Federal court case law 3rd quarter 2023

In the present case, it was necessary to examine the extent of the autonomy of the University of Zurich as a public-law institution of the canton with its own legal personality. Of particular interest was whether the autonomy of the University of Zurich also covers disciplinary measures in the form of monetary payments of up to CHF 4,000.00 (E. 4.2). The Federal Supreme Court considered that general-abstract standards must in principle be issued by the competent body, subject to a valid legal delegation (E. 5.2). The extent to which sanctions require a formal legal basis has not been conclusively clarified. The doctrine is of the opinion that at least severe disciplinary measures require a basis in a formal law (E. 5.4). The Federal Supreme Court supports the view of the lower court that fines of up to CHF 4,000.00 can have drastic economic consequences for students, who generally have an average income. This impending disadvantage is further exacerbated by the fact that the disciplinary ordinance provides for expulsion from studies in the event of non-payment (E. 5.5). Furthermore, the Federal Supreme Court stated that nothing can be deduced from the fact that the cantons of St. Gallen and Fribourg also have such sanctions. The aforementioned cantons have regulated this at a formal legal level, which is an indication that it is a serious disciplinary measure (E. 5.5). Moreover, the way in which the sanction is handled in practice is not a question of legal basis, but of proportionality, which is why the University of Zurich cannot derive anything from this either (E. 5.5).

A social welfare recipient from the canton of Neuchâtel had his social welfare cancelled informally due to a lack of cooperation in clarifying his financial circumstances. Specifically, he did not submit any documents relating to his pregnant cohabiting partner. As a result, the family's overall need for support could not be clarified.

In the present case, the senior court clerk at the District Court of Winterthur issued all orders as a (part-time) substitute judge and referee. He also presided over the instruction hearing on 3 November 2021. By request dated 12 December 2022, the plaintiff requested to recuse himself. The request for recusal must be made immediately, otherwise the right is forfeited (E. 2.2). The plaintiff argues that she only became aware of the grounds for recusal with the Federal Supreme Court ruling 1B_519/2022 of 1 November 2022 (E. 3.1). The Federal Supreme Court held that, in principle, the legal assessment made by the court is not to be regarded as the moment that triggers the time limit. However, there would be a particularity here, as it was only in the judgement of 9 September 2022 (1B_420/2022) that it was judicially determined that the use of court clerks as substitute judges in the same chamber could be seen as an intrusion into judicial independence. In the present case, however, the application was nevertheless late, as more than two months had passed since this judgement (E. 3.4). Furthermore, the Federal Supreme Court examined whether the reason for recusal was so obvious that the judge should have recused himself. It denied this on the grounds that the present case is not identical to the precedents of 22 September 2022 and 1 November 2022 (E. 4.1 and 4.3).

As part of a reorganisation measure, the share capital of the company concerned was increased from CHF 1,500,000.00 to CHF 2,000,000.00, whereby the payment was made by offsetting loans on the liabilities side that existed in favour of the shareholder (so-called offsetting transfer). The shareholder made a contribution (premium) of CHF 1,083,865,098.15, which was credited to the reserves. Subsequently, it was disputed whether the exemption from stamp duty pursuant to Art. 6 para. 1 lit. k StG was only permitted if the loss was eliminated. The tax object of stamp duty in the strict sense is the legal relationship underlying the deed. Consequently, a formal civil law approach must be applied (E. 2.2.2 f.). In order for an allowance within the meaning of Art. 6 para. 1 lit. k StG to be granted, "the existing loss must be eliminated". From a business perspective, it is irrelevant whether the allowance is used to write off the loss carryforward or as a capital reserve (E. 3.3.3 et seq.). In the present case, however, a formal civil law approach is required (E. 2.2.4). By requiring the condition of "loss elimination", the legislator has created the expectation that the loss will actually be derecognised. Otherwise, the condition would be meaningless (E. 3.3.6). Consequently, in addition to the restructuring and payment of a maximum of CHF 10,000,000.00, Art. 6 para. 1 lit. k StG also requires the actual derecognition of the loss carryforward (E. 3.4.1).

The parties conducted various proceedings in connection with the extension or termination of the lease of retail space. In casu, the landlord brought an action before the Commercial Court of the Canton of Zurich for payment of the difference in the standard market rent. The question was whether the present action fell under the term "protection against termination" and was therefore to be judged in simplified proceedings. The Commercial Court answered in the affirmative, arguing that extension proceedings were pending between the parties for the period in question. Even if these proceedings had become irrelevant as a result of the tenant moving out, it had to be examined, at least as a preliminary question, whether the tenant would have been entitled to an extension (E. 2.4). The Federal Supreme Court rejected the view of the lower court. In the case of claims arising from a tenancy that has already ended, there is usually a lack of the power imbalance between the contracting parties that is typical in the area of protection against dismissal, as well as a lack of urgency in terms of time, which is why the application of the simplified procedure (irrespective of the value in dispute) is not necessary. The extent to which the extension procedure has a binding effect is not to be assessed at the procedural level, but in the substantive examination of the claim (E. 2.5).

