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Criminal Procedure - DRAFT


§ 1 Federal Code of Criminal Procedure

1. Constitutional Framework

Switzerland is a federal republic. The cantons exercise all rights that are not vested in the Confederation (Article 3 Const.). Criminal law and criminal procedure have tradi-tionally been a pivotal legislative domain of the cantons. Neither the Constitution of 1848 nor the one of 1874 provided for centralized legislative powers. Towards the end of the 19th century however pressure mounted to draw up a criminal code for all of Switzerland. On 13 November 1898 the Confederation got entitled to legislate in the field of substantive criminal law.1

It would take another 102 years until 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 on Federal Criminal Justice (1934), the administrative criminal procedure code (1974) and the criminal procedure code of the Swiss Military (1979). This variety of procedural rules proved to be extremely inefficient. It made the prosecution of interstate and transnational (organized) crime much more difficult. Many of the existing proced-ural codes stood increasingly at odds with the jurisdiction of the ECtHR and the Swiss Federal Supreme Court. At the turn of the millennium it was clear to everyone that the procedural law needed to be standardized on a national level. The reform of the Swiss Justice System was put to the popular vote and, on 12 March 2000, approved in a land-slide.2 The way was clear to draft Swiss criminal and civil procedure codes.

Up to this day the cantons remain responsible for three domains: the organisation of the courts, the administration of justice in criminal cases and the execution of sentences and measures (Article 123 II Const.): (1) Cantons can set up their own court system. They can for example decide whether they want district courts settling criminal and civil cases for a specific area (Zürich) or a cantonal criminal court with an exclusive jurisdic-tion in criminal matters (Lucerne, Basel). They can set up rules on the eligibility of judges. Federal law does not preclude lay judges.3 Zürich has recently banned them,4 many other cantons still allow laymen on the bench. The federal rules on the main hear-ings at court do not contain provisions on jury selection and/or instruction. Trial by jury, which used to be quite widespread, is therefore virtually excluded today. Nevertheless, the Canton of Ticino provides jury trials up to this day.5 The cantons can decide whether

1 For details on the enactment of the Swiss Criminal Code of 21 December 1937 see Chapter on Criminal Law above (enter exact reference).2 86.4% of the voters and all cantons approved the reform. The turnout was at 42% (https://www.ad-min.ch/ch/d/pore/va/20000312/index.html). 3 Schmid, Handbuch, 2. Auflage, N 380.4 Popular Vote of 5 June 2016; http://www.wahlen.zh.ch/abstimmungen/2016_06_05/abstimmungs-resultate.php5 https://www.rwi.uzh.ch/dam/jcr:6c7435e3-3cc3-43e7-8c3a-f3f72f42db22/Carlo%20Iazeolla_Die%20Besonderheiten%20des%20Tessiner%20Jury-Systems.pdf

https://www.admin.ch/ch/d/pore/va/20000312/index.html

https://www.admin.ch/ch/d/pore/va/20000312/index.html


they want to allow dissenting opinions to be published.6 (2) The administration of crim-inal 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 crimes7 against national interests prosecuted by the Attorney General of Switzerland and tried by the Federal Criminal Court in Bellin-zona/TI. (3) Cantons are responsible for the execution of the (dual)8 system of sanc-tions: In the execution 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 suitable institutions to treat addictions and mental deficien-cies have to be installed. Indefinite incarceration is usually executed in high-security sections of regular prisons. Such a penitentiary system is too expensive to put up for every canton individually. The cantons have therefore united their efforts in several in-tercantonal agreements (“concordats”).

2. Legislation

In 1994 a commission of experts was instated to explore the possibility of a unified criminal procedure for Switzerland. In 1997 they came up with their report “From 29 to 1”. They proposed to unify the 29 existing criminal justice codes for adults (26 cantonal CCPs, the Federal CJC and the administrative and military CCPs) in one Federal Code of Criminal Procedure. The unification of Juvenile Justice was postponed. On 12 March 2000 the Confederation obtained the power to regulate criminal procedure on a national level. Already one year earlier the Federal Council had mandated NIKLAUS SCHMID, professor of criminal law at the university of Zürich, to draw up a Federal Code of Criminal Procedure. And, rebutting the proposed postponement of the commission, JEAN ZERMATTEN, president of the Juvenile Justice Court/VS, was commissioned to draft a Swiss Juvenile Justice code. The idea to integrate the administrative and military CCPs was dropped. From 2001–2003 the two preliminary drafts were submitted to a 6 See Arnold Marti, Offenlegen von Minderheitsmeinungen («dissenting opinion») – eine Forderung von Transparenz und Fairness im gerichtlichen Verfahren in: «Justice - Justiz - Giustizia» 2012/4.7 For the crimes under federal jurisdiction see Articles 23 and 24 CCP. 8 See Chapter on ‚dualism of sanctions‘ above (enter exact reference).

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national consultation procedure. Almost everyone welcomed the idea of unification. The most controversial issue was who should be in charge of the preliminary proceedings: only the prosecutor or also “juges d’instruction” or investigative magistrates. In its White Paper of 21 December 2005 the Government proposed to the Federal Assembly to adopt a purely prosecutorial system. Following the government’s proposal and after less than one year of debates Parliament passed the Federal Code of Criminal Procedure on 5 October 2007. The Swiss Juvenile Criminal Procedure Code was adopted on 20 March 2009. They were both put into force on 1 January 2011.

The nationwide standardisation of criminal procedure was an important step into the right direction. For defence counsels it has become a lot easier to represent defendants in other cantons. They now only have to be familiar with one procedure. The unification has also sparked a national academic debate about criminal procedure. Before hardly anything was published on cantonal CCPs.

