the circumstances of the crime or the behaviour of the defendant, while experts may provide technical insights, such as the analysis of fingerprints or video recordings. In addition to testimony, the court also examines material and documentary evidence. This can include anything from contractual documents to photographs or audiovisual recordings, depending on the nature of the case. Once all the evidence has been presented and examined, the pleadings begin. The prosecution, followed by the plaintiff, presents its arguments, interpreting the facts and evidence in the case file. These pleadings are crucial, as they give each side the opportunity to defend its perspective and respond to the points raised by the other side. If necessary, a second round of pleadings may be organised to allow the initial arguments to be rebutted. At the conclusion of the proceedings, the defendant has the right to speak last. This principle ensures that the defendant has a final opportunity to express himself, clarify points or present his final arguments. This stage is fundamental to respect for the right to a defence and the guarantee of a fair trial. The structure of these debates is carefully designed to ensure that all aspects of the case are addressed and that each party has a fair chance to present its case. It reflects the judicial system's commitment to impartial justice, where decisions are made on the basis of a full and balanced analysis of the facts and evidence.

The third and final stage in the criminal justice process is the judgment. After the conclusion of the debates and pleadings, the court retires to deliberate on the verdict. This is a crucial stage, as it is here that the final decision on the guilt or innocence of the defendant is taken. The trial takes place in camera, which means that the deliberations are private and away from the public and the media. This confidentiality allows the judges to freely discuss and debate the case without outside influence, basing their decision solely on the evidence and arguments presented during the trial. During deliberations, the judges examine and weigh up all the evidence that has been presented, taking into account the testimony of witnesses, material evidence, expert reports and the arguments of both the prosecution and the defence. They discuss the relevant legal aspects and assess whether the charges against the defendant have been proven beyond reasonable doubt. The deliberative process aims to reach a consensus or, in some systems, a majority decision on the guilt or innocence of the defendant. Once the judges have reached their decision, they write a judgement that sets out the reasons for their verdict, including how they have interpreted the evidence and applied the law. The judgement is then announced in open court. The court explains the reasons for its decision and, if appropriate, pronounces the sentence. This stage marks the conclusion of the criminal trial, although in many legal systems it is possible to appeal against the judgment if one of the parties believes that the trial was not fair or that the laws were not correctly applied.

In a criminal trial, the court's deliberation phase is a crucial stage that takes place in several parts. This phase begins with an oral discussion in which the judges debate the key aspects of the case, and then continues with the written judgment that formalises their decision. The deliberation process revolves around several fundamental questions. The first is whether the defendant is guilty of the charges against him or her. According to the legal principle "in dubio pro reo", which means that doubt favours the accused, the court must decide in favour of the accused if there is reasonable doubt. This means, for example, that if the evidence presented against a person accused of theft is not sufficiently convincing to eliminate all reasonable doubt, the court must acquit. If the accused is found guilty, the court must then determine the appropriate sentence. This decision is made taking into account the legal limits and the specific circumstances of the case. For example, in the case of a conviction for assault, the court will assess the seriousness of the act, as well as other factors such as the defendant's background and mitigating circumstances, to determine a proportionate sentence. In addition, if damages are claimed by the victim or injured party, the court must also rule on these claims. This part of the judgment concerns financial compensation for the harm suffered. So if a victim of fraud is seeking compensation for financial losses suffered, the court will examine the evidence of the damage and determine the amount of damages to be awarded. The deliberation phase is therefore a critical time when the court carefully assesses all aspects of the case in order to reach a fair and well-founded judgment. It illustrates the judicial system's commitment to applying the law fairly, taking into account both the rights of the accused and the interests of victims. This approach ensures that the court's decisions are taken after a full and balanced analysis, reflecting the fundamental principles of justice.

The juvenile justice system

The models governing juvenile justice

The way in which legal systems deal with offences committed by juveniles varies widely across the world, reflecting different philosophies and cultural approaches to juvenile justice. Three main models stand out in terms of their orientation and implementation.

In some countries, mainly Anglo-Saxon countries such as the United States, juvenile justice is based on a punitive model. This approach favours punishment for criminal acts committed by young people, in the spirit of criminal responsibility similar to that of adults. As a result, young offenders in these countries can face severe penalties, including imprisonment, in the belief that these sentences will act as a deterrent against future criminal behaviour. However, this model is often criticised for its harshness and its potential to stigmatise young people in the long term. In contrast, countries such as Brazil, Portugal and Spain take a more protective approach. In these systems, priority is given to the protection, education and rehabilitation of young offenders. This perspective considers that delinquent behaviour among young people is often the result of social and environmental factors such as poverty, neglect or lack of education. The measures adopted therefore tend to offer support and resources to help young people reintegrate positively into society. Between these two extremes lies the intermediate model, such as the one practised in Switzerland. This system seeks a balance between punitive and protective elements. It recognises young people's responsibility for their actions, while taking into account their age and capacity for development. Sanctions may be imposed, but they are generally accompanied by educational and rehabilitative measures aimed at addressing the root causes of delinquency and helping young people to reintegrate into society. These different models illustrate the many ways in which societies can approach the sensitive issue of juvenile justice. Each model reflects a unique combination of cultural values, legal philosophies and social considerations, demonstrating how justice can be adapted to meet the specific needs of young people in conflict with the law.

