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How? Criminal law? Surely, I have nothing to do with that! This is a thought that may cross the mind of some individuals. However, before one knows it, they may find themselves involved in a criminal proceeding—whether due to being involved in a traffic accident, being defamed by a third party, or because, alongside a civil dispute, potential evidence must be secured or inquiries made in a related criminal matter. Understanding the rules governing criminal proceedings and knowing your rights within them becomes essential in such circumstances. This is regulated by the Swiss Criminal Procedure Code (StPO). Despite being less than ten years old, the Parliament intends to revise it to make it more practical. Let’s take a closer look!
Since January 1, 2011, the StPO, applicable throughout Switzerland, has replaced previously varying cantonal procedural regulations. Many cantonal prosecution authorities (prosecutors and police) expressed dissatisfaction with the new comprehensive set of rules and were at times inclined to maintain previous practices from former cantonal procedural provisions, even when the new StPO indicated otherwise, and despite resistance from procedural parties. The question of practical applicability has also arisen increasingly. Numerous cantonal and higher court rulings have focused on central aspects of criminal procedure itself, establishing principles that are intended to be incorporated into the law during this revision.
In detail (not exhaustive):
The previous regulations regarding participation rights have frequently faced criticism and continue to do so. Current law largely permits participation in all evidence gathering, including the questioning of witnesses and co-defendants. This can lead to altered testimony and, ultimately, inefficient and lengthy proceedings. Despite the challenges with participation rights, the message accompanying the proposed revision of the StPO emphasizes that the existing participation rights should fundamentally remain. The new law intends to make only “moderate” adjustments, allowing for the restriction of the accused person's right to participate if they have not yet expressed themselves on the subject matter of the inquiry.
Comment: It is highly questionable whether this measure will achieve the desired goals (authentic testimony, expedited proceedings). Today and in the future, the accused person can fully or partially withhold their testimony and, without it being held against them, later respond in writing to questions posed to them after gaining access to the case files, including transcripts or recordings of interviews they were previously unable to attend. In individual cases, the planned new regulation may have positive effects; however, generally, it is likely to remain toothless and extend proceedings as defendants may delay their statements even further than they do today.
With the new procedural law, all interviews are to be technically recorded, with transcripts created afterward. The recordings are to be included in the case file.
Comment: This measure has both advantages and disadvantages! Interviews are likely to be conducted more swiftly, and non-verbal communication may also be captured in the records. However, the questioned individual and their lawyers may be under increased pressure to document questions and answers continuously (digitally) and as accurately as possible, enabling them to correct or clarify where necessary through annotations or follow-up questions.
Current law does not specify a concrete deadline within which a request for sealing (closure) of seized documents or data must be made. The future law is also not expected to include a fixed timeframe in days but will only indicate that it must occur “without delay,” no later than within ten days.
Comment: It is incomprehensible why the upcoming revision is not taking the opportunity to replace ambiguous terms with specific deadlines in terms of the number of days and to regulate the issue of the revocability of a sealing waiver through statutory provisions. Experience shows that the timing of the sealing request often becomes a subject of dispute. A clear legal provision would benefit all parties involved!
The Federal Court has ruled that a DNA profile may not only be created to clarify the act that is the subject of the proceedings but also to investigate potential future crimes or previously committed but unknown offenses by the accused individual. This is to be enshrined in the new procedural law.
Comment: While this may sound “practical” and “welcome” to law enforcement agencies, it disrupts the previous balance between investigative options and the rights of the defense. There is a risk that DNA profiles will be routinely created for almost all defendants (not: convicted persons) if the only requirement is that the DNA profile could be used to investigate other crimes.
Under current criminal procedural law, a private prosecutor may quantify and substantiate any civil claim against the accused only very late in the proceedings. This situation is suboptimal for both the accused and the criminal court, which can only decide “in principle” and otherwise refers the matter to the civil court. With the new law, the civil claim must be quantified and substantiated no later than within the timeframe for presenting evidence in the main proceedings. Furthermore, the public prosecutor’s office will be able to assess certain civil claims in summary proceedings.
Comment: Both developments are welcome!
It will likely take several months or a few years to implement the revision of the StPO. Although the Legal Commission of the National Council decided in February 2020 to proceed with the proposal, this should not distract from the fact that, similar to the differing positions of criminal investigation authorities and defenders, political opinions on the individual points of revision remain highly divergent, and lengthy parliamentary discussions are expected. It is quite possible that the revised StPO will come into effect simultaneously with the new criminal record law at the beginning of 2023.
Luzern, May 29, 2020
Reto Marbacher