Before the Federal Supreme Court, the appellant challenged the composition and jurisdiction of the CAD CAS (Anti-Doping Chamber of the CAS) and the CAA CAS (Appeals Chamber of the CAS) (Art. 190 para. 2 lit. b PILA). Only the jurisdiction of an arbitral tribunal can be questioned on the basis of Art. 190 para. 2 lit. b PILA (E. 5.9.1). In the present case, the CAD did not rule as a court of arbitration. The parties did not exclude the normally competent state jurisdiction in favour of CAD TAS, but rather CAD TAS exercised the disciplinary jurisdiction delegated to it by the respondent (IBU) (E. 5.9.2.3). The complaint of a violation of Art. 190 para. 2 lit. b IPRG is therefore inadmissible, as it is aimed at an indirect review of the jurisdiction of CAD TAS (E. 5.9.4).

In the procedure for the abstract review of norms, cantonal and communal decrees can in principle be appealed directly to the Federal Supreme Court (Art. 82 lit. b BGG). However, the cantons are free to create an internal cantonal appeal procedure (see Art. 87 para. 2 BGG). Whether an appeal to the Federal Supreme Court is open against the cancellation of a decree by a cantonal court has not yet been decided under the FSCA. If a change in the law is cancelled, there is no longer a "cantonal decree" (Art. 82 lit. b BGG) and there is usually no right of appeal (Art. 89 para. 1 lit. b and c BGG).

If a (debt enforcement) creditor did not participate in bankruptcy proceedings, in this specific case because bankruptcy proceedings were opened against the debtor on the basis of an insolvency declaration, this third-party creditor can nevertheless contest the opening of bankruptcy proceedings on the grounds that bankruptcy proceedings were not opened in the correct place.

Two complainants in Geneva have accepted a penalty order for trespassing. After the complainants allowed the penalty order to become final, the criminal complaint was withdrawn by the owners of the property. The complainants' final complaint in criminal matters is that the withdrawal of the criminal complaint in their case, which only took place after it had become legally binding, led to the cancellation of the penalty orders concerning them by analogy with Art. 392 and Art. 356 para. 7 of the Code of Criminal Procedure and that the non-dismissal of the proceedings violated the principle of indivisibility of the criminal complaint in accordance with Art. 32 and Art. 33 of the Swiss Criminal Code. The omission of a prerequisite for the initiation of criminal proceedings, such as a withdrawal of the criminal application that only occurs after the judgement or the summary penalty order has become final, does not constitute a ground for appeal.

Two parents from Geneva send their daughter to a daycare centre run by a private association that is subsidised by the city. On 22 January 2022, they were informed of the amount of fees to be paid. The cantonal administrative court did not hear an appeal against this, as the relationship between the parents and the daycare centre is governed by private law.

The appellant requests that his compensation be based on "the total hours invoiced according to the list submitted to the first instance". According to cantonal law, the judge examines the scope of the measures necessary for the conduct of the proceedings (Art. 2 para. 1 RAJ/VD). If the official defence counsel has not provided a detailed account of his activities, he receives reasonable compensation based on the estimated time required (Art. 3 para. 2 RAJ/VD). Jurisdiction lies with the sentencing court (Art. 135 para. 2 StPO; Art. 2 para. 1 RAJ/VD). Since the appellant had only listed his activities before both instances globally and had neither dated nor described them in more detail, it is considered to award the same compensation to the appellant as to the official defence counsel of the co-defendant in the proceedings, given the same factual and legal complexity. In this context, the lower court did not apply cantonal law arbitrarily.

The Federal Supreme Court decides that the legal costs awarded in the context of the definitive legal opening cannot be the subject of a separate debt enforcement procedure if the one-year period for the request for continuation has elapsed unused.

The respondent, a shiatsu therapist, had been offering her services to the staff of a Vaud school for ten years. From the beginning of the 2021 school year, at least half of the school's employees worked from home (distance learning), which led to a reduction in the respondent's activity. The appealing compensation office is of the opinion that the home office introduced by the school is not (or no longer) a measure ordered by an authority. The Federal Supreme Court found that, according to the school's policy at the time, working from home should be the rule in all situations that did not necessarily require presence on campus. Consequently, the therapist's claimed loss of income of 47% was linked to measures to combat the coronavirus. She was therefore indirectly affected by the measures.

The Federal Supreme Court affirms the proportionality (suitability) of electronic monitoring to enforce a no-contact order against the ex-wife, even though the man had repeatedly disobeyed the orders of the authorities. Contrary to the lower court and the explanations in the dispatch, electronic monitoring is also an appropriate measure if there is a risk that the offender will not be deterred from committing violent offences again. Otherwise, the provision would be inapplicable.

Insured persons who have chosen their occupation, who were not yet gainfully employed and who incur significant additional costs as a result of disability during their first vocational training are entitled to reimbursement of these costs in accordance with Art. 16 para. 1 IVG, provided that the training corresponds to their abilities. The corresponding application for such benefits was rejected by the IV office of the Canton of Geneva on the grounds that the complainant did not fulfil the insurance conditions with regard to the contribution period or the number of years of residence in Switzerland at the time the disability occurred. The complainant alleges a violation of Art. 8 and Art. 14 ECHR in conjunction with Art. 8 para. 2 BV. Art. 8 para. 2 BV. Contrary to the complainant's view, the right to private life guaranteed in Art. 8 ECHR does not apply to educational measures for disabled children, and in particular not to the initial vocational training of a minor child. It is undisputed that initial vocational training also aims to promote the development of the persons receiving it. However, the refusal of such (vocational) training does not prevent or impede the exercise of one of the elements of the right to personal development covered by Art. 8 ECHR. Even if, according to the case law of the ECtHR, the concept of private life is a broad concept that cannot be defined exhaustively, the guarantee of Art. 8 para. 1 ECHR does not cover the area of initial vocational training in terms of the development of the personality without external interference. The present case therefore does not fall within the scope of this provision.

