The Revised Criminal Procedure Code Enters into Force on 1 January 2024

Whereas the revised Civil Procedure Code (CPC) will not come into force until 1 January 2025, the Federal Council decided on 23 August 2023 that the Criminal Procedure Code (CrimPC) shall enter into force as soon as 1 January 2024. The Federal Council apparently deems less time necessary to prepare and implement the revision of the CrimPC than for its civil procedural counterpart. This assumption may be due to the fact that the amendments are relatively moderate compared to those of the CPC. In particular, the restrictions on the right to participate – (among others) the initial impetus for the revision – were abandoned during the parliamentary deliberations.

This legal update does not provide a complete overview of all changes; rather, it focuses on specific aspects of the revision, relevant to white-collar practice.

No Restrictions on Participation Rights. On the Contrary?

The original aim of the revision was to restrict participation rights of the accused person in order to establish the truth. The accused person should have been prevented from adapting its statements to those made by other individuals who were questioned before him or her. The preliminary draft of the new CrimPC stipulated that an accused person could be excluded from an interrogation if there was a risk that he or she would adapt his or her statements accordingly. This idea corresponded to current case law, according to which participation could be denied "in the event of a concrete risk of collusion" regarding allegations that have not yet been brought forward (BGE 139 IV 25, consid. 5.5.4.1). This provision was revised in the Bill ("Botschaft") of the Federal Council. According to this amendment, the accused person could be denied participation in a hearing until he or she makes a "clear statement on the matter." However, Parliament abandoned the new Art. 147a CrimPC altogether. It argued that the already existing power imbalance between the prosecutor and the accused person should not be further exacerbated. It was also argued (probably correctly) that the intended restriction of the right to participate could hardly be compatible with the principle nemo tenetur se ipsum accusare.

Scholars have questioned whether the previous case law on restricting participation rights in case of a "concrete risk of collusion" will continue to apply. After parliament expressly rejected amending the law in that very sense, the previous case law appears at least questionable. 

Regulation of Alternative Recording Forms for Minutes

The recording of interrogations (audio or video) was already possible before the revision. The new Art. 78a CrimPC now clarifies that if an interrogation is recorded by technical means, it is no longer mandatory to record the ongoing hearing in written minutes as well; the minutes, however, may also be drawn up afterwards (in principle, within seven days) and no verbatim is required. In contrast to minutes written by hand, it is not necessary to read out these later minutes to the interrogated person and to obtain their signature. Moreover, this simplification no longer applies merely to the main proceedings but to all stages of the proceedings. 

Independent Forfeiture Decisions and Independent Subsequent Decisions Are Subject to Appeal

Independent forfeiture decisions ("Einziehungsentscheide") and independent subsequent decisions – like substantive decisions on criminal and civil matters – are now also issued in the form of a judgment that, pursuant to Art. 80 para. 1 CrimPC, can be challenged by appeal (instead of an objection). In commercial penal law matters, this is particularly relevant with regard to confiscated items and assets. 

Innovations Regarding the Civil Claims

Until now, the private claimants could wait until the parties' submissions at the main hearing to quantify and to substantiate their civil action. A private claimant confronting the court and the defence with numerous new documents at the main hearing conflicted with both a serious defence and an appropriate judicial assessment. Therefore, the private claimant must now quantify and substantiate its civil claim within the deadline set by prosecutor or court, in accordance with Art. 331 para. 2 CrimPC, for submitting requests for taking evidence (Art. 123 para. 2 CrimPC).

Worth mentioning are the prosecutor’s new powers related to civil claims in the penalty order procedure ("Strafbefehlsverfahren") as the penalty order is the most common form for concluding criminal proceedings. Previously, disputed civil claims could not be assessed within the penalty order procedure, but were referred to civil proceedings. The prosecutor is now required to assess civil claims up to CHF 30'000 if the assessment is possible without taking further evidence (Art. 126 para. 2 lit. abis CrimPC and Art. 353 para. 2 CrimPC). According to the wording of Art. 353 para. 2 CrimPC, the prosecutor "can" assess the civil claims (if the requirements are met). Possibly, however, this wording might be a legislative mistake and the prosecutor must assess a civil claim of up to CHF 30'000 (if the other requirements are met).

