Criminal Procedure Law (Switzerland)
Formal criminal law, also known as criminal procedure law , has been uniformly regulated in Switzerland since the Swiss Code of Criminal Procedure (StPO) came into force on January 1, 2011. Before that, there were 26 cantonal codes of criminal procedure and a federal code of criminal procedure for certain offenses subject to federal justice. Another code of criminal procedure exists for military criminal law, but this has not been replaced by the Federal StPO. The substantive criminal law is regulated in the Swiss Criminal Code.
The course of criminal proceedings is divided into preliminary and main proceedings, with a distinction being made in the preliminary proceedings between preliminary proceedings and investigations. If an appeal is lodged against a judgment in the main proceedings or a revision is requested on the basis of new evidence, an appeal procedure can be initiated.
The preliminary investigation begins with a private or official complaint (Articles 300–302). The police investigate and make provisional arrests (Art. 306). Crime scenes are examined by the police, who submit all results to the senior public prosecutor's office (Art. 307, Paragraph 3). The public prosecutor's office decides on further investigations and decides whether the proceedings may be terminated (Art. 309, 310). As the leading instance of a proceeding, the public prosecutor's office can initiate and conduct preliminary proceedings even without a police investigation. Persons arrested in the course of the preliminary investigation have the immediate right to a lawyer from the very beginning (Art. 159). The lawyer can already be present at police interrogations. After the accused has been questioned for the first time, an application can be made to inspect the files of the criminal proceedings, provided that the public prosecutor's office has already gathered the most important evidence (Art. 101). If there is suspicion of abuse of the right of inspection, of security-relevant content that endangers people, or in the case of public or private interests in secrecy, inspection can be restricted by the criminal authorities (Art 102 para. 1, 149 para. 2 lit. e).
Investigation (Art. 308 and following)
The public prosecutor's office is responsible for conducting the investigation (Art. 61) and interrogates, either itself or by members of the police appointed by the federal government or canton, suspects and witnesses (Art. 142, Paragraph 2). Courts, the public prosecutor's office and the authorities responsible for criminal offenses against infringement may be entitled to different interrogations by the federal government or the canton (Art. 142, Paragraph 1). In addition, it takes evidence from the defending party and the police (Articles 311 and 313) so that they can apply for coercive measures to the compulsory measures court (Article 224) (e.g. pre- trial detention ). Complaints against the police, public prosecutor's office or coercive measures are assessed by the competent federal or cantonal complaints authority (Art. 20). If there is no settlement of the dispute in the form of a settlement between the plaintiff and the defendant (Art. 316), the public prosecutor's office will make a decision on whether to bring charges or discontinue the proceedings (Art. 318, 319).
Upon receipt of the indictment, the court assumes all powers of the proceedings for the period in which a judgment is possible on the basis of the indictment and the files as well as other circumstances. The court can interrupt the negotiations in order to continue them later or to have the prosecution supplement and correct the indictment and the files. The public prosecutor's office 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; they can also include crimes that became known during the main proceedings in the indictment, provided they fall within the jurisdiction of the court . The court can transfer indisputable charges beyond jurisdiction to a competent court. Proceedings can be terminated by the court immediately on all counts or on individual counts with the pronouncement of the judgment.
The head of the procedure can set a preliminary negotiation in order to clarify organizational matters with the parties concerned or to order settlement negotiations. If necessary, evidence that has no place in the main hearing can also be collected in the preliminary hearing. Evidence that the court will bring in the main hearing will be disclosed.
The accused must be present if their presence is required and no application has been submitted. An official or necessary defense must always be present. The public prosecutor's office can stay away from the hearing and participate by means of written applications, provided that the required sentence is less than one year imprisonment and it has not been requested to be present by the director of proceedings. If the public prosecutor or the defense is absent without excuse, the proceedings will be postponed. If the accused repeatedly fails to attend the hearing without excuse, the trial will take place in his absence. Private plaintiffs can be represented or submit written applications.
The main hearing begins with preliminary questions from the parties about the process, the indictment and the hearing, which the court immediately answers and determines after hearing the parties present. Once the preliminary questions have been completed, the indictment can no longer be withdrawn or supplemented, and the evidence process begins.
First of all, the head of the proceedings asks the accused about themselves, the charges and the results of the preliminary proceedings. The parties can then ask additional questions through the head of proceedings or with his permission. The parties have the option of submitting additional evidence by application. The party negotiations are concluded with the lectures of the plaintiff and the defense, with the accused having the last word. The court then withdraws to the secret discussion. The clerk participates in the decision-making process in an advisory capacity. If it is not yet possible to determine a verdict, party negotiations will begin again, otherwise the verdict for each charge will be determined democratically.