Based on a Russian request for legal assistance, the assets of a public limited company were seized from a Geneva bank in 2020. Following the Russian attack on Ukraine, Switzerland suspended the processing of Russian requests for mutual legal assistance until further notice.

As part of the preliminary review of the structure plan, the federal government had previously designated a binding determination (Art. 5 para. 2 lit. a, Art. 15 para. 2 and 3 RPV) as probably not approvable. The municipality of Le Chenit nevertheless issued a special utilisation plan for the "Eoljoux" project, but the cantonal administrative court annulled it. The municipality of Le Chenit lodged an appeal in matters of public law. Projects with a significant impact on space and the environment require a basis in the structure plan (Art. 8 para. 2 RPG). The structure plan also designates areas and stretches of water suitable for the utilisation of renewable energies (Art. 8b RPG). According to case law, the anchoring of major projects in the structure plan presupposes that they have been bindingly determined within the meaning of Art. 5 para. 2 lit. a RPO. The structure plan must contain information on their location and scope based on a comprehensive, justified and level-appropriate weighing of interests. Since 2018, Art. 12 EnG has permitted a deviation from the principle that an object listed in an inventory in accordance with Art. 5 NHG must be preserved undiminished for energy projects that are of national interest, as is the case here (see Art. 9 para. 2 EnV). However, such a deviation requires a comprehensive weighing of interests (cf. Art. 6 para. 2 NCHA). Cantonal structure plans must be approved by the Federal Council (Art. 11 RPG). Approval by the Federal Council does not preclude a subsequent challenge to the cantonal structure plan; conversely, if approval is refused, it is not possible to challenge the cantonal structure plan decision, as the latter then loses its legal existence. In the present case, there is an approved cantonal structure plan. The municipality of Le Chenit can request a preliminary review of whether this contains the material requirements for land use planning, i.e. whether it shows the extent to which a comprehensive weighing of interests was carried out for the "Eoljoux" project.

A penalty order was issued against a doctor for involuntary manslaughter after his patient died. Due to gross negligence on the part of the lawyer's secretary, the objection to the penalty order was not sent. After the public prosecutor's office in Neuchâtel rejected the appellant's request to restore the deadline for lodging an objection to the penalty order and the cantonal court confirmed this decision, the appellant appealed to the Federal Supreme Court. According to case law, the lawyer's misconduct is generally attributable to the client. A breakdown in the lawyer's internal organisation does not generally constitute an impediment through no fault of the lawyer that justifies the restoration of a deadline. The Federal Supreme Court then clarifies its case law to the effect that the mandatory defence is an indispensable prerequisite for the restoration of time limits in the event of gross negligence on the part of the lawyer.

The claim for damages against the legal expenses insurer who breaches his duty of care when providing legal advice and thereby damages the insured person is not governed by the shorter period of Art. 46 para. 1 VVG, but by the ten-year period of Art. 127 OR. Art. 127 CO only applies if Art. 46 para. 1 VVG is not applicable (Art. 100 para. 1 VVG).

As part of an application for attachment (Art. 271 para. 1 no. 6 SchKG), the court can declare a "Lugano Convention judgement" enforceable even without an express request.

A lieutenant was a member of reconnaissance detachment (ADD) 10, a professional military unit that carries out special missions to protect Swiss people and property abroad. Because he refused to be vaccinated against Covid-19 despite repeated warnings, he was dismissed in 2021. The lieutenant is lodging an appeal in matters of public law. Military personnel who are deployed abroad as part of an assistance service in accordance with Art. 69 para. 2 of the Military Personnel Protection Act must undergo a medical examination and undergo preventive or treatment measures (Art. 7 PVSPA). This ordinance provision is based in particular on the general personnel law delegation standard of Art. 37 para. 1 FPL. Due to the special status relationship and the fact that the encroachment on physical integrity (Art. 10 para. 2 BV) is only to be regarded as slight overall, this was sufficient as a legal basis for the vaccination obligation. As a member of ADD 10, the complainant had to be available at all times for special operations abroad. The order (Art. 32 MG) to be vaccinated served to ensure this operational capability in view of the Covid-19 measures in force in many countries at the time. The vaccination order was also proportionate in this respect (Art. 10 BV), especially since the operational readiness of ADD 10 serves important public interests of Switzerland.

The complainant, who was born in Tibet and entered Switzerland with his family at the age of 12, was expelled from the country for various catalogue offences, including assault and fraud. The lower court ordered the complainant's expulsion from Switzerland "to a third country, with the exception of the People's Republic of China". By ordering the expulsion to "any other state" without specifying which "third country" it was considering, the lower court violated federal law. The cantonal judgement is amended and the order of expulsion is waived.

A French comedian was convicted of racial discrimination under Art. 261bis para. 4 in fine StGB for the statement "... the gas chambers never existed", which he had made in a sketch during performances in French-speaking Switzerland in which he impersonated a fictitious person.

