86: Untitled Page 71

I.Criminal Procedure Code

The first section of this chapter examines the constitutional framework within which the laws on criminal procedure in Switzerland operate (1.) and gives a brief history of criminal procedural laws in Switzerland, before embarking on an examination of the key developments en route to the eventual codification of the unified Swiss Criminal Procedure Code in 2011 (2.). Finally, the Code’s layout and provisions are analysed (3.).

1. CONSTITUTIONAL FRAMEWORK

Switzerland is a federal republic. All competencies that are not vested in the confederation are exercised by the cantons (Article 3 Constitution).1 Criminal law and criminal procedure were traditionally a key legislative area for the cantons: neither the Constitution of 1848 nor the one of 1874 provided for centralised legislative powers. However, towards the end of the 19th century pressure mounted on parliament to draw up a criminal code to deal with the substantive criminal offences for all of Switzerland. On 13 November 1898, the confederation became entitled to legislate in the field of substantive criminal law.2

From this point, it would be a further 102 years before the confederation finally obtained the power to legislate in the field of criminal procedure. Throughout the 20th century, there were more than 50 different codes of criminal procedure applicable in Switzerland: 26 cantonal codes of criminal procedure, 26 cantonal regulations on Juvenile Justice, the procedural code of 1934 on Federal Criminal Justice, the administrative criminal procedure code of 1974, and the criminal procedure code of the Swiss Military in 1979. This variety of procedural rules proved to be extremely inefficient in practical terms: for example, it made the prosecution of interstate and transnational (organised) crime very difficult. Further, many of the existing procedural codes stood increasingly at odds with the jurisprudence of the European Court of Human Rights and the Swiss Federal Supreme Court. At the turn of the millennium, it was clear to everyone that criminal procedural law needed to be standardised on a national level. The reform of the Swiss Justice System was put to popular vote and approved in a landslide victory on 12 March 2000.3 This cleared the way for the drafting of Swiss criminal and civil procedure codes.

Before embarking on a discussion of the legislative process leading to the adoption of a unified code of criminal procedure, it should be noted that despite such a development, there are three domains the cantons retain full responsibility. These areas are the organisation of the courts, the administration of justice in criminal cases and the execution of sentences and measures (Article 123 II Constitution). Firstly, the cantons remain responsible for establishing their own court system. For example, they can decide whether they want district courts to be responsible for settling criminal and civil cases for a specific area (as is the case in the canton of Zurich) or a cantonal criminal court with an exclusive jurisdiction in criminal matters (as is the case in Lucerne and Basel Stadt). They can also set up rules on the eligibility of judges. For example, federal law does not preclude the existence of lay judges.4 This means that cantons retain the power to allow laymen on the bench: many cantons do so, although Zurich has recently banned them. Regarding the regulation of juries, the federal rules on the main hearings at court do not contain provisions on jury selection and/or instruction. Thus, trial by jury, which used to be quite widespread, is almost entirely excluded today.5 Nevertheless, the canton of Ticino still continues to hold jury trials. Further, the cantons can decide whether they want to allow the publication of dissenting opinions.

Secondly, the administration of criminal justice lies in the hands of the cantons: although the Swiss Criminal Code of 21 December 1937 is an act of the federal parliament, it is administered by cantonal courts. There are only a handful of very serious crimes6 against national interests prosecuted by the Attorney General of Switzerland and tried by the Federal Criminal Court in Bellinzona.

Finally, the cantons are mainly responsible for the execution of the (dual) system of sanctions:7 in the executing of sentences, the cantons have to provide penitentiary institutions, a system for the collection of monetary penalties and fines, and probation offices. For the execution of measures, the cantons must install suitable institutions to treat those with addictions and mental deficiencies. Indefinite incarceration is usually executed in high-security sections of regular prisons. Such a penitentiary system is too expensive for every canton to be expected to individually create one. The cantons have therefore united their efforts in several inter-cantonal agreements (“concordats”8).

