Investigation & Prosecution in Switzerland Michael Lauber Attorney General of Switzerland 12. September 2016

Content Civil law based jurisdiction & federal structure Prosecutorial model Separate Organisation: Prosecutor & criminal police Prosecutors: Organisation & Tasks Investigator: Organisation & Tasks Three different stages of the investigation Challenges in the cooperation

Civil law based jurisdiction & federal structure Swiss Criminal Procedure Code, Swiss Criminal Code Administrative codes including penal clauses Regulators in different fields are totally separated from the traditional prosecutorial and criminal police work

Prosecutorial model Prosecutor: leader of the criminal investigation and defending the accusation (no investigation judges) Criminal police: execution mandated by the prosecutor, little room for police led investigations Prosecutorial model for all criminal proceedings Prosecutor: leader of the criminal investigation and defending the accusation (no investigative judges) / counterbalanced by a lot of rights for the suspected person (presumption of innocence, right to be heard and to participate in the taking of evidence, right to choose a lawyer or to ask for a mandatory defense lawyer, right to challenge any decision) Criminal police: execution mandated by the prosecutor, little room for police led investigations Examples: all coercial measures are ordered by the prosecutor, criminal police is allowed to do secret measures (observation, undercover enquiries) only for a quite short period of time independendly

Separate Organisation of the Prosecutor and the criminal police Prosecutors do work in teams in their own structure, judicial tradition Criminal police integrated in the regular police force-structure, police tradition (clear separation by tradition from military forces)

Prosecutors: Organization (I) Independent authorities, not belonging to the ordinary administration No political influence Head of the prosecutorial service (general prosecutor): elected by the respective parliament or nominated by the government

Prosecutors: Organization (II) Membership in a political party does not play a crucial role in electing or nominating the general prosecutor Terms between 4 to 10 years, different solutions for reelection Controlling of the prosecutor’s orders or decree: based on the Criminal proceeding code or on the internal rules of organization Membership in a political party does not play a crucial role in electing or nominating the general prosecutor Terms between 4 to 10 years, different solutions for reelection (limitation of terms, retirement age) Controlling of the prosecutor’s orders or decree, based on the Criminal proceeding code or on the internal rules of organization

Prosecutors: Tasks Leading the investigation Investigation has to produce elements in favor of the accused and in charging the person Based on the results of the investigation: Accusation before the court or abandonment of the proceeding Leading the investigation (opening, coercive measures, mandating the criminal police, dealing) Investigation has to produce elements in favor of the accused and in charging the person (shall investigate the incriminating and exculpating circumstances with equal care) Based on the results of the investigation: Accusation before the court if the suspicions are confirmed and sufficient or abandonment of the proceeding if it is not the case

Investigator: Organisation Integration in ordinary police forces Not independent structures, politically lead in most cases by a minister of police or internal affairs, never by the minister of justice No political influence in nomination procedure of the heads of criminal police, no influence of prosecutors Individual contracts following usual rules of public servants

Investigator: Tasks Executing mandates of the prosecutor Responsible for tactical police action Recommending action to the prosecutor

1 2 3 Three different stages of the investigation Police Enquiries Investigation by the Public Prosecutor Main Proceeding of First Instance Court

Challenges in the cooperation Constant and open exchange about the strategy in investigating Need for a common understanding of the goal of an investigation and of the respective competences and activities