Formal procedure law in Switzerland

Formal procedure law, also known as formal criminal law, has been uniformly regulated in Switzerland since the Criminal Procedure Code (CrimPC) came into force on 1 January 2011. Previously, there were 26 cantonal codes of criminal procedure as well as a federal Criminal Procedure Code for certain offenses subject to the federal judiciary. Another Criminal Procedure Code exists for military criminal law and juvenile criminal law, but these have not been superseded by the federal Criminal Procedure Code. Substantive criminal law is governed by the Swiss Criminal Code.

Preliminary proceedings

The course of criminal proceedings is divided into preliminary and main proceedings, whereby a distinction is still made between investigation procedure and the investigation in the preliminary proceedings. If an appeal is filed against a verdict in the main proceedings or revision is demanded on the basis of new evidence, appellate proceedings may be initiated.^[1]

Investigation procedure

The investigation procedure begins with a private or official complaint (Art. 300–302). The police investigate and make provisional arrests (Art. 306). Crime scenes are investigated by the police, who hand over all their findings to the senior public prosecutor's office (Art. 307 para. 3). The public prosecutor's office decides on further investigations and decides whether to discontinue the proceedings (Arts. 309, 310). As the leading authority in proceedings, the public prosecutor's office may initiate and conduct preliminary proceedings even without a police investigation. Persons arrested in the course of pre-trial proceedings shall immediately have the right to first counsel^[1] (Art. 159). The lawyer may already be present during police questioning. Already after the first questioning of the accused person, inspection of the files of the criminal proceedings may be requested, provided that the most important evidence has already been collected by the public prosecutor's office (Art. 101). If there is suspicion of abuse of the right of inspection, in the case of security-relevant content that endangers persons, or in the case of public or private secrecy interests, inspection by the criminal authorities may be restricted (Art. 102 para. 1, 149 para. 2 lit. e).

Investigation (Art. 308 and following)

The public prosecutor's office shall take charge of the investigation (Art. 61) and shall interrogate the accused and witnesses, either itself or through members of the police designated by the Confederation or the canton (Art. 142 para. 2). The courts, the public prosecutor's office and the penal authorities may be authorized by the Confederation or the canton to conduct various interrogations (Art. 142 para. 1). It also takes evidence from the defending party and the police (Arts. 311 and 313), so that it can request coercive measures from the coercive measures court (Art. 224) (e.g. remand). Complaints against the police, the public prosecutor's office or coercive measures are judged by the competent federal or cantonal complaints authority (Art. 20). If no settlement results between the plaintiff and the defendant (Art. 316), the public prosecutor's office makes a decision on indictment or discontinuation of the proceedings (Art. 318, 319).

Main proceedings

Upon receipt of the indictment, the court assumes all powers of the proceedings for the period during which a verdict can be reached on the basis of the indictment and the files and other circumstances. The court may interrupt the proceedings in order to continue them later or to have the prosecution supplement and correct the indictment and the files. The prosecution is also given the opportunity to correct the indictment if the court is of the opinion that the facts described could constitute a different criminal offense; it may also include in the indictment criminal offenses that have become known during the main proceedings, provided that they fall within the court's jurisdiction. The court may transfer indictments exceeding competence to a competent court without appeal. A case may be dismissed by the court on all counts immediately or on individual counts upon pronouncement of the judgment.

Pre-negotiation

The director of proceedings may schedule a preliminary hearing to clarify organizational matters with the parties concerned or to order settlement negotiations. If necessary, evidence that has no place in the main hearing may be taken at the preliminary hearing. Evidence that the court will take at the main hearing will be disclosed.

Main negotiation

The accused person is obliged to be present if his presence is required and no request has been submitted. An official or necessary defense must always be present. The public prosecutor's office may be absent from the hearing and may participate by submitting a written request, provided that the required sentence is less than one year's imprisonment and it has not been requested to be present by the director of proceedings. If the prosecution or the defense is absent without excuse, the trial shall be postponed. If the defendant is repeatedly absent from the trial without excuse, the trial shall be held in his or her absence. Private plaintiffs may be represented or submit written motions.

The main hearing begins with preliminary questions from the parties about the trial, the indictment and the trial, which are answered and determined immediately by the court after hearing the parties present. With the conclusion of the preliminary questions, the indictment can no longer be withdrawn or supplemented, and the evidentiary proceedings begin.

First, the director of proceedings questions the accused person about his or her person, the charges and the results of the preliminary proceedings. Subsequently, the parties may ask supplementary questions through the director of proceedings or with his permission. The parties have the possibility to present further evidence by motion. The party hearing is closed with the presentations of the public prosecutor and the defense. The accused person has the last word. The court then retires for secret deliberation. The clerk of the court participates in the determination of the verdict in an advisory capacity. If it is not yet possible to determine a verdict, another party hearing is started, otherwise the verdict for each count is determined democratically.

