Federal court case law 2nd quarter 2022

Blocking order (network blocking) In 2019, the Intercantonal Lottery and Betting Commission (now the Intercantonal Gambling Supervisory Authority) published a general ruling in the Federal Gazette restricting access to online gambling services that are not authorised in Switzerland. At the same time, it had the companies' domains blocked (so-called "domain name system block", DNS block). The Federal Supreme Court confirmed this decision. As far as the alleged violation of economic freedom is concerned, this does not apply to the complainants in the area of gambling. The legislator has made use of its constitutional authorisation to deviate from the principle of economic freedom by restricting the offer of online gambling to operators licensed and monitored in Switzerland. Due to a lack of sufficient and effective supervisory options by the Swiss authorities, foreign competition is not permitted in this area (E. 4. and 5.).

State and municipal taxes of the Canton of Graubünden and direct federal tax, 2018 tax period The complainant received a sum of money for the registration of an easement (plant and building height restriction) on a property owned by her. This sum of money was credited to her as taxable income. She lodged an appeal against this. According to Art. 16 para. 3 DBG, gains from the sale of private assets are tax-free (E. 3.3.). The question therefore arose as to whether this was a sale of private assets. In particular, the Federal Supreme Court had to clarify what is meant by a "significant impairment of the unrestricted management of a property" (E. 3.6.). It came to the conclusion that this "significant impairment" did not exist in the present case, which is why there was no (partial) sale of the property (E. 3.7.). The consideration for the easement was therefore subject to income tax. The appellant's argument that the compensation should be seen as compensation for a future reduction in the value of the property, meaning that there was no net asset gain, was rejected (E. 4.).

A was dependent on long-term care and nursing care provided by Spitex. Helsana refused to provide the services of Spitex because it had not joined the collective agreement. The dispute centred on the question of whether Helsana could refuse this benefit. It then centred on the interpretation of Art. 56 para. 1 sentence 2 UVG. According to the purpose of the provision (E. 6.2.2.) and the systematic interpretation of the provision (E. 6.2.4.1.), Helsana may not refuse benefits. In summary, Spitex has legitimately provided benefits at the expense of Helsana, whereby its status under accident insurance law as an authorised service provider is not affected by the lack of accession to the contract. The same applies to A's entitlement to insurance benefits in relation to Helsana (E. 6.5.).

Railway liability; interruption of the causal link In this case, the Federal Supreme Court ruled on the fundamental liability of a city that ran a tram company, based on Art. 40b para. 1 EBG (principle of liability) and Art. 40c EBG (grounds for exoneration). Liability under the Railways Act is a causal liability. According to Art. 40b EBG, however, the liable party is exonerated from liability if a circumstance that cannot be attributed to it has contributed so much to the occurrence of the damage that it is to be regarded as its main cause (para. 1), such as force majeure (para. 2 lit. a), which does not play a role here, or gross negligence on the part of the injured party or a third party (para. 2 lit. b) (E. 3.1.). The Federal Supreme Court interprets Art. 40c EBG essentially in accordance with its case law on the interruption of the causal link (E. 3.2.). In the present case, the injured party was distracted by his mobile phone, suddenly stepped onto the tracks and was therefore hit by the tram. The question therefore arose as to whether this constituted gross negligence. The Federal Supreme Court answered in the affirmative, as the injured party's behaviour contrary to traffic regulations was to be considered the main cause of the accident (E. 4.).

Gross violation of traffic regulations by overtaking on the right The Federal Supreme Court comments on the somewhat ambiguous regulation on overtaking on the right. The ban on overtaking on the right is derived from Art. 35 Para. 1 SVG. Art. 8 para. 3 sentence 1 of the VRV contains a general exception to the ban on overtaking on the right and Art. 36 para. 5 lit. a contains an exception for motorways "when driving in parallel convoys". It is permitted to pass other vehicles on the right by changing lanes (so-called driving ahead) if this is possible without obstructing other traffic. Overtaking on the right by swerving out and turning in again, on the other hand, is expressly prohibited in accordance with Art. 8 Para. 3 Sentence 2 VRV. When driving in parallel convoys on motorways, it is therefore not permitted to overtake by swinging out and turning right again. This is particularly the case if a driver takes advantage of the gaps in the parallel lanes to overtake on the right-hand lane (E. 3.1.). Deliberately changing to the right-hand lane to overtake a vehicle and then rejoining the lane on the left is therefore still prohibited. It is somewhat unusual that the Federal Supreme Court explicitly responds to a publication by the legal representative in this judgement (E. 3.3.2.).

