Superprovisional measure

A superprovisional measure (German: Superprovisorische Verfügung; French: Mesure superprovisionnelle), also known as an ex parte provisional measure, is a judicial measure under Swiss civil procedure that can be ordered at the request of one party in cases of particular urgency. Its primary purpose is to prevent harm to rights that are the subject of a judicial proceeding.

Description

According to the Swiss Code of Civil Procedure (Article 265):[1]

Superprovisional measures

In cases of particular urgency, especially where there is a risk that enforcement of the measure will be frustrated, the court may order provisional measures immediately, without hearing the opposing party. The court shall simultaneously summon the parties to a hearing to be held without delay or set a deadline for the opposing party to respond in writing. After hearing the opposing party, the court shall rule on the request without delay.

Before ordering provisional measures, the court may, of its own motion, require the applicant to provide security.

Superprovisional measures cannot be appealed; they are reviewed when the judge rules on the provisional measures, often several months later.[2]

Superprovisional measures are ordered without hearing the opposing party; however, the right to be heard must be respected as soon as possible.

Use and criticism

This type of measure is used in various cases. One of the most common is divorce, where the judge can already establish certain constraints such as the marital home, financial contributions, and child custody.[2][3]

According to Swiss media, provisional and super-provisional measures are often used to implement gag orders and thus “erode press freedom.” In 2022, during the revision of the Code of Civil Procedure, the federal parliament approved a bill proposed by the right wing (UDC and PLR) aimed at relaxing provisional measures.[4] This has been criticized as facilitating media censorship and allowing powerful businessmen to prevent the disclosure of disturbing information.[5][6][7][8][9][10][11][12]

Reporters Without Borders denounced a proposal as "simply unacceptable", threatening the "special regime necessary to guarantee press freedom".[13] A broad alliance of publishers, unions, and associations warned parliamentarians against this attempt to restrict press freedom.[14]

Among the newspapers that have been subject to superprovisional measures include SonntagsZeitung and Le Matin Dimanche, in the context of an investigation into the failed residency application of Russian oligarch Roman Abramovich in Verbier.[15] L'Agefi was also subjected to superprovisional measures (later lifted) at the request of Flowbank regarding the bank's financial difficulties.[16][17] The French media outlet Blast had one of its investigations into the Vivara alternative newsletter empire blocked.[18][19] The economic investigative site Gotham City is also regularly targeted by such measures.[20][21]

NGOs are also targeted by this legal tool, such as the Bruno Manser Fund, attacked by the daughter of Taib Mahmud, former head of government of the Malaysian state of Sarawak, in the context of an investigation into deforestation,[22] and the NGO Public Eye.[23] In April 2022, a survey conducted by the relief organization EPER among 11 Swiss NGOs highlighted that complaints deemed "abusive" against Swiss NGOs are on the rise.[24]

References

  1. ^ a b "Art. 265 Swiss Civil Procedure Code of 19 December 2008 (CPC)". Fedlex – The publication platform for federal legislation. Swiss Federal Chancellery. Retrieved 2 January 2026. Super-provisional measures
    1 In cases of particular urgency, and in particular where there is a risk that the enforcement of the measure will be frustrated, the court may order provisional measures without hearing the opposing party.
    2 It shall simultaneously summon the parties to a hearing to be held without delay or set the opposing party a deadline to respond in writing. Having heard the opposing party, the court shall decide on the application without delay.
    3 Prior to ordering provisional measures, the court may on its own motion require the applicant to provide security.
  2. ^ a b "Les mesures superprovisionnelles". divorce.ch (in French). January 15, 2010. Retrieved November 15, 2018.
  3. ^ ""une requête de mesures superprovisionnelles" before the Geneva courts to appoint experts to collect DNA".
  4. ^ "Judicial ban on publishing an article should be made easier". Le Temps (in French). January 14, 2022. ISSN 1423-3967. Retrieved October 3, 2024.
  5. ^ Pilet, François. "Parliament extends media censorship for the benefit of the powerful". bonpourlatete.com (in French). Retrieved October 3, 2024.
  6. ^ "In Switzerland, political threat to press freedom". Le Temps (in French). June 10, 2021. ISSN 1423-3967. Retrieved October 3, 2024.
  7. ^ Pilet, François (April 29, 2021). "The Swiss Parliament wants to strengthen censorship against the media". SWI swissinfo.ch (in Swiss French). Retrieved October 3, 2024.
  8. ^ "The Council of States undermines press freedom". Le Temps (in French). June 16, 2021. ISSN 1423-3967. Retrieved October 3, 2024.
  9. ^ "Judges will be able to more easily prohibit the publication of an article". rts.ch (in French). May 10, 2022. Retrieved October 3, 2024.
  10. ^ "Swiss law, weak link in defending media freedom". Le Temps (in French). November 28, 2023. ISSN 1423-3967. Retrieved October 3, 2024.
  11. ^ Pilet, François (April 28, 2021). "Parliament wants to strengthen censorship against the media". Gotham City (in Swiss French). Retrieved October 3, 2024.
  12. ^ "The press threatened by easing recourse to provisional measures: interview with François Pilet". rts.ch (in French). May 10, 2022. Retrieved October 3, 2024.
  13. ^ "Provisional measures against the media: dangerous proposals for press freedom". Reporters Without Borders (in French). April 30, 2021. Retrieved October 3, 2024.
  14. ^ "Media: an alliance warns against a restriction of press freedom". La Côte (in French). Retrieved October 3, 2024.
  15. ^ "The failed arrival of Russian billionaire Roman Abramovich". Le Temps (in French). February 4, 2018. ISSN 1423-3967. Retrieved October 3, 2024.
  16. ^ "What Flowbank did not want to see published before being declared bankrupt". agefi.com (in French). October 3, 2024. Retrieved October 3, 2024.
  17. ^ "The lessons from the Flowbank affair". agefi.com (in French). October 1, 2024. Retrieved October 3, 2024.
  18. ^ "Censorship: Swiss justice attacks Blast to protect a boss". Blast le souffle de l’info (in French). May 14, 2024. Retrieved October 3, 2024.
  19. ^ "Blast gagged by Swiss justice". Blast le souffle de l’info (in French). July 10, 2024. Retrieved October 3, 2024.
  20. ^ Pilet, François (February 24, 2021). "Judicial pressures multiply against Gotham City". Gotham City (in Swiss French). Retrieved October 3, 2024.
  21. ^ "The finance magnate claims to be anonymous". 24 heures (in French). March 22, 2024. Retrieved October 3, 2024.
  22. ^ "The complaint of potentates against the Bruno Manser Fund". Swiss Alliance against SLAPPs (in French). Retrieved October 3, 2024.
  23. ^ Mattli, Angela. "SLAPP procedures: Switzerland must better protect press freedom". www.publiceye.ch (in French). Retrieved October 3, 2024.
  24. ^ "SLAPP procedures against journalists and NGOs are increasing - humanrights.ch". www.humanrights.ch (in French). Retrieved October 3, 2024.

Bibliography

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