As a consequence, while private claimants are also entitled to file a rejection ("Einsprache") against the penal order, they are limited to the decision on the civil claim (article 354 para. 1 lit. a-bis and para. 1-bis CrimPC).

In view of procedural fairness and procedural economy, these new regulations appear appropriate. Experience has shown, however, that, particularly in the area of economic crimes, even the courts are reluctant to assess civil claims; instead they refer them to civil proceedings, although an assessment would be perfectly possible. It remains to be seen whether the prosecutors will act with the same restraint in this regard.

Finally, the legislator did not introduce an extension of the rejection period from 10 to 20 days. Often defence lawyers are engaged only after issuance of the penalty order, and they must first inspect the files before being able to assess whether a rejection shall be filed. A longer deadline for filing a rejection would therefore have been most welcome, as the latest Federal Supreme Court rulings have set boundaries for preventive rejections by restricting its withdrawal with no consequences (BGE 149 IV 50, consid. 1.2). 

More Detailed Regulation of the Sealing Procedure

The sealing and subsequent unsealing process is typically relevant in white-collar criminal proceedings as the facts usually must be established on the basis of extensive data and documents collected from the accused person. To avert criminal consequences, and possibly private claimants’ civil claims, the accused person regularly wants to prevent certain documents from being made accessible to the criminal authorities (and possibly the private claimants).

Unsurprisingly, the unsealing process often led to massive delays in criminal proceedings, sometimes lasting several years. The revision seeks to remedy such delays. The procedure should also be regulated more strictly. In addition, Federal Supreme Court case law was codified with regard to both the legitimation and the grounds for sealing.

Art. 248 CrimPC states that not only the holder of documents/data but also persons with a legal legitimate confidentiality interest ("authorized persons") are entitled to request a document’s sealing (BGE 140 IV 28, consid. 4.3.4). The prosecutor or court must inform any authorized persons as soon as it establishes that they are not identical to the holder (Art. 248 para. 2 CrimPC). The time limit for filing the sealing request is three days (Art. 248 para. 1 and 2 CrimPC). During this time, the prosecutor or the court may neither inspect nor use the documents/data (Art. 248 para. 1 sentence 3 CrimPC).

The grounds for sealing are described more precisely. Whereas previously sealing could be requested "due to a right to remain silent or to refuse testimony or for other reasons", Art. 248 CrimPC now refers to the restrictions of seizure, pursuant to Art. 264 CrimPC. This concerns correspondence with legal counsel, protection of privacy, and the right to refuse to give evidence. It is noteworthy that some of these restrictions on seizure (Art. 264 para. 1 lit. a-c CrimPC), at least according to the wording, are limited to the accused person and make no mention of other authorized persons. In addition, still undecided is whether the jurisdiction of the Compulsory Measures Court ("Zwangsmassnahmengericht") is limited to the restrictions on seizure or that it also includes the other requirements for compulsory measures (e.g., proportionality or urgent suspicion of a crime; Art. 197 para. 1 CrimPC; cf. Brechbühl/Thormann in BSK StPO (3rd ed.), Art. 248 para. 44 et seqq. and 248a paras. 42 and 44 et seqq).

Furthermore, either the prosecutor or the court of first instance must, within 20 days after the sealing request, submit a request for unsealing to the Compulsory Measures Court (there is an exception, most likely irrelevant in practice; cf. Art. 248a para. 1 lit. b CrimPC); otherwise, the sealed items must be returned (Art. 248 para. 3 CrimPC). If, after receiving the unsealing request, the Compulsory Measures Court establishes other authorized persons, it will inform these persons about the sealing and grant access to the files upon request (Art. 248a para. 2 CrimPC).

In accordance with the new Art. 248a para. 3 CrimPC, the court shall set the authorized persons a non-extendable time limit of 10 days not only to present their objections to the unsealing request but also to substantiate the extent to which the sealing should be maintained. Silence is deemed a withdrawal of the sealing request. Depending on the quantity of documents concerned, this period may appear (too) short and not in the interests of equality of arms (given that the deadline for the unsealing request is 20 days). The lawyer of the authorized party may have no choice but to file a preventive objection in advance (i.e., without knowing whether a request for unsealing will be filed at all). The Compulsory Measures Courts' willingness to cooperate with the lawyers, when it comes to coordinating the service of the unsealing request deadline, would therefore be appropriate.