2. LEGISLATION

As mentioned, by the end of the 20th century it was becoming increasingly clear that there was a need to standardise criminal procedure in Switzerland. Thus, in 1994, a commission of experts was established with the set purpose of exploring the possibility of creating a unified criminal procedure. In 1997 they produced their completed report, entitled “From 29 to 1”. They proposed to unify 29 of the existing criminal justice codes for adults (26 cantonal criminal codes of procedure, the procedural code on Federal Criminal Justice and the administrative and military criminal codes of procedure) in one federal code of criminal Procedure. The commission decided to postpone the unification of procedural legislation on Juvenile Justice for the time-being.

In 1999, one year before the confederation obtained the power to regulate criminal procedure on a national level, the Federal Council mandated NIKLAUS SCHMID, professor of criminal law at the University of Zurich, to draw up a Federal Code of Criminal Procedure.9 The commission’s idea of integrating the administrative and military criminal procedure codes was overruled.

From 2001–2003, the two preliminary drafts were submitted to a national consultation procedure (Article 3 Consultation Procedure Act).10 Almost everyone welcomed the idea of unification. The most controversial issue was that of who should be in charge of the preliminary proceedings: should it be the sole responsibility of the prosecutor or should it also involve investigative judges or magistrates? In relation to this particular issue, the Government proposed in its dispatch11 of 21 December 2005 that the Federal Assembly should introduce a purely prosecutorial system, meaning that the preliminary proceedings would indeed be the sole responsibility of the prosecutor’s office. This proposal was followed by Parliament. Subsequently, after less than one year of debates Parliament passed the Swiss Criminal Procedure Code on 5 October 2007. It entered into force on 1 January 2011.12

The nationwide standardisation of criminal procedure under the Swiss Criminal Procedure Code of 2011 was an important step in the right direction in many ways. For defence counsels, it has become a lot easier to represent defendants in other cantons. They now only have to be familiar with one, unified law of criminal procedure. This means a better standard of representation for accused persons; their interests will be better protected. The unification has also sparked a national academic debate about different aspects of Swiss criminal procedure. Before the unification, hardly anything was published on cantonal procedure codes, meaning that lawyers and judges looking for an answer to a particular legal problem would not have much literature to rely on. This seriously hindered discussion of the topic, which to some extent hindered progress or change, although the Supreme Court was making great efforts to introduce progressive measures into the cantonal procedure codes.

Still, today there remains much room for progress. The organisation of the criminal justice authorities and the execution of sanctions, which are currently still areas in which the cantons have exclusive competence, need to be harmonised on a national level. The administrative and military criminal codes are out-dated, too; it is unfortunate that the Federal Council dropped the idea of standardising these back at the turn of the millennium.

The two biggest contemporary challenges in terms of legislation on criminal procedure, however, lie outside the subject’s traditional realm. Firstly, with the threat of terrorism constantly evolving and increasing, one key challenge is the need to bring police and secret service legislation (both on a cantonal and federal level) in line with criminal procedure legislation. For example, can information from police-intercepted phone calls be handed over to the criminal justice authorities, considering the fact that such information may have been intercepted before there was any adequate level of suspicion against a person? Secondly, administrative laws provide for many sanctions that have traditionally not been regarded as criminal penalties: for example, federal agencies can ban bank managers from their profession (Article 33 Financial Market Supervision Act)13 or close down pharmaceutical firms (Article 66 Therapeutic Products Act).14 These sanctions clearly meet the standard of ‘criminal charges’ as assessed in case law dealing with Article 6 I ECHR.15 Hence, the procedures which lead to these sanctions being imposed must also meet criminal procedure standards (e.g. nemo tenetur).16

3. CONTENT17

The Swiss Criminal Procedure Code contains 457 Articles. They are divided up into 12 parts. The Swiss Juvenile Criminal Procedure Code has roughly the same structure but is much shorter (54 Articles). It is conceptualised as a lex specialis: if a specific problem is not regulated in the Juvenile Criminal Procedure Code, the Swiss Code of Criminal Procedure applies.

Part 1 (Articles 1–11) regulates basic principles of criminal procedure such as fairness, independence, speediness, ex officio investigation, mandatory prosecution and prosecutorial discretion, presumption of innocence, in dubio pro reo, or double jeopardy.

