Lawyer Monthly - February 2023

Are there other noteworthy particularities in Swiss criminal procedure? Public prosecutors in Switzerland are relatively powerful. They can issue search warrants and seize assets in their own competence and they can issue penalty orders imposing sentences of up to six months’ imprisonment or a monetary fine that is deemed equivalent. Over 90% of criminal convictions in Switzerland are based on penalty orders, which are in essence an instrument of summary judgment, often without much of an investigation at all. The main problem with this tool, which is focused solely on efficiency, is the fact that any objection against it must be filed within 10 days from the day it is received. This is too short for many defendants, especially if they fail to realise the significance of the penalty order. On the other hand, public prosecutors are notoriously overwhelmed by their caseload in many cantons. The combination of a high level of discretion and a heavy caseload sometimes opens up room for negotiations with the defence to settle within the scope of a penalty order or to terminate the case entirely. In addition to this favourable option of an informal deal, the Swiss Criminal Procedure Code (SCPC) also officially states the possibility for deals between prosecution and defence. They can be applied for sentences up to five years’ imprisonment and have to be confirmed by a court of first instance. Another particularity in Swiss criminal procedure is the fact that the court procedure is very limited – particularly because judges rarely question However, as just mentioned, this phase is all about gathering evidence and building the facts of the case. The burden of proof is on the side of the prosecution, of course, but it can also be the time for the defence to build their own plausible narrative. The defence can submit briefs at any time and it is often a good idea to do so. In particular, the defence should make use of its right to request the taking of additional evidence. By law, the prosecution is obliged to gather all relevant evidence, whether it is speaking for or against the defendant. In reality, they usually focus on the incriminating evidence. It is therefore often necessary for the defence to make use of this procedural right. Also, as the following phase of the court procedure is very short (sometimes just two hours with no additional briefs), it is crucial to sell the defence narrative to the court early on. 54 LAWYERMONTHLY FEBRUARY 2023

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