The punitive model of juvenile justice, as observed in some countries, is characterised by an approach that makes little distinction between young offenders and adults. Repression and punishment take precedence, often to the detriment of rehabilitation and protection. In systems where this punitive model prevails, juveniles convicted of offences are likely to receive severe sanctions, similar to those imposed on adults. These sanctions may include long terms of detention in closed institutions, where living conditions and disciplinary regimes are strict. The emphasis is on punishing offending behaviour, with the idea of protecting society by discouraging recidivism and sending a message of deterrence to other potentially delinquent young people. In such a system, the role of the judge is more focused on enforcing the law and determining the appropriate sentence, rather than taking into account the specific developmental and protective needs of the juvenile. The approach is less focused on understanding the underlying factors that may have contributed to the young person's offending behaviour and how to address them to promote positive change. One of the major drawbacks of this punitive model is its high re-offending rate. Studies show that young people subjected to harsh sanctions and rigid prison environments are more likely to re-offend. A recidivism rate of 80% in such systems is not uncommon, raising questions about the long-term effectiveness of this approach. High recidivism suggests that punishment alone, without rehabilitation and support, may not be enough to prevent future offending behaviour and may even contribute to a cycle of criminality.

The protective model of juvenile justice, adopted in some countries, takes a fundamentally different approach to the punitive model. Instead of focusing primarily on punishment, this model aims to understand and address the underlying causes of the juvenile's offending behaviour. In this system, the role of the judge is crucial and goes far beyond simply determining guilt or punishment. The judge endeavours to understand the reasons that led the young person to commit the offence. This may involve examining the juvenile's family background, social context, education and mental or emotional health problems. The underlying idea is that many young offenders act in response to adverse circumstances or personal challenges, and that they need appropriate support to overcome these obstacles. In this model, the juvenile offender is often seen more as a victim of his or her circumstances than as a criminal in his or her own right. As a result, the emphasis is on the need to care for and support the young person, rather than to punish him or her severely. The judge has a wide margin of discretion in determining the best way to achieve this objective, choosing from a range of measures such as therapy, educational training, mentoring or social intervention. However, a criticism frequently levelled at this model is that it can sometimes neglect the interests and needs of the victim of the offence. By focusing primarily on rehabilitating the juvenile offender, the system may not pay sufficient attention to repairing the harm caused to the victim, which can lead to a sense of injustice or neglect for those affected by the offence. The protective model, despite its criticisms, is based on the laudable intention of reintegrating juvenile offenders into society in a constructive and caring way. It recognises that young people have the potential to change and become productive members of society if they receive appropriate guidance and support. This approach emphasises the importance of addressing the root causes of juvenile offending to prevent re-offending and promote positive development.

The intermediate model of juvenile justice, as practised in Switzerland and other jurisdictions, seeks to strike a balance between the need to protect society and the need to rehabilitate and reintegrate the young offender. This model is a synthesis of punitive and protective approaches, aimed at providing a nuanced response to juvenile delinquency. In this system, the protection of society remains an important concern, but the emphasis is also placed on the education and rehabilitation of juvenile delinquents. The underlying idea is that, while holding young people responsible for their actions, it is also essential to understand and address the causes of their delinquent behaviour. This involves recognising that young people have specific developmental needs and that they benefit from educational and support measures. The role of the judge in this model is to determine the most appropriate response to each individual case, depending on the nature of the offence and the needs of the young person. Instead of being limited to a single sanction, the judge has a wide range of measures at his or her disposal. These measures can include more traditional sanctions, such as short periods of detention, but also re-educational interventions, such as training programmes, therapy, community service or mentoring. The aim is to help the young person reintegrate into society in a constructive and sustainable way. The re-offending rate in systems that adopt an intermediate model tends to be lower than in purely punitive systems. Reoffending rates of 35% to 45% suggest that the balanced approach of the intermediate model may be more effective in preventing reoffending than strictly punitive approaches. This indicates that the combination of accountability, education and support may be a more successful strategy for dealing with juvenile delinquency.

