2.CHAPTER MUSTAPHA Do you know the story with the donuts? Guest to Waiter: Waiter, please do bring me please a cup of coffee with a couple of donuts Waiter (smiling and relaxed): I'm sorry, sir, but we don't have any more donuts. Guest: Oh! what a pity. Well then, bring me a cup of tea - with a couple of donuts. Waiter (polite and patient): I'm really sorry, sir, but we really don't have any more donuts. They're sold out. Guest: Gee, isn't that a shame! Well then, bring me a cup of hot chocolate - with a couple of donuts. Waiter (stressed): Sir, I have told you already: we are out of donuts. Guest: Now, you don't mean that! Well then, bring me a glass of wine - with a couple of donuts. Waiter (yells in fury): We ain't got no more donuts, damn it! No more donuts, understand? Second guest, (at table nearby, to first guest): Can't you stop annoying this waiter? (turns to the waiter): And you, sir, may you know that I admire and respect your patience, 'cause if it was me, I would have slapped them a long time ago on his silly face, them silly donuts! A silly story? At the end of October 1987 - we were just four weeks in business - I received a letter from the cantonal Labor Office. And according to this letter we were charged with employing a Turkish refugee without a labor permit since June 17, 1987. We were reminded of the severe regulations concerning the issue of labor permits to aliens. The
Labor office threatened with the systematic refusal of labor permits for aliens, should this situation occur again. I was flabbergasted. We had taken over all the help to the same conditions as before, and I could well assume that each individual employee was level with the Law. I asked the man at once - a counter employee - for his labor permit. He confirmed me that he had none. On the same day I wrote a letter of apology and asked the Labor office to grant a labor permit to the man. As a refugee he was outside the quotas, so I argued, nothing stood in the way of issuing a permit. I mentioned expressly that we had taken over the business on September 23, 1987, and that we had gone from the assumption that the legal situation of each and every employee would be in order. I assured of my good will and promised to be more attentive in the future. Ten days later the labor permit was there and I could forget the incident. Or so I thought. About a week later there came a police official and told me solemnly that I was to be subpoenaed for having employed an alien as of June 17., 1987. I explained the man quietly and in detail - for about twenty minutes that we had taken the place over as of September 23, 1987, that we knew about the case and that we had settled it amicably. And I showed him the freshly arrived labor permit. The man left. A few days later we received from the cantonal Immigration Office a letter with a fine and a statement of expenses concerning the illegal employment of an alien - since June 1, 1987. The threat of prohibition of employing foreigners was renewed. This threat, if made true, would have meant the end of our enterprise. The whole thing was becoming eerie. I drove to Solothurn, seat of the cantonal administration, in order to have a few words with a chief official. I had taken the correspondence with the Authorities along with me. I came through the door of the immigration
office. There came a young red haired fellow with sweater to me. I unfolded my papers and wanted to introduce myself... I didn't get that far. The youngster shoved me along a corridor and into another office and intimated me to wait. And so I sat down on a chair and waited. About twenty minutes went by and the redhead came again and asked me if anyone had come. I barely the chance to make a helpless gesture and he was already bawling me out: "You could be a little bit polite when you are being talked to!" And then he took off like a bat out of hell. And I remained alone again. After another half hour or so there came a fifty year old runt through the door and addressed me rudely: "What are you doing here? Can't you wait outside in the hallway like everybody else?" I slammed the door violently as I left. That was the beginning of a bitter-sweet correspondence with the Authorities. A private businessman, so I wrote, who would behave in this manner would go broke within three months. An employee would get fired on the spot. But an arrogant bugger like this Mr. Mutti could afford, as chief clerk, to treat people like dirt. I recalled the German Chancellor Otto Count of Bismarck's famous axiom according to which "it is possible to govern a country with bad laws and good civil servants, but whenever the contrary occurs the decline cannot be far." The tone of the letters coming from the administration was getting the longer the more helpless, but for the officials there was and remained the fact that I had employed an alien illegally since June 17, 1987. I requested a process, The paragraph riders could not refuse it. And it was in the course of this "process", which lasted less than five minutes and in the course of which I did not have the chance to open my mouth that there came for the first time the evidence that we had taken over our business on September 23, 1987. I was freed of all charges "as I could assume that the legal situation of all the employees was in order as we took over the business." The costs of the procedure went to the State.
