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The public is increasingly trying to influence court decisions. This is a problematic development for the independence of the judiciary.
It’s all about this: Political pressure on the judiciary no longer only comes from the parties. Non-governmental organizations, activists and private individuals are increasingly trying to get judgments to turn out in their favor – with media campaigns, shitstorms, demonstrations or systematic complaints against judicial employees. This can intimidate judges and influence case law.
Example one: The Nigerian Mike Ben Peter died after a brutal arrest in Lausanne in 2018. According to two forensic reports, he suffered a cardiac arrest due to cardiac arrhythmias combined with obesity and stress. The police officers were therefore acquitted. That led to protests. Black Lives Matter activists believe that the police officers killed Mike Ben Peter because they pushed him to the ground in a prone position – similar to George Floyd in Minneapolis (USA).
The lawyer for Peter’s relatives ordered alternative reports from two US experts and reported in the media that, according to them, the cardiac arrest was due to the behavior of the police officers. The private reports have no evidentiary value in court. But public opinion can be used to build pressure – on the next authority.
Legend:
A demonstration in the Mike Ben Peter case in Lausanne (June 3, 2023).
KEYSTONE/Valentin Flauraud
Example two: In Basel, a court president opened the second-instance verdict against a rapist orally and justified the reduced sentence with rather clumsy words. For this she was publicly pilloried, with shitstorms, newspaper comments and demonstrations in front of the court. The pressure became so great that the court did something it never does otherwise: it justified itself in a media release. The Federal Court ultimately tightened the punishment for the rapist again.
This is what a former judge says: This pressure is problematic for the independence of the judiciary, says Marianne Heer, who worked as a judge in the canton of Lucerne for decades. “In a constitutional state, the judiciary needs to be controlled by the media and in this respect criticism is good, but scandalizing the judiciary is not real control.” Heer noticed a clear development over the course of her professional career: While the judiciary used to enjoy great respect, today judges are being influenced in an unhealthy way.
This is what a legal historian says: According to Michele Luminati from the Obwalden Institute for Justice Research, it is a global phenomenon that has now also arrived in Switzerland. “We know from other countries that the judiciary can be influenced by this pressure. There is hardly any empirical research or figures from Switzerland, but the topic is increasingly being discussed within the judiciary. The judiciary needs to be monitored by the public, but this must not degenerate into influence. According to Luminati, court staff therefore need to be trained on how to deal with this pressure and personal attacks.
This is how experts react: The topic has also reached the Swiss Association of Judges. When asked, it is said that they will be given tools in further training on how to react in such situations.