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CriminalProcedure- DRAFT
§ 1Federal Code of CriminalProcedure
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 traditionally been a pivotal legislative domain of the cantons. Neither the Constitution of 1848nor 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 untilthe 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 procedural 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 landslide.[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 casesand 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 jurisdiction 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 othercantons still allow laymenon the bench. The federal rules on the main hearings 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 they want to allow dissenting opinions to be published.[6](2) The administration of criminal justice lies in the hands of the cantons: Although the Swiss Criminal Code of 21 December 1937 is an act of the federal parliament it is administered by cantonal courts. There are only a handful of very serious crimes[7] against national interests prosecuted by the Attorney General of Switzerland and tried by the Federal Criminal Court in Bellinzona/TI. (3) Cantons are responsible for the execution of the (dual)[8] system of sanctions: 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 deficiencies 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 intercantonal 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 NiklausSchmid, 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 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 “jugesd’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 sanctionsneed 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) Administrative laws containmany sanctions that have traditionally not been viewed as criminal penalties: federal agencies can ban bank managers from their profession[9] 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 lexspecialis. If a specific problem is not regulated in the Juvenile Criminal Procedure Code the CCP applies.
Part 1(Art. 1–11)of the Swiss Code of Criminal Procedureregulates basic principles of criminal procedure such as fairness, independence, speediness, ex officio investigation, mandatory prosecution and prosecutorial discretion, presumption of innocence, in dubio pro reo or double jeopardy.
Part 2(Art. 12–103) is about the criminal justice authorities (police, prosecution, courts). As mentioned, the legislator has instated a prosecutorial system. The preliminary proceedings are therefore led solely by the prosecutor (Art. 61 lit. a). There is no (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 thecourt 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 management).
Part 3(Art. 104–138) defines the parties and the other persons involved in the proceedings (witnesses, experts, defence counsels etc.). The parties are the accused, the private claimant and the prosecutor (Art. 104). The accusedis a person suspected, accused of or charged with an offence (Art. 111). The “Accused” is the technical term used for the defendant. The private claimantis 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 example 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 proceedings 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 orrequest that evidence 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 magistrate was in charge of the preliminary proceedings and the prosecution was a party throughout the preliminary and the principal proceedings.
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 assessment 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, deception 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 inadmissible 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 fundamental rights of the accused: If a witness is not cautioned to tell the truth “the examination 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 admissibility of evidence they have to engage in a weighing exercise[11]: The private interests of the accused have to be balanced against the public interests in truth finding and conviction. 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). ‘Administrative rules’ are designed to guarantee the smooth administration of criminal proceedings. 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. Illegallyobtained evidence can be used if a serious crime is at stake (Art. 141 II). For the accused this means that the biggerthe 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 anadministrative 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 Procedure Code forbids hearsay evidence[16] indirect evidence is admissible in criminal procedure 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-defendants 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 police investigation (Art. 159 II).
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. Theyare designed to (a) secure evidence (searches of premises/records/persons, post-mortems, DNA analysis, seizure, covert surveillance of communication, of whereabouts and of banking connections, and undercover operations), (b) 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 (surveillance 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 traditionally 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 enquiries, 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 special proceedings (summary penalty order, abridged and in absentia proceedings, proceedings 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.
§ 2Principles
Criminal 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). Criminal 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 principle 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 following specific rules but their ‘convictionintime’[18]. Court hearings are public and verdicts have to be pronounced publicly (Art. 69). Three fundamental principles have to be discussed in depth.
1.Ex officio Investigation
The Swiss criminal justice system is traditionally viewed to have an inquisitorial structure.[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 officio. 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 inquisitorial 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 lie[20]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).Prosecution 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 prosecutorial discretion leaves very little room for plea bargaining.In exchange for a confession[24] 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, refrain from opening an investigation. Especially in cases with no immediate victims partaking in the proceedings (e.g. eco-crimes or drug-selling) no one will contest the abandonment of an investigation. So factually there is considerable room for plea bargaining.