; 4A_554/2021* (02.05.2022): Judicial determination of the initial rent for flats in old properties In the present case, the presumption of an abusive rent was to be assumed. The landlord was unable to shake this presumption. In this case, it is up to the judge to determine the permissible initial rent. In an earlier judgement, the Federal Supreme Court stated that, in the absence of evidence from the parties, it is in accordance with federal law to base the decision on the rent paid by the previous tenant. Clarifying its case law, the Federal Supreme Court has now come to the conclusion that this does not necessarily have to be the case. The rent paid by the previous tenant must be used as a basis if no other evidence is available. However, if there are other bases - which do not have to come from the parties - such as cantonal or communal statistics, the judge can take these into account when setting the rent, even if they are not sufficiently differentiated. In a further judgement, the Federal Supreme Court summarises its case law on the termination of a flat by the landlord due to renovation work. It concludes that the cancellation was not abusive in the specific case. In particular, the cantonal court was entitled to assume that the landlord actually intended to carry out the renovation work and that the renovation work made it necessary for the tenant to move out.

Desecration The Federal Supreme Court dealt with the secret and unlawful removal of the condom during sexual intercourse ("stealthing") and came to the conclusion that this did not constitute defilement under Art. 191 SCC. It ruled that in this constellation the victim lacked the incapacity to resist within the meaning of Art. 191 SCC (E. 5.5). The decisive factor is that the ability to defend oneself as such remained intact, even if the victim was deceived. One may ask whether the "ability to defend oneself" is actually still "intact" if the basis for the decision to use this defence to prevent the defence was deliberately withheld.

Accident insurance (causal link) The Federal Supreme Court ruled on the severity of a lightning strike during a hike. In particular, the psychological complaints were at issue. The classification of the lightning accident as a moderately serious accident bordering on serious events and the affirmation of the criterion of particularly dramatic accompanying circumstances or the particularly impressive nature of the accident would in principle be sufficient to recognise the adequate causal link between the psychological complaints and the accident (E. 4.5.).

Rulings on the "Uber" driving service and "Uber Eats" food delivery service In a press release dated 3 June 2022, the Federal Supreme Court referred to two landmark rulings in relation to the ride-hailing service "Uber" and the food delivery service "Uber Eats".

Rulings on the "Uber" driving service and "Uber Eats" food delivery service In a press release dated 3 June 2022, the Federal Supreme Court referred to two landmark rulings in relation to the ride-hailing service "Uber" and the food delivery service "Uber Eats".

Claim, substantive legal force The Federal Supreme Court ruled on the preclusion effect of initial proceedings. Specifically, A Ltd was sued and sentenced by Bank B AG. A year later, A Ltd sued Bank B in secondary proceedings based on an alleged breach of contract. The question now was whether the second proceeding was an adjudicated case. The Federal Supreme Court answered in the negative. The present case was not a single action (E. 5.1.). This is not altered by the fact that claims were made in the second proceedings which, in the opinion of Bank B AG, should have been made in the first proceedings (E. 5.2.). The Federal Supreme Court also points out that only the dispositive becomes final. Not everything that the court deals with in a judgement becomes legally binding. There is only an exception in the case of offsetting (E. 5.3.2.). The preclusion of facts also presupposes that they would have been relevant in the initial proceedings (E. 5.3.4.).

Liability under stock corporation law, unspecified claim The Federal Supreme Court ruled that the plaintiff must already show in the statement of claim (not only in the second submission) that the conditions of Art. 85 para. 1 ZPO for an unspecified claim are fulfilled. There is parallelism: either the plaintiff quantifies its request for payment of a sum of money in the statement of claim, or it sets out in the statement of claim the reasons why this should be impossible or unreasonable for it (E. 3.4.). If the plaintiff does not meet the requirements for filing an unspecified claim, a deliberately unspecified claim is not to be accepted without first exercising the court's duty to ask questions (Art. 56 ZPO) and without setting a grace period in accordance with Art. 132 ZPO (E. 4.).

Child maintenance and claims of the unmarried mother The Federal Supreme Court comments on the calculation of child maintenance. In particular, it dealt with the abuse of law of a retrospective maintenance claim (E. 3.), the question of legitimisation if the social welfare office is involved (E. 4.), how to deal with the situation if the mother did not have to pay for the child's maintenance for a certain period of time (E. 5.), how the maintenance contributions for the child are to be calculated in concrete terms (E. 6. - 9.) and how the claims for the mother are to be dealt with (E. 10.).