Still, a lot remains to be done. The organisation of the criminal justice authorities and the execution of sanctions need to harmonised on a national level. The administrative and military criminal codes are outdated too. The two biggest challenges, however, lie outside the traditional realm of criminal procedure: (1) With view to the increasing threat of terrorism one challenge will be to bring (cantonal and federal) police and secret service legislation in line with criminal procedure. For example can information from intercepted phone calls be handed over to the criminal justice authorities? (2) Adminis-trative laws contain many sanctions that have traditionally not been viewed as criminal penalties: federal agencies can ban bank managers from their profession9 or close down pharmaceutical firms.10 These sanctions clearly meet the standard of ‘criminal charges’ (Art. 6 I ECHR). Hence, the procedures leading to these sanctions must meet criminal procedure standards (e.g. nemo tenetur) too.

3. Content

The Swiss Code of Criminal Procedure contains 457 Articles. They are divided up in 12 parts. The Swiss Juvenile Criminal Procedure Code has roughly the same structure but is much shorter (54 Articles). It is conceptualized as a lex specialis. If a specific prob-lem is not regulated in the Juvenile Criminal Procedure Code the CCP applies.

Part 1 (Art. 1–11) of the Swiss Code of Criminal Procedure regulates basic principles of criminal procedure such as fairness, independence, speediness, ex officio investiga-tion, mandatory prosecution and prosecutorial discretion, presumption of innocence, in dubio pro reo or double jeopardy.

Part 2 (Art. 12–103) is about the criminal justice authorities (police, prosecution, courts). As mentioned, the legislator has instated a prosecutorial system. The prelimin-ary proceedings are therefore led solely by the prosecutor (Art. 61 lit. a). There is no 9 Art. 33 of the Federal Act on the Swiss Financial Market Supervisory Authority (Financial Market Su-pervision Act, FINMASA) of 22 June 2007 (“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.”). 10 Art. 66 Federal Act on Medicinal Products and Medical Devices (Therapeutic Products Act, TPA) of 15 December 2000 („1 The Agency may take all administrative measures necessary to enforce this Act. 2 In particular it may:… c. close down establishments“).


(independent) investigative judge or magistrate. Some intrusive investigative measures, such as detention on remand or wire-tapping of phones, have to be approved by a judge at the “compulsory measures court” (Art. 18 I). Trial cases are handled by the courts of first instance (Art. 19). Their decisions can be taken to the court of appeal (Art. 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 further contains provision on the cantonal/federal jurisdiction (Art. 22 ff.), recusal (Art. 56 ff.) or disciplinary measures (Art. 64) as well as general procedural rules (oral and public proceedings, language, written records, service of decisions, time limits and file man-agement).

Part 3 (Art. 104–138) defines the parties and the other persons involved in the proceed-ings (witnesses, experts, defence counsels etc.). The parties are the accused, the private claimant and the prosecutor (Art. 104). The accused is a person suspected, accused of or charged with an offence (Art. 111). The “Accused” is the technical term used for the defendant. The private claimant is a harmed person who participates in the criminal proceedings (Art. 118). There are three categories of harmed persons: (1) the aggrieved is a person whose rights have been directly violated by the criminal offence (Art. 115), e.g. a defrauded person. (2) A victim is an aggrieved person whose bodily, sexual or psychological integrity was directly affected by the criminal offence (Art. 116), for ex-ample a person raped and/or seriously injured. (3) Both the aggrieved person and the victim can declare that they want to participate as a private claimant in the proceedings (Art. 119). The private claimant is not merely an accessory participant to the proceed-ings but a party at eye level with the accused. Private claimants have access to the files, can participate in hearings of the accused, appoint a legal advisor or request that evid-ence be taken (Art. 107). They can file their civil claims in the criminal proceedings (Art. 122). They even have a say in the prosecution and punishment of a defendant (“criminal claim”, Art. 119 IIa).

The prosecution is a party only at court. During the preliminary phase the prosecution is heading the proceedings (Art. 61 lit. a). This shifting of roles is a particularity of the prosecutorial system. In some of the previous cantonal systems an independent magis-trate was in charge of the preliminary proceedings and the prosecution was a party throughout the preliminary and the principal proceedings.

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Part 4 (Art. 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 (Art. 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 (Art. 139 II). The ‘sufficiently proven’–clause is problematic. It allows criminal justice authorities to engage in so called anticipated as-sessment of evidence. Prosecutors or judges can turn down the request to hear a witness for the defence at any time if they have already made up their mind about the facts on the basis of the file (Art. 318 II). This makes it much harder for the defence to tell their side of the story.