The juvenile prosecutor model and the juvenile judge model

The juvenile prosecutor model, common in many of Switzerland's German-speaking cantons, represents a specific approach to dealing with juvenile delinquency. This model entrusts a magistrate, often called the juvenile prosecutor, with a central role in the management of cases involving young offenders. Under this system, the juvenile prosecutor is responsible for investigating offences committed by minors. He has the power to decide on less serious cases by means of a criminal order, in accordance with article 32 of the criminal procedure for minors. The ordonnance pénale is a rapid decision that allows the case to be closed without the need for a full trial, and is often used for minor offences where a simple and direct sanction is deemed appropriate. For more serious cases, the juvenile prosecutor draws up the indictment and forwards it to the juvenile court for a formal judgment. This stage involves the preparation of a complete file including the evidence gathered during the investigation and a detailed presentation of the charges against the minor. It is important to note that, although the juvenile prosecutor plays a crucial role in the preparation of the case, he does not himself sit in court during the trial. His role in court is limited to supporting the prosecution as the accusing party. This guarantees a separation of powers and fair treatment of the case, as the court is independent in its decision-making. In addition to his role in the investigation and judgment, the juvenile prosecutor also deals with post-judgment measures. This may include monitoring the sanctions imposed, implementing rehabilitation measures or supporting the minor in his or her reintegration. This model offers a comprehensive approach to juvenile delinquency, focusing on effective case management at all stages, from the initial investigation through to the trial and post-trial phase. By assigning responsibility for these different stages to a specialised magistrate, the model aims to ensure that young offenders receive appropriate and consistent care, taking into account their specific needs and promoting their reintegration into society.

The juvenile judge model, practised in Switzerland's Latin cantons, offers a distinct approach to dealing with cases of juvenile delinquency. Unlike the juvenile prosecutor model, where a separate magistrate is responsible for the investigation and preparation of the prosecution, the juvenile judge model entrusts a more centralised and personal role to the judge. In this system, the same judge is responsible for several crucial aspects of the judicial process. He conducts the investigation, which involves gathering evidence and assessing the facts of the offence. For minor cases, the judge has the power to dispose of the case by means of a criminal order, in accordance with Article 32 of the Criminal Procedure for Minors, thus enabling the case to be resolved quickly and efficiently without a formal trial.

A major difference from the juvenile prosecutor model is that in the juvenile judge model, the judge also sits in court and participates fully in the judgment. This continuity in the judge's role, from investigation to judgment, is seen as beneficial for the juvenile offender. Having followed the case from the outset, the judge has an in-depth understanding of the context and circumstances surrounding the juvenile's behaviour. This personal knowledge can help the judge to make more informed and nuanced decisions about punishment or rehabilitation measures. This model is often seen as beneficial to the juvenile offender, as it allows for a more individualised and holistic approach. The judge, having direct knowledge of the young person and his situation, can adapt the sanctions or rehabilitation measures to respond more specifically to the needs and problems of the juvenile. This approach can help to reintegrate the young person into society and reduce the risk of re-offending. The juvenile judge model in the Latin cantons focuses on personalised and consistent management of juvenile delinquency cases, with a judge playing a central and continuous role throughout the judicial process, from investigation to judgment. This approach aims to ensure that each young offender is dealt with in a way that is tailored to his or her specific needs.

The sentencing system and mediation

When it is established that a juvenile has committed an offence, the juvenile criminal court is responsible for making a decision that not only responds to the act committed, but also takes into account the welfare and future development of the young person. The court has a number of options, each reflecting a nuanced approach to juvenile justice. In some cases, the court may find that the juvenile's offending behaviour is a symptom of underlying problems that require intervention. In such situations, the court may opt for protective measures. These measures are designed to provide a stabilising and supportive framework, which may include placement in a specialised establishment or a rehabilitation programme. For example, a young person who repeatedly commits acts of theft because of behavioural problems could be placed in a therapeutic programme to address the root causes of his or her behaviour. If the court recognises that the offence has been committed but considers that formal punishment is not necessary, it may exempt the juvenile from punishment. This decision is often taken in cases where the impact of the act on the young person, his character or the consequences already suffered are deemed sufficient. For example, a young person who has committed a minor offence but who has shown significant awareness and remorse may be exempted from punishment. Finally, in cases where a criminal response is deemed necessary, the court may impose a sentence. However, in juvenile justice, the emphasis is on sentences that promote rehabilitation rather than punishment. Such sentences may include community service, a period of probation or, for more serious offences, placement in a juvenile institution. For example, a young person guilty of vandalism may be given community service, such as repairing the damage he or she has caused. In all these decisions, the court seeks to balance the need to hold juveniles accountable for their actions with the recognition that young people have unique capacities for change and development. The ultimate goal is to encourage young people to learn from their mistakes and become responsible members of society, while ensuring the safety and protection of the community.

