The course of a criminal procedure
In general terms, there are five distinct phases in the course of criminal proceedings.
The first is the preliminary procedure. The Public Prosecutor’s Office (a prosecutor) conducts the investigation. He will collect evidence related to the commission of an offence in order to elucidate the facts and identify the perpetrator, or even convict him if the facts are clear and the envisaged sentence is within his competence (six months maximum).
The second is the debates, or trial proceedings. It takes place before a Court which will judge the alleged perpetrator on the basis of the file compiled by the Prosecutor during the preliminary proceedings.
The third phase occurs when one of the parties challenges the judgment rendered by the Court of First Instance or attacks another decision rendered by a criminal authority (police, Public Prosecutor’s Office, Court of First Instance, Court of Restraint). This is the second instance procedure . Depending on the type of decision being challenged, the second instance procedure will either take the form of an appeal procedure before the appeal authority or an appeal procedure before the appellate court.
The fourth phase is the appeal to the Federal Court, which is mainly aimed at challenging the judgments rendered by the appeal authority or the decisions rendered by the appeal authority. This is the third instance procedure.
In addition to these three national phases, there is also the procedure before the European Court of Human Rights (ECtHR), which allows violations of the rights guaranteed by the European Convention on Human Rights (ECHR) to be brought before this supranational body.
The preliminary procedure
Before the police and the prosecutor
The preliminary procedure begins with the filing of a criminal complaint, a denunciation, or spontaneous investigations by the judicial police or the Public Ministry. It ends with an Order of closure of the investigation, which may take the form of an Order of closure, a Criminal Order or an Indictment.
During this phase, the Public Prosecutor’s Office has the role of directing the procedure and takes all the decisions useful for the investigation of the case. The Prosecutor, or the judicial police acting under his orders, collects and administers the incriminating and exculpatory evidence related to the commission of the crime. This includes establishing who committed the offence, against whom, what damage or injury was caused, when and where the offence was committed, under what circumstances and with what intent the alleged perpetrator acted.
This phase is decisive, since it is mainly on the basis of the evidence gathered at this stage of the proceedings that the Prosecutor will decide at the end of the preliminary proceedings whether to close the case, to sentence the defendant in cases not exceeding his competence (6 months of deprivation of liberty) or to send the defendant back to court for trial. It is also on the basis of this evidence that the Tribunal, and then the Court of Appeal, will be able to acquit the accused or sentence him more or less severely.
In Swiss criminal procedure, after the preliminary proceedings, evidence can only be collected and re-administered in a restrictive manner by the courts of first and second instance. For this reason, we consider the pre-trial phase to be the most important phase of any criminal proceeding, and we attach particular importance to a thorough and rigorous analysis of the case from the very beginning of the proceedings in order to determine the appropriate investigative measures for our clients’ defense. Errors or omissions made at this stage will be difficult to repair later.
The prompt and clear-sighted intervention of a lawyer specialized in criminal law and procedure offers the guarantee that all the requisitions useful for the defense of the parties’ rights will be formulated in order to collect the evidence essential to the defense of their clients. penalex’s partner lawyers also ensure that evidence obtained illegally by the prosecution authorities is removed from the file and cannot be used against their clients.
The Order of Non-entry into the matter
The Order of non entry into matter is the decision by which the Public Ministry decides not to enter into matter on a complaint or a denunciation, i.e. not to open an instruction or an investigation.
If the Order of Non-entry comes into force, neither the police nor the Public Prosecutor’s Office will investigate the facts denounced or which are the subject of the complaint. The order of non-entrée en matière can intervene in particular when the elements of the offence are not fulfilled, when the offence is prescribed or when it is pursued only on complaint but no complaint has been filed by the person entitled to do so.
It must take place immediately, even before the opening of a criminal investigation.
An appeal may be lodged against the order of non-entry into the matter within ten days of its notification.
Orders of instruction
Throughout the preliminary proceedings, the Public Prosecutor’s Office, and sometimes the police, take numerous decisions and investigative measures that will irrevocably influence the course of the proceedings.
The Public Prosecutor’s Office may, among other things, order the joinder of two separate proceedings, the severance of proceedings involving several participants, refuse to hear a witness, implement an expert opinion, grant or refuse a new expert opinion, refuse to grant a witness the right not to testify, remove a document from the file or refuse to do so, grant a third party the right of access to the criminal file, suspend the proceedings or refuse to postpone a hearing.
Each of these decisions is likely to have a considerable impact on the outcome of the proceedings.