It is prohibited to obtain evidence through coercion, violence, threats, promises, decep-tion or through measures that interfere with a person’s free will (Art. 140 I). Hence, neither drugs nor polygraphs may be administered, not even when consented (Art. 140 II). Article 141 states three pivotal rules on evidence exclusion. (1) Evidence obtained through coercion (torture etc.) is strictly inadmissible (Art. 140 I). So is evidence that the CCP 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 inad-missible by Art. 158 II. (2) 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 solving serious criminal offences (Art. 141 II). If the police forge a search warrant the evidence would be obtained in a criminal manner. Forgery of a document by a public official is a criminal offence (Art. 317 CC). ‘Validity rules’ are designed to protect fun-damental rights of the accused: If a witness is not cautioned to tell the truth “the exam-ination hearing is invalid” (Article 177 I). Such evidence is generally inadmissible, unless it is needed for the conviction of a serious crime. When courts assess the admiss-ibility of evidence they have to engage in a weighing exercise11: The private interests of 11 Häring, ZStrR 2009, 243 f. (“Auf den zweiten Blick ist die Normierung einer klassischen Interessenabwägung zu erkennen; dies ergibt sich auch aus den Materialien. Bei der strafbaren Beweiserhebung oder bei der Beweiserhebung unter Verletzung von Gültigkeitsvorschriften gilt somit im Grundsatz zwar ein Verwertungsverbot, es ist aber mittels einer Interessenabwägung zu entscheiden, ob die rechtswidrig erlangten Beweismittel im Einzelfall ausnahmsweise trotzdem verwertet werden können”), partly different Wolfgang Wohlers, ZHK StPO2, Art. 141 N 20 („Die vor Inkrafttreten der StPO gültige Rechtsprechung, nach der auch im Anschluss an die Feststellung, dass eine Gültigkeitsvorschrift verletzt wurde, die Annahme eines Beweisverwertungsverbots zusätzlich noch eine umfassende Interessenabwägung geknüpft war, ist… überholt“). In the past the Swiss Courts also had to assess whether illegally obtained evidence could also have been obtained in accordance with the law, Federal Supreme Court Decision BGE 131 I 272 (online: www.servat.unibe.ch/dfr/c1131272.html), 3 May 2005, X. versus the Canton of Basel-Landschaft, § 4.1 („Die ältere Rechtsprechung hat ein

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the accused have to be balanced against the public interests in truth finding and convic-tion. The graver the alleged crime the more the public interests prevail.12 (3) Evidence “obtained in violation of administrative rules shall be usable” (Art. 141 III). ‘Adminis-trative rules’ are designed to guarantee the smooth administration of criminal proceed-ings. Their violation has no consequences. The provision on the search of mobile phones has been qualified as an administrative rule.

The rules on evidence exclusion are not convincing. Illegally obtained evidence can be used if a serious crime is at stake (Art. 141 II). For the accused this means that the big-

rechtswidrig erhobenes Beweismittel nur dann für unverwertbar erklärt, wenn es an sich unzulässig bzw. auf gesetzmässigem Weg nicht erreichbar sei (BGE 96 I 437 E. 3b S. 441; BGE 103 Ia 206 E. 9b S. 217)… Im Zusammenhang mit einem vom privaten Gesprächspartner heimlich aufgenommenen Telefongespräch des Beschuldigten erkannte das Bundesgericht zunächst, in einem solchen Fall sei das Beweismittel nicht von vornherein für unverwertbar zu erklären, denn es hätte auch auf legalem Weg erlangt werden können (BGE 109 Ia 244 E. 2a/b S. 246), see Luzia Vetterli, Gesetzesbindung im Strafprozess, Zur Geltung von Verwertungsverboten und ihrer Fernwirkung nach illegalen Zwangsmassnahmen, Diss. Luzern 2009, Zürich 2010, 63 (“Theorie der rechtmässigen Alternative”). Strangely the fact that the evidence could have been obtained legally is viewed to be an argument in fa -vour 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 University Press 2012, p. 191 f. (“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 law-fully”). The test whether evidence could have been legally obtainable did not make it into the new Code and can henceforth be disregarded. 12 Federal Supreme Court Decision BGE 130 I 126 (online: www.servat.unibe.ch/dfr/c1130126.html), 18 May 2004, § 3.2. (“Nach der Rechtsprechung können in Abwägung der entgegenstehenden Interessen auch gewisse unrechtmässig beschaffte Beweise zu Lasten eines Angeschuldigten verwendet werden. Je schwerer die zu beurteilende Straftat ist, umso eher überwiegt das öffentliche Interesse an der Wahrheitsfindung das private Interesse des Angeklagten daran, dass der fragliche Beweis unverwertet bleibt”), see also BGE 131 I 272 (online: www.servat.unibe.ch/dfr/c1131272.html), 3 May 2005, § 4.1.2 („Vielmehr ist folgende Interessenabwägung anzustellen: Je schwerer die zu beurteilende Straftat ist, um so eher überwiegt das öffentliche Interesse an der Wahrheitsfindung das private Interesse des Angeklagten daran, dass der fragliche Beweis unverwertet bleibt ... Demgegenüber ist das Beweismittel namentlich dann nicht verwertbar, wenn bei seiner Beschaffung ein Rechtsgut verletzt wurde, das im konkreten Fall den Vorrang vor dem Interesse an der Durchsetzung des Strafrechts verdient (Urteil P.1152/1987 vom 10. Dezember 1987, E. 3a, publ. in: ZBl 90/1989 S. 420). Zu würdigen sind mit anderen Worten ebenso das Gewicht und das Ausmass der Rechtsgüterverletzung bei der Beweisbeschaffung, hier der verletzten Garantie des Privatlebens des Angeklagten (Art. 13 BV bzw. Art. 8 EMRK); Ziff. 4.2: Der EGMR hat eine gegen BGE 109 Ia 244 erhobene Beschwerde im erwähnten Urteil Schenk abgewiesen (a.a.O., Ziff. 45 ff.) und damit die Praxis des Bundesgerichts im Ergebnis bestätigt.“).

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ger the crime he is accused of the smaller becomes his chance of a fair trial.13 Moreover, it is very hard to draw a clear line between validity and administrative rules. The duty to get a search warrant has been viewed as an administrative rule in the past,14 even though house searches clearly interfere with the accused’s privacy interests.

There is no statutory ban on hearsay evidence.15 Whilst Art. 169 of the Swiss Civil Pro-cedure Code forbids hearsay evidence16 indirect evidence is admissible in criminal pro-cedure and can be assessed freely (Art. 10 II) by the criminal justice authorities.