Article 10 of the federal law governing the criminal status of minors in Switzerland sets out protective measures for young offenders. These measures, such as supervision and personal assistance, are designed to protect minors, whether or not they are convicted of an offence. The aim is to offer appropriate support that goes beyond the simple criminal sanction, recognising that minors in conflict with the law often need help and guidance to overcome the challenges they face. Supervision in various forms, such as monitoring by a social worker or probation officer, aims to ensure that the young person is complying with certain conditions and not committing further offences. This may involve regular visits, checks on compliance with set rules and ongoing support to help the young person stay on track. Personal assistance focuses on more individualised support and may include counselling or therapy to deal with personal or behavioural problems. It may also include educational support to help the young person fill gaps in their learning and improve their prospects for the future. These protective measures are fundamental to the approach to juvenile justice in Switzerland. They recognise that young people in conflict with the law often need more than just punitive correction. By providing a supportive and rehabilitative framework, these measures aim to help juveniles reintegrate into society in a positive and responsible manner, focusing on their well-being and future development.

Article 21 of the federal law governing the criminal status of minors in Switzerland takes a specific approach to the treatment of young offenders. Under this article, the court has the option of waiving a sentence against a minor if such a sentence would compromise the effectiveness of a protective measure already ordered. This legal provision reflects the priority given to the rehabilitation and well-being of minors in the Swiss criminal justice system. The underlying idea is that, in certain cases, imposing a formal sentence on a young offender could hinder his or her rehabilitation or social reintegration process. For example, if a juvenile is already involved in a successful treatment or education programme, imposing a custodial sentence could disrupt this progress and harm the juvenile's chances of reform. Article 21 therefore allows the court to make decisions that are in the best interests of the juvenile, taking into account the protective measures already in place and their effectiveness. This may include situations where the continuation or completion of a protective measure is deemed more beneficial to the juvenile and to society than the imposition of an additional sentence. This provision underlines the importance attached by the Swiss legal system to the rehabilitation of young offenders, recognising that punishment is not always the most appropriate response. By focusing on measures that support the positive development and reintegration of juveniles, the law aims to reduce re-offending and encourage young people to become responsible members of society.

As part of the juvenile justice system, the criminal court has at its disposal a variety of penalties, adapted to the seriousness of the offence and the individual situation of the young offender. The aim is to strike a balance between punishing the offending behaviour and promoting the rehabilitation and positive development of the young person. For minor offences, a reprimand may be sufficient. This sanction is essentially a formal warning that underlines the seriousness of the act committed and aims to encourage the young person not to repeat the mistake. For example, a minor caught shoplifting could be given a reprimand, especially if it is their first offence and they show signs of remorse. Where a more active response is deemed necessary, the court may opt for personal service. This sentence requires the young person to carry out a specific task, often linked to repairing the harm caused. For example, a young person who has vandalised public property could be required to help restore it. The aim of this approach is to make young people aware of their responsibilities while enabling them to make a positive contribution to society. In some cases, a fine may be imposed. This option is generally reserved for situations where a financial penalty is appropriate, such as where the juvenile has benefited financially from the offence or for minor offences where a fine would be an appropriate response. For the most serious cases, such as violent or repeated offences, the court may decide on deprivation of liberty. This sanction, the most severe in the juvenile justice system, involves incarceration in a juvenile facility. The emphasis is on re-education and rehabilitation, in the hope of preparing the young person for successful reintegration into society. For example, a young person who has committed several violent thefts could be placed in a re-education establishment, where he or she would receive educational and therapeutic support. These different sentencing options enable the court to respond appropriately to each case of juvenile delinquency, taking into account not only the punishment required, but also the young person's potential for reform and development. This approach reflects a commitment to balanced and educational justice, which seeks to prevent re-offending while supporting the positive development of young offenders.

Under article 16 of the Criminal Procedure Act for Minors, the Swiss justice system recognises the importance of conciliation in dealing with offences committed by minors. This legal provision enables the investigating authority and the juvenile court to facilitate conciliation between the victim (the injured party) and the young defendant, particularly in the case of offences prosecuted on complaint. Conciliation is particularly relevant for offences such as damage to property, for example graffiti. In such cases, the investigating authority can encourage the young defendant and the victim to reach an agreement that rectifies the harm caused. This agreement may include measures such as financial compensation, repair of damage, or a formal apology. The aim is to resolve the conflict constructively, enabling the young person to become aware of the impact of his or her actions and offering the victim some form of reparation. If conciliation is achieved and accepted by both parties, the legal proceedings can be closed without going any further. This approach has several advantages. It avoids a formal trial, which is often long and costly, and offers a quicker, more personalised resolution to the conflict. It also encourages the minor to take responsibility and understand the consequences of his or her actions, while providing the victim with a concrete form of reparation. Conciliation in juvenile justice reflects an approach that values mediation and reparation, rather than punishment alone. It is in line with the overall objective of rehabilitating and educating young offenders, while taking into account the needs and rights of victims. This approach can be particularly effective for juveniles, as it allows them to learn from their mistakes in a constructive setting and reinforces their sense of social responsibility.

