Pretrial detention (Switzerland)
Pretrial detention and preventive detention are two compulsory measures under Swiss criminal procedural law , which the public prosecutor can apply to the compulsory measures court as part of an investigation or process.
With the entry into force of the Federal Code of Criminal Procedure (StPO) on January 1, 2011, remand detention is uniformly regulated throughout Switzerland. Previously there were 26 different cantonal regulations as well as a federal code of criminal procedure for certain serious offenses which fell under federal jurisdiction. In the StPO, remand and preventive detention is regulated in Articles 212 ff.
According to Art. 221 StPO, a person must be urgently suspected of an act so that pre-trial detention is permissible. In addition, one of the following requirements must be met:
- There is a serious risk that the suspect will evade criminal proceedings or the expected sanctions by fleeing ( risk of flight ).
- There is a serious risk that the suspect will impair the establishment of the truth, for example by influencing witnesses or influencing evidence ( danger of obscuration ).
- There is a serious fear that the suspected person will seriously endanger the safety of others through crimes or serious offenses after they have already committed similar offenses (risk of repetition).
- There is a serious fear that the suspect might carry out a threat to commit another crime or try to carry out an unsuccessful act (risk of execution).
If the person has already been provisionally arrested by the police, the public prosecutor must apply for pre-trial detention or arrange for his release within 48 hours.
Pretrial detention can also be ordered if there is an imminent risk that a person will commit a threatened crime.
Proceedings before the compulsory measures court
The compulsory measures court in turn has a maximum of 48 hours to assess the facts. The hearing is not public and will be conducted orally, unless the accused expressly waives an oral hearing. The compulsory measures court takes note of all available evidence that is suitable to substantiate or refute the suspicion and / or the grounds for detention. The accused is entitled to prior inspection of the files on request. (Art. 225 and 226 StPO)
The legal situation is different in the case of security detention, where the procedure takes place exclusively in writing (Art. 229 StPO).
End and security detention
Pretrial detention ends when the indictment is received by the court of first instance, when a custodial sentence is commenced or when the person is released before the end of the investigation (Art. 220 StPO). If the prerequisites for pre-trial detention are met even after the indictment has been received by the court, the person will be transferred to security detention, which differs from pre-trial detention only conceptually.
If the prerequisites for remand or preventive detention are no longer met prematurely, they must be lifted immediately (Art. 212 Para. 2 StPO). According to Art. 228 StPO, the person in custody is generally permitted at any time to submit an application to the public prosecutor's office. According to Art. 228 (5) StPO, the compulsory measures court can, however, set a blocking period of no more than one month, within which no request for dismissal can be made.
Article 212, Paragraph 3 of the Code of Criminal Procedure sets an absolute limit on the duration insofar as the pre-trial and preventive detention together may not exceed the duration of the expected prison sentence.
Pretrial detention and preventive detention are usually carried out in special prisons , or in prisons that are only used for short sentences. If there are certain medical reasons, the accused can also be admitted to a hospital or psychiatric clinic. Contacts between the detained person and the outside world are limited and must be approved by the director of proceedings (public prosecutor's office for pre-trial detention, the court for security detention). For example, the post is monitored (except with the defense and supervisory and criminal authorities). Visits to the detainee are only possible to a limited extent. However, any restrictions must be proportionate. This means that the imprisoned person may not be restricted in their personal freedom more than the purpose of the detention and the order and security in the detention center require. The details of the implementation of remand and preventive detention are not regulated in the StPO, but in cantonal decrees.