Parties have the right to be present when evidence is taken (Art. 147 I): Private claimants and co-defendants can participate in every hearing of the accused, and vice versa. This rule was meant to enforce the participatory rights of the parties, especially the right of the accused to test witness evidence (Art. 6 III d ECHR). 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? If co-de-fendants can attend the hearing of the accused they might adjust their own statements. The Supreme Court has therefore allowed for some narrow exceptions to the right to participation.17 The defence counsel may be present from the very beginning of the po-lice investigation (Art. 159 II).

13 Marc Thommen/Mojan Samadi, The Bigger the Crime, the Smaller the Chance of a Fair Trial?, European Journal of Crime, Criminal Law and Criminal Justice, 24/2016, S. 65-86.14 For references see Häring (Fn. 18) 241 (“Nach bisheriger Lehre und Praxis ist eine Ordnungsvorschrift eine untergeordnete Vorschrift, die nicht wesentliche Interessen der Verfahrensbeteiligten schützt, sondern bloss den ordnungsgemässen Gang des Verfahrens sichert. Bis anhin zu dieser Kategorie gezählt wurde etwa die Pflicht zur ordnungsgemässen Vorladung von Zeugen, oder die Pflicht zur Einholung eines Durchsuchungsbefehls bei Hausdurchsuchungen.”); for different view see Botschaft zur Vereinheitlichung des Strafprozessrechts vom 21. Dezember 2005 [Federal Council Dispatch on the unification of the Swiss Laws on Criminal Procedure], BBl 2006 1085 ff., 1183 [online: www.admin.ch/opc/de/federal-gazette/2006/1085.pdf] („Dies gilt einmal für Beweise, welche die Strafbehörden in strafbarer Weise erhoben haben. Soweit das strafbare Verhalten zugleich eine nach Artikel 138 Absatz 1 unzulässige Methode darstellt, ist die Verwertbarkeit selbstverständlich gestützt auf Absatz 1 ausgeschlossen…. Absatz 2 findet jedoch Anwendung auf Fälle, in denen «nur» eine Strafnorm verletzt worden ist, ohne dass zugleich eine verbotene Methode der Beweiserhebung angewandt worden wäre, beispielsweise bei einer Hausdurchsuchung ohne gültigen Befehl“); the consequences of unlawful searches are controversial, the evidence thus obtained has also been viewed as fully usable, see also Federal Supreme Court Decision – BGE 96 I 437, 4 November 1970, von Däniken versus the Canton of the Grisons (online: http://www.servat.unibe.ch/dfr/bge/c1096437.html ).15 BSK StPO2-Bähler, Art. 162 N 5 („Der Beweis vom Hörensagen wird vom Gesetz nicht ausgeschlossen. Das mittelbare Zeugnis als alleiniges Zeugnis ist aber nur dann möglich, wenn der unmittelbare Zeuge nicht zur Verfügung steht.7“); zum alten Recht Andreas Donatsch, Die Anonymität des Tatzeugen und der Zeuge vom Hörensagen, ZStrR 1987, 397– 415, 415 („Ein generelles Verbot der Erhebung bzw. Verwertung der Aussagen des Zeugen vom Hörensagen lässt sich weder aus den Strafprozessordnungen des Bundes und des Kantons Zürich noch aus der Europäischen Menschenrechtskonvention ableiten.“); Schmid, Handbuch2, 877; see also Techsel/Summers, Human Rights in Criminal Proceedings, Oxford University Press 2006, 322 („In the common law the admissibility of hearsay evidence is a well-known, and controversial issue. On the European continent, however, it is of marginal importance but accepted in most countries… In Germany it is subject of con-siderable debate, but is certainly not a priori excluded. Starmer rightly observes that under the Conven-tions ‘nothing prevents a court from relying on hearsay evidence.“). 16 BSK ZPO3-Guyan, Art. 169 N 1 („Das Zeugnis vom Hörensagen ist ausgeschlossen, weil es sich um mittelbare Wahrnehmungen (Wahrnehmungen einer anderen Person, die davon berichtet), handelt (Botschaft ZPO, 7321).“). 17 See BGE 139 IV 25; diverging: BGE 140 IV 172.


Part 5 (Art. 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 the fundamental rights. They are designed to (a) secure evidence (searches of premises/records/persons, post-mortems, DNA analysis, seizure, covert surveillance of communication, of whereabouts and of banking connec-tions, and undercover operations), (b) ensure the presence of persons in the proceedings (summons, arrest, detention on remand, bail) and (c) ensure that the final decision can be enforced (seizure of assets; security detention). Most of the coercive measures can be ordered by the prosecution. Some measures that strongly interfere with fundamental rights have to be ordered (detention on remand; DNA mass screening) or approved (sur-veillance of telecommunications; undercover operations) by a judge at the “compulsory measures court”. Interestingly the search of premises, a very intrusive measure too, can be ordered without court approval. The only explanation is that searches have tradition-ally been a prosecutorial power. The prosecutor can also order the freezing of assets without judicial approval. However, the accused and other persons concerned by the seizure can take the order to court.

Part 6 (Art. 299–327) sets out the rules for the preliminary proceedings (police enquir-ies, opening and dropping prosecutorial investigation, charges). Part 7 (Art. 328–351) is about the principal proceedings at first instance (examination of the charge, hearing, taking of the evidence, pleadings, judgement). Part 8 (Art. 352–378) specifies the spe-cial proceedings (summary penalty order, abridged and in absentia proceedings, pro-ceedings in cases of insanity, non-conviction-based confiscation proceedings). Part 9 (Art. 379–415) states the legal remedies (complaints, appeals, retrials). Part 10 (Art. 416–436) regulates the costs of the proceedings and compensation, Part 11 (Art. 437–444) the rules of enforcement, Part 12 (Art. 445–457) provision on the implementation of the Code.

