The Potential to Secure a Fair Trial Through Evidence Exclusion: A Swiss Perspective

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.

1 Introduction

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 actually happened)¹ as the primary aim of criminal proceedings.² Today, however, the search for truth is neither an absolute goal in the Swiss criminal justice system nor do police, prosecutors, or courts have unlimited powers.³ Rather, present-day legislation acknowledges the competing interests of the State and the individuals involved and appreciates a need for them to be balanced on a case-by-case basis via legislation and, more specifically, law enforcement authorities and courts. Accordingly, Swiss criminal proceedings are characterised by formal requirements that seek to ensure a fair trial while also safeguarding individual rights and preventing abuses of power by the authorities.⁴ 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.⁵ However, the exclusion of evidence also poses a constraint on the establishment of the material truth.⁶ Thus, by defining formal requirements and individual rights in criminal procedure, the legislature determines the cost of finding the material truth⁷—at least in theory.

The first Swiss Criminal Procedure Code (CPC)⁸ explicitly stipulates exclusionary rules in art. 141, which establishes a far-reaching and relatively comprehensive legal regime.⁹ These largely clear-cut rules represent a new approach since they have significantly reduced the amount of judicial discretion allowed relative to the prior cantonal regime. 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 basis¹⁰ and often admitted illegally obtained evidence in pursuit of the material truth.¹¹ In a 2007 case (prior to the implementation of the CPC), the Court rejected strict exclusion of indirect evidence on the ground that the acquittal of an obviously guilty defendant would be “disturbing” (“stossend”).¹² Even after the CPC was put into place, the Supreme Court has continued to rule in favor of admitting illegally obtained evidence.¹³

With a focus on this tension between the legal framework in the CPC and the jurisprudence of the Swiss Supreme Court, this report seeks to:

• explain the fundamental principles, stages, and actors in Swiss criminal proceedings;

• detail the present regulation in the CPC as well as the Swiss Supreme Court’s case law on exclusionary rules;

• assess the potential of those exclusionary rules to safeguard individual rights and to prevent torture and improper compulsion in particular.

2 Establishing Facts in Swiss Criminal Proceedings

2.1 Legal Framework and Relevant Actors

2.1.1 General Rules

Until 2011, Switzerland, a country of approximately eight million inhabitants, had 26 diverse¹⁴ cantonal criminal procedure codes, three federal codes of military law,¹⁵ laws around administrative criminal procedure,¹⁶ and laws around federal criminal procedure.¹⁷ The different cantonal codes, as well as the Swiss legal system in general, were significantly influenced by the German and the French legal systems due to the various German-speaking and Francophone parts of the country. The Swiss cantonal codes thus embodied diverse components of continental European legal traditions.¹⁸

This fragmented regulation of criminal procedure necessitated the criminal justice system be flexible enough to accommodate the various legal regimes. The cantonal and federal legislature assured this flexibility by leaving considerable discretion to law enforcement authorities.¹⁹ The Federal CPC, which came into effect in January 2011, represents the effort to unify and harmonize all of the different cantonal criminal procedure codes. Its primary goal is not to accommodate different regional traditions, rather it is to create nation-wide consistency in criminal law and procedure, and promote uniform and efficient enforcement of those laws.²⁰ Accordingly, the CPC of 2011 established a stricter legal framework compared to the former cantonal procedure codes, and particularly so for exclusionary rules.²¹ Currently, a further reform of selected articles of the CPC is being planned.²²

2.1.1.1 Duties in Criminal Investigations

Swiss criminal procedure is rooted in the inquisitorial tradition with the primary purpose of searching for the material truth. At least in theory, the proceedings aim to create a “precise reproduction of the historical incidents”²³ and convict and punish defendants only for the acts or omissions for which he or she is responsible.²⁴ The inquisitorial principle, explicitly laid out in art. 6 CPC, commits all prosecution authorities (police, public prosecution),²⁵ as well as the courts²⁶ to establish all relevant facts in the assessment of an alleged criminal offense in addition to an evaluation of the accused’s personal situation. Different from adversarial systems, authorities in Swiss criminal proceedings act ex officio—regardless of the parties’ conduct and requests.²⁷ As art. 6 (2) CPC stipulates, the authorities must investigate all circumstances—exculpatory and incriminatory—with equal care, requiring them to keep an open mind throughout the investigation.

If prosecution authorities fail to comply with art. 6 CPC, the relevant evidence must be “re-taken” and presented to the appellate court where possible. If this is not feasible, the failure to do so cannot be interpreted to the detriment of the defendant.²⁸ On the contrary, the presumption of innocence (art. 10 (1) CPC) and the principle in dubio pro reo (“when in doubt, for the accused,” art. 10 (3) CPC) impose the burden of proof on the prosecution. It is their duty not only to investigate, but to prove all circumstances creating criminal liability. This duty is limited by art. 139 (2) CPC, which states that “no evidence shall be led on matters that are irrelevant, obvious, known to the criminal justice authority or already adequately proven in law.”²⁹ Where this evidentiary duty cannot be fulfilled or insurmountable doubts as to the defendant’s guilt persist, the court must base its decision on the circumstances that are most favorable to the defendant and, where necessary, acquit.³⁰ The court, however, has wide discretion in this regard; art. 10 (2) CPC provides that the court shall assess all available evidence in accordance with the opinions it has formed throughout the entire course of the proceedings. Consequently, in Swiss criminal proceedings, there is no ranking order for evidence; as long as all evidence is gathered lawfully, each piece can be relevant. The weight of any one piece of evidence depends on how persuasive the court finds it to be.³¹ Importantly, the court’s decision, including the assessment of evidence, has to be objective, transparent and comprehensible.³² Indeed, the aim of art. 10 (2) CPC is to avoid the arbitrary assessment of evidence while simultaneously fulfilling the principles of the inquisitorial system. The rationale behind this provision is that judgments are more likely to be based on the material truth if the court is not bound by rigid evidentiary rules and is free to form an opinion based on the entire proceeding.³³

2.1.1.2 Securing a Fair Trial

The general principle of a fair trial, both in Swiss law and elsewhere, finds its origin in a variety of legal principles. Firstly, it is binding as a general principle of international law imposed by art. 6 (1) of the European Convention on Human Rights (ECHR)³⁴ and art. 10 and 14 (1) of the International Covenant on Civil and Political Rights, Part II³⁵ (ICCPR II).³⁶ Second, it has been expressly codified in Swiss law in art. 29 (1) of the new Federal Constitution of 1999³⁷ and in art. 3 (2) lit. c of the new CPC.³⁸ Article 3 (2) lit. c CPC explicitly stipulates that all persons involved in criminal proceedings should be treated equally and fairly and should be granted the right to be heard.

The principle of a fair trial does not ensure that the outcome of the proceedings reflects what actually happened (i.e. the material truth), but it attempts to safeguard the fairness of the procedure itself. Although this may result in the finding of the material truth, that is not always the case.³⁹ The concept of a “fair trial” is broad and, as a result, its core meaning can be difficult to grasp.⁴⁰ In practice, however, the principle of a fair trial encompasses a number of specific objectives. It addresses compliance with procedural rules⁴¹ (which is of particular importance in criminal proceedings)⁴² and requires that the parties to the proceedings be treated as “subjects rather than objects.” In other words, the right to a fair trial guarantees that the parties be given the opportunity to influence the proceedings (and, therefore, the outcome), and to be able to effectively exercise their individual rights. The principle can be understood more concretely through the individual procedural rights of the parties, although it represents more than just a summation of those rights.⁴³

The individual rights and procedural guarantees that comprise the general principle of a fair trial are detailed in different provisions of the CPC, namely the right to an independent and impartial tribunal (cf. art. 4 CPC), the right to be heard (cf. art. 107 CPC and 109 et seq. CPC), formal requirements for criminal proceedings (cf. art. 2 CPC), the right to a public (cf. art. 69 (1) CPC) and expeditious proceeding (cf. art. 5 CPC), the presumption of innocence (cf. art. 10 (1) CPC), the right against self-incrimination (art. 113 (1) CPC), the right to be present and participate in the proceedings (cf. art. 147 CPC), and the right to defense counsel (cf. art. 127 et seq., particularly art. 132 et seq. CPC). The CPC also explicitly prohibits the obtainment of evidence through torture and other methods that violate human dignity (cf. art. 3 (2) lit. d and art. 140 CPC).⁴⁴ Other aspects of a fair trial include the requirement that the authorities inform parties to the proceeding of their rights (cf. for instance art. 107 (2) and 143 (1) lit. c CPC) and the authorities’ duty of care. The duty of care seeks to prevent scenarios where parties lose their rights simply because they are unfamiliar with the law, or are otherwise in a compromised position (see, for instance, the protective measures in art. 149–156 CPC).⁴⁵ Furthermore, art. 6 (2) CPC obliges the prosecution authorities to investigate ex officio, and with equal care, both incriminating and exculpating circumstances related to the criminal act and the accused. The provision itself specifies the principle of a fair trial with regard to the establishment of facts.⁴⁶ The principle of a fair trial is also closely related to the so-called “principle of equality of arms,” which states that the defense and the prosecution should have equal means at their disposal to pursue and safeguard their respective interests.⁴⁷ That said, absolute equality is generally not feasible in criminal proceedings, which is why the defendant’s opportunity to influence the proceedings is of the utmost importance.⁴⁸

