Criminal Procedure Code (Switzerland)
| Basic data | |
|---|---|
| Title: | Swiss Code of Criminal Procedure |
| Short title: | Code of Criminal Procedure |
| Abbreviation: | StPO |
| Type: | Federal law |
| Scope: | Switzerland |
| Legal matter: | Criminal procedural law |
|
Systematic legal collection (SR) : |
312.0 |
| Original version from: | October 5, 2007 |
| Entry into force on: | January 1, 2011 |
| Last change by: | AS 2010 4963 (PDF; 564 kB) |
| Please note the note on the applicable legal version. | |
The Swiss Code of Criminal Procedure (StPO) came into force on January 1, 2011. For the first time in Swiss history, criminal procedure law was comprehensively regulated at federal level. Previously, the formal criminal law, in contrast to the substantive criminal law, which has been regulated in the Swiss Criminal Code and some other laws since 1942 , was basically left to the cantons; Every single Swiss canton had its own code of criminal procedure, and there was no nationwide StPO, except for military justice and some offenses subject to federal justice.
Constitutional basis
According to Article 123, Paragraph 1 of the revised Federal Constitution of the Swiss Confederation (BV), legislation in the field of criminal law and criminal procedure law is a federal matter. However, until the federal government had passed the relevant laws, it was still the responsibility of the individual cantons to regulate this matter (derogatory federal competence afterwards).
Previous legal situation
Due to the previous cantonal competence, 29 codes of criminal procedure were still in force in Switzerland until the end of 2010, namely:
- 26 cantonal criminal procedure codes.
- 1 Code of Criminal Procedure on Military Criminal Law (MStP)
- 1 Federal Criminal Procedure Code (BStP)
- 1 Code of Criminal Procedure on Administrative Criminal Law (VStrR).
The BStP was not identical to a Swiss Code of Criminal Procedure. It only regulated the procedure for specific criminal offenses that are subject to federal jurisdiction under Articles 336 and 337 of the Criminal Code. With the entry into force of the Federal StPO, the BStP as well as the 26 cantonal criminal procedure codes became obsolete and invalidated. The military code of criminal procedure and the code of criminal procedure on administrative criminal law, however, continue to exist in a slightly modified form.
Creation of the Swiss Code of Criminal Procedure
The preliminary draft
In 1993 and 1994, several parliamentary proposals were submitted with the aim of drafting a Swiss code of criminal procedure. The professional initiatives of seven cantons pursued the same goal . At that time, however, there was no legislative competence at the federal level. On March 12, 2000, the people and the cantons accepted the reform of the judiciary, which in Article 123 (1) of the Federal Constitution (BV) gave the federal government precisely this authority. An expert commission for the preparation of a concept report had already been set up in 1994. This commission of experts published the report “Make 1 out of 29”, which described what a Swiss Code of Criminal Procedure could look like. Subsequently (1999) the Zurich professor emeritus Niklaus Schmid was commissioned to work out a preliminary draft for a Swiss Code of Criminal Procedure (VE StPO), which appeared in 2001 together with an accompanying report. The VE StPO comprised 514 articles.
The legislative process
On December 21, 2005 the draft of the Swiss Code of Criminal Procedure was published. This was 50 articles shorter than the preliminary draft, and the existing Victims Assistance Act (OHG) and the Federal Act on Covert Investigations (BVE) were integrated into the draft. The rights of defense were further expanded, in particular the full defense of the first hour was introduced.
The Council of States treated the bill as first councilor in the 2006 winter session, the National Council followed as a second councilor in the 2007 summer session. The Code of Criminal Procedure, which now includes 457 articles in the referendum bill , was passed on October 5, 2007 (BBl. 2007, 6977) until it came into force but slightly modified several times. The referendum period expired on January 24, 2008, without the referendum having been called. The Swiss Code of Criminal Procedure came into force on January 1, 2011.
The most important innovations compared to the old legal situation
As a significant innovation, the nationwide StPO follows a public prosecutor's office model without examining magistrates, which at the time of its creation was only used in the cantons of Ticino and Basel-Stadt (public prosecutor's office model II). In this case, similar to Germany or Italy, the public prosecutor's office leads the entire investigation, with the police investigating under their supervision. Here, the judge only acts in a controlling manner as part of the ordering of coercive measures. At that time, all other cantons still had a model with an examining magistrate (interrogator). In some cases, the latter led the investigation activities independently and the public prosecutor only appeared as a party (investigating judge model I) or the investigating judge was bound by instructions to the public prosecutor (investigating judge model II). Other cantons and the federal criminal process, on the other hand, had a model in which the police carried out the investigations under the leadership of the public prosecutor's office and the public prosecutor's office gave the (independent) examining magistrate an order to conduct the investigation after the investigation was over. After completing the investigation, the latter then returned the files to the public prosecutor's office, which then decided whether to raise the charges (public prosecutor's model I).
Another important innovation is the introduction of the defense from the first hour, which is only partially provided in the preliminary draft but fully in the final version. In addition, there is only a limited immediacy of the main hearing . In some cantons this means an expansion, in others a restriction of the immediacy compared to the previous regulation.
The military justice process is only affected selectively by the revision . This is justified in particular because of the references to disciplinary criminal law.
materials
- Accompanying report [1] to the preliminary draft [2] for a Swiss code of criminal procedure, Federal Department of Justice and Police, Federal Office of Justice, Bern June 2001
- Message on the standardization of the law of criminal procedure of December 21, 2005 (BBl 2006 1085) [3] (PDF; 1.4 MB)
- Consultations in Parliament [4]
- Referendum proposal (BBl 2007 6977) [5] (PDF; 856 kB)
literature
- Andreas Donatsch, Thomas Hansjakob, Viktor Lieber (eds.): Commentary on the Swiss Code of Criminal Procedure (StPO). 2nd Edition. Schulthess, Zurich 2014, ISBN 978-3-7255-6938-0 .
- Marcel Alexander Niggli, Hans Wiprächtiger (Ed.): Basler Commentary on Criminal Law: Swiss Code of Criminal Procedure. Helbing Lichtenhahn, Basel 2010, ISBN 978-3-7190-2626-4 .
- Niklaus Schmid: Handbook of Swiss Criminal Procedure Law. 2nd Edition. Zurich / St. Gallen 2013, ISBN 978-3-03751-554-9 .
- Niklaus Schmid: Swiss Code of Criminal Procedure (StPO). Practice comment. Zurich 2009.
Individual evidence
- ↑ Page no longer available , search in web archives: media release of the Federal Department of Justice and Police of March 31, 2010.