Violation of the Federal Act on the Prohibition of Al-Qaeda and Islamic State and Associated Organisations The Federal Supreme Court confirms the conviction of a young woman for violating the Al-Qaeda/IS Act. She had travelled to the territory of the terrorist organisation "Islamic State" (IS) in Syria at the end of 2014 and lived in the community and with the financial support of IS for several months. In particular, the Federal Supreme Court held that Art. 2 para. 1 of the Al-Qaeda/IS Act fulfils the requirement of certainty enshrined in Art. 1 SCC. In this case, the general clause of "promotion by other means" was at issue. However, insofar as the scope and area of application of the provision can be reliably determined with the help of the usual methods of interpretation, the use of general terms is generally unobjectionable (E. 7.2.), which I sometimes find questionable.

Accident insurance (disability pension; insured earnings) The Federal Supreme Court ruled on the relationship between Art. 24 para. 2 UVV and Art. 138 UVV. If an insured person transfers from voluntary to compulsory accident insurance after the insured event and a pension entitlement only arises after regaining full capacity to work with a considerable delay of more than five years in the event of a persistent blatant disparity between the agreed pre-accident earnings and the income subject to AHV contributions since then, it is not clear why, according to the principle of equivalence of voluntary and compulsory insurance (E. 7.1.), only the compulsorily insured person, but not the originally voluntarily insured person, should be protected against the devaluation of value that has occurred in the meantime. This does not change, even if the voluntary insurance that was originally responsible at the time of the accident remains liable to pay benefits after the change to compulsory insurance, even for the pension claim that only arose with a considerable delay in the course of a relapse or late consequences (E. 6.). The non-applicability of the special provision of Art. 24 para. 2 UVV without exception and thus the refusal to adjust the originally agreed pre-accident earnings within the meaning of Art. 138 UVV would be offensive and cannot be justified under the special circumstances of the given circumstances (E. 9.3.7.).

Income compensation for employees and maternity (Covid-19) This decision concerned the income requirements pursuant to Art. 2 para. 3bis of the Covid-19 Ordinance. The interpretation of Art. 2 para. 3bis and 3ter of the Covid-19 Ordinance on Loss of Earnings shows that the requirement of loss of earnings or salary is not already fulfilled with the loss of turnover incurred by the employer. For an insured person in an employer-like position, the decisive factor is whether they themselves have suffered a loss of earnings. In other words, their entitlement to coronavirus loss of earnings compensation is subsidiary to the continued payment of wages by the employer (E. 5.3.5.).

Public personnel law (negative conflict of competences) A worked in Centre B of a specialist agency of the Swiss Conference of Cantonal Ministers of Education (EDK). As part of his employment, he completed further training, which was partly co-financed by Centre B. In return, A undertook to work for the centre for three years after completing the training. Approximately one year after completing the training, A terminated the employment relationship. The centre then ordered A to repay around two thirds of the training costs. The appeal against this was rejected by the board of the EDK. The question then arose as to whether the next instance of appeal against the EDK's decision was the Administrative Court of the Canton of Bern or the EDK's Appeals Commission. The Federal Supreme Court ruled that the Bern Administrative Court had jurisdiction. However, this was only an interim solution because the relevant intercantonal agreements and regulations surrounding the EDK are insufficiently organised (in particular E. 6.2.).

State liability; assumption of costs for free administration of justice Securitas AG concluded a framework agreement with the Federal Office for Migration. In this agreement Securitas AG undertook to provide security services in migration centres. Securitas AG was sued after a physical altercation with an asylum seeker. Securitas AG then turned to the Federal Department of Finance. It assumed that it was an organisation entrusted with public-law tasks of the Confederation within the meaning of Art. 19 para. 3 VG. The Federal Supreme Court held that guaranteeing security in an asylum centre run by the federal government is to be qualified as a federal task under public law (E. 4.3). However, the comprehensive transfer of this task to Securitas AG provided for by the framework agreement lacked a sufficiently specific formal legal basis at the time the contract was concluded (E. 3.3., 5., 6.1.). Thus, Securitas AG cannot be considered an organisation entrusted with a public-law task of the Confederation within the meaning of Art. 19 VG with regard to the facts giving rise to liability (E. 6.2.). In this situation, the Confederation remains directly liable (E. 6.3.).

