The Federal Supreme Court in Lausanne is Switzerland’s highest court. Its role in the field of criminal procedure has shifted considerably since the enactment of the Federal Code of Criminal Procedure in 2011. Before, the Supreme Court had jurisdiction over 26 different cantonal codes. Its main task was to set up common minimal standards regarding the rights of different parties for all the different codes. Because these codes were issued by the cantons, the Supreme Court had the power to nullify them. For example, in 1976, the directive on the police prisons of the canton of Zurich was partly nullified. The rules had not allowed prisoners to use their bed during the day and only allowed prisoners a walk in the open air every third day; as such, they were found to violate fundamental rights guaranteed by the Constitution.51
Nowadays, criminal procedure is regulated by a federal code. Because the Federal Supreme Court is bound by the laws of the Federal Parliament (Article 190 Constitution) it may not nullify provisions of the Swiss Code of Criminal Procedure, as it could do before with cantonal procedural codes. Its main task is therefore to guarantee a consistent application of the Federal Code of Criminal Procedure throughout the cantons of Switzerland. As the following cases will show, the jurisprudence of the European Court of Human Rights has an even greater influence in the field of criminal procedure than in that of substantive criminal law. In particular, the Strasbourg rulings on the right to liberty (Article 5 ECHR) and the right to a fair trial (Article 6 ECHR) have had a deep impact on the criminal procedure rules of various member states.
1. SCHENK V. SWITZERLAND52
One earlier case that had a strong influence on the rules which apply today surrounding the exclusion of evidence was that of PIERRE SCHENK. This case was decided years before the introduction of the Federal Criminal Code of Procedure, but the principles developed under this case are still followed in the procedural laws of Switzerland today.
SCHENK was suspected of having hired a hitman to kill his wife. The hitman, instead of executing his mission, had secretly taped a phone conversation with SCHENK and handed it to the investigating authorities. The tape was subsequently used as the main (but not sole) piece of evidence in the eventual trial against SCHENK, where he was convicted for attempted instigation to murder. Secretly recording an individual is a criminal offence in Switzerland under Article 179ter Criminal Code. The question for the Supreme Court, when it considered SCHENK’S case on appeal, was whether illegally obtained evidence could be used in a criminal trial. The Federal Supreme Court, considering this issue, held:
“To conclude … that any evidence derived from unauthorised tapping must never … be used in evidence would be to adopt too dogmatic a position and would often lead to absurd results … In such a case it is necessary to balance … the interest of the State in having a specific suspicion confirmed … and … the legitimate interest of the person concerned in the protection of his personal rights”.53
The Supreme Court considered in the case of SCHENK that the public interest in having the truth established overrode SCHENK’S privacy interests. Thus, they ultimately upheld his conviction for attempted instigation to murder, although the evidence had been obtained in an illegal manner. SCHENK took his case to the European Court of Human Rights, requesting a declaration that his right to a fair trial under Article 6 I ECHR had been violated. However, after examining the trial process as a whole, the European Court of Human Rights concluded SCHENK had not been deprived of his right to a fair trial. Important considerations which influenced this conclusion were the fact that SCHENK’S defence rights had not been disregarded and that the tape had not been the only piece of evidence used to secure his conviction.
SCHENK is the leading case on the exclusion of illegally gathered evidence. The Supreme Court, as quoted above, stated that when courts assess the admissibility of evidence they must weigh the public interest in truth-finding and securing a conviction for the relevant crime against the accused’s privacy rights. This balancing approach was approved by the European Court of Human Rights when they heard SCHENK’S case. It also later became statutory law in Switzerland: as was discussed earlier in the discussion about Part 4 of the Swiss Code of Criminal Procedure rules on exclusion of evidence,54 evidence gathered “in a criminal manner” is generally excluded, unless it is needed for the conviction of a serious crime (Article 141 II). Consequently, illegally obtained evidence can be used if a serious crime is at stake. The worrying implications of this provision were outlined earlier: it means that even when procedural rules matter the most – in serious cases where there is the possibility of a severe sentence being imposed after a finding of guilt – they are still unlikely to be heeded. Further, it acts to remove any incentive the criminal justice authorities may have to comply with procedural rules.
2. HUBER V. SWITZERLAND55
Another case, decided in 1990, that had an influence on criminal procedural law was that of Huber v. Switzerland. Again, this case was decided before the enactment of the Federal Code of Criminal Procedure, and thus dealt with a cantonal criminal procedure regulation.
The facts of the case were that members of the “Hell’s Angels” gang were suspected of having brought German prostitutes to Zurich, and subsequently forcing them to marry Swiss nationals who received payments in turn. These women were then forced into prostitution in Switzerland. The District Attorney of Zurich believed that JUTTA HUBER was one of these women. On 11 August 1983, he questioned her as a witness. She admitted making a living from prostitution but denied any ties to the “Hell’s Angels”. At the end of the hearing, the District Attorney remanded her in custody on suspicion of having given false evidence. She was not released until a further eight days had passed. The District Attorney then indicted her. At trial, her lawyer argued that there had been two key failures by the authorities to respect HUBER’S rights; in particular those guaranteed by the ECHR. Firstly: “anyone who is detained … must be brought promptly before a judge … This never happened in the present case.” Secondly, there was a lack of independence at issue: “the person who remanded the accused in custody, District Attorney J., is now also prosecutor.”
