Penal Orders and the Role of Prosecutors in Switzerland

Raluca Enescu

doi:10.2478/jles-2020-0016

Abstract

Abstract Minor infractions represent the majority of criminal cases. Simplified or summary procedures have addressed their increasing number in order to unburden the courts. Because of reduced requirements for the case to be adjudicated, this procedural economy comes usually to the cost of the defendant. Penal orders represent the most successful form of fast track procedure in which the public prosecutor plays a predominant role. After a police report and sometimes a short investigation, penal orders are issued and notified to the defendant. If they are not objected, their judgment equals the decision of a court. In other words, penal orders rely on the tacit agreement of the defendant. This contribution presents the risks of penal orders to produce wrongful convictions and proposes a set of recommendations that could improve the current situation. A combination of legal sources and empirical studies shed light on the delicate balance between the efficiency of justice and the defendant’s rights.

Highlights

Since more than fifty years, courts saw an increasing overload of criminal cases
While penal orders have certainly reduced the overload of courts wherever they have been implemented, they bring a long list of collateral damages: the defendant’s right to be heard has been suppressed, the right to counsel is reserved to the least minor cases, the separation of powers between prosecutors and judges is no more, the right to translation is not guaranteed and the material truth has been sacrificed to the efficiency of the criminal justice system
In Switzerland, the public prosecutor occupies a very strong and favorable position in which he can issue penal orders as trial balloons to test if the defendant rejects or accepts the prosecutorial judgment

Summary

Introduction

Since more than fifty years, courts saw an increasing overload of criminal cases. Human resources did not increase in a proportional way. Files continued to pile up and created a backlog of criminal cases (Israel, 1996). In order to deal with the high number of infractions observed in every European country, simplified and negotiated procedures have emerged (Gautron & Retière, 2014). In March 2020, the pandemic declared worldwide contributed to even more cases waiting for adjudication: courts were closed on short notice, trials were delayed and rarely replaced by online hearings. In England and Wales, for example, ten additional years could be necessary to return to pre-pandemic delays

Methods

Findings

Discussion

Conclusion