III.Institutions and Procedure
The criminal justice institutions and procedure can best be understood when following the course of a standard case. A case involving a pensioner, a farmer and a herd of cows will be discussed to shine light on how the procedural rules actually work in practice. Following this, the extent to which the Swiss criminal procedural rules comply with requirements set by the Constitution and the ECHR will be examined, focusing on three key problem areas in this regard.
On 17 June 2014, a farmer in the eastern Swiss mountains drove his cattle herd down from his alp. As he had done several times before, he passed in front of pensioner X’s house. The cows ate X’s grass and lavender and trampled over the meticulously groomed flowers. X, enraged, retrieved his revolver, aimed it at the cows and threatened to shoot them.
On the same day, the farmer filed a complaint at the local police station. Whilst doing so, he himself was questioned by the police. The farmer’s filing of the complaint triggered the preliminary proceedings (Article 303). The preliminary proceedings are divided up into two stages:38 the police inquiries and the investigation by the prosecutor (Article 299). The preliminary proceedings are led overall by the prosecution (Article 61 lit. a). The police are subject to the supervision and instructions of the prosecutor (Article 15 II). From the moment the complaint was filed by the farmer, X became “the accused” (Article 111). Through the filing of a complaint, the farmer automatically acquired the status of a private claimant (Article 118 II).
On the day after the incident, the prosecutor ordered a search of X’s house, which led to the seizure of several firearms and a box of ammunition. It was during this search that X learned that a preliminary investigation had been opened against him (Article 309) for threatening behaviour (Article 180 Criminal Code) and illegal bearing of a weapon (Article 33 I lit. a Federal Weapons Act).39 X was interrogated by the police (Article 307 II and Article 312 I) – he denied the use of a firearm. He could have requested that a legal-aid defence counsel be appointed, if he had lacked the necessary finances to provide his own. However, a counsel would most probably not have been appointed for this case, as it was a trivial one (Article 132). In serious cases, for example when the accused is facing a prison sentence of more than one year, a defence counsel must be appointed, even against the accused’s will (Article 130). In our case, X could at any time have hired a defence counsel himself and insisted that he or she be present from the first police inquiry (Article 159 II).40
The written records of the inquiry were handed over to the prosecutor. If the prosecutor had thought it necessary, he could then have interrogated the accused: this decision is entirely within the prosecutor’s discretion. During all interrogations the private claimant and his legal adviser could have participated both purely in presence and more actively by asking questions (Article 147 I and Article 312 II). Equally, the accused and his counsel could have assisted in the prosecution’s interrogation of the private claimant and requested that additional questions be posed to him.
When the prosecution considered the investigation to be complete, it had three possibilities: (1) to discontinue the proceedings and close the case, (2) to bring charges or (3) to issue a summary penalty order. In approximately 90 % of all cases that are not closed, the prosecution issues a penalty order. This is a judgment drafted by the prosecutor with a maximum sentence of six months of imprisonment (Article 352). It contains the prosecutor’s summary assessment of the facts and their legal interpretation of the situation. In fact, if the defendant confesses to the police or if there is sufficient “objective” evidence, there need not be any prosecutorial investigation at all (Article 309 IV). On 9 September 2014, the prosecution served its penalty order to X. He was found guilty of threatening behaviour and illegal bearing of a weapon and sentenced to 90 units of monetary penalty at CHF 350.– each. The penalty was suspended with a probation period of two years. Further, he was sentenced to an unconditional fine of CHF 1’000–. The weapon was confiscated and the costs of the proceedings were imposed on X.
Once the penalty order was issued, X had the choice to either accept it or to file an objection within ten days. Had X accepted – as about 90 % of all accused persons do – the penalty order would have come into force as a conviction, without any judicial participation (Article 354 III). On 15 September 2014, however, X objected. When an objection is filed the prosecutor hears the accused himself (Article 355 I). In many cases, this is the first time the accused deals with the prosecutor in person. On 1 October 2014, X was questioned by the prosecutor in the presence of the farmer (the private claimant).
The prosecutor then has to choose between upholding the penalty order, issuing a new one, closing the investigation or bringing charges. In our case the prosecutor decided to uphold the penalty order. On 14 October 2014, he transferred the case to court. The penalty order thus constituted the indictment (Article 356 I).