2.1.1.3 Balancing Fact-Finding and Individual Rights

A court must strive to establish the truth to give a just and correct judgment.⁴⁹ This belief has been a cornerstone of the inquisitorial model and is a primary reason that Swiss criminal proceedings place a strong emphasis on the search for the material truth. However, according to current law, authorities are neither obliged nor allowed to search for the truth at any cost. Instead, there are limitations created through procedural rules designed to protect a defendant from the authorities while also preventing abuse of power, arbitrariness, and legal inequality⁵⁰ in an environment that still promotes efficient law enforcement.⁵¹ Not surprisingly, Swiss scholars argue that criminal proceedings today are only required to lead to the forensic truth.⁵² The forensic truth is the result of a truth-seeking process in which the authorities abide by the formal rules of criminal procedure and seek what may be, depending on the circumstances, a limited version of the material truth.⁵³ Thus, a fair criminal judgment is not necessarily based on the material truth, but is the outcome of fair and lawful proceedings.⁵⁴ Nevertheless, it is important to keep in mind that the formal procedural rules are not an end in and of themselves and that complying with them is not a reason to lose sight of the main objective to find the material truth and arrive at a fair and just decision.⁵⁵

Despite the importance of the search for the material truth (reflected in art. 6 CPC), the Swiss legal framework prioritizes the forensic truth in many ways, especially in its efforts to ensure fair trials. According to art. 159 CPC, for instance, an accused can briefly consult a defense attorney before the first police interrogation. The defense attorney is also allowed to attend the interrogations.⁵⁶ This is a big step forward in the protection of procedural rights in criminal trials for Switzerland; prior to the adoption of the CPC, only a few cantons allowed an accused such rights.⁵⁷ On the other hand, these procedural protections introduce the possibility that an accused will be advised by his or her counsel to remain silent or deny the truth, and may even be coached as to what to say. Naturally, this can hinder the search for the material truth.⁵⁸

It is also the case that the establishment of numerous strict exclusionary rules have placed greater emphasis on the forensic truth.⁵⁹ For example, evidence is to be excluded in cases of incomplete or omitted warnings to the accused informing them of the proceedings against them and their legal rights (similar to the Miranda warning in the US),⁶⁰ denial of an essential defense,⁶¹ procurement of evidence without regard for all parties’ participation rights,⁶² use of coercion to obtain evidence,⁶³ or indirect evidence gathered as a result of previously tainted evidence.⁶⁴ Art. 141 (2) CPC addresses evidence obtained through a criminal offense or the violation of so-called “regulations on admissibility” and does not establish a strict exclusionary rule, but stipulates a discretionary approach where the search for evidence and the infringement of the defendant’s rights are balanced.⁶⁵ The new CPC has formalized the police’s investigative procedures and provides for a right to appeal actions by the police and prosecution.⁶⁶ Additionally, regulations around the use of compulsory measures⁶⁷ (i.e. those that give coercive power to the authorities and restrict individuals’ personal freedom in order to secure the establishment of the material truth) still require that the interest in finding the truth is balanced with the individual rights at risk. To achieve this balance, the CPC implemented the use of the proportionality principle,⁶⁸ which requires that a sufficient, respectively strong, suspicion for wrongdoing must exist.⁶⁹ Taken together, all of these aspects of the CPC place limitations on the search for the material, objective truth to safeguard the defendant’s right to a fair trial.

Changes to the commitment to searching for the material truth are also related to efficiency.⁷⁰ Resource management and cost saving were of great importance to the drafters of the CPC.⁷¹ The underlying rationale of the legislation is that not every investigation can be conducted with the same degree of effort and penal authorities must comply with the demands of efficiency in law enforcement, including the need for quick and effective methods that are also economical.⁷² As a consequence, in modern Swiss criminal procedure there is a strong tendency to utilize summary proceedings.⁷³ In fact today, 90–99% of all cases that go forward conclude with a summary penalty order (“Strafbefehl”),⁷⁴ a decision taken by the public prosecutor in a special procedure. Such penalty orders can be issued without prior criminal investigation, including without even interviewing an accused, and can thus be based on insufficient evidence.⁷⁵ However, in theory, art. 352 (1) CPC requires a confession or an otherwise sufficient establishment of the facts for a summary penalty order to be appropriate. If a defendant does not agree with the “offered” order, he or she has the right to object (or “reject”) within ten days.⁷⁶ That said, defendants rarely object, often out of a lack of awareness of their right to do so.⁷⁷ Taken together, all of these issues can make summary penalty orders susceptible to error. This was confirmed by a study on miscarriages of justice,⁷⁸ although it should be noted that a large portion of summary penalty orders involve petty offenses with minor penalties.⁷⁹

Another way in which the law places limitations on the establishment of the material truth in order to promote efficiency is through accelerated proceedings (“abgekürztes Verfahren”).⁸⁰ In these proceedings—arising, for instance, in a complicated financial crime case where facts are difficult to establish—the defendant is allowed to contest the facts and the penalty. The truth then becomes a matter of negotiation.⁸¹ Summary proceedings have, therefore, been criticized as adversely affecting the establishment of the material truth and, in turn, legal equality.⁸² Some scholars have even claimed that the quest to establish the material truth becomes an illusion in summary proceedings⁸³ and this should be compensated for to justify a proscribed penalty.⁸⁴ The CPC, however, significantly limits procedural safeguards in summary proceedings.⁸⁵

2.1.2 Establishing the Facts, Procedural Rules, and Stages

Criminal proceedings are typically initiated by the police at the instruction of the public prosecutor or following observations made by police officers and other authorities.⁸⁶ Preliminary investigations (i.e. securing the crime scene; searching for evidence; interviewing witnesses; stopping, arresting or searching for suspects, etc.) fall within the scope of police duties.⁸⁷

Art. 139 CPC enumerates potential types of evidence:

• testimony provided by witnesses or persons providing information (“Auskunftspersonen”);

• reports by experts;

• statements by an accused;

• documents and (judicial) inspections.⁸⁸

Although the police handle preliminary investigations, the public prosecutor may provide instructions because such investigations are part of the preliminary proceedings, which fall under the direction of the prosecution.⁸⁹ After the preliminary investigations conclude, the public prosecutor must assess the evidence and make a decision to either investigate further, file charges, make an offer for a summary penalty order, or stop the proceedings altogether. For each of those decisions, the public prosecutor must have sufficient evidence to establish the necessary facts.⁹⁰

Traditionally, public prosecutors in inquisitorial systems choose to either prosecute a case (and go to trial) or dismiss it altogether. They are required to give written notice of the decision to the parties involved and provide a deadline for the submission of a request for further investigation,⁹¹ which supposedly satisfies an accused’s right to participation (and thus, a fair trial). Today, however, most cases that could be prosecuted (half of which are traffic offences),⁹² conclude with the prosecution issuing a summary penalty order.⁹³ These decisions are made without a public hearing⁹⁴ and often without even interviewing the defendant (who, most likely, is not represented by defense counsel).⁹⁵ This does not satisfy the four-eye principle (or its equivalent)⁹⁶ and in most cases evidence will never be presented to a court for evaluation and a formal judgement. Only where a party raises an objection to the summary penalty order does an action for additional fact-finding begin.⁹⁷ Where the summary penalty order is accepted, it becomes binding as a final judgment.⁹⁸

Even where a public prosecutor decides to take a case to trial, the deciding judges may not hear all relevant evidence in the main hearing because the principle of immediacy is quite flexible under the CPC.⁹⁹ During public main hearings, which are the centerpiece of the main proceedings,¹⁰⁰ the court ideally takes and directly examines all evidence relevant to the case (e.g., statements of the parties, documents etc.) to form an opinion. The CPC, however, leaves it to the discretion of the court to decide if direct knowledge of the evidence is necessary to reach a decision.¹⁰¹ Apart from direct evidence, the court can make a decision based on an accused’s criminal file, which is circulated to all judges involved.¹⁰² As the CPC states, the court shall only take directly new evidence, supplemental evidence that was previously incomplete, and re-take evidence that was improperly obtained during the preliminary proceedings.¹⁰³ Nevertheless, during the main public hearing the accused is always questioned directly by the judge overseeing the proceedings.¹⁰⁴

