Federal court case law 4th quarter 2022

Tenant eviction, Art. 257 ZPO In this case, the Federal Supreme Court deals with a tenant eviction in clear cases. In particular, it analyses the lower court's findings of fact, confirms them and addresses the presentation of the facts themselves. The handling of the granting of free legal aid is also noteworthy. For example, the appellant was not granted free legal aid by the lower courts as she did not provide sufficient evidence of her need. This was confirmed by the Federal Supreme Court. The mere confirmation of receipt of social welfare benefits would not prove neediness. Furthermore, it is not sufficient to simply "offer" further evidence (E. 11.4.1., 11.4.3.). It is therefore irritating that in the same judgement the Federal Supreme Court apparently allows this confirmation of social welfare benefits to suffice as proof of need and grants free legal aid for the proceedings before the Federal Supreme Court (E. 12.3.).

Negligent homicide; charging principle; amendment and extension of the indictment (Art. 333 StPO) The Federal Supreme Court deals with the amendment of the indictment in accordance with Art. 333 of the Code of Criminal Procedure. The principle of immutability applies in court proceedings. According to Art. 340 para. 1 lit. b of the Code of Criminal Procedure, the indictment may no longer be withdrawn at the main hearing after any preliminary issues have been dealt with and, subject to Art. 333 of the Code of Criminal Procedure, may no longer be amended. The exceptional nature of Art. 333 para. 1 of the Code of Criminal Procedure and the fact that the application of this provision results in a breach of the principle of immutability argue against a broad interpretation of this provision. Furthermore, an overly broad interpretation of Art. 333 para. 1 of the Code of Criminal Procedure also appears problematic in view of the fact that the substantive court to a certain extent assumes the role of the prosecution when it applies this article. The substantive court is prohibited from assuming the role of the prosecution (E. 3.4.4.). Consequently, this means the following: The failure of the public prosecutor to set out in the indictment all the factual findings from which, at most, the unlawfulness of the incriminated behaviour could arise cannot lead to an obligation on the part of the court to give it the opportunity to amend the indictment (E. 3.5.).

Local planning revision, Samedan railway station site plan In 2018, the municipal council of the municipality of Samedan approved the "railway station" site plan. An appeal against this site plan was successfully lodged. According to the case law of the Federal Supreme Court, a special utilisation plan may deviate from the basic regulations, provided these deviations do not lead to the planning and democratically supported basic regulations being emptied of their meaning (E.3.3.). The uncoordinated enactment of special utilisation regulations for parts of the municipal territory contradicts the planning obligation of Art. 2 para. 1 RPG. When examining the permissibility of deviations of a special utilisation plan from the basic regulations, it is therefore important whether the deviation is democratically supported. However, a special utilisation plan may not empty the basic regulations of their meaning if it was determined and approved by the same bodies and in the same procedure as the basic regulations (E. 3.3.). The disputed site plan was issued by the municipal council and was not subject to a vote like the framework utilisation plan. It was therefore less democratically supported and therefore had to be assessed more strictly (E. 4.2.). Furthermore, as the deviation from the basic regulations was massive, the appeal was upheld (E. 4.4. f.).

Infringement of the Federal Act against Unfair Competition through Unfair Advertising and Sales Methods The accused is the chairman of the board of directors of a telemarketing company. This company contacted companies that had an advertising block (star entry) noted in the telephone directory. It was questionable whether he was liable to prosecution under Art. 3 UWG. This states that anyone who fails to observe the note in the telephone directory that a customer does not wish to receive advertising messages from third parties and that their data may not be passed on for the purposes of direct advertising is acting unfairly. Art. 3 para. 1 lit. u UCA was the subject of the revision of the UCA that came into force on 1 January 2021. The wording of the revised law now makes it clear that a rejection of advertising messages noted by an asterisk entry in the telephone directory has no blocking effect if the person contacted has a business relationship with the author of the advertising message (E. 1.2.). This business relationship in particular was defined in detail in E. 4.3.2. The term "business relationship" is interpreted rather narrowly in order to fulfil the purpose of protection - the containment of excesses in telemarketing (E. 4.3.2.).