The whole beef - for a silly beef it was - had mobilized a round dozen of public officials during a couple of months. At the end they saw the light. Our civil servants are not actually dense, they have a relatively sound perception of things. It is just that they have to be explained the situation for a sufficiently long time and in an appropriate tone. In the course of time the relationship has improved markedly, and presently we enjoy a nice cooperation with these officials. This tends to demonstrate that one should not give up too soon About the middle of October we hired a Turkish refugee as a kitchen help. (That I had requested a labor permit for him doesn't even need to be mentioned...) Mustapha OeztĂźrk was his name. I still see him as he came for an interview: bony, badly groomed, stressed. The man put me off and I did not exactly know why. Maybe the bitter expression on his face, maybe the whining tone of his voice as he begged me to give him a job. Now that we have the operation firmly under control the man would not have the shadow of a chance. But it was the beginning, the place was doing alright, I needed someone in the kitchen. I gave him the job. It was not a good decision. To put it short, the guy was a real dud, a discontented person and a minimalist. In December already he went on sick leave, for two weeks. At the beginning of 1988 he went to Klara and requested to be employed as a counter employee in the restaurant. He'd be seized by fits of panic whenever he was alone in the kitchen in the afternoon. Klara accepted, on the condition that he should dress tidily and that he cut his hair. I had no objection: the man was definitely no genius and I could see the time when we would part. And so he was put behind the counter with the mission of keeping it tidy and of providing food and drinks for the waiters. That was January 8, 1988. His shift began at 7:00 a.m. I came down at 9 o'clock. And Klara told me that our wonder boy had flatly refused legitimate directions and
had left his job without giving even a minute's notice. For Klara and for me he was also written off. The next day the man showed up again - in the kitchen. His place in the kitchen was evidently occupied. It was demonstrated that he had run away the previous day, after he had refused to obey legitimate orders. It was demonstrated that he was muddling through in the kitchen, where he had no business to be. And so I paid him his wages and let him go. Such an element was not supportable. A short time later the man sued me before Court for breach of contract and unjustified dismissal. He won the case hands down. In the November 11., 1986 issue of the "Bund" - a Bernese daily newspaper - there appeared following leading article under the signature of barrister Rolf P. Steinegger:
Bernese Penal Justice: Gravedigger of the Civil Rights ? "It is in the burden of proof in the course of a penal procedure that the State shows what value it grants to the person of each citizen." (Mark Pieth) Various judgments from Bernese Penal Courts have provoked of late some amount of criticism. Especially in the line of criticism is the 2. Penal Chamber of the Bernese Supreme Court. The yearlong proffered criticism by barristers seems to extend to a broad current of opinion. It remains to be hoped that this political feedback shall liberate those legislative impulses which are necessary to get to the root of the malaise. One point is that the revised Bernese penal procedure ignores the basic principle of an effective legal protection of the accused person. Another point is that in the selection of judges institutional guarantees are missing, which should insure that only qualified candidates be chosen. The possibility of dismissing an
incompetent judge from his office is indeed exceedingly small. Inquisition has Upper Hand So far as the reasons for the present malaise are concerned, we refer from the start to the outstanding work of Dr. Mark Pieth: "The Application of Proof in the Swiss Penal Procedure" Basel/Francfort 1984. The author take under scrutiny the involvement of the accused in the penal proceedings throughout the country. The following report leans largely on Pieth's text, and partly takes over its formulation. The former Chairman of the Bernese Supreme Court, Professor Dr. Falb, attributes the Bernese penal procedure to the mixed method.