After the main hearing and the presentation of all relevant evidence before the court, the evidence is considered in accordance with the opinions the court has formed throughout the entire course of the proceedings¹⁰⁵ and a decision to either convict or acquit the accused is made. The judgment is first pronounced orally to the parties with a short explanation (unless the parties waive their right to have the judgment issued publicly) and is later handed down in writing.¹⁰⁶ Where an appeal is filed against the court of first instance, the appellate court generally bases its decision on the evidence already documented in the criminal file. As a result, the appellate court does not directly take evidence.¹⁰⁷

In all procedural stages, exclusionary rules are formally binding on authorities.¹⁰⁸ However, according to the jurisprudence of the Swiss Supreme Court, it is the judge of fact who has the power to enforce exclusionary rules, and who also decides the outcome of a case.¹⁰⁹

2.1.3 Establishing the Facts: Actors and Accountability

2.1.3.1 Primary Actors

The main actors involved in establishing the facts of a criminal case are the police, prosecution and judges. The accused and his or her defense counsel have a limited role in influencing the fact-finding process. Those that do play a role in fact-finding have different interests and views around what the search for truth should look like. On the one hand, police and prosecutors aim to establish the material truth. Their actions must be efficient and consistent with the principles of urgency, economy and effectiveness.¹¹⁰ To them, extensive formal requirements around evidence gathering, participation rights, and exclusionary rules are a hindrance to the search for the material truth.¹¹¹ The Supreme Court also appears to fall on the side of pursuing the material truth, particularly in cases where it clearly went to great lengths to admit and consider illegally obtained evidence.¹¹² On the other hand, the defense is typically in favor of rigid, formal rules around the taking of evidence, as well as extensive participation rights, and strict exclusionary rules in case of violations. They do not necessarily have an incentive to find the material truth and instead tend to look for a version of the facts that is the most favorable to the defendant.¹¹³

In some cantonal procedure codes, the police were traditionally tasked with making only the first (and urgent) inquiries autonomously. In practice, however, they did much more.¹¹⁴ The new Swiss CPC explicitly states that the police are to establish facts relevant to the criminal offense in question.¹¹⁵ The police can autonomously take any evidence; search for, observe, and arrest suspects; and, in emergency cases, search persons and seize property.¹¹⁶ Only in the case of severe criminal offenses and other serious matters are the police obliged to immediately inform the prosecution.¹¹⁷ Typically, they procure all necessary evidence independently and prepare the entire criminal file (thereby concluding the preliminary investigation) for the prosecution.¹¹⁸ Additionally, summary penalty orders and potential judgments are often based entirely on police reports.¹¹⁹ Thus, the police play a significant role during preliminary proceedings. This can lead to problems, as individual procedural rights may be circumvented at this less formalized stage of the proceedings,¹²⁰ a stage where the defendant is rarely interviewed or represented by counsel.¹²¹

The prosecution occupies a powerful place in criminal proceedings in both statutory text and practical application. The new CPC conferred a number of duties and powers upon the prosecution; they are tasked with consistently applying the duty to prosecute, conducting the preliminary proceedings, pursuing criminal offenses within the scope of an investigation, bringing charges, and obtaining favorable plea agreements.¹²² Furthermore, the prosecution can also discontinue criminal proceedings¹²³ or chose to issue a summary penalty order, which carries up to six months’ imprisonment.¹²⁴ These powers, in addition to others, lead to a concentration of authority within the prosecution, who, in fact, act as lead investigator, judge, and prosecutor. While this may be efficient, it can compromise the accused’s right to an impartial judgment.¹²⁵

Despite the powerful positions occupied by the police and prosecution in criminal investigations, the CPC does set limits in an effort to protect individual rights that fall within the scope of art. 5 (3) ECHR and art. 6 ECHR, including the right to an impartial judgment. The CPC also reserves certain powers for judicial authorities. For example, compulsory measures affecting the personal freedoms of a defendant or third party in a serious way (e.g., custody, preventive detention, bank account monitoring, mass DNA tests, surveillance of post and telecommunications, surveillance using technical devices and undercover investigations) cannot be applied without consent of a special “compulsory measures court” (Zwangsmassnahmengericht).¹²⁶ Furthermore, in all matters that exceed the authority of the prosecution to issue summary penalty orders, the prosecution merely provides the charges while the courts of first instance and the appellate courts decide the substantive issues of the case.¹²⁷ It remains, however, that where summary penalty orders can be issued, a defendant retains the right to object and to ask for a court trial reviewing the punishment order.¹²⁸

The CPC grants full participation rights to the accused with particular attention paid to the right to be heard, including the right to counsel prior to the first police interrogation, the right to access the case file, and the right to request that evidence be taken.¹²⁹ These rights are unfortunately not strictly enforced in practice,¹³⁰ which weakens the role of the accused and the ability of the defense to influence the proceedings. If the defense seeks to exclude a piece of evidence, he or she must submit a removal request to the person overseeing the proceedings.¹³¹ This is also the case in proceedings before the compulsory measures court. Where the request is rejected, the defense can file an appeal with the court of second instance and, if necessary, the Swiss Supreme Court.¹³²

2.1.3.2 Supervision of Judicial Authorities and Legal Remedies

Swiss law only partially regulates the supervision of prosecution authorities; it is, therefore, up to the cantons to decide how to “guard the guardians.” Supervision of police in routine operations is also under the auspices of cantonal law.¹³³ Cases of alleged police misconduct can be reported to the supervisory authority¹³⁴ and, where the suspicion that a crime occurred can be substantiated, police will be prosecuted.

The prosecution also exercises control over the police when conducting criminal investigations. It may instruct the police in a particular way or take control of the proceedings at any time.¹³⁵ Nevertheless, in practice it is difficult for prosecutorial authorities to adequately supervise police work because the CPC does not provide efficient tools to do so.¹³⁶ It is clear, however, that if prosecution authorities observe a police officer improperly eliciting a confession, the officer must be reported to the appropriate authorities.¹³⁷ In order to enable the prosecution and the courts to consider whether evidence has been obtained improperly, the police are obliged to continually record their findings and the means by which they have gathered evidence in a written report provided to the prosecution.¹³⁸ If evidence has been obtained improperly, the public prosecutor will re-take it personally or instruct the police to do so.¹³⁹ The defendant may also submit an application requesting that the official(s) in question be recused from future proceedings.¹⁴⁰ If the case goes to court, the judges must examine whether the evidence was obtained improperly. Where the court decides to exclude certain evidence, it must re-take it.¹⁴¹ Theoretically, in doing this, the courts control not only the final result of the investigation, but also the police and the prosecution.

The supervision of the prosecution is regulated by cantonal law and varies widely across Switzerland. Many questions remain unanswered due to the fragmentary character of the cantonal regulations.¹⁴² The supervision of judicial authorities, like the prosecution, is difficult because the supervisory body is generally not authorized to intervene in cases; rather its role is limited to administrative and technical supervision. There is one exception in the case of significant violations of the law,¹⁴³ such as police abuse or the improper use of compulsory measures. Additionally, certain cantons have a Chief Public Prosecutor’s Office that has the authority to issue instructions on a case-by-case basis.¹⁴⁴ Supervisory bodies can also initiate an administrative investigation into alleged misconduct of individual officials and determine the appropriateness of disciplinary measures where necessary.¹⁴⁵ Overall, there is a risk that prosecutorial authorities will remain largely unsupervised, especially in cantons where the supervision is conducted by executive authorities with limited judicial expertise.¹⁴⁶

The courts, as judicial authorities, also have supervisory powers, but they are limited to administrative and technical aspects unless there is a severe violation of the law. Aside from that, the errors of judicial authorities can only be challenged through legal remedies.¹⁴⁷ Accordingly, a defendant has the right to appeal decisions, lodge complaints against the police and the prosecution,¹⁴⁸ and appeal final judgments.¹⁴⁹ Where the cantonal remedies have been exhausted, a defendant may appeal to the Swiss Supreme Court.¹⁵⁰ However, according to the case law on this matter, it is not possible for a defendant to ask that his or her request for an assessment of allegedly illegally obtained evidence (and its potential exclusion) be completed before the court has received the evidence.¹⁵¹ This is particularly problematic as the court deciding the admissibility of the evidence will have already seen it and is also the court deciding the substantive matters of the case.