The parties can therefore challenge them by way of an appeal, if necessary to the Federal Court in case of irreparable damage. However, the ten-day time limit for appealing these decisions is short and it is therefore essential to react quickly.
Order of classification
If, at the end of the preliminary proceedings, the Public Prosecutor’s Office comes to the conclusion that the offence has not been committed, that the evidence is insufficient, that the offence is time-barred or that, for some other reason, there is no reason to convict the perpetrator or to send him to trial, it shall issue an Order to Close the Case.
For the defendant, the Order of closure implies that he will not be sentenced and that no entry will be made in his criminal record. Moreover, he will be able to claim compensation for the damages he has suffered as a result of the proceedings as well as for his defense costs.
For the complainant, the Closure Order implies, in addition to the absence of criminal conviction of the alleged perpetrator, the absence of compensation for the damage suffered as a result of the crime.
In this notice, the Public Prosecutor’s Office gives the parties time to submit their requests for additional evidence (in the case of the complainant) or their claims for compensation (in the case of the defendant).
It is recommended that you do not wait for the Filing Order to be issued before taking action, but act within the next closing period, which may be extended. After this period, the Classification Order may be notified and only the appeal route, within a period of ten days of its notification, will be open to the parties to contest it.
Criminal order.
If the prosecution concludes at the end of the preliminary proceedings that the accused is the perpetrator of the offence, it can convict the accused itself by means of a criminal order without having to go to court.
The conditions for the Criminal Order to be issued are restrictive:
- First, the alleged perpetrator must have admitted the facts or they must be established (e.g. surveillance camera evidence).
- Secondly, the sentence to be pronounced, including the revocation of a possible suspended sentence or a conditional release, must not exceed 6 months of deprivation of liberty.
The Code of Criminal Procedure does not require that the Public Prosecutor’s Office send notice of the upcoming closure to the parties when it intends to issue a Criminal Order.
If one of the parties is not satisfied with the Penal Order, he/she may oppose it. The opposition must be addressed to the Public Prosecutor who issued the Criminal Order within ten days of its notification. It does not need to be motivated when it comes from the defendant. On the contrary, it must be motivated when it is formed by the complainant.
Following the objection, the Public Prosecutor has several options. He will be able to implement new investigative measures, modify the Criminal Order, close the proceedings, maintain his Criminal Order and send it to the Court of First Instance. In the latter case, the Criminal Order is the indictment and the objector will be tried by a Court on the basis of the facts set out in the Criminal Order.
The objector should be particularly aware that if he or she does not appear before the trial court following the objection, the objection will be considered withdrawn and the Criminal Order will become enforceable. Also, until oral argument, the opponent will have the opportunity to withdraw his or her opposition to avoid being sanctioned more severely by the Tribunal. Indeed, if the Court is bound by the facts retained in the penal order, it remains free as regards the sanction to be pronounced and can go beyond the sentence that the Public Prosecutor had pronounced in his penal order.
Indictment.
If, at the end of the preliminary proceedings, the Public Prosecutor’s Office considers that there is sufficient evidence of the guilt of the accused, but cannot convict him or her, it shall refer the accused to the Court of First Instance for trial. To do this, he draws up an Indictment.
The indictment mentions, among other things, the facts against the accused and the offences which, from the point of view of the public prosecutor, appear to have been committed. When the Public Prosecutor’s Office waives its right to intervene in the proceedings before the Court of First Instance, it must also submit its proposals for sanctions to the Court.
In Swiss criminal procedure, there is no appeal against the indictment. Nevertheless, the Indictment is a stage in the proceedings where the parties must be extra vigilant. Indeed, even if the Court can deviate from the legal characterization adopted by the Public Prosecutor’s Office, it will be irremediably bound by the facts presented in the indictment and will not be able to distance itself from them in order to render its judgment.
Thus, if any relevant facts have been omitted from the statement of facts in the Indictment, the party concerned must promptly inform the Tribunal, which is responsible for reviewing the validity of the Indictment. The Indictment can then be returned to the Prosecution for completion.
It should also be noted that from the moment the court receives the indictment, it becomes the director of the proceedings in place of the Public Ministry, which is then relegated to the rank of party to the proceedings in the same way as the accused or the complainant.
Simplified procedure: pleading guilty
This procedure is initiated in preliminary proceedings before the Public Prosecutor’s Office and ends before the Court of First Instance with “lightened” proceedings. In the simplified procedure, the Public Prosecutor’s Office and the accused agree on the criminal acts committed by the accused, which the latter must admit, on their legal qualification, on the civil claims of the plaintiff and on the sanction. However, this agreement is not final and will still have to be ratified by a Court.