The grounds for refusal pursuant to Art. 12 para. 1 lit. b of the Hague Convention on the Taking of Evidence (Hague Evidence Convention70) must be interpreted restrictively. The terms "jeopardising sovereign rights" and "jeopardising security" have a narrower meaning than incompatibility with the national public policy of the requested state.

During the first Covid wave, the radio and television of Italian-speaking Switzerland (RSI) reported in two programmes on the conditions in a retirement home that was (allegedly) particularly badly affected. Among others, the home director and a doctor working at the home were interviewed. They are now lodging a complaint under public law. The complainants claim that the journalists did not inform them of the context in which their statements were to be presented. They would never have agreed to a broadcast in programmes with high viewing figures. Incorrect information about the broadcast context of interviews is only relevant in UBI proceedings if it has contributed to an inappropriate presentation in a radio or television programme within the meaning of Art. 4 para. 2 RTVA. However, a review of the content of the two programmes shows that the requirement of fairness was not violated.

On 14 September 2021, the cantonal government of Fribourg issued an ordinance stating that students could only attend courses at Fribourg universities with a Covid certificate. 22 students lodged an appeal in matters of public law (abstract review of legal norms; Art. 82 lit. b BGG) and demanded that the regulation be repealed. The canton of Fribourg argued that Art. 190 BV applied because, according to Art. 19 of the Ordinance on Measures in the Special Situation to Combat the Covid-19 Epidemic, universities either had to require a Covid certificate or impose certain measures (room occupancy of two thirds, compulsory masks, etc.) and this ordinance provision was in turn based on Art. 6 EpG. Wrongly: Art. 190 BV only precludes the repeal of cantonal ordinances if they merely reproduce the unconstitutional content of federal laws. In the present case, however, the cantons were not obliged to introduce a certificate requirement for university courses. It should also be noted that the possibility of attending university events in person without undergoing medical intervention is protected by personal freedom (Art. 10 BV). A proportionality test (Art. 36 BV) reveals the following: The contested regulation was based on a sufficient legal basis (at least insofar as it stipulated a testing obligation) and was in the public interest. It was also suitable and necessary to achieve its objective. On the other hand, it lacked proportionality in the narrower sense because the students had to pay for their Covid tests themselves. With two-week tests, the costs would have amounted to CHF 840 per semester, which would have forced financially weaker students to be vaccinated if they wanted to attend face-to-face courses.

It had to be examined whether and to what extent mitigating circumstances pursuant to Art. 48 lit. a no. 1 (respectable motives), Art. 48 lit. a no. 2 (great distress) and Art. 48 lit. c (great emotional distress) SCC could be taken into account in the case of a climate activist who had damaged the façade of a bank during a demonstration. In the case of the climate activists convicted for their offences, a respectable motive cannot be recognised in all circumstances. The aforementioned grounds for mitigation must be ruled out in any case if violence is used and property damage is caused or there is a risk to life and limb.

A Geneva-based public limited company employed French doctors who carried out home visits to patients on call. Remuneration was paid on a fee basis and was highly volatile. As part of a supplementary tax procedure, it was accused of having paid too little withholding tax from 2008 to 2013. The main point of contention was the extent to which the doctor's salaries should have been offset to calculate the rate-determining income. The decision of the lower court ultimately violated the principle of legality under tax law (Art. 127 para. 1 BV).

ECHR / StGB / Control of correspondence by the penal institution

The complainant was convicted of violating his duty of care or upbringing pursuant to Art. 219 SCC, committed between August 2008 and the end of 2014. The judgement of the court of first instance was handed down on 17 September 2021. He asserts that the offences of which he is accused are time-barred and claims that facts that occurred before 17 September 2014 are time-barred in accordance with Art. 97 aStGB.

The Federal Supreme Court abandons its interpretation expressed in an obiter dictum in BGE 136 III 6, according to which the revised wording of Art. 837 para. 1 no. 3 ZGB makes it clear that work on a property in connection with a construction project is sufficient for a claim to the creation of a builder's lien, that the physical connection of the work with the property or at least the specificity of the work for such a connection is no longer required and that the addition "and the like" means that every delivery of material and labour or work alone on a property will be entitled to a lien if and insofar as it is only connected with a specific construction project. In accordance with the doctrine, lienable works must have three characteristics: (1.) it must be typical construction or demolition work; (2.) it must be physical, manual and/or mechanical work; intellectual or intangible work is excluded; (3.) while the work need not be permanently integrated into or connected with the construction as such, it must be construction-specific in the sense that it has a direct and immediate functional connection with the individual construction of the structure and, as such, is difficult or impossible to reuse.

A foreign national forgot to renew his residence permit in 2007 and has been living in Switzerland without a valid residence permit ever since. He applied for a residence permit based on Art. 8 para. 1 ECHR, but was refused. He therefore lodged an appeal in matters of public law. The Federal Supreme Court has long recognised that the right to private life within the meaning of Art. 8 para. 1 ECHR exceptionally entitles a foreign person to residence if they are particularly well integrated professionally or socially in Switzerland. In BGE 144 I 266, the Federal Supreme Court determined that such integration can generally be assumed if a person has been legally resident in Switzerland for more than ten years. In subsequent judgements, the Federal Supreme Court has clarified that illegal residence is not taken into account when calculating the ten-year period (judgement 2C_821/2021 of 01.11.2022) and that this period expires if someone voluntarily leaves Switzerland for a longer period of time (judgement 2C_528/2021 of 23.06.2022, for publication). However, it should be noted that in individual cases of particularly successful integration, there may be a right to a residence permit based on Art. 8 para. 1 ECHR even if the ten-year criterion is not met. In this sense, Art. 8 para. 1 ECHR can not only justify a claim to an extension of the residence permit, but also, under certain circumstances, to a first residence permit or a renewed residence permit after the loss of an earlier one. In the present case, however, there can be no question of particularly successful integration (no efforts to integrate into the labour market, high debts, criminal conviction for non-payment of maintenance contributions).