§ 2 PrinciplesCriminal procedures are constrained by a set of principles. The state has a monopoly on criminal justice (Art. 2). Human dignity and fairness must be respected (Art. 3). Crim-inal justice authorities are independent and only bound by the law (Art. 4). They must investigate and proceed without undue delay (Art. 5). According to the accusation prin-ciple courts cannot start criminal proceedings themselves but charges have to brought to them by the prosecution (Art. 9). Courts assess evidence freely (Art. 10 II), not follow-ing specific rules but their ‘conviction intime’18. Court hearings are public and verdicts have to be pronounced publicly (Art. 69). Three fundamental principles have to be dis-cussed in depth.

18 BSK StPO2-Hofer, Art. 10 N 61 (“Die richterliche Überzeugung lässt sich inhaltlich in eine subjektive und eine objektive Komponente aufgliedern.198 Als gefühlsmässige Empfindung verlangt sie nach persönlicher Gewissheit199 i.S. einer «conviction intime»200, dass sich ein Sachverhalt so und nicht anders zugetragen hat. ”).


1. Ex officio Investigation

The Swiss criminal justice system is traditionally viewed to have an inquisitorial struc-ture.19 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 the “material” truth ex offi-cio. They have to investigate exculpatory and incriminatory circumstances with equal care (Art. 6 II). Whether the prosecution, whose institutional duty it is to obtain as many convictions as possible, is suited to investigate exculpatory evidence, is a much 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. Because of the inquisit-orial structure of the proceedings witnesses in the Swiss system are being questioned by the president of the court and not subject to cross examination by the parties. Another much debated issue is, of course, whether criminal proceedings can ever reveal the “whole truth”. Apart from the epistemological dilemma that there is no objective truth untainted by subjective interpretation, criminal proceedings are also factually ill-suited to produce truth: The defendant may remain silent or even lie20 and the criminal justice authorities only have limited means and resources to investigate the material facts.

2. Mandatory Investigation

Prosecution of known criminal acts is mandatory (Art. 7). There is only very limited prosecutorial discretion not to open investigations or to drop charges (Art. 8). Prosecu-tion can be discontinued if defendants are severely affected by their acts,21 for example if careless driving resulted in the death of the defendant’s husband and grave injuries to her children.22 Charges can also be dropped if reparations are made for losses.23 The rationale behind mandatory investigation is equality of treatment. No one shall escape criminal liability. This noble goal can be missed in cases of reparation. For only the wealthy can afford to compensate victims. With the obligation to pursue all charges the legislator also wanted to limit the arbitrational powers of the prosecution. This lack of

19 Critical on the inquisitorial/accusatorial divide: Summers (2006) 179 f., s.a. 3 ff., („The Enduring legacy of the Inquisitorial/Accusatorial Divide“); gleich Jung (2004) 152 ff.; traditionell noch Duff (2004) 30 und Kühne, IntKomm EMRK, Art. 6 N 577, der “der angelsächsischen Vorstellung eines akkusatorischen Parteiprozesses” den “auf Erforschung der materiellen Wahrheit angelegten, von der Offizial- und Instruktionsmaxime beherrschten kontinental-europäischen Strafprozess” gegenüber stellt“; eingehende Kritik b. Hodgson (2006) 241 („Given these different theoretical procedural constructions... it becomes more difficult to speak of ‚the trial’ in a way that makes sense across jurisdictions“).20 That 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, which is however limited by the criminal prohibitions on false accusation (Art. 303 CC) etc., BSK StPO2-Ruckstuhl, Art. 157 N 1a (“Insbesondere hat sie keine Wahrheitspflicht, darf somit auch lügen, was nur dann Konsequenzen hat, wenn damit Rechtspflegedelikte begangen werden (in Frage kommen falsche Anschuldigung, Irreführung der Rechtspflege und Begünstigung).”). 21 Article 8 I CCP and Article 54 CC (“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.”).22 BGE 119 IV 28023 Article 8 CCP and Article 53 CC – 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.


prosecutorial discretion leaves very little room for plea bargaining. In exchange for a confession24 prosecutors can only offer leniency in sentencing. Such deals are often struck in abridged proceedings (Art. 358 ff.). Of course, even though the prosecution is legally bound to investigate all crimes brought to their attention they can, de facto, re-frain from opening an investigation. Especially in cases with no immediate victims par-taking in the proceedings (e.g. eco-crimes or drug-selling) no one will contest the aban-donment of an investigation. So factually there is considerable room for plea bargaining.

3. Nemo tenetur se ipsum accusare

No man is bound to accuse himself. This principle is enshrined Article 113 I: Accused persons are not required to incriminate themselves. In Switzerland the privilege against self-incrimination encompasses not only a right to remain silent but also a right to re-fuse cooperation with the criminal justice authorities. The accused cannot be obliged to actively hand over items or assets which are to be seized (Art. 265 II a). The accused must however submit to legal coercive measures. He or she must therefore tolerate that the criminal justice authorities seize these items or assets themselves. Obviously, the accused is protected from being forcefully coerced, i.e. tortured, to edit pieces of evid-ence or to confess (Art. 140 I). The nemo-tenetur principle mainly needs to be imple-mented in the auxiliary criminal law. In Switzerland citizens were under a legal obliga-tion (backed up by fines) to cooperate in tax evasion proceedings. In J.B. v. Switzerland the ECtHR ruled that the fine imposed for having failed to provide tax information viol-ated the applicant’s right not to incriminate himself.25

§ 3 Institutions and ProcedureThe criminal justice institutions and procedure can best be understood when following the course of a standard case : On 17 June 2014 a farmer in the eastern Swiss mountains drove down his cattle herd from his alp. As several times before he passed in front of pensionar X.’s house. The cows ate the grass and lavender and trampled the meticu-lously groomed flowers. X., enraged, got his revolver, aimed it at the cows and threatened to shoot them.26

On the same day the farmer filed a complaint at the local police station. At this occasion he was questioned by the police. The filing of the complaint triggered the preliminary proceedings (Art. 303). The preliminary proceedings are divided up in two stages27: the police enquiries and the investigation by the prosecutor (Art. 299). They are led by the prosecution (Art. 61 a). The police are subject to the instructions of the prosecutor (Art. 15 II). From that point onwards X. was considered the accused (Art. 111). By filing a complaint the farmer automatically acquired the status of a private claimant (Art. 118 II).