Legal action

Appeal

An appeal may be filed within 10 days after the judgment has been issued. The time limit begins on the day following the opening of the appeal. The appeal may be filed in writing or orally on the record. Within 20 days after the delivery of the reasoned judgment, a detailed written statement of appeal must be submitted to the Court of Appeal, including the scope of the appeal and the desired changes to the judgment as well as the requests for evidence. In case of an incomplete or incorrect statement of appeal, the Court of Appeal shall set another time limit within which the statement may be corrected. The appeal shall have suspensive effect to the extent of the challenge. The court of appeal shall render a new judgment, which may replace or confirm the judgment of the lower court. If substantial defects have occurred in the first-instance proceedings, the court of appeal shall order a new main hearing in which all or only certain procedural acts shall be repeated.

Revision

Revision of a judgment may be requested from the court of appeal if it serves to protect human rights and fundamental freedoms (ECHR) or if the judgment is in irreconcilable conflict with a later judgment; a time limit of 90 days applies. An appeal on the basis of new evidence or known criminal interference with the trial can be requested for an unlimited period of time, in favor of the convicted person even beyond the statute of limitations. If a convicted person is acquitted as a result of the appeal, fines are repaid and deprivation of liberty is compensated appropriately, provided that this cannot be attributed to other criminal acts.

Special procedures

Penalty proceedings

If the accused person confesses in the course of the preliminary proceedings or if the facts of the case are sufficiently clarified, the public prosecutor's office may issue a penalty order, provided it considers the penalty of a penalty order to be sufficient. Possible punishments are fines, fines up to 180 daily rates, up to 6 months imprisonment as well as combinations which do not correspond to more than 6 months imprisonment. In addition, a fine can always be imposed. A written objection against the penalty order can be lodged within 10 days. If no appeal is lodged, the penalty order is considered a final judgment. In the event of an objection, the public prosecutor decides whether to discontinue the proceedings or to hand over the penalty order as an indictment to the court for the main hearing. The public prosecutor's office may also take new evidence. If the court rejects the penalty order, the public prosecutor's office shall start the preliminary proceedings again. The court may, if the objection concerns only costs and compensation, conduct the proceedings in writing as long as no hearing has been requested.

Misdemeanor criminal proceedings

The criminal proceedings for misdemeanors are specially regulated as a special procedure because, according to Art. 17 para. 1 CrimPC, the Confederation and the cantons may transfer the prosecution and adjudication of misdemeanors to administrative authorities. The administrative authorities have the same powers as the public prosecutor's office to perform this task (Art. 357 para. 1 CrimPC). However, these are limited, for example, with regard to coercive measures. Cantons may also provide that the accused person may be defended by a lay person in criminal proceedings for a misdemeanor (Art. 127 para. 5 CrimPC).

As a rule, the proceedings formally end with a penalty order. However, if the facts of the offence are not fulfilled, the penal authority for the offence shall discontinue the proceedings with a briefly substantiated order (Art. 357 para. 3 CrimPC). If no opening order has been issued, the public prosecutor's office or the misdemeanor criminal authority shall, on the other hand, issue a non-acceptance order. If, in the opinion of the authority, the case is not a misdemeanor but a felony or misdemeanor, it shall refer the case to the public prosecutor's office (Art. 357 para. 4 CrimPC).

The questions of the formal proceedings are determined analogously according to the provisions on the penalty order proceedings (Art. 357 para. 2 CrimPC), in particular the content and the opening of the penalty order as well as the objection (Art. 353 CrimPC).

Abbreviated procedure

If the sentence demanded by the public prosecutor is shorter than five years and the accused person shows agreement with the public prosecutor on essential points of the facts, the person may request an abbreviated trial. If the prosecution, the accused person and the court (in that order) have no objections, the main proceedings shall be conducted without taking evidence. The court only questions the parties involved and compares the statements with the files. If the court finds the requested sentence to be appropriate, it is pronounced as a verdict; otherwise, the summary proceedings are discontinued and an ordinary one is started.

Costs of proceedings

The costs of the proceedings consist of the costs for the official defense, for translations, for expert opinions and for the cooperation of other authorities as well as the expenses for mail and telephone. Costs caused by misconduct or unexcused absence may be imposed by the court on the person causing them. If proceedings are initiated negligently or made considerably more difficult, the person causing the proceedings shall pay the costs of the proceedings. The same applies if a decision is revised in appeal proceedings. The accused person shall pay the costs of the proceedings if he or she is not acquitted or has initiated the proceedings willfully. The plaintiff shall be ordered to pay the costs if he is acquitted, the proceedings are discontinued or the action is withdrawn. If a settlement mediated by the public prosecutor's office is reached, the federal government or the canton shall bear the costs. Costs for appeal hearings are imposed on the losing party; the court of appeal decides who has to pay for previous hearings.^[2]

Evolutionary history

In 1994, the Federal Department of Justice and Police commissioned a committee of experts, which published a unified preliminary draft of a new Criminal Procedure Code for all cantons in 1998 and sent it out for consultation in 2001.^[3] The unanimous call by the Committee for Legal Affairs of the Council of States for the election of the Federal Prosecutor by the Federal Assembly and for the supervision of the Office of the Federal Prosecutor to be entrusted to an independent authority was approved by the Federal Council within a short period of time in 2009.^[4] On 1 January 2011 the new Criminal Procedure Code entered into force together with the new Juvenile Criminal Procedure Code as well as with the new Criminal Authorities Organization Act.