If the case is ready to be assessed, the court shall decide within 10 days of receiving the objection (Art. 248 para. 4 CrimPC). Otherwise, it shall schedule a triage hearing within 30 days, during which the authorized person must credibly demonstrate why and to what extent the items must not be unsealed. The court will decide "immediately" (Art. 248a para. 5 CrimPC). The authorized person’s unexcused absence is deemed a withdrawal of the request for sealing, whereas the prosecutor's absence merely means that the court will render its decision without the presence of the prosecutor (Art. 248a para. 7 CrimPC). According to some scholars, these deadlines are likely to be mere administrative time limits ("Ordnungsfristen"), which is in line with the case law on the current CrimPC (Brechbühl/Thormann in BSK StPO (3rd ed.), Art. 248a para. 23).

As before, the decisions of the Compulsory Measures Court can be appealed directly to the Federal Supreme Court (see Art. 248a para. 4 and 5 CrimPC).

In general, it appears that the revised law aims to make the sealing more difficult for the defence by imposing extremely tight time limits and deemed withdrawals. As the law is more generous with the prosecutor and the Compulsory Measures Court, it remains to be seen whether an accelerated seals removal will actually be achieved. 

(Nearly) Complete Implementation of the Double Instance Principle

The CrimPC previously provided for various exceptions to the principle that two cantonal courts should precede the Federal Supreme Court in criminal matters (Art. 80 para. 2 sentence 1 of the Federal Act on the Federal Supreme Court). To relieve the Federal Supreme Court, these exceptions were largely abolished (Art. 40 para. 1, Art. 59 para. 1, Art. 125 para. 2 sentence 2, Art. 186 para. 2 sentence 2 and para. 3 as well as Art. 440 para. 3 CrimPC).

However, the principle was not fully implemented as parliament retained some exceptions deviating from the Federal Council's Bill. The direct appeal to the Federal Supreme Court is still possible against (un-)sealing decisions (cf. above and Art. 248a para. 4 and 5 CrimPC). The same applies to decisions of the Compulsory Measures Court, which still can be appealed directly to the Federal Supreme Court under the new law, unless the CrimPC provides a possibility for an objection (Art. 393 para. 1 lit. c CrimPC). 

No Prosecutor’s Right of Objection Against Decisions on Detention of the Compulsory Measures Court

Beyond the wording of the current law (Art. 222 CrimPC), the Federal Supreme Court had invented the prosecutor's right to object to decisions of the Compulsory Measures Court on pre-trial detention (BGE 137 IV 22). The Federal Council's Bill provided that this right shall be codified in the revised law (BBl 2019 6744 et seq.). However, parliament rejected this (by a narrow margin) and expressly stated in the new wording that "solely" the arrested person is entitled to object.

Currently, over 94% of the prosecutors' pre-trial detention requests are fully approved by the courts (Republik Magazine, "Das düsterste Kapitel unserer Justizpraxis" on 29 September 2022, https://www.republik.ch/2022/09/29/das-duesterste-kapitel-unserer-justizpraxis, accessed on 6 November 2023). Without the prosecutor's right of objection against a decision rejecting detention, one must expect that the courts will be even more reluctant to reject a request for detention. Moreover, it does not appear consistent that in the event of an acquittal on the merits, the prosecutor is still authorized to apply for the continuation of detention (cf. Art. 231 para. 2 lit. b CrimPC). 

Further Changes (Not Exhaustive)

• Timing of appointment of mandatory defence lawyer (Art. 131 para. 2 and CrimPC);
  
  
• Selection and compensation of duty defence and mandatory defence lawyer, including the possibility of down payments (in particular, Art. 131 et seq. and Art. 429 CrimPC);
  
  
• Adaptation of the grounds for detention (Art. 221 CrimPC);
  
  
• Establishment of new (administrative) time limits for decisions on objections (six months; Art. 397 para. 5 CrimPC) and appeals (twelve months; Art. 408 para. 2 CrimPC). 

Authors: Dario Marzorati (Senior Associate), Fabienne Schaub (Junior Associate)

No legal or tax advice

This legal update provides a high-level overview and does not claim to be comprehensive. It does not represent legal or tax advice. If you have any questions relating to this legal update or would like to have advice concerning your particular circumstances, please get in touch with your contact at Pestalozzi Attorneys at Law Ltd. or one of the contact persons mentioned in this legal update.

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