Unlike the Swiss courts, the European Court of Human Rights shared the view of the defence lawyer, concluding that Article 5 III ECHR had been violated. The District Attorney, who had ordered the detention of HUBER on remand at the preliminary stage of the proceedings, had become party to the trial by taking on the role of the prosecution. He was thus no longer “independent of the parties”56. Following this judgment, the canton of Zurich had to change its Code of Criminal Procedure, delegating the task of approving detention on remand to the President of the District Courts.57 Today, this task is vested in the “compulsory measures courts”.58
A had been detained on remand on suspicion of large scale cocaine trafficking, and was held for 478 days at the ‘Champ-Dollon’ detention facility near Geneva. For 199 days (157 of which were consecutive), he shared his three-man cell with five other inmates (the space amounted to 3.83m2 per person). During that entire period he was confined to his cell for 23 hours per day. A claimed that such conditions of detention were inhuman and degrading, under Article 3 ECHR.
In its decision, the Swiss Federal Supreme Court relied heavily on the criteria set out by the European Court of Human Rights. If detainees are confined to a space of less than 3m2 per person, the lack of space in itself will constitute a violation of Article 3 ECHR. If individual space ranges from 3–4m2 per person, other detention conditions are considered in order to establish whether there has been an Article 3 ECHR violation, such as (day)light, ventilation, temperature, sanitary facilities, time spent outside of the cell, health conditions (for example the prevalence of tuberculosis), the quality of nutrition, and the overall duration of the detention.
The Federal Supreme Court held that the Champ-Dollon prison has been heavily over-crowded for many years. The sanitary facilities, ventilation, light, and nutrition were deemed to meet the minimal standards. However, the fact that A had been detained for 157 consecutive days in a heavily overcrowded cell with virtually no time outside this confinement led the court to declare that the conditions violated the national and inter-national rules on detention. Despite the successful outcome of this judgement for the applicant, there have since been numerous cases concerning the continuing severe over-crowding in Champ-Dollon, including a 2016 case where the Federal Supreme Court held that the detention standards violated Article 3 ECHR.60
In June 2012, a Swiss case which has come to be known as Kristallnacht surfaced.62 ALEXANDER MÜLLER, a local politician of the conservative Swiss People’s Party in Zurich, posted a series of tweets on the social media platform “Twitter” which made derogatory comments against Muslims. The most infamous quote was: “Maybe we need another Kristallnacht … this time for mosques”. In the aftermath of this widely publicised post, MÜLLER had to resign from his party and leave political office. He lost his job as a credit analyst and was indicted and ultimately convicted for racial discrimination (Article 261bis Criminal Code). In order to avoid further exposure at trial, MÜLLER successfully demanded that the press coverage of the hearing be restricted. The District Judge of Uster in Zurich issued an order that forbade the media from publishing his name, picture, and any other personal details (age, residence, employer, and the web address of his blog). Anyone who contravened this order would be subject to a fine of CHF 1’000. Two journalists objected to this order and took a case all the way up to the Federal Supreme Court. They argued that the order infringed the freedom of the media (Article 17 Constitution).
The Federal Supreme Court held that the freedom of the media is a pivotal part of free speech in a democratic society. Although trials are open to the public, in practice not everybody is able to attend hearings. Therefore, the media has an essential role as a bridge of communication between the state and the general public. This information task can only be fulfilled if the media is not unjustifiably restricted in its reporting. Fundamental rights can only be restricted if: (1) there is a sufficient legal basis, (2) there is an overriding public interest and (3) the restrictions are proportionate. The Constitution explicitly provides in this regard that the essence of fundamental rights is sacrosanct, emphasising the fact that restrictions of rights are not allowed lightly (Article 36 Constitution).
The Supreme Court found that a sufficient legal basis for imposing preventive restrictions on the media was missing. In doing so, they examined Article 70 III, which states that courts can require that media reports of hearings meet specific conditions. However, this rule only applies when the general public is excluded from a trial: this was not the case here. The Court also found that there was no legal basis for this order in the cantonal laws. Thus, the order was found to be unconstitutional. The Supreme Court failed to hold that the District Court’s decision had seriously violated the freedom of the media, thus reducing the impact of the Supreme Court ruling. Moreover, in this case the restrictions were unwarranted, for the defendant continues up to this day to behave in a contradictory manner to his supposed wish for total privacy; he consistently publishes posts under his full name, with pictures of himself included. By behaving as such, he seems to somewhat renounce his privacy rights.
51BGE 102 Ia 279.
52Schenk v. Switzerland, App no 10862/84, ECtHR, 12 July 1988.
53BGE 109 Ia 244 consideration 2b, cited in Schenk v. Switzerland, App no 10862/84, ECtHR, 12 July 1988, paragraph 30.
54See pp. 406.
55Huber v. Switzerland, App no 12794/87, ECtHR, 23 October 1990.
56Huber v. Switzerland, App no 12794/87, ECtHR, 23 October 1990, paragraphs 42 et seqq.
57Cantonal Act of 1 September 1991 for the amendment of the Cantonal Code of Criminal Procedure (OS 51/851 et seqq.), in force since 1 July 1992.
58Article 220 I: “Remand begins when it is ordered by the compulsory measures court.”
59Judgment of the Federal Supreme Court 6B_456/2015 of 21 March 2016
60See also the article ‘Prison overcrowding in Champ-Dollon: Federal Supreme Court judgements and an alarming medical study’ (Source: Humanrights.ch, 18 May 2016, https://perma.cc/3XZK-BZVG).
61BGE 141 I 211.
62“Kristallnacht” refers to “the occasion of concerted violence by Nazis throughout Germany and Austria against Jews and their property on the night of 9–10 November 1938”. It’s a German word that translates literally “to ‘night of crystal’, referring to the broken glass produced by the smashing of shop windows” (source: Oxford Dictionary, https://perma.cc/2B73-EXMZ).