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Criminal procedures in Switzerland are constrained by a set of principles laid out by the Swiss Code of Criminal Procedure. Firstly, the state has a monopoly on criminal justice (Article 2). Further, human dignity and fairness must be respected (Article 3). Criminal justice authorities are independent and only bound by the law (Article 4), and must investigate and proceed without undue delay (Article 5). According to the accusation principle, courts cannot start criminal proceedings themselves; charges have to be brought to them by the prosecution (Article 9). Courts assess evidence freely (Article 10 II), not following specific rules but their ‘conviction intime’.29 Court hearings are public and verdicts must be pronounced publicly (Article 69). In the following paragraphs, three other fundamental principles will be examined.
The Swiss criminal justice system is traditionally viewed as possessing an inquisitorial structure.30 The criminal justice authorities, i.e. the prosecution and the courts, cannot rely on the facts presented to them by the parties but have to inquire into the “material” truth ex officio. They have to investigate exculpatory and incriminatory circumstances with equal care (Article 6 II). Whether it is suitable to delegate the task of investigating exculpatory evidence to the prosecution, whose institutional duty is to obtain as many convictions as possible, is a highly debated issue. The courts, on the other hand, preside over the parties. They are in a much better position to weigh arguments for and against the accused’s guilt. The problem with this is that this role is not properly exercised until the case comes to court; by this point, the accused may already be at a disadvantage because of the “cherry-picking” of evidence by the prosecutor. Due to the inquisitorial structure of the proceedings, witnesses in the Swiss system are questioned by the President of the court: they are not subjected to cross examination by the parties. Another much debated issue is, of course, whether criminal proceedings can ever actually be expected to reveal the “whole truth”. Apart from the epistemological dilemma that there is no objective truth untainted by subjective interpretation, criminal proceedings are also practically ill-suited to find the truth: the defendant may remain silent or even lie,31 and the criminal justice authorities only have limited means and resources available to them in order to investigate the material facts.
The prosecution of known or suspected criminal acts is mandatory (Article 7). The rationale behind mandatory investigation is equality of treatment: no one shall escape criminal liability, regardless of personal characteristics or circumstances. However, there are certain minor offences that are prosecuted only on complaint, e.g. acts of aggression (Article 126 Criminal Code), common assault (Article 123 I Criminal Code), or criminal damage (Article 144 I Criminal Code). A prosecution only takes place, if the person who was harmed requests that the person responsible be prosecuted by filing a complaint (Article 30 I Criminal Code). Unless otherwise indicated in the Specific Part of the Criminal Code, all offences are prosecuted ex officio.
In Switzerland, there is only very limited prosecutorial discretion to not open an investigation or drop charges (Article 8). Prosecution can be discontinued if defendants have already been severely affected by their acts32 for example, this was the case where a defendant’s careless driving resulted in the death of her husband and grave injuries to her children.33 Charges can also be dropped if reparations are made to the victim for any losses.34 This exception is problematic because it conflicts with the equality of treatment rationale behind mandatory investigation: by allowing charges to be dropped where reparations have been made, Switzerland makes an exception to criminal liability that is available only to those wealthy enough to properly compensate victims.
Another part of the rationale behind obliging the prosecutor to pursue all charges was a concern to limit the arbitrational powers of the prosecution. This lack of prosecutorial discretion seems to leave very little room for plea bargaining. Prosecutors can, however, offer leniency in sentencing in exchange for, for example, a confession.35 Such deals are often struck in abridged proceedings (Articles 358 et seqq.).
Of course, even though the prosecution is legally bound to investigate all crimes brought to their attention they can, de facto, refrain from opening an investigation. This is particularly possible in cases with no immediate victim party to the proceedings (for example, eco-crimes or drug-selling) as there is no one to contest the abandonment of the investigation.
3. NEMO TENETUR SE IPSUM ACCUSARE
No man is bound to accuse himself. This principle is enshrined in Article 113 I. In Switzerland, the privilege against self-incrimination encompasses not only a right to remain silent but also a right to refuse to co-operate with the criminal justice authorities. The accused cannot be obliged to actively hand over items or assets which are demanded by the authorities (Article 265 II lit. a). However, this does not give the accused the right to resist legal coercive measures. Thus, he or she must allow the criminal justice authorities to seize such items or assets themselves. Obviously, the accused is protected from being forcefully coerced (for example, through torture) to provide evidence or to confess (Article 140 I). One area where the nemo-tenetur principle is in severe need of further implementation is in the auxiliary criminal law. For example, in Switzerland, citizens were under a legal obligation (backed up by fines) to cooperate in tax evasion proceedings. In J.B. v. Switzerland, the applicant had been fined CHF 4’000 under the administrative law for failing to provide information about his taxes. The European Court of Human Rights ruled that this provision violated the applicant’s right not to incriminate himself.36 Since this ruling, Switzerland has officially modified its tax legislation to align with the European Court of Human Rights case law.37
29Defined as the judge’s “inner or personal conviction” in KARIM A.A. KHAN/CAROLINE BUISMAN/CHRIS GOSNELL, Principles of Evidence in International Criminal Justice, Oxford 2010, p. 36.
30Critical on the inquisitorial-accusatorial divide: SARAH J. SUMMERS, Fair Trials: the European Criminal Procedural Tradition and the European Court of Human Rights, Oxford 2007, pp. 179, s.a. pp. 3 (“The Enduring legacy of the Inquisitorial/Accusatorial Divide”); detailed criticism by JACQUELINE HODGSON, French Criminal Justice: a Comparative Account of the Investigation and Prosecution of Crime in France Oxford 2005, p. 241 (“Given these different theoretical procedural constructions … it becomes more difficult to speak of ‘the trial’ in a way that makes sense across jurisdictions.”).
31That an accused person may lie to the criminal justice authorities is not entirely uncontested. Some authors suggest that in principle there is a right to lie; however this is limited by the criminal prohibitions on false accusation (Article 303 Criminal Code).
32Article 54 Criminal Code: “Effect on the offender of his act - If the offender is so seriously affected by the immediate consequences of his act that a penalty would be inappropriate, the responsible authorities shall refrain from prosecuting him, bringing him to court or punishing him.”
33BGE 119 IV 280.
34Article 53 Criminal Code: “Reparation; If the offender has made reparation for the loss, damage or injury or made every reasonable effort to right the wrong that he has caused, the competent authority shall refrain from prosecuting him, bringing him to court or punishing him if: a. the requirements for a suspended sentence (Art. 42) are fulfilled; and b. the interests of the general public and of the persons harmed in prosecution are negligible.”
35A confession as to the facts suffices; there need not be a guilty plea in the strict sense of the term, i.e. a declaration of one’s own guilt.
36J.B. v. Switzerland App no 31827/96, ECtHR, 3 May 2001, at paragraphs 63 et seqq.
37The new provision is Article 57a of the Tax Harmonisation Act of 14 December 1990, SR 642.14.