24 A 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.25 Case of J.B. v. Switzerland (App. No. 31827/96), 3 May 2001, § 63 ff. 26 For the facts of this case see: District Court of Toggenburg/Canton of St. Gallen, decision of 14 January 2015 (ST.2014.19770); Federal Supreme Court decision 6B_495/2016 of 16 Februry 2017; http://www.servat.unibe.ch/dfr/bger/170216_6B_495-2016.html.27 See graph II, above


On the next day the prosecutor had the house of X. searched, and several firearms seized including ammunition.28 At that point X. learned that a preliminary investigation had been opened against him (Art. 309). X. was interrogated by the police (Art. 307 II; 312 I) and denied the use of a firearm. He could have asked for a legal aid defence counsel, if he had lacked the necessary means. However, a counsel would most prob-ably not have been appointed as the case was trivial (Art. 132). In serious cases, for ex-ample when an accused is facing a prison sentence of more than one year, a defence counsel must be appointed, even against the accused’s will (Art. 130). In our case X. could at any time have mandated a defence counsel himself and insisted that he or she be present already at this first police enquiry (Art. 159 II).

The written records of the enquiry were handed over to the prosecutor. If deemed neces-sary the prosecutor could then have interrogated the accused. Whether or not to inter-rogate the accused was entirely up to the prosecutor’s discretion. At all interrogations the private claimant and his legal advisor could have participated (Art. 147 I, 312 II). Vice versa, the accused and his counsel could have assisted a prosecutorial interrogation of the private claimant and have additional questions asked.

When the prosecution considered the investigation to be complete, it had three possibil-ities: (1) to discontinue the proceedings and to 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 prosecutor with a maximum sentence of six months of imprisonment (Art. 352). It contains the prosecutor’s summary assessment of the facts, and their legal interpretation. 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 (Art. 309 IV). On 9 September 2014 the prosecution served its penalty order to X. He was 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 1000.–. The weapon was confiscated and the costs of the proceedings imposed to X.

Once the penalty order was issued X. had the choice to either accept it or to file an ob-jection within ten days. Had X. accepted – as circa 90% of all accused persons do – the penalty order would have come into force as a conviction without any judicial participa-tion (Art. 354 III). On 15 September 2014, however, X. objected. When an objection is filed the prosecutor hears the accused (Art. 355 I). In many cases this is the first time the accused faces the prosecutor in person. On 1 October 2014 X. was questioned in the presence of the farmer (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 pen-alty order thus constituted the indictment (Art. 356 I).

With the indictment the preliminary proceedings came to an end (Art. 318 I). The prin-cipal proceedings at the court of first instance begun. From that point onwards the court was in charge of the proceedings (Art. 328 II). The prosecution became a mere party (Art. 104 I c). The court examined and admitted the charges (Art. 329 I) and schedules the principal hearing (Art. 331). At any point the court could have asked the prosecution 28 http://www.20min.ch/schweiz/ostschweiz/story/Kuehe-frassen-aus-Garten---Mann-zueckte-Revolver-13048817


to modify or to amend the charge (Art. 333 I).29 From 15 October 2014 X. was given access to the file during ten days. The parties may request that more evidence is taken, for example that a particular witness is heard. The presiding judge decides whether to grant this request. A refusal cannot be challenged (Art. 331). On 27 November 2014 X. filed a motion to take additional evidence. The court turned down this request, anticipat-ing that this would not change their mind with regard to the use of the revolver.30

Courts of first instance are usually composed of three judges and a clerk. If the prosecu-tion – as in this case – applies for less than two years of imprisonment the case may be heard by one judge only (Art. 19 II). As mentioned, jury trials are excluded by federal law.31 The case was assigned to District Judge Frederik Müller.

The principle hearing took place on 14 January 2015. X. was joined by his defence counsel (Art. 336). The prosecution has to appear at court if it requested a prison sen-tence of more than one year or if the court orders its participation (Art. 337). The private claimant may be ordered to participate in the main hearings (Art. 338). Both were ordered to appear at court. The court hearing was public (Art. 69).

At court only the examination hearing of the accused is mandatory (Art. 341 III). Private claimants, witnesses and experts may be heard (Art. 343). For all four of them, the court relies heavily on the written records of their prior interrogations during the preliminary proceedings (Art. 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 (Art. 341 I). Hence, there is no cross-examination by the parties. The parties can submit additional questions to the president who can then decide whether or not to pose this question to the person interrogated (Art. 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 (Art. 346). The accused has the last word (Art. 347).

After the hearings the court retires to its deliberations in private. The clerk participates at the deliberations as an advisor (Art. 348). The court has to reach its verdict. A panel of (three or five) judges decides by simple majority (Art. 351). Only a few cantons al-low overruled judges to write dissenting opinion.32 In case of an acquittal the court grants the acquitted person compensation and reparation (Art. 429). In case of convic-tion the court determines the sanction (penalty or measure) and imposes the costs of the proceedings on the condemned person (Art. 426). In our case Judge Müller reached his verdict on the day of the hearing. X. was found guilty of threatening behaviour (Art. 180 CC) and illegal bearing of a weapon.33 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. The revolver and ammunition was confiscated. The costs of the proceedings (CHF 3’150.–) were imposed on X.

