Newsletter Blog: Revision of the Swiss Criminal Procedure Code

Newsletter Blog: Revision of the Swiss Criminal Procedure Code

The Swiss Criminal Procedure Code (CrimPC), in effect since 2011, has been revised as of January 1, 2024. These amendments aim to enhance the fairness and practicality of the criminal procedure. Here are some of the key changes:

1. Double Instance

Generally, the principle that two cantonal courts should precede the Federal Tribunal applies in criminal law as well. Said principle has been largely upheld in the revision of the CrimPC, except for decisions regarding coercive measures and orders for sealing potential evidence, which can only be appealed directly to the Federal Tribunal.

2. Recording of Interrogations with Technical Aids

Interrogations conducted via video conferencing were permitted before the revision. However, under the new Art. 78a CrimPC, if an interrogation is recorded using technical means, keeping exact minutes is no longer required. A protocol must still be prepared retrospectively (generally within seven days). Therefore, if an interrogation occurs via video conference, it is not necessary to read the protocol to the interrogated person. Additionally, the interrogated person is not required to sign the protocol. This simplification applies not only to interrogations conducted by the criminal court but also to those by the public prosecution office and the police.

3. Quantification and Substantiation of Civil Action

Under the previous law, private civil claimants could quantify and substantiate their civil claims at the party statement stage during the main hearing. Revised Art. 123(2) CrimPC now requires private civil claimants to quantify and substantiate their civil claims within the same deadline set by the courts for introducing evidence (Art. 331(2) CrimPC), which is significantly earlier. It remains to be seen whether this will result in an increase in civil actions being decided by criminal courts, as courts, especially in white-collar crime cases, have been hesitant to make such decisions in the past.

4. Rights of Participation

Under Art. 147 CrimPC, the defendant was allowed to participate in all other interrogations, allowing coordination of their stories with other co-defendants. The revision proposed restricting the participation of defendants in the interrogations of other defendants until the defendant in question had given a full statement. However, this suggestion was removed, citing concerns that it would exacerbate the existing power imbalance between law enforcement authorities and defendants. Consequently, co-defendants retain the right to participate in each other's interrogations.

5. Right of Appeal of the Public Prosecutor's Office Against Decisions of Courts of Compulsory Measures

Under the previous Art. 222 CrimPC, the defendant was entitled to appeal decisions of the compulsory measures court regarding pre-trial detention. Despite the language of the provision, the Federal Tribunal had established a practice allowing the public prosecution office to appeal such decisions as well. The revision aimed to codify this practice but was ultimately rejected by Parliament. As a result, Art. 222 CrimPC now clearly stipulates that only the defendant may appeal decisions of the compulsory measures court regarding pre-trial detention.

6. Creation of a DNA Profile

Under Art. 255(1) CrimPC, the public prosecution office is authorized to take DNA samples to investigate a crime. However, newly added Art. 255(2) CrimPC permits the creation of a DNA profile not only in relation to the investigated crime but also in cases where there is a clear suspicion that the defendant has committed other crimes. Additionally, Art. 257 CrimPC allows the creation of a DNA profile of a convicted person if it is assumed that this person might commit other crimes in the future.

7. Victims' Rights

The revision has further strengthened victims' rights in the criminal procedure. According to Art. 136(1)(b) CrimPC, victims of criminal acts may request partial or full legal aid (unentgeltliche Rechtspflege) to assert their criminal complaints if they lack the required financial resources and their complaint has a reasonable prospect of success. This legal aid includes the appointment of a lawyer if necessary.

8. Sealing of Evidence

The revision clarifies the sealing of evidence practice, one of the most significant measures in criminal proceedings. Under the amended Art. 248 CrimPC, not only the holder of the documents but also anyone with a reasonable legal interest may request the sealing of evidence in the event of a seizure. When applying for sealing, reasons for sealing must be made plausible, but there is no need to substantiate the reasons in the application. This confirms existing practice. The public prosecution office must inform all potentially affected persons under Art. 248(2) CrimPC. The deadline for requesting sealing of evidence is now three days, while it was previously seven days per Federal Tribunal practice. During this period, the public prosecution office may not inspect or use the seized documents or items. The revision clarifies that a person may request sealing for reasons stated in Art. 264 CrimPC (prohibition of seizure), including privileged correspondence, personality protection, and the right to refuse testimony. The public prosecution office must request the removal of the seals within 20 days after the sealing request, a timeframe that remains unchanged. However, the affected person has a non-extendable deadline of 10 days to file a statement in response to the removal request. This deadline may be challenging for managing a large volume of files and is notably shorter compared to the 20-day deadline for the public prosecution office. The court may decide within 10 days after receiving the defendant’s statement if the matter is clear or may invite the parties to a triage hearing. During this hearing, the affected person must indicate which documents may not be unsealed under the provision of reasoning. The court will make an immediate decision on whether to remove the seals. The court's decision can be directly appealed to the Federal Tribunal. The revision imposes tighter deadlines for affected persons while allowing more generous deadlines for the public prosecution office.

Final Remarks

The revision of the CrimPC includes numerous other amendments, such as those regarding reasons for detention and the timing of the appointment of a mandatory defense lawyer. The impact of these revisions on achieving the intended goals remains to be seen.

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