2.1.3.3 Liability of the State and Legal Officials for Improper Compulsion in Criminal Investigations

Apart from accountability in a disciplinary proceeding, an official that has improperly used compulsory measures against a defendant (for example, during an interrogation) is also subject to criminal liability. In such a case, the defendant may report the offense directly to the prosecution.¹⁵² He or she may also request compensation for damages, including mental suffering. Such claims following alleged misconduct by officials are subject to cantonal law. That said, all cantons have adopted the concept of exclusive state liability for such claims. Accordingly, they may only be brought against the state, not the individual official.¹⁵³ Along the same lines, several cantons have created specific procedures for dealing with cases of criminal complaints alleging police misconduct. This involves a hearing conducted exclusively by representatives of the prosecution, police officers from outside the unit in question, or officers from a special police corps addressing such matters.¹⁵⁴ In addition to these procedures, many cantons and respective municipalities provide for alternative mechanisms of dispute resolution, such as a mediator bureau and/or ombudsman.¹⁵⁵

2.1.4 Establishing the Facts: Institutional Safeguards

In Swiss criminal investigations various institutional safeguards are in place to ensure the objectivity of investigative authorities and the transparency of proceedings. First, art. 6 (2) CPC¹⁵⁶ stipulates that authorities must investigate all circumstances—exculpatory and incriminatory—with equal care. Second, art. 3 (2) lit. c and 107 CPC codify the right to be heard, which preserves important participation rights such as access to the criminal file, the opportunity to take part in procedural activities, the right to counsel, the right to comment on the facts and proceedings, and the right to request that further evidence be taken.¹⁵⁷ The right to be heard also includes the right to be informed about the charge(s) as well as one’s own rights.¹⁵⁸ All of these aspects are institutional safeguards that allow the parties to influence the fact-finding process through participation should they wish to do so.¹⁵⁹ Hence, the “truth” is not only constructed by the prosecution authorities, but also the defense, each of whom enter into this “open process” with their own biases. In an effort to promote objectivity, art. 141 (5) CPC mandates that authorities keep an open, unbiased view of the case even where illegally obtained evidence incriminating the defendant exists. The provision states that records of inadmissible evidence shall be removed from the criminal files, kept separately until a final judgment has been reached, and then destroyed.

In addition to the principles and rights explicitly granted in the CPC, the code also provides for some degree of flexibility in certain provisions, which has led to a more lenient application of the legal framework around individual rights. Using the example of participation rights, the following three issues have arisen: First, according to the Supreme Court’s jurisprudence, the prosecution and the court hearing the case may reject the defense’s request that further evidence be taken (Beweisantrag) by providing a brief reasoning as soon as the competent body is convinced that no further evidence is needed to decide the case (subject to a review for arbitrariness).¹⁶⁰ The defendant has no formal remedy, but can submit a new request for additional evidence during the preparation of the main hearing and again during the main hearing.¹⁶¹ Second, the defense’s access to the file can be suspended until the first interrogation of the accused has taken place and other important evidence has been taken.¹⁶² Therefore, up to that point, the case file is built upon facts only from the police perspective. Third, in cases of summary penalty orders, the defendant often does not participate in the proceedings at all¹⁶³; instead he or she receives a sentencing offer by mail without a hearing and without the assistance of a defense lawyer.¹⁶⁴ The prosecution’s “offer” frequently is difficult for a layperson to understand¹⁶⁵ and only in a few specific cases does it provide a rationale (albeit brief) for the decision.¹⁶⁶ The summary penalty order is thus criticized as problematic for many reasons¹⁶⁷ and is deemed compatible with art. 6 ECHR only because a defendant theoretically¹⁶⁸ has the option to reject the “offer” and request a trial.¹⁶⁹

2.2 Relevance of the Truth and Individual Rights in Criminal Trials

2.2.1 Public Interest in Determining the Truth

In continental Europe, the public traditionally expects the truth to be established following a criminal trial. Due to widespread interest in criminal proceedings, prosecution authorities are under considerable public pressure to establish the truth¹⁷⁰ and prosecute, particularly in high-profile cases. In contrast, the idea that the alleged perpetrator has human rights that could potentially restrict the search for truth receives little public support.¹⁷¹ This is also reflected in the skeptical, and sometimes disapproving, portrayal of criminal procedures in the media, especially where relevant evidence is excluded. This can be observed in even the most well-reputed Swiss newspapers, such as the NZZ (Neue Zürcher Zeitung). For example, in a case where a defendant was acquitted after illegally obtained evidence was excluded, the NZZ reported that the accused was “profiting” from faulty procedure.¹⁷² The public emphasis on the importance of finding the truth is also illustrated by the growing discontent with public prosecutors “acting like judges” and routinely issuing summary penalty orders without the scrutiny of a formal, transparent procedure. The same goes for accelerated proceedings (a form of negotiated justice¹⁷³) which carry with them an elevated risk of a miscarriage of justice given that a defendant might confess solely to ensure a particular outcome.¹⁷⁴

2.2.2 Presenting the “Truth” to the Public

In Switzerland, the fact-finding process prior to a trial is not public¹⁷⁵ and the investigative work and its results are not officially published by the authorities. Instead, information is published by the media, which tend to be motivated by sensationalist news and are often inadequately informed.

With few exceptions, the main hearings and the presentation of evidence before courts of first instance¹⁷⁶ (and the Swiss Supreme Court¹⁷⁷) are public. Court proceedings on compulsory measures, such as rulings on search warrants, preventative detention, or remand are not public.¹⁷⁸ However, judgments rendered by the courts of first and second instance,¹⁷⁹ as well as the Supreme Court,¹⁸⁰ are open to the public. Since April 2016, the Supreme Court has also made publicly available short video recordings of select proceedings.¹⁸¹

2.2.3 Miscarriages of Justice

A study on miscarriages of justice in Switzerland found that during the period between 1995 and 2004, 237 judgments had been set aside by cantonal courts in retrial proceedings. At first sight, this does not seem to be a large number when compared to the tens of thousands of judgments handed down each year but, given that the requirements for a retrial are very strict, the actual number of miscarriages of justice is likely several times higher.¹⁸² In almost all of these cases, the contested judgment was decided in favor of the defendant.¹⁸³ It is also noteworthy that 67.5% of those cases concerned summary penalty orders which, as previously mentioned, are particularly prone to error.¹⁸⁴ This is due to the fact that summary penalty orders are issued after only a cursory examination of the facts.¹⁸⁵ Given the nature of this approach, it is also likely that exclusionary rules are applied perfunctorily and the reliability of the evidence is, therefore, diminished.

3 Limitations of Fact-Finding with Exclusionary Rules in Switzerland

3.1 Exclusionary Rules in Swiss Criminal Proceedings

3.1.1 Rationale

As the primary aim of criminal proceedings is to establish the truth, exclusionary rules require special justification.¹⁸⁶ The rationale behind exclusionary rules¹⁸⁷ is not clearly established in Swiss legal literature and case law. Three primary justifications have been proffered: to safeguard procedural rules (including individual rights), to establish the material truth, and to discipline prosecution authorities.

Some see the primary rationale behind exclusionary rules as a guarantee that criminal procedure conforms with the rule of law and that authorities do not infringe upon individual rights, which are more important than the search for the truth.¹⁸⁸ This is of particular significance in criminal proceedings due to the gravity of the possible sentences.¹⁸⁹ The exclusion of illegally obtained evidence is thus understood as a safeguard for the accused’s rights and a means of preserving the presumption of innocence.¹⁹⁰ Indeed, the Supreme Court has stated that the accused’s right to a fair trial includes the exclusion of unlawfully collected evidence.¹⁹¹ In a 1994 decision, the Supreme Court emphasized that after evidence has been illegally collected, the only way to honor the human rights of the accused is to ensure that such evidence is not used against him or her.¹⁹²

The justification for the argument that exclusionary rules ensure the reliability of evidence primarily refers to evidence obtained through torture or other improper force. Because such evidence is deemed unreliable due to coercion, exclusionary rules are seen as necessary to protect the fact-finding process. Therefore, it is argued that the establishment and enforcement of exclusionary rules can optimize the ascertainment of truth in criminal proceedings.¹⁹³ In cases where the witness or suspect has not been under duress, the exclusion of evidence is more likely to hinder the search for the material truth.¹⁹⁴

The disciplinary component of exclusionary rules refers to the potential deterrent effect they have upon misconduct by prosecution authorities, and in particular, police officers. While in the United States this is considered to be the primary goal of exclusionary rules, the same rationale is subject to controversial debate in Switzerland.¹⁹⁵ Some Swiss scholars reject the general applicability of this approach because the concept of disciplining prosecution authorities does not fit into the inquisitorial Swiss system where the prosecution authorities are legally obliged to gather both incriminatory and exculpatory evidence¹⁹⁶ and are not a party to the criminal proceedings.¹⁹⁷ However, the dominant opinion in Swiss scholarship maintains that one of the primary purposes of exclusionary rules is to render human rights violations by law enforcement unnecessary since the resulting evidence cannot be used. Thus, according to this line of reasoning, exclusionary rules also have the secondary effect of disciplining prosecution authorities.¹⁹⁸ Since this view emphasizes the preventive rather than punitive element of exclusionary rules, its proponents argue that it is compatible with the inquisitorial Swiss criminal procedure system.¹⁹⁹ In fact, this aspect of exclusionary rules (disciplinary measures for prosecution authorities) is one reason they are said to safeguard human rights. Therefore, one could argue that, at least with respect to the use of torture and the use of unauthorized compulsory techniques by prosecution authorities, exclusionary rules can help to (1) enforce human rights by discouraging authorities from violating human rights or by removing from trial any evidence gained in violation of human rights, and (2) establish the material truth.

