Penal mandate (Switzerland)
In the Swiss military criminal process , a penalty mandate represents a proposal for a judgment . It is regulated in particular in Article 119 and following of the military criminal process of March 23, 1979 (MStP; SR 322.1).
A criminal mandate is issued by a public prosecutor ( auditor ; a member of the military justice system ) of the competent military court after a preliminary investigation has been carried out by an examining magistrate . The auditor's penal competence is limited as follows (Art. 119 Para. 1 lit. a MStP):
- Imprisonment not exceeding 30 days,
- Fine of a maximum of 30 daily rates,
- charitable work of a maximum of 120 hours,
- Fines not exceeding CHF 5,000,
- a combination of the penalties mentioned.
The auditor can - again to a limited extent - also pronounce the revocation of a conditional sentence .
The penalty mandate must be drawn up in writing (Art. 120 MStP). For reasons of preservation of evidence, the penalty mandate must be sent by registered mail or as a court document .
It must contain the following elements (Art. 120 MStP):
- the identity of the accused;
- the facts ;
- the facts which meet the individual characteristics of the criminal act;
- the legal assessment of the act;
- the reasons for the sentencing ;
- the penal order;
- the decision on the revocation and a brief justification;
- the decision on costs and compensation as well as recognized civil law claims of the injured party;
- the indication that the penalty mandate becomes legally binding, unless an objection is raised in writing to the auditor within 10 days ;
- the date and the signature of the auditor.
The proposal becomes legally binding if it is not contested within a period of 10 days after opening, in other words delivery (calculation of the deadline according to Art. 46 MStP). The objection can contain a reason; If it is only directed against the compensation or cost decision, a justification is mandatory. The objection is only valid in writing. Registered mail is recommended for reasons of evidence .
If an objection is raised against a penalty mandate, the case goes to the competent military court, where a due process takes place. In this subsequent procedure, the military court is not bound by the mandate in terms of its (factual and legal) assessment or the level of punishment: The opponent can thus get off better or worse (no ban on reformatio in peius ); however, the military court has to observe the indictment principle .
Until the entry into force of law, the auditor can change or cancel the penalty mandate in favor of or at the expense of the punished person.
In the event of a conviction, the costs are borne by the accused (Article 151 MStP); this also applies to criminal mandate proceedings. In the event of an objection, additional costs may be incurred before a military court.
If the misconduct is only a so-called minor case (and if such a case is provided for by law) or if the proven behavior is not punishable at all, the auditor does not issue a penalty mandate, but a discontinuation order .
If, on the other hand, in the opinion of the auditor, a punishment that exceeds his criminal competence is indicated for the misconduct, charges must be brought to the military court.
If several perpetrators are involved in a crime, the procedure does not need to be concluded with a single penalty mandate.
Other penalty mandates
Penal mandates still existed in the previous cantonal law, for example in Bernese criminal proceedings in accordance with Articles 262 et seq. Of the Law on Criminal Proceedings (StrV) (for which, however, the investigating judge issued the penalty mandate).
The Swiss Code of Criminal Procedure contains instead of the term penalty mandate that of the penalty order (Art. 352 ff. StPO).
