Abstract
Swiss criminal procedure has a strong inquisitorial tradition and its primary purpose is the search for the “material truth.” However, authorities are neither obliged nor allowed to search for this truth at any cost and are limited by procedural rules, which also serve to protect a defendant from the authorities. One possible means of enforcing such procedural rules is the exclusion of improperly obtained evidence. In Switzerland, the legislature established explicit provisions around the collection of evidence and its admissibility in criminal proceedings by adopting art. 139–141 of the Criminal Procedure Code in 2011. This is a comprehensive statutory regulation that is unique in Europe. Nevertheless, the Swiss Supreme Court continues to find ways to preserve its own power over the admission of evidence and often errs on the side of admitting evidence. With a focus on this tension between the legal framework and the jurisprudence of the Supreme Court, the Swiss country report describes the relevant legal framework, phases of the criminal process, and the relevant parties to criminal proceedings. Also discussed in detail are the current regulations as well as the Supreme Court’s case law on exclusionary rules. An assessment of the potential for such rules to safeguard individual rights and prevent improper evidence acquisition is a focus of the paper.
Highlights
It was not until 2011 that a unified Swiss criminal procedure code amalgamated the legal framework for criminal trials in the 26 cantons of Switzerland
Despite the powerful positions occupied by the police and prosecution in criminal investigations, the Criminal Procedure Code (CPC) does set limits in an effort to protect individual rights that fall within the scope of art. 5 (3) European Convention on Human Rights (ECHR) and art
The harmonization of the law and the clarification of exclusionary rules in a few specific cases has triggered a lively discussion among courts, defense lawyers, academics, and occasionally even the public
Summary
It was not until 2011 that a unified Swiss criminal procedure code amalgamated the legal framework for criminal trials in the 26 cantons of Switzerland. Bringing together different legal traditions of continental Europe, Swiss criminal procedure is characterized by legal scholars as inquisitorial This assessment corresponds with a traditional focus on searching for the “material truth” (or, what happened). Swiss criminal proceedings are characterised by formal requirements that seek to ensure a fair trial while safeguarding individual rights and preventing abuses of power by the authorities.. According to the theory espoused in legal texts, exclusionary rules play an important role in establishing this balance by banning the use of illegally obtained evidence and enforcing limitations in criminal proceedings.. Before the advent of the CPC, the Swiss Supreme Court (SSC) made decisions around the admissibility of evidence by balancing competing interests on a case-by-case basis and often admitted illegally obtained evidence in pursuit of the material truth.. – assess the potential of those exclusionary rules to safeguard individual rights and to prevent torture and improper compulsion in particular
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