3.1.2 The CPC’s System of Exclusionary Rules

As noted above, exclusionary rules place procedural limitations on the fact-finding process.²⁰⁰ In Switzerland, the legislature established comprehensive, explicit provisions on the taking of evidence and its admissibility in criminal proceedings through art. 139–141 CPC. This regulation, which is unique in Europe, is an important step towards upholding the rule of law.²⁰¹ However, art. 141 CPC leaves some unanswered questions regarding evidence exclusion.²⁰²

Prior to the adoption of art. 139–141 CPC, evidence exclusion was regulated very differently across cantons.²⁰³ When the federal legislature drafted art. 141 CPC, it adopted principles that were developed based upon an overview of the various cantonal provisions and the requirements of federal law.²⁰⁴ However, in contrast to the previous discussion of case law on the matter,²⁰⁵ the legislature intended that the admission of unlawfully obtained evidence be the exception rather than the rule.²⁰⁶ The new core provisions of the CPC on the exclusion of evidence are found in art. 140 and 141 CPC. Article 140 (1) CPC addresses prohibited methods of obtaining evidence, stating that “the use of coercion, violence, threats, promises, deception and [other] methods that may compromise the ability of the person concerned to think or decide freely are prohibited when taking evidence.” Article 140 (2) CPC adds that “such methods remain unlawful even if the person concerned consents to their use.”²⁰⁷

As to the legal framework on evidence exclusion, art. 141 CPC constitutes a blanket exclusionary rule and contains 5 sections. It reads:

• (1) Evidence obtained in violation of Article 140 is not admissible under any circumstances. The foregoing also applies where this Code declares evidence to be inadmissible.

• (2) Evidence that criminal justice authorities have obtained by criminal methods or by violating regulations on admissibility is inadmissible unless it is essential that it be admitted in order to secure a conviction for a serious offence.

• (3) Evidence that has been obtained in violation of administrative regulations is admissible.

• (4) Where evidence that is inadmissible under paragraph 2 has made it possible to obtain additional evidence, such evidence is not admissible if it would have been impossible to obtain had the previous evidence not been obtained.²⁰⁸

• (5) Records relating to inadmissible evidence shall be removed from the case documents, held in safekeeping until a final judgment has concluded the proceedings, and then destroyed.

Article 141 CPC does not prescribe the general exclusion of all evidence gathered in violation of the law. Rather, it differentiates between absolute exclusionary rules, relative exclusionary rules, and violations of administrative regulations.²⁰⁹

Article 141 (1) CPC establishes the absolute exclusionary rule, which does not allow the use of judicial discretion²¹⁰: If evidence falls under the auspices of art. 141 (1) CPC, its exclusion is mandatory.²¹¹ Such evidence includes that which is obtained through explicitly prohibited methods, including coercion, violence, threats, promises, deception and other methods that may compromise the ability of the person concerned to think or decide freely, as well as evidence excluded pursuant to other provisions of the CPC.²¹² The latter includes, for instance, the exclusionary rules found in art. 158 (2) CPC (statements made prior to the accused being informed of the proceedings against them and their legal rights)²¹³ and in art. 289 (6) CPC (unauthorized undercover investigations).²¹⁴

Alternatively, art. 141 (2) CPC provides a so-called “relative” exclusionary rule, which gives courts some discretion in deciding the admissibility of evidence.²¹⁵ The exclusionary rule of art. 141 (2) CPC is termed relative because it only excludes evidence in principle. The admission of the same evidence remains possible under art. 141 (2) CPC if it is essential to establish the facts of a serious offence.²¹⁶ This provision applies to evidence gathered through criminal means that do not require exclusion under art. 141 (1) CPC²¹⁷ or evidence gathered in violation of regulations on admissibility (Gültigkeitsvorschriften). Regulations on admissibility are legal provisions deemed so crucial to the safeguarding of individual rights that their objective can only be achieved if their violation results in the invalidity of any subsequent action(s) and the exclusion of evidence garnered.²¹⁸ In contrast, the violation of administrative regulations²¹⁹ does not require the exclusion of evidence obtained thereafter (as art. 141 (3) CPC states). It may, however, lead to disciplinary sanctions.²²⁰

Article 141 (2) CPC is criticized on several fronts. First, it can be difficult to apply as a result of vague verbiage, which has led to numerous attempts at defining the terms “serious offence”²²¹ and “essential.”²²² The differentiation between regulations on admissibility and administrative regulations has also been critiqued.²²³ As regulations on admissibility have the primary aim of safeguarding individual rights, it should follow that their violation always results in the evidence being excluded without any exceptions.²²⁴ However, the exception for serious offences found in Art. 141 (2) CPC negates this rationale and more or less implies that the severity of the crime committed can justify the violation of procedural rules (or even crimes) by the police and may even encourage such misconduct.²²⁵ This idea has been summed up in the legal literature using the phrase: “The bigger the crime, the smaller the chance of a fair trial.”²²⁶ It is undeniable that defendants accused of serious offenses are in greater need of procedural safeguards yet it is in this very context that a defendant’s rights are most often compromised.²²⁷ To minimize the problems raised by art. 141 (2) CPC, the admission of illegally obtained evidence should only be considered if other interests such as the accused’s individual rights do not disproportionately outweigh the public interest in fighting crime.²²⁸

Ultimately, it is problematic to give courts the discretion to balance competing interests when it comes to the exclusion of evidence. Additionally, it is much more difficult for a court to knowingly acquit a guilty defendant by excluding evidence than it is for the legislature to set procedural limitations to the search for truth in order to secure fair trials.²²⁹ As such, a more definitive rule would be preferable. On the other hand, exclusionary rules that are too strict and do not provide the courts with any discretion can also lead to judges finding ways to reassert their authority by creatively interpreting the provisions and potentially encouraging their nonenforcement.²³⁰

A distinct provision of the Swiss CPC is art. 141 (4), which excludes indirect (or derivative) evidence that would have been impossible to obtain without the use of evidence deemed inadmissible under art. 141 (2) CPC.²³¹ This is unique because the fruit of the poisonous tree doctrine, while typical of adversarial systems, is rarely found in inquisitorial criminal justice systems.

3.1.3 Jurisprudence of the Supreme Court

The Swiss CPC established a legal framework of fairly strict exclusionary rules. This led to conflicts in their application because, among other things, Swiss courts had formerly enjoyed wide discretion in the application of their respective cantonal codes.²³² The Swiss Supreme Court was previously using a balancing approach to evidence exclusion in criminal proceedings. Under this approach, the question of whether or not a piece of evidence was admissible at trial was determined by the court after balancing the varying interests of the particular case.²³³ While this allowed for a thorough consideration of all aspects of the particular case, it included with it the risk that courts would justify purely subjective decisions.²³⁴ It also had the potential of leading to inconsistent decisions across cases, as is highlighted by the Supreme Court’s case law on exclusionary rules.²³⁵

Today, the strict exclusionary rules of the CPC grant little discretional power to the courts.²³⁶ Courts are allowed to return to a balancing approach only where the CPC fails to give an answer about the admissibility of a particular piece of evidence. This is the case for the exclusion of evidence resulting from principles based on so-called autonomous exclusionary rules (“selbständige Beweisverwertungsverbote”), or the taking of evidence through private individuals, and the exclusion of exonerating evidence.²³⁷ However, the restriction of discretion through art. 141 CPC should not be overestimated either given that the legislature sought to codify the current jurisdiction of the Supreme Court with this provision.²³⁸ Despite this rationale, there are some deviations. Section 2 of art. 141 CPC, in particular, differs from the Supreme Court’s earlier case law.²³⁹ Specifically, the provision only allows evidence obtained by illegal means or in violation of regulations on admissibility to be admitted if it is essential to the resolution of a serious offense. The statute does not mention the additional balancing criteria the Supreme Court had been relying upon in the case law up to that point, including the determination of whether the evidence could have been obtained legally²⁴⁰ and the application of the principle of a fair trial.²⁴¹ The continued applicability of such criteria under the terms of art. 141 (2) CPC is disputed in the legal literature.²⁴²

