According to Art. 59 para. 1 BGG, party hearings and oral deliberations before the Federal Supreme Court are public. At the same time, according to the Annual Report, just 0.6 % of all cases are deliberated in public. Publicity is established differently in these cases, namely through Circulation of the decision (Art. 59 para. 3 BGG). According to the regulations of the Federal Supreme Court, this is generally done in a non-anonymous form (Art. 60 para. 3 BGerR).
From this practice, one applicant derived the Publicity of all federal court decisions and asked for access – first to “if possible, the originals of all judgments of the Federal Supreme Court from the period approximately January 2020 to March 2020”, then to those of the 3rd quarter of 2020. His interest, as he emphasized, was in the judgment dispositif and the information on the complainants.
In terms of content, the applicant relied in particular on the Federal Court Ordinance on the Archiving Act. According to this ordinance, records of legal proceedings are in principle subject to a protection period of 50 years. Before the expiry of this period, they can only be inspected if the persons concerned have consented, they have been dead for at least three years or “the documents are already accessible to the public were, subject to new reasons against the inspection” (Art. 8 para. 1 of the Regulation).
The Appeals Commission of the Federal Supreme Court ruled on the request on February 24, 2021 (ruling 13Y_1/2021). In doing so, it dealt in detail with the prerequisites for the inspection of case files (E. 2) and their alleged public access (E. 3): The Archiving Act does indeed require that documents which were already publicly accessible before delivery to the archives remain so (Art. 9 para. 2 BGA). Also, the “public policy of the Federal Supreme Court” aims to keep its own jurisdiction transparent and to counteract a “cabinet justice” (E. 3.2.4). Nevertheless, the time and space limited sentencing order cannot be compared with a publication in the Federal Gazette, for example: The 30-day stay in the waiting room of the Federal Supreme Court in Lausanne does not make the verdict dispositive “public”.
Against this background, the Commission spared itself the question of the interest worthy of protection (E. 4) – and the applicant the costs of the proceedings (E. 5).