Judgment without a hearing: the supervisor sharply criticizes the federal prosecutor’s office

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The federal prosecutor’s office issues about 300 criminal orders every year. Anyone who gets one will be found guilty of a crime and sentenced to a fine. The problem: only every tenth defendant is heard beforehand. This has emerged from an investigation by the independent supervisor of the federal prosecutor’s office. In her report she sharply criticizes the practice.

“In criminal law, the suspect must be able to express himself,” said Vice President Marc Thommen, professor of criminal law at the University of Zurich, when asked. With this, the supervisor confirms the observer – he has been criticizing the way public prosecutors deal with the instrument of the criminal order for some time.

“Fictional Deliveries”

In criminal proceedings, prosecutors are often prosecutors and judges in one person. After completing their investigation, they can form their own judgment and impose a fine. In any case, if less than six months imprisonment is imminent. Indictments, judgments and judgments are sent by letter. If the accused does not object, the case will never go to court. This should relieve the judiciary. The procedure is then considered completed and the judgment becomes final. About 92 percent of all crimes and offenses in Switzerland today are convicted with a criminal warrant.

As the observer pointed out, there are always glitches. And fundamental principles of the rule of law are being violated. A man spent 75 days in a prison in Basel without knowing why. He never saw a verdict because the punishment order was sent to him as a “fictitious service”. Under the current Code of Criminal Procedure, a writ of execution is deemed to have been served “even without disclosure” if it cannot be delivered in person or by mail against signature.

Since this year, The Observer has been awarding the negative “Failed order of the year” award. In doing so, he draws attention to how poorly and inaccurate punishment orders are often issued. And that they are hardly subject to any control.

Federal prosecutors are fighting back

Federal prosecutors mainly deal with serious crimes such as organized crime or terrorism. But they are also responsible for violence against federal employees, misuse of explosives or white-collar crime. For less serious cases, such as insulting an employee or blowing up a public garbage can, they issue punishment orders. But also in crimes such as corruption.

The federal prosecutor’s office rejects the regulator’s criticism. She always takes the legal requirements into account when issuing a writ of execution, she writes at the request of the SRF radio program “Echo der Zeit”. They often even go beyond the requirements and have conversations, even if it is not mandatory.

However, in about 270 cases per year, it fails to do so, the report states. Hearings are important to be able to impose a fair sentence, says professor of criminal law Marc Thommen. “Penalties should be adapted to the personal circumstances of the accused. He needs to be questioned about this and he needs to be listened to.”

The federal public prosecutor’s office will be obliged to do so in the future. Parliament amended the law a year ago. From 2024, the federal prosecutor’s office must hear all persons it wants to sentence to an unconditional prison sentence. A step in the right direction for criminal lawyer Thommen. However, the regulator wants to go further. “We recommend that even with sentences from 120 daily rates, fines and suspended prison sentences, the suspect must be heard before a writ of execution is issued.”

Criticism also of file management, speed and responsibility

• In addition to the rare hearings for criminal orders, the regulator will criticize its regular inspection on other points in 2022:
• The file management is incomplete and outdated. The federal prosecutor’s office does not systematically collect information about the crimes it prosecutes. A new case management system is being rolled out.
• The number of completed files collected by the supervisor does not correspond to the figures in the annual reports of the federal prosecutor’s office. The number has since been corrected.
• More than half of the procedures in commercial criminal law take longer than three years.
• The federal public prosecutor’s office is too often concerned with low-threshold crime. Their main task is to combat serious crime in the field of state security, organized crime, terrorism and white-collar crime. The regulator proposes to revise the list of tasks of the federal prosecutor’s office.

Source:Blick