An enforceable judgement that orders an employer to pay an employee a gross salary minus the social security contributions to be paid by the employee constitutes an enforceable title within the meaning of Art. 80 para. 1 SchKG. However, the employer can assert its obligation to pay these contributions as a defence within the meaning of Art. 81 para. 1 SchKG. It is then incumbent on the employer to provide documentary evidence of the extent of its obligation. Otherwise, the legal opening must be granted to the extent of the gross salary.

A nature discovery park (Art. 23h NHG; Art. 22 ff. PäV) is to be established in the forests of the Jorat north of Lausanne. A nature discovery park is an area close to a densely populated area that provides unspoilt habitats for native flora and fauna and allows the general public to experience nature (Art. 23h para. 1 NCHA). It consists of a core zone, in which nature is left to its own devices and which is only accessible to the general public to a limited extent (Art. 23h para. 3 lit. a NCHA), and a transition zone, in which nature experiences are made possible and which serves as a buffer against harmful impacts on the core zone (Art. 23h para. 3 lit. b NCHA). The appellants criticise the fact that the canton of Vaud has only designated the core zone and not the transition zone. They overlook the fact that nature discovery parks are established by agreement (cf. Art. 26 PäV and Art. 4 para. 1 LVOParcs/VD). The Federal Supreme Court only requires binding land-use planning protection for the core zone. Although the existence of a park also requires a transition zone, this does not necessarily have to be created through a revision of the current land use planning, especially if this already fulfils the requirements of Art. 24 PäV.

In this case, the Federal Supreme Court dealt with the assessment of the alert for a criminal expulsion order in the Schengen Information System (SIS) for the British citizen A. and its effects after Brexit. A. was sentenced to 4 years and 2 months' imprisonment for several offences, including assault, commercial theft and damage to property. The criminal court also ordered his lifelong expulsion from Switzerland and the entry of this expulsion in the SIS. This judgement was largely upheld by the cantonal court. A. lodged an appeal against the judgement with the Federal Supreme Court and requested that his lifelong expulsion from Switzerland not be entered in the SIS. He argued that, as a British national, he no longer belonged to the Schengen area after Brexit and that the offences committed took place in part before Brexit and in total before the UK left the Schengen area. He claimed that the entry of his expulsion in the SIS violated the principle of non-retroactivity and the principle of equality. The Federal Supreme Court came to the conclusion that the alert in the SIS does not constitute a penalty and is therefore different from the expulsion order. In this case, the United Kingdom was no longer a Schengen state at the time of the criminal judgement, i.e. in 2022. Therefore, the complainant was rightly considered a "third-country national" under Article 3(4) of Regulation (EU) 2018/1861, regardless of whether the offences were committed before the country's withdrawal from the Schengen area on 1 January 2021.

The employee bears the burden of proof for the objection to the termination in accordance with Art. 336b CO. The deadline for the employee to lodge an objection is a forfeiture period. Even if the forfeiture is to be taken into account ex officio, this does not release the parties within the scope of the negotiation maxim from introducing the necessary facts and evidence into the proceedings. Case law on the burden of assertion and proof in connection with forfeiture periods is inconsistent. In some cases, the Federal Supreme Court has regarded compliance with the time limit as a constitutive element for bringing an action, but in others it has also held that the non-forfeiture of a right is an implicitly asserted fact that the plaintiff only has to assert and prove in the event of a dispute. As forfeiture periods cover many different situations, generalisations should be avoided. The time limit under Art. 336b CO differs from a genuine time limit for bringing an action in that the employee is only entitled to compensation for unfair dismissal if he has lodged an objection and this has been unsuccessful. It is therefore not possible to wait until the defendant asserts forfeiture before asserting and proving that an objection was lodged in good time.

The helplessness allowance paid for a child is not to be taken into account when calculating child maintenance, even under the revised child maintenance law, and in particular not for any carer's maintenance. The helplessness allowance is intended to provide lump-sum compensation for the additional costs caused by a disability for assistance or supervision in everyday activities.

The issue in dispute is the calculation of the invalidity pension awarded to the complainant, in particular the taking into account of the contribution periods completed in Portugal when calculating his pension from 1 September 2021. The legal dispute falls under the European coordination of national social security systems. The claimant's entitlement to an invalidity pension arose in casu on 1 January 2018, after the entry into force of Regulation No. 883/2004. Ratione temporis, the present case must therefore be assessed in the light of this Regulation. The case law developed under the regime of Regulation No. 1408/71 regarding the applicability of the provisions of more favourable bilateral agreements also continues under the regime of Regulation No. 883/2004. The replacement of Art. 6 and Art. 7 of the first Regulation by Art. 8 of the second Regulation does not in fact result in any significant changes. Accordingly, an insured person who exercised his right to freedom of movement before the entry into force of the FMOPA and whose entitlement to a Swiss disability insurance pension arose after the entry into force of Regulation No. 883/2004 can benefit from a more favourable provision of a bilateral agreement on social security even under the regime of Regulation No. 883/2004.