Article 17 of the Swiss Juvenile Criminal Procedure Act establishes a framework for the use of mediation in cases involving young offenders. This legal provision offers an alternative to traditional court proceedings, favouring an approach based on dialogue and constructive conflict resolution. Under mediation, the investigating authority or the court may, at any time, choose to suspend the legal proceedings in progress and appoint a mediator to facilitate a discussion between the accused juvenile and the victim (the injured party). The mediator is a person specially trained and competent in the field of mediation, and is independent of the judicial system. His or her role is to guide the parties towards mutual understanding and to help them reach a mutually satisfactory agreement. The aim of mediation is to enable the parties to discuss the incident and its consequences openly and to find a solution together. This solution may include reparation measures or agreements to rectify the harm caused. For example, in a case of theft or vandalism, mediation may result in an agreement whereby the young person undertakes to reimburse or repair the damage caused. If mediation results in an agreement between the accused minor and the victim, and this agreement is respected, article 5 of the same law allows for the waiver of any criminal proceedings against the minor. In this case, the proceedings are closed, which means that the young person will not be formally convicted of the offence. Mediation is a valuable approach in juvenile justice, as it promotes accountability and reparation while avoiding the potentially negative consequences of formal legal proceedings. By encouraging dialogue and mutual understanding, mediation contributes to the rehabilitation of the young person and reconciliation between the parties, while providing a form of restorative justice for the victim.

In the context of juvenile criminal justice, mediation plays a crucial role in helping to educate and rehabilitate young offenders. This process enables the juvenile not only to understand that his or her actions constitute a breach of the law, but also to become aware of the repercussions of his or her actions on others. Mediation offers a unique opportunity for the young person to acknowledge the harm done and to reflect on ways of making amends. One of the main strengths of mediation is its social dimension. It is not limited to dealing with the offending act itself, but actively involves all the parties affected by the conflict. This includes not only the minor and the victim, but may also involve families, legal representatives and other interested parties. This broader dialogue promotes a better understanding of the whole situation, including the factors that may have contributed to the juvenile's offending behaviour. It is important to note that mediation is a voluntary option and is not a mandatory part of the judicial process. It can only take place with the explicit consent of the two main parties - the minor and the victim. This consensual approach ensures that mediation is undertaken in a spirit of cooperation and mutual willingness to resolve the conflict. Mediation can be offered at various stages of the legal process. It may be an option at the outset of the case, or it may be considered at a later stage, even after the judgment, when the measures are being implemented. For example, if a young person has been sentenced but there is an opportunity for further reconciliation or reparation with the victim, mediation can be used to facilitate this process.

Mediation in juvenile criminal justice offers a collaborative and participatory approach to resolving disputes arising from an offence. Unlike conciliation, where a third party can propose solutions, mediation places the parties - the juvenile offender and the victim - at the centre of the conflict resolution process. This method encourages both parties to discuss the consequences of the offence openly and to work together to find mutually acceptable solutions. One of the key aspects of mediation is its confidentiality. Discussions that take place during mediation remain private and are not disclosed to the judicial authorities. This confidentiality encourages frank and open dialogue, as the parties can express themselves freely without fear that their words will be used against them in legal proceedings. The judicial authorities are only informed of the existence of an agreement, if one is reached. In the mediation process, solutions are developed by the parties themselves, with the mediator acting as a neutral facilitator. The mediator does not impose solutions, but guides the parties in their search for compromise and agreement. The resulting agreement may include various measures, such as a formal apology, compensation for damages, or other forms of restitution. In some cases, this may also lead to the victim withdrawing the complaint. Acceptance of the solutions found is essential, as they must be approved by both the victim and the juvenile offender if they are to be effective. This approach ensures that agreements are fair and meet the needs of all parties involved. Mediation is generally well perceived by those involved, with a high satisfaction rate. Around 70% of those involved in mediation processes appreciate this method of resolving disputes. This is because mediation gives the parties the opportunity to play an active role in resolving their conflict, thereby promoting mutual understanding, redress and reconciliation. This constructive and participatory approach is particularly beneficial in the context of juvenile justice, where the aim is not only to resolve the conflict, but also to promote the positive development and social reintegration of the young person.