Part 2 (Articles 12–103) regulates the criminal justice authorities (police, prosecution, and courts). As mentioned, the legislator decided to establish a prosecutorial system. The preliminary proceedings are therefore led solely by the prosecutor (Article 61 lit. a). There is no (independent) investigative

Figure 1: Criminal Procedure Laws

judge or magistrate in charge of the proceedings. Some intrusive investigative measures, such as detention on remand or wire-tapping of phones, have to be ordered or approved by a judge at the “compulsory measures court” (Article 18 I) but the actual investigation is still conducted by the prosecutor. Trial cases are handled by the courts of first instance (Article 19). Their decisions can be taken to the court of appeal (Article 21). The appeal to and the proceedings of the Swiss Federal Supreme Court are regulated in the (separate) Federal Act of 17 June 2005 on the Federal Supreme Court. Part 2 also contains provisions on the cantonal/federal jurisdiction (Articles 22 et seqq.), recusal (Articles 56 et seqq.), or disciplinary measures (Article 64) as well as general procedural rules (oral and public proceedings, language, written records, service of decisions, time limits, and file management).

Part 3 (Articles 104–138) defines the parties and the other persons involved in the proceedings (witnesses, experts, defence counsels, etc.). The parties are the accused, the private claimant and the prosecutor (Article 104). The accused is a person suspected, accused of or charged with an offence (Article 111). The accused is the technical term used for the defendant. The private claimant is a harmed person who voluntarily participates in the criminal proceedings (Article 118). There are three categories of harmed persons: (1) the aggrieved: a person whose rights have been directly violated by the criminal offence (Article 115), e.g. a defrauded person; (2) the victim: an aggrieved person whose bodily, sexual or psychological integrity was directly affected by the criminal offence (Article 116), for example a person raped and/or seriously injured; (3) the private claimant: both the aggrieved person and the victim can declare that they want to participate as a private claimant in the proceedings (Article 119). The private claimant is not merely an accessory participant to the proceedings but a party on equal standing with the accused. Private claimants have access to the files, can participate in hearings with the accused, appoint their own legal adviser, or request that evidence be taken (Article 107). They can file their civil claims in the criminal proceedings (Article 122). They even have a say in the prosecution and conviction of a defendant (“criminal claim”, Article 119 II lit. a). For example, they could request that specific charges be pursued: the parents in the case of the teenagers killed in the deadly car race discussed in the chapter on criminal law could have requested that the defendants be charged with intentional killing (Article 111 Criminal Code) rather than negligent killing (Article 117 Criminal Code).

Figure 2: Categories of Harmed Persons

The prosecution only becomes a party to proceedings at the eventual court hearing. During the preliminary phase, the prosecution is the head of proceedings (Article 61 lit. a). This shifting of roles from the head of the proceedings into a party to the proceedings is a particularity of the prosecutorial system. In some of the previous cantonal systems, an independent magistrate was in charge of the preliminary proceedings and the prosecution was a party throughout the preliminary and principal proceedings.

Part 4 (Articles 139–195) of the Federal Code of Criminal Procedure contains the rules on evidence. Criminal justice authorities can rely on any lawful evidence deemed suitable to determine the truth (Article 139). Evidence shall not be taken in relation to facts which are insignificant, obvious, well known to the criminal justice authorities, or which have already been sufficiently proven in law (Article 139 II). The ‘sufficiently proven’ clause is problematic. It allows criminal justice authorities to engage in a so-called anticipated assessment of evidence. For example, prosecutors or judges can refuse a request to hear a witness for the defence at any time if they have already decided on the facts on the basis of the file (Article 318 II). This makes it much harder for the defence to tell their side of the story and could potentially conflict with Article 6 III lit. d ECHR which guarantees the defendant’s right to “examine or have examined witnesses against him and to obtain the attendance and

Figure 3: Role of the Prosecution in the Proceedings

examination of witnesses on his behalf under the same conditions as witnesses against him.” However, in this regard it should be noted that generally the European Court of Human Rights leaves it to the national courts to assess the relevance of the evidence which defendants request to bring forth.18

Parties have certain rights regarding the taking of evidence under Part 4. Most importantly, they have the right to be present when evidence is taken (Article 147 I). Private claimants and co-defendants can participate in every hearing of the accused,19 and vice versa. This rule was meant to enforce the participatory rights of the parties. There are however practical problems to be solved: what if 250 persons have been defrauded in a Ponzi scheme and all of them want to participate in the interrogation of the accused? Or what if co-defendants attend the hearing of the accused, then adjust their own statements to avoid criminal liability? Thus, the Supreme Court has allowed for some narrow exceptions to the right to participation.20 These restrictions do not apply to the defence counsel’s presence in police examination hearings: he or she may always be present from the very beginning of the police investigation (Article 159 II).