An appeal can be filed within 10 days of the opening of the judgment. The period begins on the day following the opening. The registration of the appeal can be made in writing or orally for the record. A detailed written statement of appeal with the scope of the challenge and the desired changes to the judgment as well as the evidence must be submitted to the court of appeal within 20 days of delivery of the reasoned judgment. If the declaration of appeal is incomplete or incorrect, the court of appeal sets a further deadline in which the declaration can be corrected. The appeal has suspensive effect to the extent of the challenge. The appeals court will issue a new judgment, which will replace the judgment of the lower court. If there are significant deficiencies in the first instance proceedings, the appellate court orders a new main hearing in which all or only certain procedural acts are repeated.
The revision of a judgment can be applied for at the appellate court if it serves to protect human rights and fundamental freedoms ( ECHR ) or if the judgment is incompatible with a later judgment, a period of 90 days applies. A revision on the basis of new evidence or known criminal influences on negotiations can be requested for an unlimited period, in favor of the convicted person even beyond the limitation period. If a convicted person is acquitted as a result of the appeal , fines will be repaid and deprivation of liberty adequately compensated, unless this can be offset against other criminal offenses.
Penal Order Procedure
If the accused confesses in the course of the preliminary proceedings or if the facts of the case have been sufficiently clarified, the public prosecutor's office can issue a penalty order, provided that it considers the sentence of a penalty order to be sufficient. Possible penalties include fines, fines of up to 180 daily rates , up to 720 hours of community service, up to 6 months imprisonment and combinations that do not correspond to more than 6 months imprisonment. A fine can also always be pronounced. A written objection to the penalty order can be raised within 10 days ; if no objection is made, the penalty order is deemed to be a final judgment. In the event of an objection, the public prosecutor's office decides whether to discontinue the proceedings or hands over the penalty order as an indictment to the court for the main hearing. If the court rejects the penalty order, the public prosecutor will start the preliminary proceedings again. If the objection only concerns costs and compensation, the court can conduct the proceedings in writing as long as no hearing has been requested.
Infringement criminal proceedings
The infringement criminal procedure experiences a special regulation as a special procedure, because according to. Art. 17 para. 1 StPO the federal government and cantons can delegate the prosecution and assessment of violations to administrative authorities. To fulfill this task, the administrative authorities have the same powers as the public prosecutor's office (Art. 357 (1) StPO). However, these are limited, for example, with regard to coercive measures. Cantons can also provide that the accused can be defended by a layperson in infringement criminal proceedings (cf. Art. 127 Para. 5 StPO).
As a rule, the process ends formally with a penalty order . However, if the offense is not met, the offense authority will terminate the proceedings with a briefly justified order (Art. 357 Paragraph 3 StPO). If no opening order has been issued, the public prosecutor's office or the criminal offense authority will issue a no-action order. If, in the opinion of the authority, there is not a violation but a crime or misdemeanor, it will refer the case to the public prosecutor's office (Art. 357 Paragraph 4 StPO).
The questions of the formal procedure are determined in accordance with the provisions on the penalty order procedure (Art. 357 Paragraph 2 StPO), in particular the content and the opening of the penalty order as well as the objection . (cf. Art. 353 ff. StPO).
If the punishment required by the public prosecutor is shorter than five years and the accused agrees with the public prosecutor on essential points of the facts, the person can apply for an abbreviated procedure. If the public prosecutor, the accused and the court (in that order) have no objections, the main proceedings will be conducted without taking any evidence. The court only questions the parties involved and compares the statements with the files. If the court finds the required sentence to be appropriate, this is pronounced as a judgment, otherwise the abbreviated procedure is discontinued and an ordinary one begins.
The procedural costs 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 post and telephone. The court can impose costs that are caused by misconduct or unexcused absenteeism on the person responsible. If a procedure is initiated negligently or made considerably more difficult, the person causing it pays the costs of the procedure. The same applies if a decision is revised in an appeal procedure. The accused pays the costs of the proceedings if they are not acquitted or if the proceedings have started willfully. The costs will be charged to the plaintiffs if an acquittal is made, proceedings are discontinued, or the suit is withdrawn. If a settlement brokered by the public prosecutor is reached, the federal government or the canton bears the costs. Costs for appeal negotiations are imposed on the unsuccessful party; the appeal court decides who has to pay for previous negotiations.