(Inquisitorial preliminaries, accusatorial main proceeding). The process reality shows however that the inquisitorial elements have a large dominance. Whether the procedure undergoes a one-sided rule, whether it degenerates to a "pathological procedure" (In the power lays the truth), whether the defender is relegated to the role of spectator and sinks to the role of a volens nolens tolerated, possibly disturbing gimmick depends alone from the (free) appreciation of the judge. A Concept of Dominance Along with Pieth we can agree about the reality of the procedure that the guarantee for finding the truth is not to be found in the method, but rather in the reliable, elected, public official. The lack of reliability of the method is replaced by the trust and confidence placed in the judge's personality. Should any doubts arise with regards to the personal integrity of the judge, so is the legitimacy of the sentence at stake The rationality upon which our penal system rests is that of the "practical common sense." It already shows in the election of the judges: no particular experience is required, not to mention the use of modern techniques of questioning. The judge operates as the representative of the "common horse sense", his/her legitimacy rests on a democratic election procedure
(Pieth). If a sentence is deemed "reasonable" - sole principle of control - it can claim to be revision proof. Whoever is acquainted with the practice, especially of the 2. Penal Chamber of the Bernese Supreme Court cannot repress the feeling that our penal procedure is more often than not reduced to a mere concept of dominance. How frequently does a mere suspicion justify an assumption of guilt? What tone does an accused person have to put up with who though sheer bad luck has to appear before a moody judge? With what carelessness are considerable and valid means of proof turned down, which could demonstrate the innocence of the accused? Seedy Justifications How frequently does the accused person have to realize that his right upon hearing, and being heard, exhausts itself with the mere titillating of the judge's hearing organ? That the judge doesn't condescend to lose even a single word with the well founded argumentation of the defense and limits himself to a dialogue with the prosecution must appear incomprehensible to the stranger. How seedy, contradictory and assertive are some judgments which have been decided even before the defense's plea and which land ready made on the judge's desk and only have to be "polished up" by the Court clerk? We only witness the celebration of power. How painfully hurt does an accused feel when he becomes "honored" with an additional punishment of several months after he has tried to defend his rights through legitimate means? Such a procedure would be tolerable only if Truth were something self evident, which only waits to be discovered (Pieth). If we acknowledge however that there is no objective, basically binding Truth and Justice, but rather "concurring representations of Truth and Justice", then it becomes evident that guarantee for the accuracy of the judge's decision can be found in the dialectic principle - in the procedure of interview and cross examination there appears the Truth. It is Pieth's outstanding merit to have demonstrated with convincing
clarity that only a lawful claim of the accused on the production of proof - witnesses, experts, documents, personal look - can provide a convincing guarantee of a bearable judgment: The right of the accused person to provide these means of proof even against the will of the Courts. The basic function of the plea for the production of material evidence is to motivate the legal Authorities to takes positions which in turn can be made the objects of examinations concerning arbitrary decisions. Such a right to produce evidence does not exist under the present Law. The production of evidence is left to the free appreciation of the legal Authorities. Prejudice and Miscarriage of Justice According to Pieth the observation of the production of proof demonstrates that the facts develop in a circular movement of factual and legal anticipation, pertaining administration of proof and interim estimates. Anticipation of the result as well as estimation of existing proofs are consequently self evident, necessary techniques of decision. At any point of the procedure there is a possibility to draw provisional conclusions. The administration of proof comes to a fixation. From the beginning, proceeding means deciding. The necessary, subjective character of the final as well as of the intermediary decision carries forward the administration of proof, represents however a real danger to the search for the final Truth. If Justice wants to avoid that judicial prejudice be raised to final sentence (rash decision, miscarriage of justice) it is required to change direction. According to Pieth the institutional correctives are failing, and typified criteria are missing (duty to inform, basic principle: in doubt for a complement of proof, prohibition of anticipated interpretation of proof) Control of Arbitrary Decision The chances of the accused to help determine the outcome of a secret preliminary procedure (police investigation, preliminary investigation) with the production of material proof are