In addition to the aforementioned changes, the legislature has emphasized that the exclusion of evidence under the terms of art. 141 (2) CPC (which does leave some discretion to the courts) should be the rule and that the admission of evidence gathered by violation of regulations on admissibility or a criminal offense must be the exception.²⁴³ Before the CPC was enacted, the Supreme Court made the exclusion of evidence the exception rather than the rule by applying the balancing approach.²⁴⁴ Under this approach an increasing number of minor offenses were classified as “serious offence” for the purposes of evidence admission.²⁴⁵ However, in a more recent judgement (still under cantonal law) the Supreme Court stated that offenses punishable by imprisonment up to three years or a fine (“Vergehen”)²⁴⁶ represent relatively grave, but not very serious offenses, thereby ruling in favor of excluding illegally obtained evidence in these cases.²⁴⁷ This judgment was commended by legal scholars and said to mark an important change in the Court’s jurisprudence.²⁴⁸

Despite some changes, the Swiss Supreme Court has generally continued to try to find ways to preserve its balancing power since the CPC was enacted.²⁴⁹ This is especially the case in its restrictive application of the absolute exclusionary rule (cf. art. 141 (1) CPC) and the fruit of the poisonous tree doctrine (cf. art. 141 (4) CPC).²⁵⁰ Since the Supreme Court did not elaborate on clear criteria for the distinction between regulations on admissibility (cf. art. 141 (2) CPC) or mere administrative regulations, there has been a tendency for evidence to be admitted.²⁵¹ At the same time, it has also categorized several important provisions (e.g. the search of a person without a warrant) as administrative regulations,²⁵² thereby allowing the admission of evidence obtained through their violation.²⁵³ This practice has rightfully been criticized by legal scholars.²⁵⁴ It is not the case, however, that the Supreme Court categorically admits evidence wherever possible; there have been other situations where it has decided to exclude evidence.²⁵⁵

3.1.4 Enforcement of Exclusionary Rules

Violations of procedural rules and individual rights by the prosecution authorities cannot be undone. The negative consequences for the defendant, however, can be eliminated effectively through exclusionary rules where any tainted (incriminating) evidence is removed in its entirety from the file and not considered in the judgment.²⁵⁶ The Code endorses this idea in Art. 141 (5) CPC which stipulates that all records relating to excluded evidence must be removed from the criminal files and kept separately until the final judgment, after which they are to be destroyed. Therefore, the excluded evidence should not be available to the prosecuting authorities at any point in time during the investigation or court proceedings.²⁵⁷ At first sight, art. 141 (5) CPC seems to specify clear rules, but in practice its application has led to problems, particularly where the excluded evidence relates to more than one defendant or is (also) potentially exonerating.²⁵⁸

Another issue with the CPC is that it does not contain any provisions addressing the way in which the exclusionary rules are to be enforced.²⁵⁹ Specifically, the CPC does not outline which authority (judge(s) of fact, judges within the appellate body, or another authority) should decide the admissibility of evidence and at which stage of the proceedings. Typically, the judge(s) of fact decide²⁶⁰ all substantive questions based on the complete criminal file, generally in the form of a conviction or an acquittal. The court of appeal is then tasked with examining only specifically contested procedural steps based on excerpts from the case file and providing an opinion in the form of an interim decision.²⁶¹

The Swiss Supreme Court holds that the judges of fact have the authority to determine whether or not to exclude evidence from the main trial,²⁶² although there are some exceptions, for example, where the law²⁶³ explicitly stipulates the immediate restitution or destruction of illegally obtained evidence.²⁶⁴ There, the prosecution is required to exclude the evidence during the preliminary investigation.²⁶⁵ With respect to illegally obtained confessions, the Supreme Court held that judges of fact should not have access to the confession for fear that they may consider it in the final judgment despite its exclusion.²⁶⁶ Unfortunately, the Supreme Court has not elaborated on this last exception. In fact, it has made inconsistent statements on the matter, commenting that it is not in and of itself a problem that judges of fact have knowledge of illegally obtained evidence because they can be expected to refrain from considering it in their decisions.²⁶⁷

The jurisdiction of the judge(s) of fact remains disputed by legal scholars. Some agree with the Supreme Court’s view because art. 343 (2) CPC stipulates that judges of fact are competent to re-take improperly obtained evidence during preliminary proceedings.²⁶⁸ This is related to the idea that judges of fact should have unrestricted access to all available evidence²⁶⁹ because only then can they fully evaluate the interests of all parties involved and make a determination as to whether the proceedings as a whole are fair.²⁷⁰ Other scholars, however, have made convincing arguments criticizing the jurisdiction of judges of fact based upon the premise that the subsequent removal of evidence from the files does not erase the judges’ knowledge of it. As a result, it is likely that they will still consider excluded evidence in their decisions,²⁷¹ which significantly reduces the effectiveness of exclusionary rules. This is even more problematic when crucial incriminating evidence is involved because judges seem to have difficulty in acquitting a defendant that is apparently guilty.²⁷² Furthermore, because exclusionary rules are binding at all stages of the judicial process, they must be considered in every procedural decision—and always with the same standards.²⁷³ This is particularly important given the fact that, practically speaking, the police exert significant influence over the fact-finding process.²⁷⁴ They should, therefore, also investigate exonerating evidence and potentially even implement exclusionary rules in order to effectively secure a fair trial. Thus, it seems preferable to grant defendants the right to request that evidence be excluded (and the right to appeal a denial of this request) during preliminary proceedings.²⁷⁵ However, the authority that judges of fact have over the application of exclusionary rules does not equate to sole control over exclusionary rules. Rather, it should be the duty of the acting authority at each stage of the proceedings (police, public prosecution, judges) to examine whether evidence must be excluded—even if in the end judges of fact view it anyway.

Under Swiss law, if a party to criminal proceedings (particularly an accused) wants to make a motion for the exclusion of evidence, he or she can submit a request to the person in charge of the proceedings.²⁷⁶ This is possible during both the pre-trial proceedings²⁷⁷ or the main hearing.²⁷⁸ It is recommended that the request be submitted as soon as practicably possible—in fact, if the exclusionary rule is not invoked until the appeal proceedings, the defendant might be considered to be capitalizing on the situation and his or her request denied as a result.²⁷⁹ Depending on the stage of the proceedings, the prosecution or the court determines whether to exclude evidence in an interim decision.²⁸⁰ The Supreme Court has held that until such a decision is made, the evidence in question may still be used for intermediate decisions and to support further investigation, unless it is a priori inadmissible.²⁸¹ In order to estimate whether unauthorized compulsory techniques have been used, the courts rely on the continual documentation and recording of the evidence collected.²⁸²

According to the jurisprudence of the Supreme Court, where the request to exclude evidence is denied, there is no right to object²⁸³ except where mentioned above. Under these exceptions, the defendant has the opportunity to appeal the interim decision not to exclude evidence to an appellate court and, if necessary, the Swiss Supreme Court. For cases that do not fall under one of the exceptions, the aggrieved party is free to repeat the request for exclusion²⁸⁴ or, alternatively, appeal the final decision²⁸⁵ if based upon the contested evidence.²⁸⁶ The court of appeals will then evaluate the lower court’s consideration of the evidence, including the issue of admissibility.²⁸⁷ After all cantonal legal remedies are exhausted, a defendant may appeal to the Swiss Supreme Court.²⁸⁸ If, at any point during the process, a court holds that evidence has been obtained improperly and, therefore, must be excluded, the evidence may not be considered in the final judgment.²⁸⁹ The court must then re-take the evidence,²⁹⁰ but only within the scope of art. 141 (4) CPC.²⁹¹

3.2 Exclusion of Illegally Obtained Evidence Following Improper Compulsory Techniques

3.2.1 The Right Against Self-Incrimination and Improper Compulsory Measures

The legal authority for the right against self-incrimination can be found in both domestic and international law. First, it is expressly codified in art. 113 CPC, which states, “The accused may not be compelled to incriminate him or herself. In particular, the accused is entitled to refuse to make a statement or to cooperate in the criminal proceedings. He or she must however submit to the compulsory measures provided for by the law.” At the international level, the right against self-incrimination is considered by the European Court of Human Rights (ECtHR) to be one of the most important components of a fair trial and is guaranteed by art. 6 (1) of the ECHR.²⁹² It is also explicitly mentioned in art. 14 (3) lit. g of the ICCPR II.

