Swiss legal system under scrutiny: rich people have better cards.

Right: ‘You have the right to a lawyer. If you want one, you have to say so now and we have to stop negotiations.”

Accused: “I don’t have money for a lawyer.”

Right: “Do we do it without a lawyer?”

Accused: “Yes.”

Right: “There is also the option of an official lawyer. In this case, we would have to decide that, and when you have money again, you will have to reimburse the costs.”

Accused: ‘I don’t know if I need a lawyer […]. I do not believe it […].»

Right: “I don’t believe it either.”

A team of researchers recorded this dialogue in a courtroom in Bern in 2014. Judges and suspects discuss the official defense – and thus a cornerstone of our legal system. Criminal proceedings are only truly fair when those who cannot afford a lawyer can defend themselves. Only then will there be equality of arms between the state and the accused.

But lawyers could use their requests to extend proceedings that prosecutors and courts would have preferred to complete quickly. Wouldn’t the authorities therefore rather reject than approve a request for a free lawyer? The example above suggests this.

From the perspective of Thomas Fingerhuth, a criminal lawyer for over twenty years, this is not the case: “Most prosecutors and courts are happy when a suspect has a lawyer, because it makes it easier for them to carry out the procedure – for example by removing hopeless submissions or suspects who are prepared for interviews and discourage negotiations.”

In 2014, the majority of all defendants were represented in court (in the Canton of Zurich this was 91 percent). More recent figures are currently not available. But even as they get older, not much has changed.

However, very few cases end up in court. 95 percent are handled via an injunction. And here it looks very different: only 7.5 percent of all suspects are defended in criminal proceedings – of which officially only 1.4 percent. Some of them may be trivialities, but not all.

A traffic violation that results in a driver’s license suspension can have devastating consequences for a taxi driver. It is unlikely that a significant proportion of suspects understand the contents of the criminal order – and certainly do not know that they are entitled to official representation. This is exactly what can make the difference: those who are represented are ten times more likely to object.

However, a lawyer alone guarantees nothing. Another factor is crucial: time. If you go through long files and do research, you will eventually find the weak point in the accusation. Lawyer Fingerhuth confirms this: “There are no hopeless cases, and the problem often lies in the details. Finding that takes time and unfortunately also money.” And you have to have that first. A criminal lawyer can easily cost 300 to 500 francs per hour.

Legal representation: children and young people in court

By the way: when Fingerhuth represented the son of a Zurich millionaire who murdered a colleague while high on drugs, he was represented by a specialist media relations lawyer in addition to another criminal lawyer. He ensured, among other things, that no non-pixelated images were published. This is called litigation PR. “In cases like this it gets really expensive, and when I say expensive, I quickly mean a million,” says Fingerhuth.

Official lawyers can only dream of such a scale. In many cantons your hourly rate is 180 francs. Fee invoices are often reduced because the responsible authorities assume that the effort will be disproportionate. And: If an appeal is filed, the official lawyer often runs the risk of being stuck with the costs. The argument is often that the case was hopeless. One inevitably wonders whether this risk could prevent one or the other official representative from doing everything possible for his client.

Account: Anyone who needs a lawyer can get one, provided they know their rights. But: Because official lawyers in Switzerland are financially short, they can put in less effort. Thesis is partially correct.

Argued early in the morning after leaving, exchanged a few bad words: That happened to Swiss footballer Breel Embolo. This spring he was sentenced to a suspended fine of 135,000 francs for threats. Or in other words: at 45 daily rates of 3,000 francs each.

The fines, which make up about 85 percent of all fines, are calculated according to the so-called daily rate system. A certain number of daily rates are multiplied by the amount of the daily rate. The number depends on the fault. The amount depends on the perpetrator’s income, minus taxes, health insurance premiums and maintenance contributions. A daily rate is usually a minimum of 30 francs and a maximum of 3,000 francs. Actually fair, right?

But does 135,000 francs harm a millionaire footballer the same as 1,350 francs a benefit recipient who would have received this fine – 45 times 30 francs – for the same crime? Hardly. 1,350 francs plus procedural costs – that costs your life. Rightly so, you might argue. After all, you committed a crime. But that should also apply to rich people. For them, a relatively equal punishment is usually not a threat to their existence. Embolo should easily be able to pay the fine from his assets.

From footballer Embolo to another illustrious personality, the ‘Loredana’ case shows how to stop a criminal case – provided you have enough money. In 2018, the rapper was suspected of defrauding an unsuspecting person of 432,000 francs. The scam: The victim has already paid a lot of money for an operation that was supposedly necessary, after which the rapper posed as a lawyer, the Public Prosecution Service suspects. She offered to help the victim get the money back, then collected it again. Loredana was therefore investigated for fraud. In 2020, the procedure was stopped thanks to a deal. Loredana acknowledged the injustice, apologized to the victim and paid him 609,000 francs.

The magic word is recovery. Anyone who can reach a settlement with his victims and compensate them for damages can go unpunished. And there are other lights that money can buy.

Greco Commission: poor figures in the fight against corruption

Anyone who confesses can agree to an abbreviated trial with the public prosecutor and an agreement on the amount of the sentence. This is usually lower; at least the state is spared a potentially complex evidentiary procedure. However, the condition is that you acknowledge the civil claims, i.e. that you pay for the damage you have caused. You only do that if there is enough money for it.

There are also benefits for those who can afford a private appraisal, which can ease the burden on you. Or who can pay the bail so they don’t have to be taken into custody. Opportunities that not everyone has.

Account: Cases are piling up at the Public Prosecution Service. Criminal trials must be completed as efficiently as possible. This encourages accelerated procedures or settlements with victims. This is at the expense of the principle of investigation and justice. Thesis is correct.

Imagine you are a judge. You are presented with the following case: A warehouse employee stole a crate of whiskey during his shift. Before you judge, you want to know more about the circumstances. I assume two variants: In one case the perpetrator was an alcoholic. His wife wanted to leave him because he spent too much time in bars and did not take care of the family. In the other case, the perpetrator was a conscientious family man who worked hard, was socially integrated and was very attached to his work. Now: which of the two would you punish more severely?

The “Whiskey Experiment” was conducted in 1970 in a slightly different way and with 100 judges. One half was presented with the case of the alcoholic, the other with the case of the ‘decent’ worker. The result: the ‘decent’ worker and family man was punished much more leniently on average. What did the judges – or maybe you too – think? – more focused: on the actual crime or on the private life of the perpetrator? It seems as if the judges wanted to punish the man for his lifestyle.

A similar survey among 179 Swiss prosecutors: 37.4 percent of them assumed in a self-assessment that foreigners would be punished more severely with criminal orders. Nearly half also mentioned whether someone has a stable or unstable social environment as a criterion for sentencing.

Why is that? Expert Sunita Asnani knows this. She says: “Unconscious bias, also called unconscious bias, is like an invisible compass. They control our decisions without us noticing.” There are more than 170 scientifically described prejudices. “For example, the similarity bias describes the tendency to evaluate people more positively if they have similarities with ourselves – for example, the same social background.”

Judges may unconsciously have a tendency to impose lenient sentences on people who look like them. For example, towards the decent family man. “If they can better identify with the suspect, they can more easily put themselves in his shoes.” When foreigners are punished more severely, ethnic and racial prejudice often comes into play, that is, the discrimination against people based on their skin color, ethnicity, religion or other characteristics.

Account: Research has shown that 99.9 percent of people subconsciously prefer people who look or behave differently. This includes police officers, prosecutors and judges. In any case, it cannot be ruled out that this will have consequences for the sentence. The thesis has a lot to offer.