Up to 20 percent of proceedings are dropped: those who defend themselves against punishment orders are often successful

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The postman calls, hands over a registered letter or leaves a collection note. The envelope contains a punishment order from the public prosecutor’s office, stating the amount of the penalty imposed. Such letters are delivered about 330 times a day in Switzerland.

Most of the defendants accepted the sentence. According to the report of the higher court last year in the canton of Zug only four in a hundred defendants filed an objection, in Bern this was five in a hundred and in Basel-Landschaft three in a hundred.

However, the rate varies considerably within the cantons, according to a National Fund study by Zurich law professor Marc Thommen. She assumes that on average every tenth suspect objects.

Appeal period too short

The appeal rate testifies to a “wide acceptance” of the punishment orders, according to account statements from the Zug Supreme Court. The Zurich public prosecutor’s office is also satisfied. According to their annual report, the punishment order has “largely proven itself” and is “an indispensable part of contemporary justice”. The positive balance can be considered representative, the criminal order procedure is very popular with all prosecutors.

That’s amazing, because it sounds very different in university law schools and lawyers. There are criticisms on a number of points, starting with the objection period. It’s only ten days and that’s way too short.

“An extension of the term to 30 days gives the person concerned the opportunity to inquire about the opportunities and risks of objection and the consequences of accepting a writ of execution,” says lawyer Eveline Roos van Solothurn. Niklaus Ruckstuhl, responsible for criminal law at the Swiss Bar Association (SAV), says: “The short objection period can almost be qualified as a denial of justice.”

Delivered – even without address

The so-called delivery fiction is also criticized. A writ of execution is deemed to have been served after seven days if it is sent by registered mail. Whether the suspect received the shipment is irrelevant.

For legal laymen, the file fiction is even more bizarre: if the address of the suspect cannot be traced, the criminal order is placed in a file and deemed to have been served. In both cases, the suspects do not find out that they have been convicted. “These delivery fictions are even possible with unconditional prison sentences. This contradicts the concept of the criminal order procedure, which derives its legitimacy largely from the consent of the suspect,” says Basel professor of criminal law Christopher Geth.

It’s just an offer

What may not be clear to some of the suspects despite the indication about legal remedies: the punishment order is only an offer to end the criminal process without a court decision if the parties involved consent to guilt and punishment.

The procedure can be used if no more than 180 daily fines or 180 days in jail are imposed. The suspect can accept the offer or object. This is free of charge, you do not have to give a reason. Without timely objection, the offer becomes a final judgement.

Objections are worth it

An objection can be worthwhile. This is shown by figures available to the observer. In Zurich, for example, the public prosecutor’s office dropped the procedure in 13 percent of the objections, for example because an agreement had been reached between the parties. In the cases in which the Public Prosecution Service upheld the punishment order and referred it to the court for assessment, slightly more than every tenth case ended in a full acquittal in recent years. The acquittal rate in Zug was higher. In the past year, every fifth objection led to the termination of the procedure.

In Baselland, every fourth objection led to the termination of the procedure. However, this percentage is due to a curious special effect. Vehicle owners whose car had committed a traffic violation were ordered subject to periodic penalty payments. They wouldn’t say who was driving. Only when they realized they had to answer for the violation did they object and reveal the name of the driver. The case against her was subsequently dropped. About two-thirds of the recruitments resulted from this situation.

Criticism is not heard

It was up to parliament to improve the problematic aspects of the criminal procedure. However, the criticisms of well-known jurists were largely ignored. “Our criticism was not heard in parliament. The argument was essentially that in this case the efficiency gains that were aimed at through the criminal procedure would be lost,’ says Niklaus Ruckstuhl of the SAV.

After all, the revised Code of Criminal Procedure contains an improvement. In the future, the suspect must be interrogated if imprisonment is imminent.

Source:Blick