The simplified procedure is possible for sentences of up to 5 years of deprivation of liberty.
On the basis of the agreement reached, the Public Prosecutor’s Office will send a draft indictment to the parties, who will have 10 days to declare whether they accept or reject it. The complainant will have to be particularly attentive since the absence of a response within the 10-day period is equivalent to an acceptance of the indictment.
Once the indictment has been accepted, the Public Prosecutor’s Office sends it to the Court of First Instance with the case file. Before the Court of First Instance, in the simplified procedure, there is no examination of evidence and the Court will simply make sure, during the examination of the accused, that he recognizes the facts of which he is accused and that his statement corresponds to what is in the file. The Tribunal has a margin of appreciation. In particular, it verifies that the execution of the simplified procedure complies with the law and is justified, that the charge is consistent with the outcome of the proceedings and the file, and that the proposed sanctions are appropriate.
When the conditions for rendering judgment are met, the Indictment is considered a Judgment.
On the contrary, if the conditions for a judgment in the simplified procedure are not met, the Court sends the file back to the Public Prosecutor’s Office to initiate an ordinary preliminary procedure. If the simplified procedure fails, the statements made by the accused in the simplified procedure and in view of the simplified procedure can never be used against him.
The procedure in the first instance
At the Tribunal
The first instance procedure is the phase of the proceedings during which the accused is confronted with the authority that will judge him/her for the offences he/she is accused of (trial authority): the Court of First Instance. Subject to special procedures, such as the simplified procedure or the default procedure (see below), the procedure before the Court of First Instance is public is as follows
The first instance proceedings begin when the Court of First Instance receives the Indictment drawn up by the Public Prosecutor’s Office. From that moment on, the Tribunal becomes the director of the proceedings instead of the Public Ministry, which becomes a party like any other.
Upon receipt of the indictment, the Court verifies the formal validity of the indictment, then sets the date of the trial (debates) and gives the parties a period of time in which to make evidentiary submissions (hearings of witnesses or experts, production of documents, local inspection, etc.) for the debates.
On the day of the hearing, the Tribunal will first consider any preliminary questions from the parties. Preliminary questions are questions that the Tribunal must examine before it can examine the offences themselves. This includes, in particular, motions concerning the inoperability of evidence, the implementation of a new or additional expert opinion, or the use of in camera sessions. This may also be the case of a request by the complainant to supplement the Indictment.
Indeed, it is important to know that the Court can only judge the author for facts precisely described in the indictment. Thus, if one of the parties wishes to see the author tried for facts that are not sufficiently precise in the Indictment, the only possibility will be to ask the Tribunal, at the preliminary questions stage, to refer the file to the Public Prosecutor’s Office so that it can complete the Indictment.
Once the preliminary questions have been dealt with, the Tribunal proceeds to the evidentiary phase. He then devotes himself to the hearings of the accused and, if necessary, of the experts, witnesses and even the plaintiff. Each party then has the right to have any relevant questions asked of the other parties. During this phase, the Tribunal will examine certain new evidence and confront the parties with it. Then, after giving the parties the right to propose new evidence, the Tribunal ends the evidentiary procedure.
It then moved to the pleading phase, during which the parties plead their case. The Public Prosecutor’s Office will first request a sanction or measure, or even drop the charge. Then, the plaintiff will plead to obtain compensation for the damage or moral harm suffered. Finally, the accused will present his defense. In this order, each party is allowed to speak twice, and then the defendant personally is given the opportunity to speak one last time.
Finally, after retiring, the Tribunal deliberates by simple majority and passes judgment on the guilt of the accused (acquittal or conviction), the possible sanctions and other consequences. The judgment is usually given orally and briefly motivated. In some cases, the Court waives the public reading of the judgment with the agreement of the parties and notifies them of the operative part (the part of the judgment that pronounces on guilt, sanctions and other consequences) within 5 days.
Upon receipt of the order, parties who are not satisfied with the judgment have 10 days to file an appeal. Then, as soon as the Court notifies them of the complete and reasoned judgment, they have 20 days to file a statement of appeal.
These deadlines cannot be extended.
Second instance procedure
Court of Appeal and Appeal Authority
The second instance procedure is the phase of the proceedings in which the parties have the opportunity to challenge the decisions of the police, the prosecutors, the courts of first instance, the Court of restraint and the Judge of execution of sentences.