Exequatur, attachment The judgement is based on the appellant's application for attachment, which is based on a foreign judgement and directed against an undivided inheritance, as well as the simultaneous request for a declaration of enforceability of the judgement in question (E. 3.). It was questionable whether an attachment - and, based on this, the enforcement of the judgement - can be directed against the estate (undivided inheritance) and not just the heirs (E. 3.5.). The Federal Supreme Court determined that, under certain conditions, the attachment can be directed directly against the undivided estate, thereby establishing a place of attachment in Switzerland (E. 3.5.4.).

Adjustment of the practice for driving licence revocation due to overtaking on the right In 2020, a driver first drove on the overtaking lane of the motorway, then changed to the normal lane, accelerated, overtook another driver on the right and turned back onto the overtaking lane. Overtaking on the right on the motorway or road by swerving out and turning back in no longer always results in the driver's licence being revoked. The Federal Supreme Court is adapting its practice to the changed legal situation. However, exceptions to the withdrawal of driving licences are to be applied with caution (see also the general judgement on overtaking on the right BGer 6B_231/2022).

Release of personal files (archiving) This judgement concerned the release of (personal) files from the state archives. After reviewing the interference with fundamental rights, the Federal Supreme Court refused to hand over the files. The transfer of the juvenile personnel file of the Office of the Juvenile Prosecutor of the Canton of Basel-Stadt and the patient files kept at the University Psychiatric Clinics of Basel to the State Archives of the Canton of Basel-Stadt encroaches on the privacy and the right to informational self-determination of the complainant, but in this case is in accordance with the Convention and the Constitution.

Expansion of fibre-optic network: Swisscom must comply with COMCO's precautionary ban In February 2020, Swisscom announced its new strategy for the expansion of the fibre-optic access network. In future, a single-fibre model with a tree structure was to be used instead of the four-fibre model. This would prevent other telecommunications providers from gaining physical access to fibre optic lines between Swisscom's central office and the subscriber line. As a precautionary measure, COMCO prohibited Swisscom from constructing its fibre-optic network in this way. The Federal Supreme Court rejected Swisscom's appeal against this decision. The Federal Supreme Court only examines decisions on precautionary measures to determine whether constitutional rights, such as the prohibition of arbitrariness, have been violated.

Compensation for unfair dismissal is tax-free Compensation paid by the employer to the employee for unfair dismissal is tax-free. The compensation is predominantly in the nature of a compensation payment and therefore counts as tax-free income overall.

Deletion of comments in SRG online forums and social media channels: legal recourse via the SRG ombudsman's office and UBI The deletion of a comment on an editorial contribution by the Swiss Broadcasting Corporation (SRG) in one of its online forums or social media channels can be legally contested. Whether the author's freedom of expression has been unlawfully infringed in an individual case must be examined by the Independent Complaints Authority for Radio and Television (UBI) following a prior attempt at mediation by the SRG ombudsman's office. The commentary function is used to exchange opinions and form opinions on editorial content. If SRG offers such forums for expressing opinions outside of its programming, it must act as far as possible in accordance with fundamental rights and take into account its role as a provider of radio and television services licensed throughout Switzerland. By deleting comments or the individual, temporary or permanent exclusion of people from the comment function, SRG is interfering with the freedom of expression of those affected. This means that legal recourse must be available that fulfils the requirements of the Federal Constitution (Article 29a BV). This is stated in the Federal Supreme Court's press release dated 29 November 2022. The actual reasons for the ruling are not yet available.

