Lawyer Monthly talks with Simon Bachtold, an ex-public prosecutor. He shares his insight into the process. His advice is essential reading for defense attorneys. It also sheds light on the wider landscape of Swiss criminal law, which includes the increasing threat of cybercrime.
What is so interesting about the Swiss public prosecutor’s process?
The first stage of a criminal proceeding in Switzerland is the police investigation, the prosecutor’s process and then, if the case has not been dismissed before the deadline, the court procedure.
Prosecutor’s procedures are often the most crucial phase. This phase is the longest and most time-consuming. In most cases, the case’s final outcome is determined in this phase. You could say that the prosecutor’s process is the meat.
This is why it is important for defense attorneys.
Most of the evidence is collected by the prosecutor’s process. The court procedure mainly relies on the written protocol and doesn’t – for instance – question witnesses once again (though exceptions do exist).
This is why all parties, both criminal claimants/victims and defendants, are automatically granted the right to participate in the prosecution’s procedure. They can also ask questions during interrogations. This participation right goes beyond what is required by the European Convention on Human Rights. Once the prosecution has initiated proceedings, this right cannot be exercised. However, the right cannot be waived even if tacitly.
Once the prosecutor has issued coercive measures, most commonly a home search, the prosecution’s procedure is considered initiated. Any interrogation that violates the defendant’s rights to participate during this phase cannot be used against him. It must be repeated. It is crucial for a defense attorney to know when the phase of police investigation ends and when the phase begins. It is also important that the defense does not waive its rights to participate in interrogations.
One could even say, “The prosecutor’s process is where the meat is.”
What should a criminal defense attorney concentrate on during the public prosecution’s procedure?
This depends on the particular case and the strategy chosen.
As we have already mentioned, this phase focuses on gathering evidence and constructing the facts. While the prosecution bears the burden of proof, the defense can use this time to create their own plausible narrative. It is possible for the defense to submit briefs at any moment and it is often a good idea.
The defense should use its right to request additional evidence. The law requires that the prosecution gather all relevant evidence. They usually concentrate on the incriminating evidence. This procedural right is often used by the defense.
It is also important to present the defense narrative to the court as soon as possible, because the next phase of court proceedings is often very brief (sometimes only two hours without additional briefs).
Is there any other notable particularities in Swiss criminal proceedings?
The Swiss public prosecutors are quite powerful. They are able to issue search warrants and seize property in their own jurisdiction and can also issue penalty orders that can impose sentences up to six months imprisonment or a monetary punishment that is equivalent.
More than 90% of Swiss criminal convictions are based upon penalty orders. These are, in essence, an instrument of summary judgement. Often, they are not subject to any investigation. This tool is primarily focused on efficiency. Any objections must be made within 10 days of receiving it. Many defendants find this too short, especially if the penalty order is not understood by them.
Public prosecutors in many cantons are often overwhelmed by the number of cases they have to deal with. Combining a high degree of discretion with a heavy caseload can sometimes open up space for negotiations between the defense and prosecution to settle the case within the parameters of a penalty order, or even to end the case completely. The Swiss Criminal Procedure Code (SCPC), which officially allows for the possibility of deals between defense and prosecution, offers this option. These can be used for sentences of up to five years imprisonment, and must be confirmed by a court in the first instance.
The Swiss public prosecutors are quite powerful.
A further characteristic of Swiss criminal procedure is that it is extremely limited. This is due to the fact that judges rarely question witnesses directly but instead rely on written protocols contained in the file. Although they are required to question defendants in court, these hearings are usually limited and have little impact on the outcome. Except for a request for a sentence of more than one year imprisonment, the prosecution is not required to attend the court hearing.
What are the greatest flaws in the Swiss criminal prosecution system?
Because I am active in cybercrime, it is obvious that the situation in Switzerland in this area is not satisfactory. The problem with the Swiss approach in combating cybercrime lies in the fact that 26 Swiss cantons are the ones who are responsible for criminal prosecution. Some Swiss cantons have less than 100,000 inhabitants. Cybercrime is not local, but global. These conflicting cantonal competences can lead to confusion and many negative-competence disputes, in which no authority is willing or able to address a particular issue.
Because investigations in this area are time-critical, many cases are closed before any serious investigation can begin. This is unacceptable from the victim’s point of view, and should be addressed through politics. One solution would be to establish a federal prosecution authority that would concentrate on cybercrime in close coordination with cantonal authorities.
What is your favorite part of being a cybercrime specialist?
My experience as both a criminal defense attorney and a public prosecutor has given me a unique view of the criminal procedure. This allows me to better understand the prosecutor’s position and concerns. This is a great way to not only strike deals, but also to be able to effectively confront the prosecution. My passion is to achieve the best outcome for my clients. I am passionate about defending clients who are subject to flagrant injustice.
Cybercrime is a field where I represent victims. It is my goal to increase efficiency by consolidating cases related to the same phenomenon. This greatly increases value-for-money and helps the authorities. This win-win partnership is something I am proud to be a part of.
Simon Bachtold, Founding Partner
Bachtold Gallarotti Rechtsanwalte
Rotachstrasse 15, 8003 Zurich, Switzerland
Tel: +41 44 242 20 20
Simon Bachtold was a former public procuror, who has served both at the federal and cantonal levels. He has been a Zurich specialised attorney since 2020, with a focus on cybercrime and criminal defense.
Bachtold Gallarotti Rechtsanwalte a Zurich-based law office specializing in cybercrime and private prosecution. Private individuals, companies, and Swiss authorities are all advised by the firm. It draws on its former prosecutor’s experience to better understand the workings of the police and public prosecutor’s offices.