History of origin
In 1994 the Federal Department of Justice and Police commissioned a commission of experts, which in 1998 published a standardized preliminary draft of a new code of criminal procedure for all cantons and submitted it for consultation in 2001 . The Federal Council's unanimous demand for the election of the Federal Prosecutor by the Federal Assembly and the supervision of the Federal Prosecutor's Office to be given by the Federal Council in 2009 was approved by the Federal Council within a short period of time. On January 1, 2011, the new criminal procedure came into force together with the new youth criminal procedure code as well as with the new federal criminal authority organization law .
Even before the new laws came into force, the sometimes large cost difference that persists between the cantons was criticized. Council of States Eugen David commented on the up to fourfold cost differences compared to 10vor10 . He is of the opinion that a rectification would be necessary.
Undercover and preventive investigations
Another point of criticism is the restrictive regulation of covert and preventive investigations by the police. In particular, preventive investigations against pedophiles is regulated by the StPO considerably more restrictively than most cantonal criminal procedure codes had done.
Penal order often applied
The penalty order is also viewed critically; it is used comparatively frequently in Switzerland.
Penal order - questionable under the rule of law
The criminal lawyer Kenad Melunovic Marini notes that since the Swiss Code of Criminal Procedure came into force in January 2011, over 90% of all criminal proceedings in Switzerland have been dealt with using the so-called criminal warrant procedure. The then amended Swiss Code of Criminal Procedure provides that - conditional or unconditional - prison sentences of up to six months can be pronounced not by a judge, but by the public prosecutor.
He criticizes the fact that the penalty order in all other than minor cases (such as violations of road traffic regulations) in some respects reaches its legal limits and is questionable under the rule of law. Because in the case of a penalty order, the public prosecutor and thus the executive authority are in the role of the independent judge. Even more serious, however, is the deficiency that efficiency and cost leanness in the penal order procedure have a negative effect on objectivity and ultimately "truth". He also criticizes the susceptibility to errors and inadequate clarification of the individual case: A penalty order can be correct and inexpensive, but it is rarely. Penal orders are a mass business. If it is not a petty or largely standardized traffic or light narcotic offense, the penalty orders are therefore often accompanied by errors, the cause of which - due to the system - is an inadequate clarification of the individual case and thus of the legally relevant facts. The result is: It will be punished who would not be punished if you looked closely. In order to achieve the required efficiency, in particular an interview (hearing) of the person to be punished is often dispensed with; neither for reproach nor for person. If the accused does not raise an objection, the public prosecutor's "trial balloon" becomes a final judgment. He therefore advises the accused to object to the penalty order, which does not have to be justified: The public prosecutor will usually set up an interrogation at which the opponent is asked about the reasons for his objection as well as about the matter and person. Melunovic omits the fact that the additional effort caused by an objection often leads to higher costs (investigation effort by the public prosecutor, court fees, etc.) that have to be borne by the accused if he is found guilty.
- Niklaus Ruckstuhl, Volker Dittmann , Jörg Arnold: Criminal procedural law including forensic psychiatry and forensic medicine as well as forensic and scientific expertise . Schulthess Juristische Medien AG, Zurich / Basel / Geneva 2011, ISBN 978-3-7255-6352-4 .
- Andreas Donatsch, Thomas Hansjakob, Viktor Lieber: Commentary on the Swiss Code of Criminal Procedure (StPO) . Schulthess Juristische Medien AG, Zurich 2014, ISBN 978-3-7255-6938-0 .
- Swiss Code of Criminal Procedure. Swiss Federal Administration (PDF; 836 kB)
- Standardization of the law of criminal procedure ( memento of December 29, 2010 in the Internet Archive ). Federal Office of Justice
- ↑ a b Course of criminal proceedings ( Memento from June 1, 2013 in the Internet Archive ). Federal Department of Justice (PDF; 4 kB)
- ↑ Swiss Code of Criminal Procedure. Swiss Federal Administration (PDF; 836 kB)
- ↑ More effective criminal prosecution thanks to the standardization of the code of criminal procedure. Federal Office of Justice, June 27, 2001 (press release)
- ^ Standardization of the law of criminal procedure ( Memento of December 29, 2010 in the Internet Archive ). Federal Office of Justice
- ↑ Chaos with the court tariffs. ( Memento of the original from December 10, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: 10vor10 . December 10, 2010
- ↑ The new code of criminal procedure protects pedophiles. In: Tages-Anzeiger . April 19, 2009
- ↑ Olivia Kühni: «Public prosecutors have enormous power». In: Tages-Anzeiger. December 31, 2010 (Interview with Franz Riklin)
- ↑ a b c Kenad Melunovic Marini: Received a penalty order - what to do? Issuing penal orders is a mass business. Outside of minor offenses, the clarification of the facts usually suffers. When is an objection worthwhile and when is a lawyer required? , NZZ 19.11.18