Recourse procedures

Recourse is a key element in the legal system, providing a means of challenging decisions or actions deemed inappropriate or unfair by one of the parties involved. It is a formal procedure whereby a party asks a higher authority to reconsider a decision taken by a lower authority. Appeals can be directed against various types of decisions or acts, such as judgements handed down by the courts, administrative decisions taken by government agencies, or even disciplinary acts in institutional contexts. The purpose of the appeal is to allow the decision or act to be re-examined to ensure that it complies with the law, is fair and has not been taken on the basis of an error of fact or law. The appeal generally takes the form of a written document. This document must clearly set out the grounds for the challenge, indicating why the party lodging the appeal considers that the decision or act is wrong or unjust. The appeal must also often comply with specific forms and time limits in order to be considered valid. In the context of juvenile justice, appeals can be used to challenge decisions such as judgments handed down by a juvenile court, protective measures ordered, or sanctions imposed. The right of appeal ensures that decisions affecting juveniles can be reviewed and, if necessary, amended, thereby guaranteeing that the interests of young people are protected and that justice is properly done.

In the legal system, review mechanisms play a crucial role in ensuring the fairness and correctness of legal decisions. These review mechanisms fall into two main categories: ordinary remedies and extraordinary remedies, each with a specific role in the judicial process. Ordinary remedies, such as appeals, are the most commonly used means of challenging a judicial decision. These remedies allow a party to ask a higher court to review a decision made by a court of first instance. For example, if a party believes that an error of law has been made in its judgment, it can appeal against that decision to a court of appeal. The aim is to ensure that decisions are taken fairly and in accordance with the law, thus providing an additional guarantee of justice.

On the other hand, extraordinary remedies are used in less common situations, often when ordinary remedies are not applicable or have been exhausted. These remedies are designed to correct serious miscarriages of justice or to take into account significant new evidence that was not available at the time of the original trial. An example of an extraordinary remedy is revision, which can be requested when new and decisive evidence is discovered after the judgment. The principle of double jurisdiction, or double instance, is a cornerstone of remedies. This principle offers the possibility of having a decision reviewed by a higher court, thus providing a form of check and balance in the judicial system. This structure plays an essential role in strengthening confidence in the justice system, by allowing any errors made by the courts of first instance to be reviewed and corrected. Remedies, whether ordinary or extraordinary, are essential components of the judicial system, ensuring that judicial decisions can be challenged and reviewed to ensure that they are fair and in accordance with the law. These review mechanisms reflect the legal system's commitment to justice and propriety, and contribute to the overall integrity of the judicial process.

A fundamental element of many legal systems is the judicial process, which involves the handling of a dispute by two successive hierarchical bodies. This procedure, known as the double tier, ensures a thorough review of cases and provides an additional safeguard against miscarriages of justice. In the first instance, the case is heard by a court of first instance. This is generally the court where the case is first heard and decided. The court of first instance examines all aspects of the case, both factual and legal, and issues a judgment based on the evidence and arguments presented by the parties. This judgment establishes the facts of the case and applies the relevant laws to reach a conclusion. For example, in a civil case this might involve resolving a contractual dispute, while in a criminal case it would involve determining the guilt or innocence of an accused person. If one of the parties is dissatisfied with the judgment handed down by the court of first instance, they usually have the right to appeal against that decision. The appeal is heard by a court of appeal or a second-degree court. This higher court re-examines the dispute, focusing primarily on the legal aspects of the case to ensure that the law has been correctly applied and that legal procedures have been followed. The court of appeal has the power to confirm, amend or set aside the judgment of the court of first instance. The judgment handed down by the court of appeal is enforceable, which means that it must be complied with, unless further recourse is allowed to an even higher court, such as a court of cassation or a supreme court. This double instance system is crucial to ensuring fair justice. It provides an opportunity for full judicial review and helps prevent potential legal errors. By allowing parties to challenge a decision and subjecting that decision to review by a higher court, the system reinforces confidence in the impartiality and accuracy of the judicial process.

If the parties involved in a dispute are not satisfied with the judgment handed down by the court of appeal, they may, in some legal systems, resort to an extraordinary means of challenge known as an appeal in cassation. This remedy is generally reserved for very specific questions of law and is not a third level of review of the facts of the case. An appeal in cassation is heard by a court of cassation or a supreme court, which are the highest judicial bodies in many countries. Unlike the courts of first and second instance, which examine the facts and the law, an appeal in cassation focuses exclusively on questions of law. The aim is to determine whether the law has been correctly interpreted and applied by the lower courts. Issues that may be examined in an appeal in cassation include, for example, errors of interpretation of the law, breaches of legal procedures or constitutional issues. It is important to note that the court of cassation does not re-examine the facts of the case, but only assesses whether the laws have been applied appropriately and fairly. If the Court of Cassation finds that there has been an error of law in the decisions of the lower courts, it may annul or quash the judgment. Depending on the legal system, the case may be referred back to a lower court for a new ruling, or the court of cassation may itself give a final ruling on the case. The appeal in cassation is an important remedy in the judicial system, as it helps to ensure the uniformity and correct application of the law. It plays a crucial role in preserving the integrity of the legal system and ensuring that judicial decisions comply with legal and constitutional principles.