With the indictment, the preliminary proceedings against X came to an end (Article 318 I). The principal proceedings at the court of first instance were commenced. From that point onwards the court was in charge of the proceedings (Article 328 II). The prosecution became a mere party to the case (Article 104 I lit. c). The court examined and admitted the charges (Article 329 I) and scheduled the principal hearing (Article 331). At any point, the court could have asked the prosecution to modify or amend the charge (Article 333 I). From 15 October 2014, X was given access to the file for ten consecutive days. Both parties may then request that more evidence is taken, for example they may request that a particular witness be heard. The presiding judge decides whether to grant this request. A refusal cannot be challenged (Article 331). On 27 November 2014, X filed a motion to take additional evidence. The court turned down this request, anticipating that this would not affect their conclusion on whether or not the revolver had been used, thereby engaging in an anticipated assessment of evidence.41
Courts of first instance are usually composed of three judges and a clerk. If the prosecution applies for less than two years of imprisonment – as occurred in this case and most cases in practice – then the case may be heard by only one judge (Article 19 II). As mentioned, federal law does not provide for jury trials, meaning trial by jury is a very rare occurrence in Switzerland. X’s case was assigned to Judge Frederik Müller, district court of Toggenburg.
The principal hearing took place on 14 January 2015. X was joined by his defence counsel (Article 336). The prosecution has to appear at court if it has requested a prison sentence of more than one year or if the court orders its participation (Article 337). The private claimant may be ordered to appear at the main hearings (Article 338). In X’s case, both were ordered to appear at court. The court hearing was public (Article 69).
At court, it is only mandatory for the judge to interrogate the accused (Article 341 III). Private claimants, witnesses and experts may be heard – this will occur at the judge’s discretion (Article 343). For all four of them, the court relies heavily on the written records of their prior interrogations conducted the preliminary proceedings (Article 343). These statements do not have to be repeated at court. The hearings are conducted by the president of the court or by the judge in charge (Article 341 I). Hence, there is no cross-examination by the parties. The parties can submit additional questions to the president, who then decides whether or not to pose this question to the person interrogated (Article 341 II). After the taking of the evidence, the parties plead in the following order: prosecution, private claimant, the accused or his or her defence counsel (Article 346). The accused always has the last word (Article 347), ensuring he or she is able to fully respond to all accusations which have been levelled against him or her.
After the hearings, the court retires to deliberate in private. The clerk participates at the deliberations as an adviser (Article 348). The court has to reach its verdict by a simple majority in cases involving a panel of judges (Article 351). Panels of judges can consist of three or five members. Only a few cantons allow judges who disagreed with the verdict to write a dissenting opinion.42 In cases where there is an acquittal, the court grants the acquitted person compensation and reparation, which is done by the court ex officio (Article 429). In cases where there is a conviction, the court determines the sanction (penalty and/or measure)43 and imposes the costs of the proceedings on the convicted person (Article 426). In the case of X, Judge MÜLLER reached his verdict on the day of the hearing. X was found guilty of threatening behaviour and illegal bearing of a weapon. He was sentenced to 40 units of monetary penalty at CHF 350.—each. The penalty was suspended and the probation period set at two years. X’s revolver and ammunition were confiscated. The costs of the proceedings (CHF 3’150.–) were imposed on X.
Judge MÜLLER delivered his verdict publicly, giving his reasons in a brief oral statement (Article 84). Written reasoning of the judgment has to be provided if a sentence of more than two years has been imposed, if a party requests it, or if a party lodges an appeal (Article 82). X appealed his conviction. Hence, written reasons had to be provided.
The judgment of first instance can be appealed by all parties (Articles 381 et seqq.). On 16 January 2015, X lodged his appeal. The cantonal court of St. Gallen turned it down on 8 January 2016. X then took the appellate judgment to the Federal Supreme Court in Lausanne (Articles 78 et seqq. Federal Supreme Court Act).44 The Supreme Court decided that the cantonal court had applied the Criminal Code correctly. X’s property rights were infringed by the farmer. X was thus in a situation of necessity (Article 18 Criminal Code). However, the use of his revolver had been wholly disproportionate and therefore the justification of necessity did not apply. The Supreme Court further ruled that the anticipated assessment of the evidence had not been arbitrary. Thus, the cantonal court had not violated the Constitution. It rejected X’s complaint on 16 February 2017. The judgment of the cantonal court was upheld.
Most provisions of the Swiss Criminal Procedure Code are in line with the Constitution and the ECHR. Some individual provisions, however, need to be reconsidered.