29 BSK StPO2-Heimgartner/Niggli, Art. 350 N 3 („Liegen nach Auffassung des Gerichts evtl. die tatsächlichen Voraussetzungen eines Delikts vor, hat es (vor, während oder am Ende der Hauptverhandlung und u.U. auch noch anlässlich des Berufungsverfahrens)4 die Anklage «zurückzuweisen».5“).30 See Federal Supreme Court decision 6B_495/2016 of 16 Februry 2017, § 1.3.3.31 Schmid, Handbuch, 2. Auflage, N 380. 32 According to Arnold Marti, Offenlegen von Minderheitsmeinungen («dissenting opinion») – eine Forderung von Transparenz und Fairness im gerichtlichen Verfahren in: «Justice - Justiz - Giustizia» 2012/4: ZH; AG; SH and VD.33 Article 33 I a Federal Weapons Act of 20 June 1997.


Judge Müller delivered his verdict publicly. He gave his reasons in a brief oral state-ment (Art. 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 ap-peal (Art. 82). X. appealed his conviction. Hence, written reasons had to be given.

The judgment of first instance can be appealed by all parties (Art. 381 ff.). On 16 Janu-ary 2015 X. lodged his appeal. The cantonal court of St. Gallen turned it down on 8 January 2016. X. then took the appellate judgment ato the Federal Supreme Court in Lausanne.34 The Supreme Court decided that the cantonal court had applied the Crim-inal Code correctly. X.’s property rights were infringed by the farmer. X. was thus in a situation of necessity (Art. 18 CC). However, the use of his revolver was wholly dispro-portionate and therefore not justified. The Supreme Court further ruled that the anticip-ated assessment of the evidence was not arbitrary. The cantonal had thus not violated the Constitution. It rejected X.’s complaint on 16 February 2017. The judgment of the cantonal court was upheld.

As a whole the regulations of the Swiss Criminal Procedure Code are in line with the Constitution and the ECHR. Some provisions, however, need to be reconsidered (1) An-ticipated 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 stands without giving the accused a real chance to bring in his or her view, thus violating the right to be heard. (2) Courts should be strictly bound by the charges brought to them. Under the current regulation they can at any time ask the prosecutor to amend or change the indictment. This is problematic with view to the separation of the investigative and adjudicative powers. It also discriminates the defence, for they do not get a second chance to make their case. (3) Most problems arise with the summary penalty order proceedings. Al-though defendants can de iure take their order to court, in over 90% of all cases they are de facto adjudicated by prosecutors. It should therefore be mandatory for the prosecu-tion to interrogate the accused in person before issuing a penal order. 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 (Art. 309 IV). In these cases it is not guaranteed that the addressee learns about his or her conviction or understands its dimensions. Penalty orders are not explained to the accused in plain terms nor are they ever translated. This clearly violates Art. 6 III e ECHR. On a more fundamental level the fact that the overwhelming majority of all convictions is handed down by pro-secutors raises the question if criminal procedure needs general rethinking. The proced-ural principles discussed above were all set up with the principal court proceedings in mind. The summary penalty order proceedings are no longer “special proceedings”35. Nowadays they are the true “principal proceedings”36. Principles of modern criminal procedure should thus be tailored to these summary proceedings.

34 Articles 78 ff. Federal Supreme Court Act. 35 See title of Part 8, Art. 352 ff., (“Part 8 Special Procedures, Chapter 1 Summary Penalty Order Proced-ure, Contravention Procedure”)36 See title of Part. 7, 328 ff., (“Title 7 Main Proceedings of First Instance”).


§ 4 Landmark CasesThe 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 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 Zürich was partly nullified. The rules that prisoners were not allowed to use their bed during the day and that they were only granted a walk in the open every third day were fund to violate fundamental rights.37

Nowadays criminal procedure is regulated by a federal code. Because the Federal Su-preme Court is bound by the laws of the Federal Parliament (Art. 190 Const.) it may not nullify provisions of the CCP. Its main task is therefore to guarantee a consistent applic-ation of the Federal Code of Criminal Procedure throughout Switzerland. As the follow-ing cases will show the jurisdiction of the ECtHR has an even greater influence in crim-inal procedure than in the field of substantive criminal law. Especially the Strassbourg rulings on the right to liberty (Art. 5) and on fair trial (Art. 6) strongly affect the crim-inal procedures of the member states.

1. Schenk v. Switzerland38

Pierre Schenk was suspected of having hired a hitman to kill his wife. Instead of execut-ing his mission the hitman secretly taped a phone conversation with Schenk and handed it to the investigating authorities. The tape was subsequently used as the main piece of evidence in the conviction of Schenk. Secret recording is a criminal offence (Art. 179 ter

CC). Can illegally gathered evidence be used in a criminal trial?

The Federal Supreme Court held: “To conclude … that any evidence derived from unau-thorised 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 bal-ance… 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”39. Schenk’s conviction for attempted instigation to murder was upheld. The public interest in having the truth established overrode Schenk’s privacy interests. The ECtHR con-cluded that Schenk had not been deprived of his right to fair trail (Art. 6 I ECHR): His defence rights were not disregarded and the tape was not the only piece of evidence.

