They decide about the future of people – but what leeway do they have? A male and a male judge provide information about their work.
Is Pierin Vincenz (65) a fraudster who fraudulently stole millions from Raiffeisen? Or just a rogue who kept a few delicate deals from his employers?
Outcome still unclear
Questions like these were negotiated this week in the Zurich Volkshaus. How the verdict will turn out is completely open: Six years in prison and a levy of several million francs, as the public prosecutor demands? Or a full acquittal, as the defense demands?
The decision lies with the Zurich District Court, more precisely with the three-person judges: the chairman Sebastian Aeppli (63) and his colleagues Rok Bezgovsek and Peter Rietmann – a Green, two Social Democrats.
What influence does party affiliation have?
“Not a particularly business-friendly impression,” according to the “NZZ am Sonntag”. But is that crucial? Would Vincenz have a better chance of getting a mild sentence from judges who belong to the business-friendly FDP?
Martin Schubarth (79), federal judge from 1982 to 2004, shakes his head: “In my experience, it doesn’t matter whether a judge belongs to the Greens or the SVP.” That’s why he doesn’t think it’s a good thing that the media mentions more and more often which party a judge is a member of.
certain scope
Anastasia Falkner (53), chief judge in the canton of Bern and board member of the Swiss Association of Judges, also emphasizes that nothing can be derived from party affiliation: “In other countries like the USA it may be different, as the Supreme Court shows. But the judges are also explicitly nominated because of their party affiliation or their political ideology – and that is of course linked to certain expectations.”
It doesn’t matter who sits at the judge’s desk, even in Switzerland. “A judge’s personal basic ideas can definitely have an influence on the interpretation of the law,” admits Schubarth.
Biography of the judge is more important
For example, there is no absolute definition for the term fraudulent behavior, which plays an important role in the Vincenz trial – is it deception through omission or through implied action? “The biography of a judge is more important for answering such questions than the party book,” said the former federal judge. In the current trial, for example, it may be easier for a judge who was a former private sector lawyer to understand the case.
Falkner adds: “Judges are human beings and have very different values – and they carry them into the courtroom.” Although this influences the type of questioning and how the accused are dealt with, it does not necessarily have an influence on the verdict. “Every lawyer interprets articles of the law a little differently. Ultimately, however, judges are bound by the law and by the decisions of the highest courts; their discretion is therefore limited,” says Falkner.
Supreme Court can intervene
Attorney Adrian Ettwein (59) shares this assessment. From 2002 to 2015 he was federal prosecutor in the area of economic crimes and says: “In all my years as a prosecutor, I never had the feeling that I had better chances with one judge than with another.” In any case, a court may not simply decide what it wants, but must justify its judgment precisely. “If a district judge doesn’t do his job properly, his sentence will be overturned by the Supreme Court. And that’s an embarrassment that every judge wants to prevent.”
Another important factor is that in many cases a panel of three or even five judges decides. “This prevents the personal character of an individual judge from being given too much weight,” says Ettwein.
And what influence does the media have? “Reporting certainly plays a role in large cases,” admits Anastasia Falkner, “at least as a stress factor.” Judges would deal with it completely differently. “Some read everything that is reported about the case, others nothing at all.” However, the Chief Justice does not believe that the reporting will have a major impact. After all, no one has such comprehensive insight into a case as the judge himself.