Rape, "only yes means yes" (addendum) The Federal Supreme Court had to clarify the question of whether the current criminal law should be interpreted to the effect that the lack of consent to a sexual act ("only yes means yes") would be sufficient to convict someone of sexual assault or rape. The complainant cited the Istanbul Convention and ECtHR case law in favour. However, even if the case law does not set very high requirements in this regard, according to the Federal Supreme Court, the act of coercion is one of the elements of the offence under Articles 189 and 190 of the Criminal Code. It is necessary that the victim does not consent to the sexual act, that the perpetrator knows this or accepts it and disregards it by abusing a situation (exerting psychological pressure) or using certain means (including threats or violence). It is not necessary for the perpetrator to render the victim incapable of resisting or to physically abuse them. The interpretation put forward by the complainant eliminates the element of coercion; however, the principle of legality ("no punishment without law") requires that it be taken into account.

Endangerment by explosives and toxic gases with criminal intent The Federal Supreme Court has ruled on the offence of public danger in the case of explosives offences. Causing an explosion with explosives is not necessarily dangerous to the public. Rather, it depends on the circumstances of the individual case. It plays a significant role where and when the offender causes an explosion of what magnitude. The offence must therefore be appropriately limited, at least in terms of the risk it poses. Therefore, only acts that from the outset endanger a number of legal interests that represent the general public should be included in the offence. The fact that only one person or third-party property is actually jeopardised is sufficient, but only on condition that it is not individually determined in advance, but selected by chance. The Federal Supreme Court thus gave priority to the so-called representation theory (E. 3).

Health insurance (speciality list; triennial review of admission requirements) A medical product on the specialities list was reviewed. A so-called foreign comparison was also carried out. This was despite the fact that the authorisation holder (complainant) claimed that there was no comparable product abroad. The FOPH countered that there was indeed a comparator product in France. The mere fact that the product was authorised in France as a medical device and not as a medicinal product did not argue against its use as a comparator product, as it was pharmaceutically the identical product. In this case, the question was whether this procedure is permitted. According to the Federal Supreme Court, it is of secondary importance, or rather not decisive for the question, whether a preparation has the title "medicinal product" in the reference country, i.e. whether it has been formally labelled with this title by the competent foreign authorisation authority in accordance with the legal definition there. Rather, the "same medicinal product" within the meaning of Art. 34a bis para. 2 and 3 KLV is to be determined on the basis of a material understanding (E. 6.3.).

Decree (of the Canton of Bern) of 21 March 2017 on the general revaluation of non-agricultural land and water resources (AND/BE 2017) The decree referred to in the title was contested in an abstract review of standards. The decree dealt with the valuation of the above-mentioned properties in a tax law context. Art. 2 para. 3 of the decree stated: "For the determination of the official values, a median in the range of 70 per cent of the market value is to be aimed for as a target value". This standard violates Art. 14 StHG and thus higher law. The valuation principles were not applied correctly (E. 4.5.5.).

Occupational pension scheme Pursuant to Art. 2 para. 1 BVG, employees who have reached the age of 17 and receive an annual salary from an employer that exceeds the limit specified in Art. 7 para. 1 BVG are subject to compulsory insurance. This provision does not explicitly state what happens in the case of multiple employment with the same employer. The Federal Supreme Court ruled that Art. 1j para. 1 lit. c BVV 2 does not apply in cases where an employee works for the same employer both as a main and as a secondary occupation. Rather, in these cases the salaries earned in both activities are to be added together in application of Art. 2 para. 1 BVG (E. 5.4.).

Requirements for a legal entity to be entered in the cantonal register of attorneys, costs Attorney B wanted to have his entry in the Zurich Bar Register amended. This was granted by the supervisory commission, but contested by the FDJP because the statutes of the law firm did not fulfil the supervisory requirements. During the current consultation period, the articles of association were adapted to the requirements of BGE 144 II 147. The law firm and B subsequently applied for the proceedings to be cancelled, which was granted. One third of the costs were awarded to the FDJP, one third to B and the Registry and one third to the Supervisory Commission. The FDJP lodged an appeal against this. The appeal was upheld, meaning that the costs were to be borne in full by the Registry, B and the Supervisory Commission. It is irritating that the Zurich Bar Association continues to provide model articles of association for law firms on its website, which do not appear to fulfil the requirements of the Federal Supreme Court and explicitly refer to the above-mentioned practice. It remains to be seen whether the present decision with the newly determined cost consequences will lead to an adjustment.