Criticism

Costs

Even before the new laws came into force, the sometimes large cost differences that remain between the cantons were criticized. Eugen David, a member of the Council of States, commented to 10vor10 on the cost differences, which are up to four times higher. He is of the opinion that an improvement would be necessary.^[5]

Covert and Preventive Investigations

Another point of criticism is the restrictive regulation of undercover and preventive investigations by the police. In particular, preventive investigations against pedophiles are regulated by the CrimPC in a considerably more restrictive manner than most cantonal codes of criminal procedure had done.^[6]

Penalty order frequently applied

The penalty order is also viewed critically; it is used comparatively frequently in Switzerland.^[7]

Penalty order – questionable in terms of the rule of law

Criminal lawyer Kenad Melunovic Marini notes^[8] that since the entry into force of the Criminal Procedure Code in January 2011, more than 90% of all criminal proceedings in Switzerland are settled in the so-called Strafbefehlsverfahren. The Criminal Procedure Code, which was amended at that time, provides that – conditional or unconditional – custodial sentences of up to six months can be pronounced by the public prosecutor's office rather than by a judge.

He criticizes that the penalty order in all cases other than minor ones (such as violations of road traffic regulations) in some respects reaches its constitutional limits and is questionable from a constitutional point of view. For in the case of a penalty order, the public prosecutor and thus the executive authority is in the role of the independent judge. Even more serious, however, is the defect that efficiency and cost-savings in the penalty order procedure have a detrimental effect on objectivity and ultimately on the "truth". He also criticizes the susceptibility to error, insufficient clarification of the individual case: A penalty order can be correct and cost-effective, but it rarely is. Penalty orders are a mass business. If the offense is not a minor one or a largely standardized traffic offense or a minor narcotics offense, the penalty orders often contain errors, the cause of which – due to the system – is an insufficient clarification of the individual case and thus of the legally relevant facts. The result is that punishment is meted out to those who, on closer inspection, would not be punished. In order to satisfy the required efficiency, the person to be punished is often not questioned (heard), neither about the accusation nor about the person. If the accused person does not object, the prosecutorial "trial balloon" becomes a final judgment. He therefore advises defendants to file an objection against the penalty order, which does not have to be justified in detail: The public prosecutor's office will usually schedule a hearing, at which the objector will be questioned about the reasons for his objection as well as about the case and the person.^[8] In doing so, Melunovic underestimates the fact that the additional expense resulting from an objection often leads to higher costs (investigation expenses of the public prosecutor's office, court fees, etc.), which have to be borne by the defendant if he is found guilty.

References

1. (Memento of 1 June 2013 in the Internet Archive). Federal Department of Justice (PDF; 4 kB)
2. Swiss Code of Criminal Procedure. Swiss Federal Administration (PDF; 836 kB)
3. Wirksamere Strafverfolgung dank Vereinheitlichung der Strafprozessordnung. Federal Office of Justice, 27 June 2001 (Media Release)
4. (Memento of 29 December 2010 in the Internet Archive). Federal Office of Justice
5. . (Memento of the original on 10 December 2013 in the Internet Archive)
6. Neue Strafprozessordnung schützt Pädophile. Tages-Anzeiger. 19 April 2009
7. Kühni, Olivia (2010-12-31). "Staatsanwälte haben eine enorme Macht". Tages-Anzeiger.
8. Kenad Melunovic Marini. Strafbefehl erhalten – was tun? Der Erlass von Strafbefehlen ist ein Massengeschäft. Ausserhalb von Bagatelldelikten leidet dabei meist die Abklärung des Sachverhalts. Wann lohnt sich eine Einsprache, und wann ist ein Rechtsanwalt gefordert?, NZZ 19.11.18

Bibliography

• Niklaus Ruckstuhl, Volker Dittmann, Jörg Arnold: Strafprozessrecht unter Einschluss der forensischen Psychiatrie und Rechtsmedizin sowie des kriminaltechnischen und naturwissenschaftlichen Gutachtens. Schulthess Juristische Medien AG, Zürich / Basel / Genf 2011, ISBN 978-3-7255-6352-4.
• Andreas Donatsch, Thomas Hansjakob, Viktor Lieber: Kommentar zur Schweizerischen Strafprozessordnung (StPO). Schulthess Juristische Medien AG, Zürich 2014, ISBN 978-3-7255-6938-0.

External links

• Official text of the Criminal Procedure Code Swiss Federal Administration
• (Memento of 29 December 2010 in the Internet Archive). Federal Office of Justice