Part 4 also sets out the rules for the proper taking of evidence. It is prohibited to obtain evidence through coercion, violence, threats, promises, deception or through any measures that interfere with a person’s freedom of will (Article 140 I). Hence, neither drugs nor polygraphs may be administered, not even when the individual consents to their use (Article 140 II).

Regarding the exclusion of evidence, Article 141 sets out three pivotal rules in this area. Firstly, evidence obtained through coercion (torture etc.) is strictly inadmissible (Article 140 I), as is evidence that the Swiss Code of Criminal Procedure explicitly declares to be inadmissible. For example, statements given by the accused without a prior caution of his or her right to remain silent are declared inadmissible by Article 158 II. Secondly, evidence obtained in a criminal manner or in violation of rules protecting the validity of the evidence shall not be used, unless its use is essential to prosecuting serious criminal offences (Article 141 II). If the police forge a search warrant, for example, then any evidence obtained during the search would have been obtained in a criminal manner, as forgery of a document by a public official is a criminal offence (Article 317 Criminal Code). ‘Validity rules’ are designed to protect fundamental rights of the accused: if a witness is not cautioned to tell the truth, for example, then “the examination hearing is invalid” (Article 177 I). Such evidence is generally inadmissible, unless, as stated above, it is needed to secure the conviction of a serious crime. Courts having to review such evidence must conduct a balancing exercise:21 the private interests of the accused have to be weighed against the public interest in finding the truth and securing a conviction for the relevant crime. The graver the alleged crime, the more the public interest will prevail.22 Finally, evidence “obtained in violation of administrative rules shall be usable” (Article 141 III). ‘Administrative rules’ are designed to guarantee the smooth administration of criminal proceedings. Their violation has no consequence. The provision on the search of mobile phones has - not very convincingly - been qualified as an administrative rule.23

The Swiss Code of Criminal Procedure contains no statutory exclusion of hearsay evidence.24 Whilst Article 169 of the Swiss Civil Procedure Code25 forbids such evidence, indirect evidence is admissible in criminal procedure and can be assessed freely by the criminal justice authorities (Article 10 II).

Figure 4: Evidence Exclusion

The rules on evidence exclusion set out in Part 4 are unconvincing. One key concern is the fact that illegally obtained evidence can be used if a serious crime is at issue (Article 141 II). For the accused, this means that the bigger the crime he is accused of, the smaller his chances of a fair trial.26 This is problematic considering the possibility that severe sentences and thus a more severe deprivation of liberty will be imposed for more serious crimes; one would hope that in such cases, the trial and investigative process should be as fair and reliable as possible. Moreover, it is very hard in practice to draw a clear line between validity and administrative rules. This means that the defining of these terms is overly open to judicial discretion, leading to little protection for the accused. For example, the duty to obtain a search warrant has been viewed as an administrative rule in the past,27 even though house searches clearly involve a strong interference with the accused’s privacy interests. This demonstrates the ease of interpreting the category of rule (validity or administrative) to the detriment of the accused’s interests, and means the administrative rules lose their deterrent effect to an extent.28

