History, two of three
A Swiss mother petitioned the Federal Assembly in December 1959. Nothing happened. The reason is duller and worse than suppression, and it is written into the statute.
In December 1959 a Swiss mother petitioned the Federal Assembly in Bern. She named the Swiss Confederation, the Graubünden Department of the Interior, and the guardianship authority of a village in the Prättigau, which she said had placed her child under guardianship "in violation of legal regulations."
Nothing happened.
People reading that story sixty years later tend to assume something was suppressed. The truth is duller and worse. Under Swiss constitutional law as it stood in 1959, she had an absolute right to send that petition and no right whatsoever to an answer.
Article 57 of the Swiss Federal Constitution of 1874 read, in its entirety:
"Das Petitionsrecht ist gewährleistet."
(The right of petition is guaranteed.)
That is the complete article. One sentence.[1]
What it actually guaranteed is narrower than it sounds. The Federal Council, describing the settled position in its 1996 message on a new constitution, put it plainly: the right of petition meant the right to submit requests, proposals, criticisms or complaints to the authorities "without having to fear unpleasantness or legal disadvantages of any kind" as a result.[2]
It was, in other words, protection from reprisal for complaining. It was not a right to be considered.
The same document is explicit about what the courts had refused to do:
"Bis anhin hat sich das Bundesgericht geweigert, die eidgenössischen oder kantonalen Behörden zu verpflichten, die Petitionen inhaltlich zu behandeln und sie zu beantworten."
(Until now the Federal Court has refused to oblige federal or cantonal authorities to deal with petitions substantively and to answer them.)[2]
An obligation even to take note of a petition was written into Swiss constitutional text only in 1999. And the Federal Council noted that even the new provision "does not oblige anyone to deal with petitions on the merits."[2]
A petition in 1959 was a political request, not a legal remedy. It could be read and filed, and the filing was lawful.
One honest gap: the Federal Assembly's own standing orders did in practice require petitions to it to be handled on the merits, but the versions of those standing orders I can cite are the 1996 ones. The statute governing parliamentary business in the 1950s contains no petition provisions at all. What a petition to the Federal Assembly actually got you procedurally in 1959 is unverified. The constitutional position, that no answer was owed, is verified.
This is where the record becomes genuinely interesting, because the Swiss press of the period reported that the mother's fight "reached the Swiss Federal Court." Under the law of the time, that was a real route, and it was not a long shot.
The governing statute was the Bundesgesetz über die Organisation der Bundesrechtspflege of 16 December 1943, in force from 1 January 1945. Its article 44 listed the non-pecuniary civil matters in which an appeal to the Federal Court was available. As enacted, the list had three items:
"a. Verweigerung der Einwilligung des Vormundes zur Eheschliessung (Art. 99 ZGB);
b. Entziehung und Wiederherstellung der elterlichen Gewalt gemäss Art. 285 und 287 ZGB;
c. Entmündigung und Anordnung einer Beistandschaft (Art. 369-372, 392-395 ZGB) sowie Aufhebung dieser Verfügungen."[3]
Deprivation and restoration of parental authority: expressly appealable. Interdiction and the ordering of a curatorship: expressly appealable.
So the substance of what was done to that family was, on the face of the statute, within the Federal Court's reach. No monetary threshold applied, because these were non-pecuniary matters.
The deadline was twenty days, not thirty, and it ran from receipt of the written communication of the decision. Lodging an extraordinary cantonal remedy did not extend it.[7] Two further details matter for anyone reconstructing what she would have had to do:
So in the late 1950s a litigant faced two different clocks running to two different addresses: twenty days to the cantonal authority for this appeal, thirty days to Lausanne for a constitutional complaint.
Two other doors were shut, and it is worth knowing they were shut by text rather than by discretion:
An earlier version of this piece left the next question open. It is not open. The Federal Court answered it, and the answer is unfavourable.
Placing a minor under guardianship was not "Entmündigung", and carried no appeal. Article 44 lit. c covered Entmündigung, the incapacitation of an adult. The Federal Court held that putting a minor under guardianship under article 368 of the Civil Code is a different thing, and does not open the appeal.[9]
Article 44 lit. b was narrower too. Withdrawal and restoration of parental power under articles 285 and 287 sat inside the title of the Code dealing with the legitimate parent-child relationship, and the appeal ran only to children within that category.[9]
And there was a further wall behind those. A parent challenging a guardianship measure by constitutional complaint was asserting the child's interest, not a right of their own, and therefore lacked standing under article 88. The Federal Court treated this as settled practice.[10]
So the statute that appeared, on its face, to cover exactly what had been done to that family, mostly did not.
There is a published Federal Court judgment of 5 November 1960 on this exact configuration: a child born in January 1947 in Caracas, a Swiss and Venezuelan dual national; a father from Seewis im Prättigau, born 1899, domiciled in Caracas and naturalised Venezuelan, who died on 4 July 1958; a judicial separation in Caracas in September 1950 that assigned the child to the father, and a divorce granted at the father's request in April 1953; the child in an institute in St. Moritz from late 1957; and the president of the guardianship authority of Seewis appointing a deputy for her on 8 July 1958, four days after the father's death.[11]
The mother, who had by then obtained a Venezuelan judgment awarding her parental authority, took it to the Federal Court.
The court refused to recognise the Venezuelan judgment, holding that a judgment which transfers parental authority on the father's death without examining the child's circumstances and needs offends Swiss public policy. It observed that the mother had kept her actual domicile in Venezuela, raised doubts about her suitability, and noted the conflict of interest arising from the ongoing dispute over the father's estate.
The disposition is one sentence: the appeal was not entertained, and the alternative nullity complaint was dismissed.
Strip out the speculation and the record supports a narrow, sturdy claim.
A Swiss mother at the end of the 1950s had a constitutional right to petition that entitled her to no reply, and an appeal to the Federal Court that turned out not to cover the measure she was fighting. She used both. The first required nobody to listen. The second was declared inadmissible.
That is not a conspiracy. It is something more ordinary and more durable: a system in which the loudest available remedy was the one that required nobody to listen, and the binding one had a door too narrow to enter.
Three details commonly got wrong about this period, corrected here because they will otherwise propagate:
The 1943 statute was barely amended before 1960. A check of every amendment footnote finds only two pre-1960 changes in the whole act, one of which is the threshold above. The wording quoted here was the law throughout the period in question.
Statutory text was read from the Swiss Federal Archives' digitised Bundesblatt, which carries the act as enacted rather than a later consolidation.
Part of a series on the world the Hitz case happened in. No family testimony is used in these pieces, and no allegation about any named individual appears in them. Where sources conflict, the conflict is shown rather than resolved. See the whole series.