Schenk is the leading case on the exclusion of illegally gathered evidence. The Supreme Court reasoned that when courts assess the admissibility of evidence they have to weigh the public interest in truth-finding and conviction against the privacy interests of the accused. This balancing approach was approved by the ECtHR and later became stat-utory law: Evidence gathered “in a criminal manner” is generally excluded, unless it is needed for the conviction of a serious crime (Art. 141 II). As a consequence illegally 37 BGE 102 Ia 279, Minelli.38 ECtHR (Plenary), Case of Schenk v. Switzerland (Application no. 10862/84), judgment of 12 July 1988.39 Federal Supreme Court Decision of 7 September 1983, cited after Schenk v. Switzerland (Plenary), (Application no. 10862/84), judgment of 12 July 1988, para 30 (=BGE 109 Ia 244 consid. 2b).


obtained evidence can be used if a serious crime is at stake. Criminal justice authorities have no incentive to comply with procedural rules. Especially in serious cases it would be crucial that these rules are respected.

2. Huber v. Switzerland40

Members of the "Hell’s Angels" were suspected of having brought to Zürich German prostitutes, married them to Swiss nationals who received payments in turn. The women were forced into prostitution. The District Attorney (DA) of Zürich believed that Jutta Huber was one of these women. On 11 August 1983 he questioned her as a witness. She admitted making a living of prostitution but denied any ties to the “Hell’s Angels”. At the end of the hearing the DA remanded her in custody on suspicion of having given false evidence. She was released 8 days later. The DA then indicted her. At the trial her lawyer argued that “anyone who is detained ... must be brought promptly before a judge… This never happened in the present case. Indeed the person who remanded the accused in custody, District Attorney J., is now also prosecutor."

Unlike the Swiss courts the ECtHR shared this view and held that Art. 5 III ECHR had been violated. The DA who at the preliminary stage of the proceedings had ordered the detention on remand at trial became party, as he took the role of the prosecution. He was thus no longer “independent of the parties”41. Following this judgment the Canton of Zürich had to change its Code of Criminal Procedure and institute an independent judi-cial authority approving detention on remand.42 Today this task is vested in the com-pulsory measures courts.

3. Champ-Dollon43

On suspicion of large scale cocaine-trafficking A. was detained on remand for 478 days at the ‘Champ–Dollon’ detention facility near Geneva. For 199 (157 thereof consecut-ive) days he shared his three man cell with 5 other inmates (3.83m2/person). During that entire period he was confined to his cell for 23 hours per day. A. claimed that his deten-tion was degrading and inhuman (Art. 3 ECHR).

In its decision the Swiss Federal Supreme Court relied heavily on the criteria set out by the ECtHR.44 If detainees dispose of less than 3m2/person the lack of space constitutes in itself a violation of Art. 3 ECHR. If individual space ranges from 3–4m2/person other detention conditions are considered, such as (day)light, ventilation, temperature, sanit-ary facilities, time outside cell, health conditions (e.g. prevalence tuberculosis), quality of nutrition and 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

40 ECtHR (Plenary), Case of Huber v. Switzerland (Application no. 12794/87), judgment of 23 October 1990.41 ECtHR (Plenary), Case of Huber v. Switzerland (Application no. 12794/87), judgment of 23 October 1990, § 42 ff. 42 Cantonal Act of 1 September 1991 for the amendment of the Cantonal Code of Criminal Procedure (OS 51/851 ff.), in force: 1 July 1992; Schmid, Strafprozessrecht, 4. Auflage, Zürich 2004, N 696. 43 BGE 140 I 125.44 See for example Case of Babushkin v. Russia (App. no. 67253/01), judgment 18 October 2007.


deemed to meet the minimal standards. That A. had been detained for 157 consecutive days in a heavily overcrowded cell with virtually no time outside this confinement was classified as a violation of the national and international rules on detention.

4. Kristallnacht45

In June 2012 Alexander Müller, a local politician of the conservative Swiss People’s Party in Zürich, posted a series of tweets against Muslims. The one that became most famous was: „Maybe we need another Kristallnacht … this time for mosques”. In the aftermath of this widely publicized 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 con-victed for racial discrimination (Art. 261bis CC). In order to avoid further exposure at trial Müller successfully demanded that the press coverage of the hearing be limited. The District Judge of Uster/ZH issued an order backed up by a fine of CHF 1’000.— that forbade the media to publish his name or picture, and any further personal details (age, residence, employer and the address of his blog). Two journalists objected and took the order all the way up to the Federal Supreme Court. They argued that the free-dom of the media (Art. 17 Const.) had been infringed.

The Federal Supreme Court held that in a democratic society the freedom of the media is a pivotal part of free speech. Although trials are public not everybody is able to attend hearings. The media therefore has an essential “bridge-function” between the state and the general public. This information task can only be fulfilled if the media is not unjusti-fiably restricted in its reporting. Fundamental rights can only be restricted (1) if there is a sufficient legal basis, (2) an overriding public interest and (3) if the restrictions are proportionate. (4) The essence of fundamental rights is sacrosanct (Art. 36 Const.).

The Supreme Court stated that a sufficient legal basis for preventive restrictions was missing: According to Art. 70 III CCP courts can subject reporting of hearings to spe-cific conditions. But this rule only applies if the general public is excluded, which was not the case here. As the cantonal laws provided no legal basis either the order proved to be unconstitutional. The Supreme Court failed to hold that the District Court had caused a serious violation of the freedom of the media. Moreover, the restrictions were unwar-ranted, for the defendant contradicts his claim for total privacy up to this day as he con-tinues to publish posts under his full name and with pictures of himself.46

Bibliography

Translation of CPP by Sarah Summers

45 BGE 141 I 211.46 For discussion of this case see: Bommer, ZBJV 153/2017, 428; Bussmann, Medialex 2016, 95 f.; Mader/Matthey, RDAF 2016 I 278 ff.; Steinmann, ZBl 117 (2016) 195 ff; i. E. auch Schwaibold, Kein Maulkorb ohne Paragrafen, FP 2016, 115 ff.

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