Given the imbalance of power between prosecutors and persons involved, the principle of equality of arms is at the center of the criminal process…
In principle, criminal law in Switzerland consists of two parts - substantive criminal law and formal criminal law. In substantive criminal law, the conditions of criminal liability are regulated, as are the individual facts and penalties imposed for unauthorized behavior. In formal criminal law, on the other hand, the rules for prosecution are fixed. These are standards which are relevant for the enforcement of the state's claim for punishment and thus for the enforcement of substantive criminal law. The main laws in this regard are the Swiss Criminal Code (StGB) and the Swiss Code of Criminal Procedure (StPO). In international relations, there are various other regulations, including the delimitation of jurisdiction.
Criminal law as part of the public monopoly on the use of force
Both legal regulations are public law, which regulates the relationship between the state and its citizens. It regulates the legal relations between public authorities and persons subject to the law. This is in contrast to private law, which regulates the relationship between one citizen and the another, i.e. the legal relationship between equal legal entities. An example is the Code of Obligations or property law.
Consequently, in principle, only state bodies may exercise physical force or use direct force. This also applies to criminal proceedings where only the police and public prosecutors are allowed to act in this way (for example, arresting accused persons, searching premises or freezing bank accounts).
The state monopoly on the use of force lies at the heart of the state security constitution. Since the emergence of the modern territorial state in Europe in the 16th and 17th centuries, the monopoly on the use of force has been one of the pillars of state legitimization and thus an indispensable part of the Swiss political system. As a central component of state power, it is part of the three traditional constituting state elements (state territory, state people, state power). It was not until the 16th and 17th centuries that self-help rights were repressed in Switzerland and replaced by the state monopoly on the use of force. Devastating religious conflicts, which severely shook social structures in the form of civil wars, played an important role in addition to political and economic reasons.
Finding material truth as goal of criminal investigation
At the center of the criminal investigation is the search for the material truth. Law enforcement agencies have appropriate legal investigative capabilities besides human and financial resources to best achieve this goal. Inherent to the system is an unequal power relationship between law enforcement agencies and those involved in the process. In order to counteract this, principles have been fixed through case law, which have been written down in the Federal Constitution and the Code of Criminal Procedure.
Actual criminal proceedings in Switzerland are divided into different procedural stages. Thus, in essence, there are preliminary proceedings of the public prosecutor's office, main proceedings of the courts of first instance and appeal proceedings. During the preliminary proceedings, law enforcement agencies determine whether a criminal act has been committed and who the offender is. Suspicion is a prerequisite for the execution of a preliminary procedure-there needs to be sufficient evidence for a criminal offense to exist. If it turns out that there is certain probability that an offense could have been committed, the public prosecutor's office must open an investigation. Otherwise, the public prosecutor does not start proceedings and issues an appropriate order. After carrying out a criminal investigation, the criminal authority decides on indictment or termination of criminal proceedings. Until then, several years of qualified economic criminal proceedings can pass in which accused persons are involved. If the facts are admitted, the public prosecutor's office has its own authority to issue an order of punishment, which has the same effect as a court ruling. In the main proceedings, the criminal case is tried after having been brought before the court. The judgment of the court of first instance can be passed on and the appellate courts can be heard (appellate procedure).
Essential principles to protect those involved
Given the imbalance of power between prosecutors and persons involved, the principle of equality of arms is at the center of the criminal process. This is one of the minimum procedural standards in constitutional democracies and is based on the right to a fair trial. This principle is already fixed in the Federal Constitution, but is repeated again in the Swiss Code of Criminal Procedure. According to this, accused persons and law enforcement agencies would have to be equal parties in the proceedings. This equality is guaranteed by law only in the main proceedings. At the preliminary proceedings stage, priority is given to establishing material truth, which represses equality of arms to the detriment of the accused.
The right to a fair trial guarantees fair treatment of the persons involved and ensures that the same law applies equally (principle of legal equality). This principle is expressed in various forms. For example, there is a legal obligation for prosecutors to identify incriminating and exculpatory evidence with equal care.
This principle also requires that only clear and easy-to-understand questions are to be asked during interrogation. In particular, they must not be misleading or deceptive. The criminal authorities must be absolutely correct, factual and objective.
A particular example of a violation of the principle of fair trial is the use of a socalled "agent provocateur", i.e. a covert agent who causes or provokes a person to commit a crime. Such a procedure is frowned upon. A result of the principle of fair trial is also the right to an independent and impartial court. This means that a judge must not appear to be biased and in particular must not have had prior dealings in the matter.
An essential criminal law principle is the right to be heard. The relevant law is already guaranteed by the Swiss Federal Constitution. It states that evidence may only be used against an accused person if he has had it presented to him and has had the opportunity to comment on it. This principle has many manifestations, such as the right to access the case file (as soon as the purpose of the investigation is no longer in jeopardy), the right to encounter incriminating witnesses, the right to justify decisions, etc. The question of infringement of this right is often the subject of legal disputes.
The obligation to speed up proceedings causes considerable problems and is a justified cause for complaints. This principle is fixed in the Federal Constitution and obligates law enforcement agencies to carry out their proceedings without delay and bring them to conclusion. In particular, the background to this rule is that the longer a case lasts, the more difficult the search for material truth will be. It is also important that the accused be released from the burden of criminal investigation as soon as possible in the event of late termination of the proceedings. It should not be overlooked that criminal proceedings are often followed by media headlines and that the affected persons are exposed as a result. This principle is regularly violated by law enforcement agencies, who usually give insufficient resources as an explanation. Excessively long proceedings may ultimately end in a reduced sentence or might lead to claims for damages against the state.
Switzerland's Federal Constitution further determines that each person is considered innocent until their final sentencing. This principle of presumption of innocence states that the law enforcement agency must prove to the accused that he has made himself liable for prosecution. The state bears the burden of proof. This means that in the case of doubt about the facts, the judge must go by the facts that are more favorable to the accused (in dubio pro reo).
Finally, it should be noted that the legal system in Switzerland sets clear guidelines in order to ensure a fair and comprehensible criminal procedure. The legislator has created all necessary conditions for this. Law enforcement agencies have an obligation to implement them.
However, in practice, there are different aberrations and modifications to legal requirements. The interests of those involved are weighted very differently depending on the procedure and could lead to questionable situations. In particular, where there are complex procedures that have an international element, it would be almost impossible to defend oneself successfully without legal assistance.
Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.
Dr. Cornel Borbely
Attorney at law, Master in Economic Crime Investigation
Cornel Borbély is the owner of the law firm. In his capacity as a Attorney at law, he provides advice and litigation services, primarily in the fields of criminal law, business law as well as administrative law. As a former public prosecutor and head of a group for economic crime investigations in the Canton of Zurich, he has many years of experience in providing advice and conducting complex national and international proceedings. Alongside his work as an Attorney at law, he was also the Chairman of the Investigatory Chamber of FIFA Ethics Committee and is the Chief of the Swiss German investigating judges of the Military Justice. In addition, he lectures at various universities in the field of economic criminal law. Between 2015 and 2020 he was also the director of the master studies in Economic Crime Investigation at the University of Lucerne HSLU. Cornel Borbely also publishes in professional magazines on topical subjects in the areas of criminal law and Good Governance. In 2016 Cornel Borbély was elected by the newspaper Bilanz as one of the 10 most important lawyers for economic law in Switzerland.