VAT; tax avoidance (2009 to 2015) The question arose as to whether the fact that a foreign company registered as a company liable for VAT in order to claim an input tax deduction constituted tax avoidance. The Federal Supreme Court answered in the affirmative. The appellant only became liable for tax in Switzerland because it submitted a "declaration of subordination abroad" and at the same time applied to be entered in the register of persons liable for VAT. The sole purpose of the company was obviously to be able to claim the input tax deduction and thus offset the import taxes owed on the import, which would otherwise have been a final burden on the beneficial owner (E. 5.4.).

Discontinuation (mismanagement, embezzlement, etc.) The Federal Supreme Court answers the question of whether the bankruptcy liquidation initiated as a result of the dissolution decision pursuant to Art. 731b para. 1bis no. 3 CO (organisational deficiency) fulfils the objective criminal liability provision of the declaration of bankruptcy pursuant to Art. 163 et seq. StGB is fulfilled. The Federal Supreme Court ruled that in such a case no bankruptcy in the sense of compulsory enforcement law had been opened and therefore criminal liability based on Art. 163 et seq. StGB is out of the question (E. 3.4., E. 3.4.9.).

Racial discrimination (Art. 261bis StGB) In February 2018, the Young SVP of the Canton of Bern (JSVP Canton of Bern) published a text post with a caricature on Facebook and on its homepage. The text referred to planned transit sites for foreign travellers. Based on the written and visual elements of the post - including the caption "foreign gypsies" and the image of a slightly dark-skinned person - it can be assumed that the term is understood by the average addressee as a collective category for Roma and Sinti and therefore for ethnic groups. The offence of racial discrimination was affirmed.

Racial discrimination (Art. 261bis StGB) In February 2018, the Young SVP of the Canton of Bern (JSVP Canton of Bern) published a text post with a caricature on Facebook and on its homepage. The text referred to planned transit sites for foreign travellers. Based on the written and visual elements of the post - including the caption "foreign gypsies" and the image of a slightly dark-skinned person - it can be assumed that the term is understood by the average addressee as a collective category for Roma and Sinti and therefore for ethnic groups. The offence of racial discrimination was affirmed.

Murder; undercover investigation, usability The Federal Supreme Court deals with the question of the extent of the permissible influence of undercover investigators and the resulting legal consequences. A confession obtained in the course of an undercover investigation by exerting undue pressure on the person concerned may not be used to convict that person. This is due to the fundamental importance of the right not to have to incriminate oneself. Specifically, the relationship between Art. 293 para. 3, Art. 140 para. 1 and Art. 141 para. 1 of the Code of Criminal Procedure was explained (well summarised in E. 2.8.8.).

Criminal proceedings; request for compensation On the basis of an investigation, the public prosecutor's office edited video recordings at A AG by means of an editing order. A AG (as a third party) handed over these recordings to the public prosecutor's office, but demanded CHF 250.00 for the editing of the evidence. The public prosecutor's office rejected the request for compensation. The cantonal court awarded A AG the compensation. The public prosecutor's office was then no longer authorised to appeal to the Federal Supreme Court, as it lacked a legally protected interest. The case did not affect any area of responsibility of the public prosecutor's office that could justify legitimisation (E. 1.4.).

Regulation of ancillary consequences of divorce (post-marital maintenance) The Federal Supreme Court substantiates its new, stricter practice on the definition of a life-defining marriage (see BGE 147 III 249). Specifically, the marriage at issue in this case lasted three years until the separation. One year before the separation, a child was born to the couple (E. 4.3.1.). During this year, a "classic division of roles" was practised (E. 4.3.2.). The wife was also economically dependent on the husband to a certain extent (E. 4.3.3.). This marriage was not categorised as life-defining (E. 4.4.). In future, there will probably be more disputes in divorces about the life-characterising nature of the marriage and, if necessary, about the award of marriage-related damages (E. 5.).

Old-age and survivors' insurance (reclaim; triggering of the forfeiture period) The question was when the one-year relative forfeiture period for reclaiming benefits under Art. 25 para. 2 ATSG began to run. The Federal Supreme Court states that the relative limitation period begins to run when the irregularity is directly evident from the files (E. 5.2.2., 6.).

Procedural law; counterclaim The defendant filed a counterclaim in arbitration. Following the unsuccessful mediation, the plaintiff was granted authorisation to sue. The plaintiff subsequently did not file a lawsuit. It was now disputed whether the counterclaimant could bring an action before the court independently of the main claimant on the basis of the authorisation to sue issued to the main claimant, or whether the authorisation to sue would lapse if the main claimant allowed the deadline for filing an action to pass unused (E. 2.). The Federal Supreme Court ruled that in such a case the counterclaim becomes invalid and should not be recognised (E. 3.).