exceedingly small. Along with Pieth we realize that the formal value of a right to produce evidence hardly reaches beyond a petition. Material principles for the administration of proof are largely missing. In practical respect, the refusal of proof on account of an anticipated estimation of proof, or for opportunistic reasons, plays an overriding role. The activity of the accused and his counsel are further depending on the good will of the Courts. There can be no question of an equality of chances in the preliminary procedures. The Bernese procedure, along with other Swiss procedures, proceeds from an antiquated image of the counsel: He is little more than the advocate in an inquisitorial regime. About Immediacy In the main proceedings, the practice of the Courts is to make constant use of the possibility to limit the scope of the trials. According to Pieth, the principle of the control of evidence is plausible. "Evidence" however, in the quality of official documents is produced exclusively by the Courts. At the end remains the question of whether the Court's decision is sufficiently and convincingly justified. The immediacy of the proceeding is no reliable principle. It is used as the judges see fit. The leading idea is that of a trial as fast, as trouble free and as cheap as possible, along with the suppression of protest. According to Pieth it is a typically Swiss phenomenon, to water down principles through exceptions to the point that they become facultative. So far as arbitrariness is concerned, Pieth admits that the Courts' decisions are essentially concerned with convincing the people of their justification. The possibility that contradictions be played down, and that Court records could be gerrymandered is not left unmentioned. Beneath the sensitive line of blatant arbitrary, the judicial duty of due information remains a lex imperfecta. Criticism of Election of Judges
Elections of judges are political elections. Next to the political loyalty we find criteria which play a role without any connection whatever with the future occupation of the candidate. No election procedure knows of institutional guarantees to take the suitability of the candidate under scrutiny . In smaller communities it is the character of the person which receives some attention. Judges to the Cantonal Supreme Court are chosen by the legislative Assembly of the Canton. An examination of the election of judges to the Bernese Supreme Court 1975-1985 brought to light that the electing members of the Assembly disposed of no documentation except some pamphlets from political parties, to help them make a rreasonable choice. Additional documentation was of the kind that such and such candidate had been chosen because he/she had lost another office or he/she had been overlooked twice already. The role of the Justice Committee remains unclear. It seems that inter-party or inter-fraction arrangements become more and more the rule. Today's "election platform" has led to the result that a few members of the legislative Assembly abstain from voting when it comes to the election of judges from their own party: They could not face the responsibility. Until Retirement After the election there is no possibility to remove an incompetent judge from office, if we except disciplinary measures or a non reelection. The question remains as to how this competence can be measured after election. In the last 30 years there was only one impeachment (1969). Whether there was a nonreelection in that period of time could not be ascertained. The members of the Bernese Supreme Court are preserved from the scare of a non-reelection through a particularly long tenure, eight instead of four years. Should a judge not be elected in a complementary election and confirmed in the first regular election, so can a member of the Bernese Supreme Court remain in office until retirement. A List of Proposed Reforms
As Pieth demonstrates convincingly, the aim of this criticism of the legal surroundings is not the establishment of revolutionary maxims, but rather to concretize the basic tenets of the State of Law and to include them in the reality of the procedure. At Cantonal level we must require the interdict of premature appreciation of the means of proof to which not even the existing Codes of procedure are opposed. Basically, we should request that a judge be allowed to render a decision only after he has really exhausted all the means of proof. The clause of free appreciation has to be definitely put aside. The realization of the principle of equal chance requires the introduction of a proper right to produce evidence (under exclusion of preliminary appreciation) already in the preliminary reports. That the right to free appreciation of facts by the judge at any stage of development should not be replaced by an unlimited right to present evidence is self-evident. Of particular importance seems to the author the realization of the right to present material proof at Cantonal Supreme Court level. If we admit that a miscarriage of justice