The appeal

Appeal is a central feature of the legal system, serving as the ordinary means of challenging and seeking review of judgments handed down by courts of first instance. This procedure allows parties dissatisfied with a decision to ask a higher court to reconsider the case, on both the facts and the law. The possibility of appeal is a feature common to many legal systems around the world. It offers an additional guarantee against miscarriages of justice by allowing a second assessment of the case. On appeal, the parties can present new arguments or challenge the way in which the law was applied at first instance. The appeal court may confirm, amend or overturn the original decision, depending on its assessment of the facts and the law. However, it is important to note that the right to appeal is not always guaranteed for all first instance decisions. In some cases, particularly where the social or economic stakes of a case are considered negligible, a judgment may be handed down without the possibility of appeal. This limitation is intended to maintain efficiency and proportionality in the judicial system. The cost of justice is an important consideration in the implementation of judicial procedures. Appeal procedures, in particular, can be costly and time-consuming. As a result, some legal systems restrict appeals to cases of greater importance or value, in order to conserve judicial resources and ensure that the system remains accessible and efficient for the most significant cases.

In the judicial system, appeals play an essential role in allowing first instance decisions to be reviewed. This process is governed by two fundamental principles that influence its operation: the suspensive effect and the devolutive effect. The suspensive effect is a crucial aspect of the appeal. When a party appeals against a first instance decision, the execution of that decision is suspended until the appeal is resolved. This suspension is essential to prevent potentially erroneous or unjust judgments from being implemented. For example, if an individual is sentenced to prison, the suspensive effect delays his or her incarceration until the court of appeal has had an opportunity to review the case, thus ensuring that the person does not suffer an inappropriate sentence before his or her appeal is heard. On the other hand, the devolutive effect means that when the appeal is lodged, the entire case is transferred to the Court of Appeal. This court is then given the power and responsibility to re-examine all aspects of the case, including the facts and questions of law. This full re-examination allows for a thorough evaluation of the original decision. The Court of Appeal may confirm, vary or set aside the first instance judgment, depending on its analysis. Once the Court of Appeal has reached a decision, it issues a binding judgment, which replaces the decision taken at first instance. This final judgment has a significant impact: it cannot be the subject of another ordinary appeal, which means that the scope for further challenges is limited. For example, if the Court of Appeal alters the sentence originally imposed at first instance, this new decision becomes final and must be implemented, unless an extraordinary remedy, such as an appeal in cassation, is available and deemed appropriate in exceptional circumstances.

The cassation appeal

The appeal in cassation stands out as an extraordinary remedy in the judicial system, used when the parties believe that there has been a breach of the law in the making of a judicial decision. Unlike ordinary appeals, which may re-examine the facts of a case, an appeal in cassation focuses exclusively on legal issues. In an appeal in cassation, a party asks a higher court, often the court of cassation or a supreme court, to set aside a judgment handed down by a lower court. The fundamental reason for this appeal is the belief that an error of law has been committed. This may include breaches of judicial procedure, errors in the interpretation or application of the law, or constitutional issues. A key aspect of the cassation appeal is that it is not devolutive. This means that the Court of Cassation does not re-examine the facts of the case, which are considered definitively established by the lower courts. The court's objective is to determine whether the law has been correctly applied to the facts as established. If the court finds that an error of law has been committed, it may set aside the previous judgment and, depending on the legal system, either remit the case for a new judgment or make a final decision itself. Generally speaking, an appeal to the Supreme Court has no suspensive effect. This means that enforcement of the judgment can continue even if the appeal is pending. However, in certain cases, the court of cassation may decide to apply a suspensive effect, especially if enforcement of the judgment could have irreversible consequences or if the question of law raised is particularly significant. The cassation appeal is a crucial legal tool for maintaining the integrity of the judicial system, by ensuring that judicial decisions comply with legal and constitutional standards. Although it is not used for questions of fact, it plays an essential role in correcting errors of law and ensuring that justice is administered fairly and in accordance with the law.