The right against self-incrimination hypothetically grants a defendant the right to refuse to collaborate whatsoever at any point during criminal proceedings.²⁹³ As a result, prosecution authorities are not allowed to improperly compel²⁹⁴ a defendant to collaborate.²⁹⁵ Whilst the authorities are permitted to use compulsory measures under certain circumstances,²⁹⁶ including searching people and their property²⁹⁷ and tapping their phones,²⁹⁸ art. 140 (1) states that “the use of coercion, violence, threats, promises, deception and [other] methods that may compromise the ability of the person concerned to think or decide freely are prohibited when taking evidence.”²⁹⁹ Accordingly, coercing a defendant is improper and violates the right against self-incrimination where it aims to influence or break the will of a defendant.³⁰⁰ Article 140 (1) CPC applies to any point during which time evidence is taken, although traditionally it referred solely to the interrogation of an accused.³⁰¹

3.2.2 Torture and Inhuman or Degrading Treatment

Law enforcement authorities are limited by all individuals’ inherent and inalienable right to dignity, which is absolute and cannot be outweighed by other interests.³⁰² As a consequence, art. 3 and 15 (2) ECHR, art. 7 and 4 (2) ICCPR II, art. 10 (3) BV, as well as art. 3 (2) lit. d CPC strictly prohibit gathering evidence in any manner that violates human dignity, including the use of torture and degrading treatment. The classification of any technique depends on the specific circumstances of the case, such as the duration and consequences, as well as the age, sex, and current state of health of the affected person.³⁰³ According to art. 1 (1) UN Convention Against Torture (CAT),³⁰⁴ torture includes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” However, this high threshold required for an act to constitute torture has been lowered in recent years.³⁰⁵ Additionally, inhuman treatment is defined as that which causes injuries or intense physical or psychological pain³⁰⁶ while degrading treatment involves the causing of pain or degradation, for example through corporal punishment or the threat of torture.³⁰⁷

3.2.3 Institutional Bans on Torture and the Right to Remain Silent

Swiss law provides several institutional measures banning torture and preserving the right to remain silent, which are included in the discussion of remedies (supervision, disciplinary, and criminal liability) above, although their enforcement is problematic due to a fragmented statutory code and restricted legal practice.³⁰⁸ Other legal remedies also exist³⁰⁹ and a large majority of the cantons have introduced a duty for doctors to report any violations of a patient’s physical or mental well-being observable to them in their medical practice.³¹⁰ Within this system of safeguarding individual rights, exclusionary rules are of the utmost importance—at least in theory.

3.2.4 Exclusionary Rules Applicable to Illegally Obtained Evidence

3.2.4.1 Legal Framework

Evidence obtained through torture or other improper compulsory techniques violates art. 140 (1) CPC (prohibited methods of taking evidence) and triggers the absolute exclusionary rule of art. 141 (1) CPC. The exclusion of such evidence is mandatory, without exception, and is not subject to judicial discretion.³¹¹

The CPC does not outline a standard procedure to determine whether improper compulsory procedures have been used in an investigation. However, some cantons have established specific protocols in cases of criminal complaints alleging police abuse.³¹² A study by the Swiss Centre of Expertise in Human Rights (SCHR) found numerous media reports on alleged abuse by police in Switzerland,³¹³ but none of the cases studied involved violations with the specific intent of obtaining evidence from an accused. If a defendant alleges that evidence—a confession for instance—has been obtained in violation of the CPC, but cannot prove it, the reliability and significance of such evidence is at the discretion of the court due to the principle of unrestricted access to evidence.³¹⁴ However, recent reform efforts plan to amend the CPC by adding a new art. 78a CPC on the recording of interviews with technical devices (such as videotaping). Such recording techniques provide an important tool to monitor interviews and to ensure that police and prosecutors adhere to procedural rules.³¹⁵

3.2.4.2 Jurisprudence of the Supreme Court

As mentioned above, the mandatory exclusionary rule of art. 141 (1) CPC leaves no discretion to the courts.³¹⁶ However, art. 140 (1) CPC leaves some room for the courts to specify “methods that may compromise the ability of the person concerned to think or decide freely.” Swiss Supreme Court case law on this issue indicates that prohibited methods under this section include inducing intoxication with alcohol,³¹⁷ using a lie detector,³¹⁸ and using narcoanalysis (“truth serum”).³¹⁹ By contrast, the Supreme Court tends to find evidence admissible that has been obtained through cooperation duties of administrative law.³²⁰

The use of torture in criminal proceedings does not appear to be a major problem in Switzerland. Cases decided by the Supreme Court have primarily addressed issues around conditions of detention and imprisonment,³²¹ not compulsory techniques in evidence gathering.

3.2.5 Admissibility of Fruit of Poisonous Tree in Cases of Torture and Improper Compulsory Techniques

3.2.5.1 Legal Framework

Article 141 (4) CPC creates a limited version of the fruit of the poisonous tree doctrine (i.e. the exclusion of indirect evidence). As previously mentioned, such provisions are uncommon in inquisitorial criminal procedure systems as they stem from adversarial criminal justice systems. As a result, there can be problems with applying the doctrine.³²² Article 141 (4) CPC codifies the Swiss Supreme Court’s case law since 2007³²³ on indirect evidence.³²⁴ The provision states that such evidence “shall not be used, if it would not have been possible to obtain it, without relying on the previously obtained evidence.”³²⁵ Thus, the legislature opted to create a statute that excluded some, but not all indirect evidence.³²⁶

Specifically, Art. 141 (4) CPC excludes only evidence that would not have been possible to obtain without relying on evidence deemed inadmissible under art. 141 (2) CPC. Thus, the legal text of section 4 paradoxically does not explicitly exclude indirect evidence based on primary evidence obtained by torture and other illegal compulsory techniques. The legislature did, however, require the strict exclusion of any evidence in these cases, which implicitly includes also indirect evidence.³²⁷ Legal scholars agree that evidence excluded under the terms of the more stringent art. 141 (1) CPC must a fortiori include exclusion of subsequent, indirect evidence,³²⁸ but they do not agree on the details. Whilst the prevailing theory advocates for the strict exclusion of indirect evidence obtained following a violation of art. 141 (1) CPC,³²⁹ other scholars argue for the application of the limited exclusionary rule stipulated in art. 141 (4) CPC.³³⁰ As a consequence of these debates, recent reform efforts plan to amend art. 141 (4) CPC by extending its scope of application explicitly to evidence inadmissible under paragraph 1 and 2 of art. 141 CPC.³³¹

The exclusion of indirect evidence should also be considered where authorities seek to re-take improperly obtained evidence. In light of art. 141 (4) CPC, not only is the illegally gathered evidence tainted, but so is the knowledge acquired through it. Therefore, the re-taking of such evidence should only be possible where it conforms to the limitations set forth in art. 141 (4) CPC.³³²

3.2.5.2 Jurisprudence of the Supreme Court

Until quite recently, the question of whether evidence deemed fruit of the poisonous tree should be admissible was not clearly answered by Swiss law or jurisprudence.³³³ Finally, in October 2007, the Supreme Court ruled on the issue. After considering the varying arguments by legal scholars,³³⁴ the Supreme Court held that whilst the admission of indirect evidence may undermine the rules of evidence, its exclusion would hinder the search for the truth. It went on to say that the most appropriate solution is to exclude indirect evidence, but only where it could not have been obtained without the initial, direct evidence.³³⁵ This ruling was subsequently codified in art. 141 (4) CPC.

On its face, the Supreme Court’s holding was clear. However, the question of whether or not indirect evidence could have been obtained without the initial, illegally obtained, evidence introduces ambiguity.³³⁶ To make matters worse, in the 2007 ruling the Court emphasized the importance of balancing the relevant interests in determining whether or not to exclude fruit of the poisonous tree.³³⁷ Since the codification of the fruit of the poisonous tree doctrine in Article 141 Abs. 4 CPC, however, there is no longer any room to balance competing interests because the statute does not explicitly grant the courts discretion to do so. In such situations, the court has very little leeway in determining the mere factual question of whether the indirect evidence could have been obtained without the initial unlawfully procured evidence.³³⁸

Since the 2007 decision, the Supreme Court has interpreted the newly adopted fruit of the poisonous tree doctrine quite narrowly, repeatedly arguing in favor of admitting evidence based on speculative and hypothetical clean path analyses.³³⁹ It even went as far to state that the acquittal of an obviously guilty defendant under on the fruit of the poisonous tree doctrine would be “disturbing” (“stossend”).³⁴⁰ This argument is in stark contrast to the underlying rationale of safeguarding human rights by placing clear-cut limitations on law enforcement’s search for the truth and the state’s interest in obtaining convictions. If the impending acquittal of a guilty person is perceived as unacceptable and as a reason for admitting evidence, exclusionary rules become meaningless. Additionally, acquitting a defendant due to a lack of admissible evidence does not nullify the pursuit of the truth, but is a necessary consequence of setting boundaries and limitations in criminal proceedings.³⁴¹

After being criticized by a number of legal scholars,³⁴² the Supreme Court redefined the hypothetical clean path analysis more clearly and held that the theoretical possibility that evidence was obtained legally is insufficient; rather, a strong probability that the indirect evidence would have been obtained without relying on the illegally gathered evidence is required.³⁴³ Notwithstanding this clarification, the Supreme Court still seems to be lenient in its decisions on what constitutes “a strong probability.”³⁴⁴ Notably, in the same case where it clarified the clear path analysis, the Court subsequently admitted indirect evidence based on a less-than convincing hypothetical clean path. In that case, a drug trafficker passed the Swiss border in possession of drugs hidden in a fire extinguisher and the Swiss prosecution authorities had knowledge about his involvement due to an illegal wiretap in Slovenia. Consequently, the border patrol stopped him, searched his car, and located a large quantity of drugs.³⁴⁵ The Swiss Supreme Court held that the drugs were admissible because, despite the abolition of systematic border controls in the Schengen Area, the defendant was likely to be stopped and searched at the Swiss border because of his nervous demeanor.³⁴⁶