The appellant, who comes from Algeria, was sentenced to a fine of 90 daily rates for breach of a reprimand and was awarded compensation of CHF 935 for 27 days' over-imprisonment, which corresponds to CHF 35 per day. The Federal Supreme Court generally considers satisfaction of CHF 200 per day to be appropriate, unless there are exceptional circumstances that justify higher or lower compensation.

The decision makes a clear statement on the principles of waiver, liquidation by the bankruptcy office and the obiter dictum in BGer 5D_63/2014 of 5 September 2014.

In this case, it was unclear whether the complainants were liable to pay tax in the canton of St. Gallen or in the canton of Schwyz. The appellants were assessed in both cantons because, although they lived in the canton of St. Gallen, they established a residence in Schwyz for the purpose of sending their daughter to school. The subsequent question was whether the right of appeal against the canton of Schwyz had been forfeited (E. 2.). According to previous case law, the taxpayer forfeited the right of appeal or the right to contest the (legally binding) cantonal assessment if he unconditionally recognises his tax liability in one canton in the knowledge of the conflicting tax claim of the other canton (E. 2.1.). The Federal Supreme Court is now revising this practice. The forfeiture of the right of appeal is no longer a proportionate measure for countering behaviour contrary to good faith on the part of a taxable person in an intercantonal relationship (E. 2.5., restrictions in E. 4.4.). However, if the behaviour of the taxpayer is contrary to good faith, procedural costs can be imposed on them accordingly (E. 5.2. f.).

Pursuant to Art. 21 para. 2 no. 3 MWSTG (insofar as this is of interest here), treatments provided by doctors, naturopaths or members of similar medical and nursing professions in the field of human medicine are exempt from VAT insofar as the service providers have a licence to practise the profession (E. 3.2.). The Federal Supreme Court was allowed to comment on when such a licence should be assumed. The specific issues addressed were naturopaths, alternative practitioners and naturopaths (E. 4.1.). The modalities of a licence are governed by cantonal law (E. 4.2.). The Federal Supreme Court follows the reasoning of the lower court, whereby authorisation to practise medical treatment under cantonal legislation (within the meaning of Art. 35 para. 1 let. a and b VATO) can only be understood as a positive authorisation, but not as mere acquiescence. According to case law, even a deliberate waiver of a corresponding regulation by the cantonal legislator is not sufficient for the tax exemption provision to apply. In this context, case law also states that a document confirming that a profession can be exercised without a licence does not qualify as positive authorisation in the relevant sense. On the other hand, a basis in cantonal law according to which the practice of medical treatment is expressly authorised is sufficient (E. 4.3., 4.5.).

A testator left a will written by hand. There was no signature at the end of the text. It was disputed whether the document was to be qualified as a formally valid testamentary disposition in her own hand within the meaning of Art. 505 para. 1 ZGB. This essentially raises two questions: Does the testator's introductory self-nomination fulfil the signature requirement or is this fulfilled by the inscription on the envelope (E. 3.)?

In this case, it is exclusively a question of law as to how the "large and small heads" are to be counted in connection with the distribution of surplus in the case of unmarried parents. The starting point is the two-stage concrete method with surplus distribution, which is binding for child maintenance in the leading decision BGE 147 III 265 (BGE 147 III 265 E. 6.6) and within this method the stipulation that arithmetically resulting surpluses are in principle to be distributed according to "large and small heads", but that this can and must be deviated from on a discretionary basis in justified individual cases (BGE 147 III 265 E. 7.3), whereby the exercise of discretion is limited to the distribution of surpluses or is bundled with this (BGE 147 III 265 E. 7.1) (E. 2.1.).

This Federal Supreme Court judgement concerns an appeal against an objection decision by Helsana Accident Ltd in an accident insurance case. On 22 November 2021, the complainant was injured by a stone in a salad bag when she bit into it while working in a supermarket. A tooth filling partially broke off and a longitudinal fracture of the tooth was suspected. Helsana Accident Ltd refused to pay benefits because there was no natural causal link between the accident and the tooth damage. The Insurance Court of the Canton of Aargau upheld this decision. The complainant then appealed to the Federal Supreme Court with the request that she be granted the benefits. The Federal Supreme Court came to the conclusion that the facts of the case had not been sufficiently clarified, which violated the principle of investigation in Art. 43 para. 1 and Art. 61 lit. c ATSG and at the same time the rules regarding the probative value of medical reports (E. 5.7.). The Federal Supreme Court annulled the decision of the Insurance Court and the objection decision and referred the case back to Helsana Accident Ltd for reassessment.

The Federal Supreme Court judgement deals with the detention of a Turkish national (plaintiff) in Switzerland as part of the Dublin procedure.

The Federal Supreme Court dealt with an application to set aside the "partial award" of the sole arbitrator appointed by the ICC Court in November 2022. The ICC Court had previously appointed a sole arbitrator with jurisdiction over two companies as claimants and the Republic of South Sudan as respondent.