The Federal Supreme Court dealt with the interpretation of Art. 28 para. 1 IVG. If the earning capacity of an insured person can probably be restored, maintained or improved through reasonable reintegration measures, the principle of "reintegration before pension" (see Art. 28 para. 1 lit. a IVG) or "reintegration instead of pension" applies. An entitlement to a pension can only be granted if no appropriate measures are (or are no longer) possible; otherwise, suitable rehabilitation measures must be ordered in advance. According to the legal concept, a pension can only be awarded before the implementation of rehabilitation measures (possibly also retroactively) if the insured person was not or not yet capable of rehabilitation due to their state of health. The fact that the pension entitlement can only arise after the reintegration measures have been completed applies even if these were only partially successful or failed. The situation is different after clarification measures which are intended to show whether the insured person is capable of integration at all and which then show that this is not the case; in this case, a pension can be awarded retroactively (E. 6.2.4.).

Subsidies paid by the employer in favour of employees for childcare in a company-owned or affiliated daycare centre (KiTa) are subject to AHV contributions. Childcare centre subsidies cannot be regarded as family allowances, which would be exempt from the AHV contribution obligation.

Amendment of marital protection, appeal against remittal decisions before the Federal Supreme Court Independently issued higher-instance judgements in civil matters, with which the case is referred back to the first instance for a new decision, are generally regarded as preliminary or interim judgements (BGE 145 III 42 E. 2.1), which - insofar as they do not relate to jurisdiction or a request for recusal (Art. 92 BGG) - can only be challenged under the conditions set out in Art. 93 para. 1 BGG, although the party itself is not obliged to do so if the conditions are met (BGE 143 III 290 E. 1.4) (E. 1.1.).

Import duties; cabotage This matter concerned the retrospective assessment of customs duties and import taxes for the lorries and tractor units used by the appellants, which had not yet been cleared through customs and tax in Switzerland. It had to be clarified whether the appellants were entitled to make use of the temporary admission procedure within the meaning of Art. 9 ZG, Art. 58 ZG and Art. 53 para. 1 lit. k MWSTG, or whether they had to subsequently declare and pay tax on the lorries and tractor units (cf. Art. 12 VStrR). In essence, the scope of application of the so-called cabotage ban was disputed (E. 4.).

Cartel Act, sanction order, cease and desist order The Federal Supreme Court confirmed that a measure under Art. 30 para. 1 CartA can also be ordered in the case of discontinued or directly sanctionable offences (Art. 49a para. 1 CartA). It held that such a connection is possible, at least if there is a risk of repetition (E. 4.4.).

Penalty order against unknown activist is valid The Federal Supreme Court has ruled that a summary penalty order against a person whose name is unknown is valid. This means that it is permissible to issue penalty orders against unknown persons if the description in the penalty order allows for "clear individualisation".

Penalty order against unknown activist is valid The Federal Supreme Court has ruled that a summary penalty order against a person whose name is unknown is valid. This means that it is permissible to issue penalty orders against unknown persons if the description in the penalty order allows for "clear individualisation".

Detention pending deportation (application for release from detention) The Moutier Regional Court is criticised for violating the conditions of detention for deportation. To summarise, it follows that the confinement of the appellant in his cell for 18 hours violates his right to personal freedom, as it goes beyond what is necessary for persons detained under immigration law with regard to the purpose of detention and must be considered disproportionate (violation of the prohibition of excessive measures). The same applies to the impossibility of accessing the Internet in the Moutier regional prison - if necessary, limited in terms of location and time. The corresponding measure violates the complainant's freedom of expression and freedom of information and goes beyond what appears necessary for the purpose of the coercive measures under immigration law. The restrictions mentioned are not justified either by the requirements of running the prison or for security reasons. With regard to the possibility of being able to keep the mobile phone, provided that it does not permit image and sound recordings, and the opportunity to make unlimited telephone calls at one's own expense, the fact that one's own smartphone cannot be used unconditionally does not violate either the right to personal freedom or the constitutional communication rights of the complainant in Moutier Regional Prison (E. 5.4.)

