Lack of independence of the Administrative Commission of the Zurich Higher Court in judicial administration matters as an obstacle to appeal

Facts

The District Judge A. was temporarily increased in employment level from 50 % to 60 % and classified in salary class 25, performance level 5 (annual salary at 100 %: CHF 164,615.-) by an order of the Secretary General of the Higher Court of the Canton of Zurich dated 14 March 2023.

A. filed an appeal against this order with the Administrative Commission of the Higher Court of the Canton of Zurich on 14 April 2023. The Commission dismissed the appeal by decision of 6 November 2023.

With an appeal in public law matters dated 11 December 2023, A. appealed to the Federal Supreme Court and requested that the decision of 6 November 2023 be set aside and that, retroactively as of 1 March 2023, a classification in salary class 26, level 07/LS 5 (annual salary at 100 %: CHF 176,528.-) as Vice-President, President of the Labour Court and Chair of the Labour Court Division of Zurich be made.

The Administrative Commission of the Zurich Higher Court submitted a statement regarding the appeal but did not file any substantive submissions. The appellant filed a reply.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal in public law matters. According to Art. 86 para. 1 lit. d FSCA, such an appeal is admissible in particular against decisions of the last cantonal instances, provided that no appeal lies to the Federal Administrative Court. The cantons must appoint superior courts as direct lower courts of the Federal Supreme Court that meet the requirements of judicial independence (Art. 86 para. 2 FSCA).

The right to a judicial remedy under Art. 29a Cst. in conjunction with Art. 30 para. 1 Cst. requires that disputes concerning judicial administration acts may be appealed to an independent judicial body. Such a body must be organisationally and personally independent and must not decide in its own case. In the present case, the Administrative Commission of the Zurich Higher Court heard the appeal against an order of its own Secretary General. It thus decided functionally as an administrative appeals authority and not as an independent court. This contravenes the requirements of judicial independence under Art. 30 para. 1 Cst..

While Zurich law provides for a 'cross-over rule' under which judicial administration acts of the highest cantonal courts may be appealed to another highest court, this rule only applies if the court concerned has decided as the sole instance. In the present case, the Administrative Commission of the Zurich Higher Court was not acting as the sole instance but as an appeals body against an order of its own Secretary General. It…