This holding is problematic because it is based upon hindsight analyses using all the facts, including the illegally obtained evidence.³⁴⁷ From this perspective it is very easy to construct a hypothetical clean path to admit the evidence in question, even if it is highly speculative. Therefore, some scholars correctly advocate for admitting indirect evidence only in cases where—from an ex ante point of view—its obtainment without the tainted direct evidence constitutes a “probability bordering on certainty”.³⁴⁸ Although it is likely that such cases will be rare,³⁴⁹ it should be noted that the Swiss Supreme Court’s jurisprudence is not entirely one-sided. It excluded indirect evidence based on art. 141 (4) CPC in a case where the defendant confessed, but only after the prosecution authorities showed him an illegally recorded video containing information they could not have known otherwise.³⁵⁰ However, upon closer inspection, the issue is not related to fruit of the poisonous tree because presentation of illegally obtained evidence constitutes deceptive police tactics and the obtained confession was required to be excluded directly under the terms of art. 141 (1) CPC.³⁵¹

Overall, the case law of the Swiss Supreme Court illustrates how the effectiveness of exclusionary rules is completely dependent upon the local practice and jurisprudence. It should also be kept in mind, however, that the Swiss legislature chose not to establish a stricter fruit of the poisonous tree doctrine,³⁵² and instead codified the Supreme Court’s case law through art. 141 (4) CPC.³⁵³ Furthermore, the Supreme Court’s narrow interpretation of the statute up until now is limited to cases where evidence was obtained by unauthorized searches or surveillance. It is thus unclear how it will decide if and when confronted with a case of torture or the use of improper compulsory measures. If the Court elects to strictly exclude evidence in such cases, defendants will be afforded comprehensive protection. However, even if it decides to apply the limited exclusionary rule of art. 141 (4) CPC, it is still unlikely that it will admit tainted evidence as freely as it has in the past.

3.2.6 The Effect of International Human Rights Law

It is the prevailing opinion that evidentiary rules in criminal procedure are the prerogative of the national legislature. As such, only a few (and rather vague)³⁵⁴ international guidelines on exclusionary rules exist.³⁵⁵ Nevertheless, international law and jurisprudence do still influence national evidentiary law and are of particular importance when defining concepts such as torture and inhuman treatment.³⁵⁶ Article 15 of the UNCAT implies the absolute exclusion of evidence obtained through torture and degrading treatment.³⁵⁷ The ECtHR has also set clear limitations on evidence taking in recent cases and has held that the admission of evidence obtained through torture is strictly prohibited as violative of art. 3 ECHR.³⁵⁸ However, the ECtHR has not taken a similar path with respect to the exclusion of evidence gathered by inhuman treatment³⁵⁹ or indirect evidence acquired through torture.³⁶⁰ In these cases, the ECtHR appears to be more likely to exclude evidence where the offense in question constitutes a less serious, victimless crime, such as a drug offense.³⁶¹ Additionally, according to the ECHR, the violation of rights ensuring a fair trial such as the right against self-incrimination³⁶² may, but do not require, that the evidence in question be excluded.³⁶³ On the contrary, the ECtHR generally limits itself to examine “whether the proceedings as a whole, including the way in which the evidence was obtained, were fair” ³⁶⁴ and if they conformed with art. 6 ECHR. The result is that many decisions by the ECtHR are not strictly followed by the national courts,³⁶⁵ thereby weakening the rights enshrined in the ECHR.

4 Statistics

There is, unfortunately, very little empirical data evaluating the importance of fair trial principles in Swiss criminal procedure.³⁶⁶ This is particularly the case with regard to the practical impact of exclusionary rules. That said, a trial observation project was recently finished and included the evaluation of criminal proceedings in first instance courts in four Swiss cantons over the course of two years. The project investigated how often defense rights were asserted and how the courts dealt with those requests.³⁶⁷ The study was based on the observation of 439 randomly chosen³⁶⁸ court hearings and subsequent interviews with the parties involved (defendant, prosecution, defense counsel).³⁶⁹ During the project, infringements on the right to a fair trial were qualified as initiated by a party to the proceedings, initiated by the court, or exclusively observed by the project members.³⁷⁰ The results of this study showed that, out of 714 infringements on the right to a fair trial (initiated or observed), only 35 were related to infringements on the right against self-incrimination. Furthermore, 15 infringements were related to otherwise illegally obtained evidence that do not fall under the scope of art. 6 (1) ECHR (evidence obtained in violation of art. 3 or art. 8 ECHR). However, the infringement on rights related to other aspects of a fair trial, including the right to summon and question witnesses (113), the right to have an interpreter (104), the presumption of innocence (102) and the right to a speedy trial (98), were much more often discussed and observed.³⁷¹ Furthermore, the project found that most infringements on defendant rights observed by the project members did not lead to a complaint by the defendant or the defense counsel.³⁷² Although this data does not provide a basis for a definitive assessment, it does indicate that, in the end, the exclusion of evidence obtained in breach of the right against self-incrimination and of the prohibition on torture is of less practical importance in Switzerland than would be suggested by the level of importance given to this issue in literature.

5 Conclusion

Swiss exclusionary rules look very promising as law on the books. In 2011, a far-reaching, concise statute established what appeared to be clear-cut guidelines to safeguard individual rights in criminal proceedings in Switzerland. 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.

Practically speaking, however, the Swiss statutes face several hurdles impairing the efficiency of exclusionary rules in the Swiss criminal justice system. First, art. 141 CPC leaves open several important questions, including means of enforcing exclusionary rules and the admissibility of indirect evidence obtained following a violation of art. 141 (1) CPC. Furthermore, the wording of art. 141 CPC is vague, including terms such as “serious offence,” and “essential […] to secure a conviction.” Statutory concepts are also unclear at times, such as the distinction between “regulations on admissibility” and “administrative regulations,” as well as the hypothetical clean path analysis. These ambiguities confer a great deal of discretion upon the courts. Finally, art. 141 (2) CPC allows, under certain circumstances, the use of evidence obtained in violation of regulations on admissibility. Such regulations are of considerable importance for safeguarding individual rights and limited exclusion of evidence obtained in their violation does not provide effective protection of those rights.

The problems of art. 141 CPC stem from the fact that the statute is essentially a codification of the Supreme Court’s case law. Accordingly, issues continue with the Court closing the legal loopholes and defining the vague legal terms through a longstanding and heavy emphasis on the importance of establishing the truth and prosecuting crimes. Thus, on the one hand, the Supreme Court is quite restrictive in its classification of provisions as regulations on admissibility. On the other hand, it is very quick to define an offense as “serious” or to construct a speculative (and hypothetical) clean path. The case law assigning authority to decide the admissibility of evidence to the same judge who later determines the guilt or innocence of a defendant further reduces the efficacy of art. 141 CPC.

As a result, the initially promising exclusionary rules in the new Swiss CPC lose a great deal of practical impact in their ability to safeguard individual rights in criminal proceedings. Article 141 CPC and the Supreme Court’s case law are also criticized by legal scholars. Nevertheless, exclusionary rules are the only possible way to ensure that an irreversible violation of the law does not pose any further detriment to a defendant. Other measures, such as disciplinary or criminal proceedings against a guilty law enforcement official, may be useful as supporting measures, but are not viable alternatives to exclusionary rules. As such, it is particularly important to ensure effective exclusionary rules and to limit the amount of judicial interpretation that can be used to narrow their scope. To achieve this, it is important that the legislature drafts clear statutes. With respect to art. 141 CPC, clearer definitions of vague terms, a critical assessment of the balancing approach in cases of violations of regulations of admissibility, as well as the explicit and strict exclusion of indirect evidence stemming from evidence obtained through torture and other improper compulsion would be helpful. Moreover, a clear stipulation addressing means of enforcement by an authority other than the judge of fact would be preferable to ensure objectivity. Unfortunately, the recent reform efforts regarding exclusionary rules are limited to an amendment of art. 141 (4) CPC, extending its scope of application explicitly to “evidence inadmissible under paragraph 1 and 2” of art. 141 CPC.³⁷³

Pursuant to the wording of this preliminary draft, a violation of art. 140 (1) CPC, however, would not lead to the strict but to a rather limited exclusion of indirect evidence: Such evidence would remain admissible if it could have been obtained without the direct evidence. It is unclear whether the Federal Counsil intended this consequence or whether he just had in mind to clarify that a violation of art. 141 (1) CPC should also entail the exclusion of indirect evidence.³⁷⁴