In this case, the Federal Supreme Court dealt with the question of the scope of a jurisdiction agreement pursuant to Art. 5 IPRG and the standard of proof to be used to examine the creditor's position pursuant to Art. 958e para. 2 CO. The present case concerns a

In 2022, the Grand Council of the Canton of Thurgau introduced pre-school language support in the cantonal primary school law. It applies to children who turn three by the end of July of the respective year and who have a need for language support. The bill stipulates that the legal guardians of the children concerned can be asked to pay an income-related contribution of up to CHF 800 per year. In addition, the legal guardians are responsible for travelling to the support services.

The judgement of the Federal Supreme Court deals with a case of abuse of authority and the usability of evidence. The complainant, a prison officer, was accused of having used disproportionate force on a prisoner after he had been detained. The court first dealt with the question of whether the video recordings of the prison (JVA) could be used as evidence. The complainant argued that the public prosecutor's office had not obtained the video recordings lawfully. However, the Federal Supreme Court came to the conclusion that the public prosecutor's office had obtained the video recordings lawfully due to the threat of evidence being destroyed. The court also qualified the complainant's abuse of office as a serious criminal offence within the meaning of Art. 141 para. 2 of the Code of Criminal Procedure (E. 1.2.). The public interest in the clarification of the case therefore outweighed the complainant's interest in the unusability of the video recordings (E. 1.5.). The complainant also objected to the rejection of his requests for evidence to hear witnesses and question expert witnesses. The Federal Supreme Court rejected these objections and confirmed the decisions of the lower courts (E. 2.4. f.). As a result, the Federal Supreme Court dismissed the appeal.

In a new landmark ruling, the Federal Supreme Court has commented on the sentencing of VAT evasion offences. According to the Federal Supreme Court, when calculating VAT fines, the legislator was keen to take greater account of the financial situation of the accused person under the conditions of the new law. In particular, the legislator's intention was to ensure that VAT fines that could jeopardise the economic basis of existence are not imposed without examining the assets and income situation, basic needs and possible family and support obligations. The appropriateness of the VAT fine should be guaranteed in this respect. The legislator expressed this intention through the reference in Art. 97 para. 1 of the VAT Act to Art. 34 para. 2 of the Swiss Criminal Code. In contrast, the legislative aim was not that the fines under the new law should automatically be lower and that financially well-off offenders should be punished leniently in future (E. 10.3.2).

The Federal Supreme Court ruled that the liaison fine within the meaning of Art. 42 para. 4 SCC may not exceed one fifth or 20 % of the total sanction appropriate to the offence - consisting of a conditional main penalty combined with a liaison fine (E. 1.3.2.).

The Federal Supreme Court ruled that small quantities of cannabis (up to 10 grams in accordance with Art. 19b para. 2 NarcA) may not be confiscated by the courts for destruction. The requirements for an offence pursuant to Art. 69 para. 1 StGB were not met. The acquisition and possession of small quantities of cannabis for personal use is legal. The fact that it is likely that criminal offences were previously committed by third parties is not sufficient for an offence to be assumed (E. 2.6.1).

In this leading decision, the Federal Supreme Court dealt with the relationship between free legal aid and victim assistance in criminal procedure law. The court came to the conclusion that the entitlement to state reimbursement of legal fees is not dependent on free legal aid and that victim assistance is not subsidiary to free legal aid. A victim who is entitled to free legal aid but does not assert this in the criminal proceedings can therefore still apply to the Victim Support Centre for the costs of lawyers to be covered at a later date (E. 12.6). The Federal Supreme Court overturns the decision of the Administrative Court and orders the Canton of Thurgau to compensate the complainant.

A football player who terminated his employment contract with a football club based in the United Arab Emirates (UAE) by mutual agreement was awarded compensation of EUR 2.3 million by the club in the termination agreement. The footballer lodged an appeal with the Cantonal Court of Baselland against the tax authorities of the Canton of Baselland after they had added a large part of the unpaid compensation sum to the footballer's 2017 taxable income. The appeal was upheld. In the further course of the proceedings, the Federal Supreme Court had to rule on questions relating to the international double taxation agreement between Switzerland and the UAE (DTA-AE).

A person of Swiss nationality obtained the cancellation of the gender indication in Germany, based on German law. The person then applied in Switzerland to have the deletion made in Germany recognised - without success. According to the will of the legislator, the binary legal gender order (man/woman) applies and the waiver of a gender entry is therefore inadmissible. For reasons of the separation of powers, the Federal Supreme Court cannot deviate from this explicit will of the legislator and is obliged to apply federal laws on the basis of Art. 190 BV. It would be up to the legislature to change the legal regulation. Whether the recognition of a waiver of gender indication would be compatible with Swiss public policy can be left open under these conditions. The ECtHR denies a violation of the state's duty to act to guarantee the right to respect for private and family life in the event of a waiver of gender indication.

In this judgement, the Federal Supreme Court had to deal with a pre-emption right from 1985. The owner of the property xxx sold her property and kept the parcelled-off part yyy for herself. The seller (owner of yyy) and buyer (owner of xxx) simultaneously agreed a mutual right of first refusal for 30 years.

The taxable limited liability company purchased timber "ex stock" from forest owners (original producers) in order to sell it to sawmills in Germany and abroad. The taxable company commissioned subcontractors to carry out the logging work, which it remunerated on its own account and thus bore the so-called production costs. It deducted the production costs and a margin ("coordination deduction") from the timber price to be paid to the original producers.