Part 5 (Articles 196–298d) determines the permissible coercive measures criminal justice authorities can resort to. Coercive measures are procedural actions of the criminal justice authorities which interfere with fundamental rights. They have multiple purposes, including: (a) to secure evidence (searches of premises/records/persons, post-mortems, DNA analysis, seizure, covert surveillance of communication, of whereabouts and of banking connections, and undercover operations); (b) to ensure the presence of persons in the proceedings (summons, arrest, detention on remand, bail) and (c) to ensure that the final decision can be enforced (seizure of assets, security detention). Most of the coercive measures available under Part 5 can be ordered by the prosecution. Some measures that strongly interfere with fundamental rights have to be ordered by a judge at the “compulsory measures court”, for example, detention on remand or DNA mass screening. Some measures like surveillance of telecommunications or undercover operations must at least be approved retroactively by such a court. Interestingly, the search of premises, a very intrusive measure, can be ordered by the prosecution alone without any need for court approval. The only explanation for this is that the power to order searches has traditionally belonged to the prosecution. The prosecutor can also order the freezing of assets without judicial approval. However, the accused and other persons affected by the freezing can take the order to court.

The remaining parts of the Swiss Code of Criminal Procedure are less pertinent in the context of this chapter and as such will not be discussed in any depth. Part 6 (Articles 299–327) sets out the rules for the preliminary proceedings (police inquiries, opening and dropping prosecutorial investigation, charges). Part 7 (Articles 328–351) regulates the principal proceedings at first instance (examination of the charge, hearing, taking of the evidence, pleadings, judgement) and Part 8 (Articles 352–378) specifies the special proceedings available (summary penalty order, abridged and in absentia proceedings, proceedings in cases of insanity, non-conviction-based confiscation proceedings). Part 9 (Articles 379–415) sets out the legal remedies available to various parties (complaints, appeals, retrials). Part 10 (Articles 416–436) regulates the costs of the proceedings and compensation, while Part 11 (Articles 437–444) sets out the rules of enforcement. Finally, Part 12 (Articles 445–457) is the provision on the implementation of the Code.

1Federal Constitution of the Swiss Confederation of 18 April 1999, SR 101; see for an English version of the Constitution www.admin.ch (https://perma.cc/M8UJ-S369).

2For details on the enactment of the Swiss Criminal Code of 21 December 1937, SR 311.0, see the chapter on Criminal Law, pp. 369; see for an English version of the Swiss Criminal Code www.admin.ch (https://perma.cc/4QS4-CWQ5).

386.4 % of the voters and all cantons approved the reform. The turnout was at 42 %.

4NADINE ZURKINDEN, National characteristics, fundamental principles, and history of criminal law in Switzerland, in Ulrich Sieber/Konstanze Jarvers/Emily Silverman (eds.), National Criminal Law in a Comparative Legal Context, Vol 1.1, Berlin 2013, pp. 205, p. 221.

5“A jury is not explicitly prohibited but is probably inadmissible due to a lack of provisions governing the division of tasks within the court and a lack of special procedural provisions”, ZURKINDEN, p. 221.

6For the crimes under federal jurisdiction see Articles 23 and 24 Criminal Procedure Code

7See the chapter on Criminal Law, pp. 377.

8See the chapter on Constitutional Law, p. 399.

9In defiance of the commission’s proposed postponement of this issue, the Federal Council also decided to proceed with unifying the codes on Juvenile Justice. Thus, the President of the Juvenile Justice Court of Valais, JEAN ZERMATTEN, was commissioned to draft a Swiss Juvenile Justice code.

10Federal Act on the Consultation Procedure of 18 March 2005 (Consultation Procedure Act, CPA), SR 172.061; see for an English version of the Consultation Procedure Act www.admin.ch (https://perma.cc/6MCM-KXYG); see for legislative procedure the Chapter Swiss Legal System, pp. 27.

11The term “dispatch” (German: Botschaft; French: message) is the term used by the Swiss government for explanatory reports to draft legislation; resembling a White Paper in the UK; see Chapter Swiss Legal System p. 28.

12The Swiss Juvenile Criminal Procedure Code was adopted on 20 March 2009 and entered into force on 1 January 2011 (SR 312.1).

13Federal Act on the Swiss Financial Market Supervisory Authority of 22 June 2007 (Financial Market Supervision Act, FINMASA), SR 956.1 (“[1.] If the Swiss Financial Market Supervisory Authority (FINMA) detects a serious violation of supervisory provisions, it may prohibit the person responsible from acting in a management capacity at any person or entity subject to its supervision. [2.] The prohibition from practising a profession may be imposed for a period of up to five years.”).