Breach of the duty to co-operate (Art. 8 para. 4 AsylA); principle of legality The Federal Supreme Court ruled that asylum seekers who have been legally expelled have a duty to cooperate in obtaining travel documents within the meaning of Art. 8 para. 4 AsylA, but the AsylA does not criminalise a breach of this duty. Art. 120 para. 1 lit. e in conjunction with Art. 90 lit. c AuG. Art. 90 lit. c AuG does not apply in such a case (E. 1.5.3.).

Building objection A planning application for second homes was only published in the municipal gazette. An appeal was lodged against this on the grounds that the planning application should have been published in the cantonal official gazette. The question was whether Art. 20 para. 1 ZWG or Art. 12b NHG took precedence. The Federal Supreme Court ruled that Art. 20 para. 1 ZWG takes precedence as a lex specialis and therefore an announcement in the municipal gazette is generally sufficient (E. 4.4., 5.). Nevertheless, the planning application should (possibly) have been published in the cantonal gazette. This is because as soon as the building project is linked to another federal task, Art. 20 para. 1 ZWG does not apply (E. 5.1, 5.4.). The appeal was therefore upheld and referred back to the lower court to review whether a federal task was involved (E. 6.).

Occupational pension scheme The appellant had concluded an insurance contract with the respondent AXA Leben AG, which also included a surplus participation. It was disputed whether the lower court violated the law by refusing the appellant's request for disclosure of the 1996 to 2019 annual financial statements of AXA Leben AG to review the amount of the surplus (E. 2.). The Federal Supreme Court ruled that the request for disclosure was rightly rejected. In particular, the right of inspection was limited by the protection of business secrets (E. 5.3.). Furthermore, the policyholder has the right to appeal to FINMA in such a case (E. 5.4.).

Accident insurance (daily allowance; reimbursement) The question was whether an employer did not have to pass on to an employee the daily accident benefits received from Suva because the employer offset the daily benefits against claims against the employer. The Federal Supreme Court answered in the negative. Suva therefore had a claim for repayment based on Art. 25 para. 1 sentence 1 ATSG (E. 5.3.6. f.).

Income compensation during maternity The Federal Supreme Court ruled that a National Councillor who attends parliamentary and committee meetings while on maternity leave loses her entitlement to maternity pay. It held that parliamentary work constitutes gainful employment within the meaning of the EOG (E. 5.1. ff., 5.3.). The maternity allowance is not revived after the cessation of parliamentary work (E. 6., Art. 16d para. 3 EOG). The maternity allowance ended both in relation to the political office and in relation to the private business activity (E. 7.).

Withdrawal from criminal proceedings In the present case, the question was clarified as to whether a judge who has participated in abbreviated proceedings that have failed must recuse himself in accordance with Art. 56 lit. b or lit. f of the Code of Criminal Procedure (see E. 5.4.). Specifically, the case concerned a confession that had been made but could not be utilised, which the judges had already taken note of. The Federal Supreme Court denied a reason for recusal in such a case (E. 5.7.). The situation would be different if the judge had indicated in the summary proceedings that the defendant's guilt had already been established. This may be the case, for example, if the court returns the files to the public prosecutor's office because it considers the requested sanction to be too severe (Art. 362 para. 1 lit. c and para. 3 of the Code of Criminal Procedure); likewise, if the judge has expressed himself in a way that leaves no doubt that he has already formed his opinion (E. 5.11.).

Naturalisation The complainant, who was born in 2000, submitted an application for naturalisation to the municipality of Thun in 2018. The authorities asked her to submit a language proficiency analysis of the required level from a recognised language school as proof of sufficient language skills in German. The Federal Supreme Court ruled that the submission of a school-leaving certificate from a French-speaking grammar school, which certified a grade 4 in German, was sufficient proof of the language level (E. 5.6., 5.10., 5.11.).

Detention review as part of the Dublin procedure The Federal Supreme Court upholds the appeal of an Algerian national who was detained for more than six weeks after the order for his return to Belgium had already become final in the Dublin procedure (E. 4., Art. 76a para. 4 AIG). The relevant detention provision in Swiss law must be interpreted in accordance with the requirements of the Dublin III Regulation in line with the practice of the Court of Justice of the European Union (E. 3.1., 5.). In the present case, the ordered "detention for non-resistance" (Art. 76a para. 4 AIG) was therefore unlawful (E. 6.).