Lawyer Monthly speaks with former public prosecutor Simon Bächtold in this feature, gaining his insights into the workings of the prosecutor’s procedure. His advice is a must-read for defence attorneys and sheds additional light on the broader landscape of criminal law in Switzerland, including the growing threat of cybercrime.
What is interesting about the public prosecutor’s procedure in Switzerland?
A criminal procedure of first instance in Switzerland consists of three main phases: the police inquiry, the prosecutor’s procedure and then – if the case is not dismissed early – the court procedure.
The prosecutor’s procedure is often the most important phase. It takes up the largest amount of time and the most evidence is collected in this phase. It is safe to say that, in most cases, the final outcome of a case is largely determined in this phase already. One could say: the prosecutor’s procedure is where the beef is.
Why is this important for defence attorneys?
The prosecutor’s procedure gathers most of the evidence. The court procedure mostly relies on the written protocols and does not – for example – question witnesses again (though exceptions do apply).
This is why, by default, during the prosecutor’s procedure, the law grants all parties (defendants as well as criminal claimants/victims) the right to be present during all interrogations and to ask their own questions. This right to participate goes beyond the minimum standard as defined by the European Convention on Human Rights (ECHR). This right can only be exercised once the prosecutor’s procedure has been initiated. But the right can be waived, even tacitly.
The prosecutor’s procedure is deemed initiated at the latest as soon as the prosecutor has ordered coercive measures (most commonly a house search). Every interrogation during this phase that does not respect the defendant’s right to participate cannot be used against him and must be repeated. For a defence attorney it is of utmost importance to be aware when the phase of police investigations ends and the phase of the public prosecutor’s procedure begins. The defence must also make sure not to waive any rights to participate in interrogations, at least not unless it is beneficiary in the case at hand.
One could say: the prosecutor’s procedure is where the beef is.
What should a criminal defence attorney focus on during the public prosecutor’s procedure?
Obviously this depends largely on the case at hand and on the strategy selected.
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.
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.
Public prosecutors in Switzerland are relatively powerful.
Another particularity in Swiss criminal procedure is the fact that the court procedure is very limited – particularly because judges rarely question witnesses directly, but rely on the written protocols in the file. They are obliged to question defendants, but even these hearings are often limited and rarely have an impact on the outcome of the case. The prosecution is not even obliged to take part in the court hearing, except if a sentence exceeding one year’s imprisonment is requested.
Where do you see the biggest shortcomings in the Swiss system of criminal prosecution?
As I am also active in the field of cybercrime, I must note that the state of affairs in this field is clearly not satisfactory in Switzerland. The main problem with the Swiss approach to combating cybercrime is that it is the 26 Swiss cantons which are primarily competent for criminal prosecution. Some Swiss cantons are so small that they have fewer than 100,000 Inhabitants. Cybercrime, however, is global and not local. The cantonal competences lead to confusion and to many negative-competence conflicts, where no authority is willing to take on a specific issue.
Since investigations in this field are also time-critical, the unwillingness of the cantons to act leads to the termination of many cases before serious investigations even begin. This is very unsatisfactory form the victims’ point of view and should be addressed by politics. One option would be to create a new prosecution authority on the federal level that would focus on certain cybercrime phenomena in close coordination with the cantonal authorities.
What do you enjoy most in your job as a specialist in criminal law and cybercrime?
Having worked as a public prosecutor as well as a criminal defence attorney, I have a unique perspective on the criminal procedure. It enables me to understand the position and the concerns of the prosecution as well. This can help in striking deals but also with effective confrontation. I am passionate about reaching the best possible outcome for my clients. If I come across flagrant injustice, I become very passionate and go every extra mile to defend the client affected.
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In the field of cybercrime, I often represent victims. Here it is my aim to boost efficiency by collecting and consolidating individual cases that belong to the same phenomenon. This significantly improves value-for-money for clients and also helps the authorities. I enjoy making my contribution to this win-win approach.
Simon Bächtold, Founding Partner
Bächtold Gallarotti Rechtsanwälte
Rotachstrasse 15, 8003 Zürich, Switzerland
Tel: +41 44 242 20 20
Simon Bächtold is a former public prosecutor who has acted on both the cantonal and federal level. Since 2020 he has acted as a specialised attorney in Zurich, focusing on criminal defence and cybercrime.
Bächtold Gallarotti Rechtsanwälte is a Zurich-based law firm specialising in cybercrime, private prosecution and criminal defence. The firm advises private individuals, companies and Swiss authorities, drawing upon its practitioners’ experience as former prosecutor’s to better understand how the police and public prosecutor’s office work.