Firstly, the practice of anticipated assessment of evidence is problematic. It allows prosecutors to adhere to the police’s assessment of the facts and courts to take the prosecutor’s stand without the accused ever having a real chance to “tell his side of the story”, or have any substantial involvement in the process.45 This state of affairs violates the right of the accused to be heard.
A second problem is the fact that courts are currently not strictly bound by the charges brought to them. Instead, they can at any time ask the prosecutor to amend or change the indictment. This is problematic in terms of the separation of the investigative and adjudicative powers;46 the court interferes with the investigative stage when they engage in this practice. Further, this power works to the detriment of the defence, for while the prosecutors are provided with an opportunity to amend a poor indictment, the defence does not get a second chance to amend poor pleadings.
The third and possibly the most persistent problem is that of the summary penalty order proceedings. Although defendants can de iure take their order to court, in over 90 % of all cases they are de facto adjudicated by prosecutors. Therefore, it should be mandatory for the prosecution to interrogate the accused in person before issuing a penal order. Currently, prosecutors are not even bound to open an investigation; they can issue a penalty order solely on the basis of the police record and have it served to the accused (Article 309 IV). In such a case, it is not guaranteed that the addressee learns about his or her conviction or properly understands its dimensions. This is problematic in terms of ECHR compliance. Article 6 III lit. a ECHR requires that the accused be “informed promptly … of the nature and cause of the accusation against him.” 47 Penalty orders are not explained to the accused in plain terms, nor are they ever translated. This latter issue clearly violates Article 6 III lit. e ECHR, which provides that everyone charged with a criminal offence must “have the free assistance of an interpreter if he cannot understand or speak the language used in court.”48
A more fundamental concern about the summary penalty order must also be addressed. The overwhelming majority of all convictions are now handed down by prosecutors under the summary penalty order procedure: thus, Swiss criminal procedure needs a general overhaul. The procedural principles discussed above were all drawn up with the principal court proceedings in mind, and thus were not properly tailored to apply to special proceedings. However, today, the summary penalty order proceedings are no longer “special proceedings”:49 instead, they have become the true “principal proceedings”.50 Therefore, Switzerland’s principles of modern criminal procedure should now be tailored to better address these summary proceedings, to ensure that the rights of the accused are always properly respected.
38See Figure 2, p. 404.
39Federal Act on Weapons, Weapon Equipment and Ammunition of 20 June 1997 (Federal Weapons Act), SR 514.54.
40Note that ECtHR case-law stipulates that as a rule, legal assistance must be provided from the moment the suspect is taken into custody “and not only while being questioned” (Dayanan v. Turkey, App no 7377/03, ECtHR, 13 October 2009, paragraph 32).
41See Judgment of the Federal Supreme Court 6B_495/2016 of 16 February 2017, consideration 1.3.3.
42See Article 134 of the Constitution of the canton of Vaud.
43For this dual system of sanctions see Chapter Criminal Law, pp. 377.
44Federal Supreme Court Act of 17 June 2005, SR 173.110.
45For the associated problems of this state of affairs, see pp. 404.
46The independence of the judiciary is regulated in Article 30 I Constitution: “Any person whose case falls to be judicially decided has the right to have their case heard by a legally constituted, competent, independent and impartial court.”
47In this respect, the information must be actually received by the accused; a legal presumption of receipt is insufficient (C v. Italy, App no 10889/84, 56 DR 40). In Switzerland there is in fact a very broad presumption of service. Article 88 IV states: “Decisions to take no proceedings and summary penalty orders are deemed to be served without publication being required.”
48The ECHR provisions on the right to a fair trial are also applicable to the pre-trial proceedings; “Certainly the primary purpose of Article 6 … is to ensure a fair trial by a ‘tribunal’ … but it does not follow that Article 6 has no application to pre-trial proceedings” (Imbrioscia v. Switzerland, App no 13972/88, ECtHR 24 November1993, paragraph 36; Pisano v. Italy, App No 36732/97, ECtHR, 27 July 2000, paragraph 27; diff. TRECHSEL/SUMMERS, p. 31.
49See title of Part 8, Articles 352 et seqq., (“Part 8 Special Procedures, Chapter 1 Summary Penalty Order Procedure, Contravention Procedure”).
50See title of Part 7, Articles 328 et seqq., (“Title 7 Main Proceedings of First Instance”).