The belated right to a fair trial in Switzerland

In addition to the fundamental rights of the individual, the current Swiss constitution contains numerous procedural guarantees, particularly in judicial proceedings. Most of these rights were not expressly enshrined in the Swiss constitution before 1999. However, this does not mean that they have not been taken up by the courts before.

The federal constitution of 1848 barely mentioned procedural guarantees and fundamental rights. For example, it was stipulated that certain criminal cases – especially political offenses – would be judged by a jury in federal court. Courts by jury, now abolished, were then seen as a guarantee of the proper administration of justice, since they were ultimately controlled by the citizens, as had long been the case in England and, since the Revolution, in France.

The constitution also guaranteed that everyone had access to the courts of their place of residence. Its main purpose was to ban extraordinary courts. Such were used after the political unrest of the 1840s in certain cantons such as Valais in 1844. After the defeat of the Liberals «Young Switzerland» at the Battle of Trent, the victorious Conservatives created a special court – the Central Court. This condemned political offenses and thus suppressed the opposition.

Article 4 of the Federal Constitution of 1848 subsequently played an important role in the elaboration of the procedural guarantees. Originally, this was mainly intended to ensure political equality by ensuring compliance with civil rights, which in principle belonged to all male citizens.

The federal constitution of 1874 barely expanded the list of procedural rights. However, it made the Federal Supreme Court a permanent body adjudicating on violations of citizens’ constitutional rights, which had previously been the preserve of the Federal Council and the Federal Assembly.

For example, from 1877 the Federal Supreme Court recognized the ability to demand justice as a fundamental right. It proclaimed that the authorities’ refusal to give justice to citizens violated the principle of equal treatment. In the years that followed, it also resulted from Article 4, the prohibition of arbitrary judgments. Accordingly, decisions amounting to a refusal to apply the law should be interpreted as a violation of constitutional law.

A little later, the Federal Supreme Court even deduced from the principle of equal treatment that a poverty-stricken party is entitled to free legal aid. She should not be denied access to a court or the collection of certain evidence because she cannot bear the costs herself.

Gradually, the Federal Supreme Court has granted the parties – especially in civil or criminal proceedings – the right to be heard before a decision is made that affects them. The right to be heard presupposes that the accused has access to the procedural documents, in particular those revealing the identity of the witnesses questioned. The Supreme Court also pointed out that if a suspect is not legally invited to the trial to be able to defend himself, a suspect cannot be convicted.

From decision to decision, the Federal Supreme Court has designed the right to be heard as it is now provided in the 1999 Federal Constitution for any court or administrative proceeding. Today, this right allows anyone involved in legal proceedings to express their opinion before a verdict, to see the files, to present relevant evidence or to obtain a statement of reasons for the verdict.

The 1999 federal constitution contains provisions restricting government action in criminal matters. This is the case in Article 31 on deprivation of liberty and Article 32 on criminal procedure, which specifically enshrines the presumption of innocence. This principle found its way into modern constitutional law in the late 18th century, including the Declaration of the Rights of Man and of the Citizen of 1789.

In Switzerland, the German liberal Ludwig Snell was inspired by French revolutionary law. He included the presumption of innocence in his draft constitution, published in 1831. Some cantons, such as Bern and Basel-Stadt, had enshrined this in their constitutions in the early 1930s. However, the principle was not included in the federal constitutions of 1848 and 1874.

It wasn’t until the late 20th century that the federal court pointed out that doubts should benefit the accused – if in doubt pro reo. However, this principle already existed then European Convention on Human Rights (ECHR) and in UNPact on Civil and Political Rights, to which Switzerland acceded in 1974 and 1992 respectively.

The Federal Supreme Court, especially since 1974, brought the principles of EVRM in accordance with the guarantees it had derived from the Federal Constitution. From 1978, the guarantees were then understandable EVRM on the right to a fair trial would go beyond its own jurisprudence on the right to a fair trial. For example, the Swiss Supreme Court recognized for the first time that suspects must have the opportunity to question incriminating witnesses at least once during the proceedings.

As can be seen, the federal constitutions of 1848 and 1874 gave individuals only very modest procedural guarantees. Their expansion was the result of increasingly extensive case law of the Federal Supreme Court. From the 1970s, international treaty law also prompted the Supreme Court in Switzerland to extend these rights. Finally, they were largely codified in the 1999 Federal Constitution.