The role of the cassation judge in the judicial process is specific and distinct from that of the judges of the courts of first and second instance. The cassation judge concentrates primarily on analysing the conformity of the lower court's decision with the law, rather than on enforcing judgments. When a case is brought before the Court of Cassation, two main outcomes are possible. If the court of cassation considers that the lower court's decision complies with the law, it will confirm that decision. In this case, it is the lower court's ruling that becomes enforceable and will be implemented. This confirmation means that the court of cassation does not find any legitimate grounds for modifying or annulling the initial decision. On the other hand, if the court of cassation concludes that the lower court's decision does not comply with the law, it will quash that decision. This cassation implies that the initial decision is annulled because of legal errors. The case is then generally referred back to the court of appeal that handed down the original judgment for a new ruling. This referral allows the case to be reassessed, taking into account any corrections or guidelines provided by the court of cassation. The power of cassation is considered to be subsidiary to the power of appeal. This means that the cassation appeal is an extraordinary remedy that is used only when ordinary remedies, such as appeal, are not appropriate or have been exhausted. In addition, the grounds on which an appeal in cassation may be lodged are listed exhaustively by law. They generally concern serious defects in the law, such as violations of fundamental legal principles or errors in the interpretation or application of the law. This structure ensures that the appeal in cassation remains focused on legal issues of great importance and avoids its use for simple disagreements with the factual findings of the lower courts. It thus helps to maintain a balance in the judicial system, providing a remedy for errors of law while preserving the authority of lower court judgments on questions of fact.

To sum up, an appeal in cassation is an extraordinary judicial remedy that allows a party to challenge a judicial decision before a supreme court or a court of cassation. This remedy is specifically designed to address situations where there has been a serious breach of the law in the previous judgment. In an appeal in cassation, the appellant argues that the decision taken by a lower court is vitiated by significant legal errors. These errors may include breaches of the principles of law, errors in the interpretation or application of the law, or breaches of the rules of judicial procedure. The main purpose of an appeal in cassation is not to re-examine the facts of the case, but to ensure that the law has been correctly applied. If the Supreme Court finds that substantial errors of law have been committed, it may set aside the judgment of the lower court. Depending on the legal system, the case may then be referred back to a lower court for a new ruling or, in some cases, the court of cassation may itself issue a final decision. The cassation appeal therefore plays an essential role in the judicial system, serving as a control mechanism to maintain the integrity of the law and ensure that judicial decisions comply with established legal and judicial standards.

The revision

Revision is an extraordinary form of judicial remedy in the legal system. Unlike an appeal in cassation, which focuses on questions of law, a review allows a complete reassessment of a case that has already been tried and whose judgment has become final (i.e. it has "entered into force" and has been executed). This type of remedy is generally used in exceptional circumstances, where significant new evidence emerges after the conclusion of the trial or if new facts come to light that call into question the correctness of the original judgment. For example, the discovery of evidence of innocence after a criminal conviction, or the revelation of fraudulent testimony or falsified evidence, may justify an application for review.

Revision is designed to rectify serious miscarriages of justice and ensure that justice is done fairly and accurately. Given its extraordinary nature, this remedy is subject to strict criteria and can only be invoked in specific situations clearly defined by law. When a request for review is granted, the trial is repeated in its entirety, allowing a fresh examination of the facts and the law. If the review leads to the conclusion that the original judgment was incorrect, the judgment may be set aside or amended accordingly. Revision is therefore an important tool for correcting miscarriages of justice and maintaining confidence in the integrity and reliability of the justice system.

To initiate a review procedure, it is essential to be able to demonstrate the existence of significant new facts that were not available or could not be presented during the previous trial. The discovery of these new elements is the basis that justifies the reopening of a case that has already been tried and finally decided. These new facts must be significant to the point of potentially influencing the outcome of the original judgment. They may include, for example, newly discovered evidence, unpublished testimony, or information that was not available at the time of the trial. These elements can call into question the validity of the initial judgment by shedding new light on the case.

The law recognises that a judgment may be seriously flawed if crucial information has not been taken into account. In such circumstances, a review can correct significant miscarriages of justice. The aim is to ensure that justice is done fairly and accurately, taking into account all relevant information. It is important to stress that the criteria for a review are generally very strict, given the exceptional nature of this remedy. The review procedure is not intended to be a simple continuation or repetition of the original trial, but rather a response to extraordinary circumstances that call into question the correctness of the original judicial decision. This procedure plays a crucial role in maintaining confidence in the judicial system, by providing an avenue for rectifying injustices when important new evidence emerges after the conclusion of a trial.

Appendices

• Kolb, Robert. La Bonne Foi En Droit International Public: Contribution À L'étude Des Principes Généraux De Droit. Genève: Institut Universitaire De Hautes Études Internationales, 1999.