The second instance procedure can take two distinct forms.
The first is the appeal procedure, which only allows for challenges to the judgments of the Courts of First Instance pronouncing on the guilt of the accused, whether to convict or acquit.
The second is the appeal procedure, which allows the parties to challenge all other decisions made by the police, the prosecutor, the Court of First Instance, the Court of Coercive Measures and the Judge for the Execution of Sentences.
In addition to these two ordinary channels, there is the rarer procedure of revision, which allows the reversal of judgments and certain other specific decisions that have already come into force, when facts, means of proof or decisions appear that were not known to the authority that made the decision and which could have led to significantly different results.
At the Court of Appeal
The appeal procedure takes place before a Court of Appeal composed of professional magistrates. It is mainly an oral procedure which is conducted in much the same way as the first instance procedure, although the parties may request a written procedure.
The appeal procedure begins with the filing of the appeal notice addressed within 10 days to the Court of First Instance that issued the contested judgment. Following the announcement of the appeal, the Court of First Instance sends its reasoned judgment to the parties and sends its file to the Court of Appeal. Once the parties have received the reasoned judgment, those who wish to appeal must send a statement of appeal, this time directly to the Court of Appeal and within 20 days. The Court of Appeal then sends the other parties a copy of the statement of appeal and gives them 20 days to file a motion to dismiss or a joint appeal.
The Court of Appeal then rules on the parties’ requests for evidence and sets the date of the hearing. At the hearing, the defendant is questioned and the other parties may also speak. More rarely, witnesses are heard and new evidence is administered. Finally, the parties plead, starting with the appellant, before the Court retires to deliberate and render its judgment, the operative part of which will be notified either orally or in writing within 5 days.
To the Board of Appeals
The parties may appeal to the Federal Supreme Court within 30 days against the judgments of the Courts of Appeal.
The appeal procedure takes place before the appeal authority, which in the canton of Vaud is the Chamber of Criminal Appeals, composed of professional magistrates. The appeal procedure is a written procedure.
The appeal procedure begins with the filing of an appeal, addressed directly to the appeal authority, within 10 days of the notification of the contested decision.
The appeal authority may dismiss the appeal without hearing the other parties to the proceedings if the appeal is manifestly ill-founded. If this is not the case, the appeal authority shall give the other parties a period of time in which to make a decision on the appeal before giving its judgment.
The parties may appeal to the Federal Court within 30 days against the decisions of the appeal authorities.
Federal appeal procedure
At the Federal Court
The third instance procedure is the phase of the proceedings in which the parties have the opportunity to challenge the judgments of the cantonal courts of appeal and the decisions of the cantonal appeal authorities.
The Swiss Federal Supreme Court, based in Lausanne, is the third instance authority.
The third instance procedure is an exclusively written procedure. It begins with the filing of an appeal, which must be addressed to the Federal Court within 30 days of the notification of the contested decision.
Once the appeal has been received by the Federal Court Registry, it is assigned to an investigating judge. At the same time, the clerk’s office sets a deadline for the appellant to make the advance payment, after which the examination of the file begins in earnest.
When the appeal is manifestly ill-founded, the law allows the Federal Court to dismiss it without calling on the other parties to the proceedings. On the other hand, if the appeal is not manifestly ill-founded, the Federal Supreme Court may set a time limit for the other parties to the proceedings to decide on the appeal, after which the Federal Supreme Court will issue its ruling. If the Federal Supreme Court accepts the appeal, it decides on the merits of the case or sends the case back to the previous authority for a new decision.
With certain exceptions, the proceedings and deliberations of the Federal Tribunal are not public. Proceedings before the Federal Supreme Court are thus conducted exclusively in writing and neither the parties nor their lawyers need to come to the Federal Supreme Court in person.
The European Court of Human Rights
Supranational appeal procedure
The appeal procedure before the European Court of Human Rights is a supranational judicial procedure.
This is the last possibility to challenge a national decision, usually a decision of the Swiss Federal Court. With few exceptions, the filing of an appeal to the European Court of Human Rights presupposes that all domestic remedies have been exhausted.
The appeal to the European Court of Human Rights is made by filing an application with the court clerk’s office within six months of the decision being challenged.
When the European Court of Human Rights finds a violation of any of the provisions of the European Convention on Human Rights, it admits the appeal and condemns the State that issued the contested decision.
In practice, after the ruling of the European Court of Human Rights, it is possible under certain conditions to ask the Federal Court to review its ruling to take into account the decision of the European Court of Human Rights.
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