Request for delivery of anonymous decisions

Judgment of the Federal Supreme Court 1C_307/2020 of June 16, 2021 (intended for publication in the Official Compilation)

by David Hofstetter
1. initial situation

In its judgment of 16 June 2021, the Federal Supreme Court ruled in the proceedings 1C_307/2020 on the claim of a person seeking justice to be served with a large number of anonymized court decisions of the Canton of Zug. The judgment contains statements on the scope and modalities of the right to inspect (cantonal) case law. The judgment is intended for publication in the Amtliche Sammlung.

2. facts

With regard to divorce proceedings concerning him, a resident of the Canton of Zug requested the Higher Court of the Canton of Zug to send him all decisions issued since 1 January 2015 in various areas of family law in anonymized, digital form. The request was rejected by the Supreme Court. An appeal was filed with the Federal Supreme Court against the dismissal. The Federal Supreme Court upheld the appeal.

3. considerations of the federal court

The Federal Supreme Court examined the request under the principle of judicial publicity pursuant to Article 30 (3) of the Federal Constitution (FC). According to this provision in the Constitution, court hearings and pronouncement of judgments are public. The law may provide for exceptions.
The Federal Supreme Court states (E. 6.2) that public pronouncement of a judgment means, first of all, that at the end of court proceedings the judgment is pronounced in the presence of the parties as well as the public and representatives of the media. In addition, other forms of announcement serve the pronouncement requirement, such as public circulation, publication in official collections or announcement via the Internet, as well as the subsequent granting of inspection upon request. According to the Federal Supreme Court, these other forms of announcement of judgments are not subsidiary to the pronouncement of judgments in the courtroom but, in view of their purpose, are equivalent to public pronouncement.
The requirement of public pronouncement of judgments thus has effects beyond the time of the conclusion of the proceedings. A claim to knowledge of judgments even of completed proceedings is absolute and - unlike in the case of requests for inspection of files of completed proceedings - no specific interest worthy of protection must be asserted. Despite the claim being absolute in principle, the doctrine recognizes that access may be denied in individual cases for important private or public interests or granted only in anonymized form (E. 6.3).
After stating that the provision of Art. 54 (4) of the Code of Civil Procedure (CCP), according to which family law proceedings are not open to the public, does not preclude the petitioner's request (E. 7), the Federal Supreme Court examines whether the petition could have been rejected by the Higher Court of the Canton of Zug on the grounds that it was very extensive and its approval would have resulted in excessive expense.
The Federal Supreme Court concludes that the Supreme Court has not sufficiently demonstrated how the request would cause excessive expense. It states that the judgments of the Supreme Court have apparently not been systematically published to date. It considers this practice to be permissible and it makes it possible to save considerable resources. However, the consequence of this practice is that the Supreme Court has to accept a "certain additional effort" in case of a concrete request for inspection (E. 8.1).
With regard to the modalities of granting access, the Federal Supreme Court states that a fee may be charged for access to the judgments (which must in principle be granted at the registry of the Supreme Court; there is no entitlement to delivery of copies) if the processing of the application requires a not inconsiderable effort. However, this fee may not be excessive. Otherwise, the objective of judicial publicity, namely to ensure transparency in the administration of justice and to create the basis for trust in the judiciary, could be undermined by an unreasonable cost regulation. The Federal Supreme Court recommends that the person making the request be informed of the legal basis for charging the fee and the expected amount of the fee if this could amount to a "considerable sum", so that the person making the request can, if necessary, specify or adjust his or her request (E. 8.2).

4. conclusion

The Federal Supreme Court's ruling is to be welcomed, because it could provide an impetus for cantons that do not systematically make the case law of their (higher) courts available to the public via the Internet to change their practice in order to avoid lengthy requests for inspection. From the practitioner's point of view, it is particularly disturbing to be confronted in pending proceedings with case law that cannot be looked up because it is not generally accessible, but rather judgments must be requested anonymously from the authority, sometimes with not inconsiderable cost consequences. In today's digitalized age, it should be a matter of course that the cantons publish the case law of at least their higher courts via the Internet and thus make it available to the general public anonymously and free of charge in the spirit of judicial publicity. Even in the canton of Aargau, there is still room for improvement in this regard, as only the leading decisions are published free of charge in the form of the AGVE.