14Federal Act on Medicinal Products and Medical Devices of 15 December 2000 (Therapeutic Products Act, TPA), SR 812.21 („[1.] The Agency may take all administrative measures necessary to enforce this Act. 2 In particular it may: c. close down establishments.“).

15In assessing the applicability of the criminal aspect of Article 6 ECHR, the case of Engel and Others v. the Netherlands, App no 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72, ECtHR 8 June 1976, provides three relevant criteria at paragraphs 82–83: the classification of the act in domestic law; the nature of the offence; and the severity of the penalty that the person concerned risks incurring. The first criteria is only a starting-point for the Court’s examination – even if the conduct is not classified as criminal in the domestic law, the Court will still delve behind this classification to examine the actual substance of the offence and make its own independent assessment.

16For „nemo tenetur“ see pp. 412.

17In the following text, where Articles are mentioned without referencing their source of law, they are located in the Swiss Criminal Procedure Code of 5 October 2007 (Criminal Procedure Code, CrimPC), SR 312.0; see for an English version of the Criminal Procedure Code www.admin.ch (https://perma.cc/6S55–6MBC).

18The fundamental aim of Article 6 III lit. d ECHR is to ensure full “equality of arms” rather than mandating the examination of every witness on the defendant’s behalf (Perna v. Italy, App no 48898/99, ECtHR, 6 May 2003, paragraph 29). However, when a request by a defendant to examine witnesses is sufficiently reasoned, not vexatious, relevant to the subject matter of the accusation, and could potentially have strengthened the accused’s position, relevant reasons for dismissing such a request must be given by the authorities (Polyakov v. Russia, App no 77018/01, ECtHR, 29 January 2009, paragraphs 34–35).

19Article 147 I guarantees that parties have the right to be present when the public prosecutor and the courts take evidence and to put questions to the persons being questioned.

20See BGE 139 IV 25: this case held that in cases with more than one accused person, the accused person may be excluded from participating in the questioning of the co-accused where there is a concrete risk of collusion. However, a mere abstract danger of collusion does not justify the exclusion of the accused from participating. See also BGE 140 IV 172: this case established that the right of accused persons to participate in evidence-gathering does not apply to separate proceedings against other accused persons (where the other accused persons were involved in the same criminal incident but are being tried wholly separately as opposed to as a co-accused).

21Strangely, the fact that the evidence could have been obtained legally is viewed to be an argument in favour of its admissibility. Inadmissibility would, however, be a far more logical sanction: if evidence can be obtained lawfully then it should be obtained lawfully. See the same argument in the context of the fruit of the poisonous tree doctrine by JOHN D. JACKSON/SARAH J. SUMMERS, The Internationalisation of Criminal Evidence, Beyond the Common Law and Civil Law Traditions, Cambridge 2012, pp. 191 (“Clearly, it could equally be argued that the fruit of the poisonous tree ought not be relied upon as evidence in such circumstances precisely because the authorities could have obtained the evidence lawfully.”). The test formally required by the Supreme Court jurisprudence of whether evidence could have been legally obtained did not make it into the new Code and can henceforth be disregarded.

22BGE 130 I 126.

23BGE 139 IV 128.

24STEFAN TRECHSEL/SARAH J. SUMMERS, Human Rights in Criminal Proceedings, Oxford 2006, p. 322.

25Swiss Civil Procedure code of 19 December 2008 (Civil Procedure Code, CPC), SR 272; see for an English version of the Civil Procedure Code www.admin.ch (https://perma.cc/99QZ-BZ8T).

26MARC THOMMEN/MOJAN SAMADI, The Bigger the Crime, the Smaller the Chance of a Fair Trial?, in European Journal of Crime, Criminal Law and Criminal Justice 24 (2016), pp. 65, p. 65.

27The consequences of unlawful searches are controversial – the evidence thus obtained has also been viewed as fully usable, see Judgement of the Federal Supreme Court BGE 96 I 437 (von Däniken versus the Canton of Graubünden).

28For a comprehensive overview of the debate over the admissibility of evidence, see THOMMEN/SAMADI.