According to the legal system of domestic arbitration, grounds for challenge against the arbitral tribunal cannot be asserted directly by means of an appeal to the Federal Supreme Court. Anyone wishing to invoke an irregular appointment of the arbitral tribunal must initiate challenge proceedings pursuant to Art. 367 et seq. ZPO. Pursuant to Art. 369 para. 1 ZPO, the parties are free to agree on this procedure; they can make individual agreements or submit to a specific arbitration institution or arbitration rules (E. 2.1.2.). In the specific case, the Federal Supreme Court found that the three-member arbitral tribunal with jurisdiction in the main proceedings did not rule on the challenge/rejection requests in question, but rather the sole arbitral tribunal as the body specifically designated to deal with such requests within the meaning of Art. 369 para. 3 ZPO. The appellant must be upheld in that the contested decision is a decision on rejection within the meaning of Art. 369 para. 5 ZPO, which can only be contested together with the first (or next) award of the three-member arbitral tribunal (rejected by the appellant). The appeal to the Federal Supreme Court was therefore inadmissible (E. 2.4.).

The complainant challenges the failure of the public prosecutor to attend the oral appeal hearing on 7 September 2021 and the lower court's interpretation of Art. 337 para. 3 of the Code of Criminal Procedure as contrary to federal law. It follows from the correlation between Art. 337 para. 3 CPC and Art. 130 lit. b CPC that the public prosecutor must attend the appeal hearing in person if the accused is facing a custodial sentence of twelve months and is therefore a case of necessary defence (E. 2.1.). The Federal Supreme Court rejected this argument. The court of first instance sentenced the appellant to twelve months' imprisonment. The public prosecutor's office did not lodge an appeal or a cross-appeal and therefore did not request a custodial sentence of more than one year in the appeal proceedings. The lower court was therefore precluded from imposing a higher custodial sentence (Art. 391 para. 2 StPO). To summarise, it is therefore not objectionable that the public prosecutor was not allowed to attend the appeal proceedings in person and was given the opportunity to submit written, substantiated motions (E. 2.4.). The offender's intent was then discussed. To summarise E. 4.3.2.2: What the perpetrator knew, wanted and accepted concerns so-called internal facts and is therefore a question of fact. The question of law, on the other hand, is whether negligence, contingent intent or direct intent is given based on the established facts (BGE 137 IV 1 E. 4.2.3 p. 4 f. with references). The Federal Supreme Court only reviews findings of fact from the point of view of arbitrariness (Art. 97 para. 1 BGG). The complaint of arbitrariness must be explicitly raised and substantiated in the appeal (Art. 106 para. 2 BGG). The Federal Supreme Court does not accept purely appellatory criticism of the contested judgement (BGE 147 IV 73 E. 4.1.2 p. 81 with references).

Multiple attempted incitement to multiple homicide; offences against the NarcA; sentencing; expulsion; arbitrariness The attempt is deemed to have been committed where the offender carries it out and where, according to his imagination, the result should have occurred (Art. 8 para. 2 SCC). This also applies to attempted instigation (E. 1.2.3.6.).

Registration of a tenancy in the land register pursuant to Art. 261b CO; type of proceedings; subject matter jurisdiction This case concerned the entry of a tenancy agreement in the land register and the jurisdiction of the Commercial Court in this matter. The Commercial Court of Zurich denied its subject matter jurisdiction as the proceedings were simplified. If the simplified procedure applies to a dispute pursuant to Art. 243 para. 1 or 2 ZPO, the Commercial Court does not have jurisdiction, even if the dispute is a commercial dispute within the meaning of Art. 6 para. 2 ZPO (E. 2.). It was disputed whether the action based on Art. 261b CO (in conjunction with Art. 959 ZGB) concerning the land register entry of a tenancy concerns the protection against termination pursuant to Art. 243 para. 2 lit. c ZPO (simplified procedure) (E. 3.). The Federal Supreme Court affirmed the applicability of the simplified procedure and thus the lack of jurisdiction of the Commercial Court (E. 3.1., 3.4. f.).