by the Cantonal Supreme Court cannot be excluded, we have to impose this basic principle. Considering the low level of professionalism of the Court officials and of the truly small possibility of intervention of the Swiss Federal Supreme Court, the accused in a penal procedure is depending upon that corrective. The penal Chambers of the Bernese Supreme Court let us in doubt that they will make use of this new proceeding. They should be reminded that they have not been elected in order to straighten out the disorders of the lower judicial instances Counter Balance to Unlimited Power The reality of Court proceeding limps regrettably behind the postulates of the State of Law. In the Canton of Bern also we gain the feeling that the problem of an insufficient protection of the accused has not been really perceived That we again and again succeed in finding a common denominator between ideal and reality is the merit of many judges and investigating officials who attempt to
examine thoroughly and fairly the cases submitted them and to render judgments based upon sound evidence. These judges deserve our thanks for not letting our penal justice degenerate to the point where it becomes the gravedigger of civil rights. And yet their efforts do not make a reform of the penal proceedings any the less imperative. The State of Law requires a real defense of the accused as a counter balance to the omnipotence of the Courts of Law." This leading article, found in a respectable, conservative daily newspaper had made a deep impression upon me. I was at the time already no unwritten book with the judicial Authorities of two cantons, and the judicial Authorities of these two cantons - Bern and Baselland were also known to me. My formal education is rather scant - six years elementary school and four years junior college in French speaking Switzerland, an apprenticeship as a cook, a waiting course in Hotel Trade School, a preparatory course to a catering license. I have never enjoyed any legal training. Whatever I know about the subject I have learnt from the practice, from the contact with jurists. If we change the title of above article, if we write for instance: Swiss Justice: Gravedigger of the State of Law? if we extend the questionable state of affair found with the Bernese Supreme Court to the rest of the country and to the Civil Courts of Law as well so we come to the conclusion that the sentence rendered by Dr. Urs Bannwart, the then President of the local Labor Court is in no way extraordinary. In the comment to the sentence, Dr. Bannwart succeeded brilliantly to transform the abrupt leaving of a place of work without notice or justification into the abrupt firing of an employee without reasonable ground. It's true, it is one word against another so far as the refusal to execute legitimate orders is concerned. The
plaintiff never disputed the fact that he had left his job from one minute to the next without valid reasons. It seemed sufficient that he should reappear the next day and muddle around in the kitchen - where he had no business - to demonstrate his repentance, his regrets and his good will. That he had been replaced in the kitchen, that the establishment could not tolerate his whim, that in the end people like Klara and I - workers, tradesmen, business people - are needed to insure Dr. Bannwart and his like a decent standard of living is and remains, as distinguished jurists express it with so much distinction, irrelevant and immaterial. The plaintiff had the opportunity and the duty to look for work and to find it: In those days there were about 20.000 vacant jobs in Swiss catering operations alone, particularly in the lower charges. Proof of his exertions were never required, although the labor contract regulates this sort of situation. Such a sentence allows expressly that an employee show up dressed like a hobo, with dirty hair down to his shoulders, and sabotage systematically the orders of his employer. As a pretext it can be said that the poor fellow "was overworked, and did not comprehend the situation" (sic). As can be expected I appealed against the sentence. As can be expected I was turned down. The case lays presently before the European Commission on Human Rights. It remains buried there, until maybe someday it becomes unburied. We have employed many a refugee ever since, and have made good experiences with most of them. A type like OeztĂźrk would never again come into consideration. I had hired him out of sheer necessity, had no time to check his references. But one thing we have noticed again and again: The nice, hardworking, neat and intelligent refugees, the ones who really have done their stuff, paid their taxes and their social security and have never been a burden to this land have all been deported sooner or later. The dubious elements like OeztĂźrk have at all times enjoyed the unlimited protection of the Authorities.