Closing fees of the municipality of Rheinfelden/AG, 2016 levy period

In the present decision, the Federal Supreme Court had to deal with the applicability of the Juvenile Penal Code to transitional offenders. This was against the backdrop of the recently adopted revision of the Code of Criminal Procedure (see BBI 2022 1560 p.18). According to this, offences committed by transitional offenders are now to be formally assessed and sanctioned separately. If criminal proceedings are initiated against a juvenile for an offence committed before the age of 18, this should (in principle) be assessed in juvenile criminal proceedings and sanctioned in accordance with the JStG. If this juvenile commits a further offence during the pending juvenile criminal proceedings but after reaching the age of 18, this offence should now be judged separately in adult criminal proceedings and sanctioned exclusively in accordance with the SCC. Only in the following case should there be no separation: If criminal proceedings have been initiated against a young adult for an offence committed after the age of 18 and it only then becomes known that the young adult committed the offence before the age of 18, this offence will also be judged in adult criminal proceedings, as is the case under current law. With regard to penalties and, in particular, measures, only the Swiss Criminal Code is to be applied. According to the dispatch, imposing a measure under juvenile criminal law on a young adult would be alien to the system and is therefore not appropriate. This also shows that, with the (still) valid provision of Art. 3 para. 2 JStG, the legislator offers transitional offenders in need of measures the choice between protective measures in accordance with Art. 12 et seq. JStG and therapeutic measures pursuant to Art. 59 et seq. SCC and at the same time obviously did not want to exclude the (mandatory or non-mandatory) expulsion from the country for offences committed after the age of 18. The latter are judged according to adult criminal law, which means that Art. 66a ff. of the Swiss Criminal Code applies. Accordingly, it is irrelevant that the provisions on expulsion are not listed in Art. 1 para. 2 JStG. The fact that the juvenile criminal proceedings should remain applicable if they were initiated before the offence committed after the age of 18 became known (sentences 4-5 of Art. 3 para. 2 JStG) does not change the overall situation, as the legislator's aim with this solution was to prevent unnecessary idle proceedings in the interests of procedural economy. Finally, it cannot have been the intention of the legislator to give preferential treatment to a young offender who commits an offence over the age of 18 with regard to a possible expulsion from the country, only or precisely because he has already made a criminal appearance as a juvenile and therefore (simultaneously) an offence committed before and after his 18th birthday are assessed (E. 2.4.2.5.).

In 2016, A submitted an application for disability insurance benefits. This application was rejected by the IV office. In 2021, A submitted a new application without having credibly demonstrated a relevant change in circumstances. This new application was rejected. The St. Gallen Insurance Court partially upheld the appeal against this decision by cancelling the decision of the DI office and referring the case back to the DI office for a substantive review of the application. The IV centre appealed against this. As this is a rejection decision and therefore an interim decision, the appeal to the Federal Supreme Court is only admissible in exceptional cases. An exception can be made to the principle that direct appeals against demonstrably unjustified rejection decisions are not admissible because the requirements of Art. 93 para. 1 lit. a and b BGG have not been met if it is shown that a court regularly acts unlawfully (E. 3.4., 3.6.1.). According to the Federal Supreme Court, such a case exists here. As the IV office rightly asserts, according to decades of established case law, a new application following a previous rejection of a benefit application is only to be reviewed if a change in the actual circumstances relevant to benefits has been credibly demonstrated (E. 3.6.2.). It cited several cantonal court rulings in which the lower instance judged the dispute in the same way as in the decision under appeal here, in deviation from the Federal Supreme Court practice set out above (E. 3.6.3.). In summary, the lower court violated federal law by recognising that a new application for reintegration measures following the prior legally binding rejection of the application for benefits was to be accepted without preconditions. The appeal of the IV office was therefore well-founded (E.6.).

In this judgement, the Federal Supreme Court dealt with the non-granting of damages and satisfaction in the context of state liability proceedings. One of the issues addressed was whether a longer waiting period and placement in an unsuitable facility during the inpatient therapeutic execution of measures would violate the provisions of the European Convention on Human Rights (ECHR) and cantonal state liability law (E. 4.2.). The Federal Supreme Court ruled that the appellant's organisational detention of around 17 months was not permissible. The court found that placement in a penal or detention centre is only temporary and is considered therapeutically adequate if appropriate treatment is provided (E. 8.4.). The appeal was upheld and the lower court was instructed to re-examine the appellant's claim for compensation.

The purpose of the taxable corporation (appellant) is to provide teaching, research and service infrastructures, in particular for university musculoskeletal medicine. It had a research centre or campus site built on a building lease plot owned by the Canton of Zurich. The construction costs amounted to CHF 64 million, of which the Canton of Zurich contributed CHF 9 million. It was now disputed and had to be examined whether this investment contribution was an input tax-effective contribution under public law (input tax reduction) or an input tax-neutral donation. In doing so, the Federal Supreme Court essentially had to differentiate between a mere "intention to favour" with the right to dispose of the funds as it sees fit (in the form of a donation) and a more extensive intention to provide support with a clear purpose (contribution under public law). The court came to the conclusion that the investment contribution from the Canton of Zurich was a contribution under public law, because the Canton of Zurich thereby pursued the public interest objective of promoting research and development and Zurich as a business location (E. 3.2.3.3.). The contribution paid was therefore not freely available for discretionary use. The Federal Supreme Court dismissed the appeal under public law.