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CHStPO: Comment on Article 31 and 32

Article 31 jurisdiction of the place
1 For the prosecution and adjudication of a crime, the authorities in charge of the place where the act was committed. If only the place, is occurring to the success of the offense in Switzerland, so the authorities in charge of this place.
2 If the crime was committed in several places, or is the success in several places has occurred, the authorities of the place are responsible for the acts of persecution are first
been made.
3 If an accused person committed the same place several crimes, misdemeanors or violations, the procedures are combined.

Article 32 The venue for crimes abroad, or an uncertain scene
1 was a crime committed abroad or can not the scene of the crime be established, are to monitor and assess the authorities in charge of the place where the accused person is domiciled or has its habitual residence.
2 Has the accused person is neither resident nor ordinarily resident in Switzerland, then the responsible authorities of the home town, missing a home, then the authorities in charge of the place where the accused person has been found.
3 If there is no jurisdiction under paragraphs 1 and 2, are the authorities jurisdiction of the canton, the requested delivery.

Article 31 posited the principle that crime must be pursued in the crime was committed ( forum delicti commissi ). In essence, is included with the exception of a few editorial differences, the current Article 340 of the Criminal Code.

para 1 sentence 1 refers to the scene of activity in so-called crimes and offenses on success. Whether the latter to the criminal act in the narrow sense, or the occurrence of success is to provide, in each case determined on the particular facts. For instance the fraud at the last and decisive action to stop execution: BGE 115 IV 272 .

para 1 sentence 2 considers the case where they have occurred on a successful offense, only the success in Switzerland, is leading to success whilst the execution acts committed abroad. In this case, the success of entry into Switzerland, represents in each case an independent point of contact for the jurisdiction. should uphold Article 340 of the Penal Code, unlike mentioned Article 31 CHStPO the place where success would (if they try to success offense) not more. However, this does nothing since, Article 8, paragraph 2 of the Penal Code the crime was committed when he tried to tort success already in this sense.

A further definition of the inspection site is Article 8 paragraph 1 of the Penal Code refer to. According to this provision is a crime or offense (as per Article 104 of the Penal Code this also applies to violations) as a committed where the offender performs it. For crimes of omission is the scene where the perpetrator remains wrongful idle (this corresponds well to the place where he should have been in operation).

Paragraph 2 provides that in case of committing several locations in Switzerland, the so-called forum praeventionis is applicable, with Article 31 paragraph 2 to the current Article 340 of the Penal Code stipulates that the formal opening of criminal investigation shall prevail is already sufficient but each act of persecution, including one on the pursuit of a possible crime action of the police criminal investigation in the preceding police investigations (Article 306 CHStPO f). The secondary application of forum praeventionis applies only to cases where there are multiple execution venues or more successful places and not already on the case where the performance of service otherwise Erfolgsort present (in this case is determined as mentioned in the interpretation of the relevant facts is whether to put on the place of execution or the place of action of the successful admissions).

para 3 says nothing more than already lit Article 29, paragraph 1. a.

Article 32 governs the venue for so-called foreign acts or deeds, which lack Auslandstat a known crime scene can not be excluded, respectively. in deeds, in which the commission is in the national territory no doubt of the crime scene because of unclear boundaries, however, can not be determined (for example, committing a crime on board a ship the middle of Lake Lucerne). This provision is the result, explained that Article 4 et seq of the Swiss Penal Code and criminal law to certain acts committed abroad to be applicable. In terms of a cascade of jurisdiction attaches to the residence, place of origin, the Betreffungsort or province, has requested the extradition of. The wording is broadly consistent with that of the present Article 342 of the Penal Code with the current judicial practice this clarification that the habitual residence of the residence is the same (in the absence of an official residence in Switzerland). Major influence on the conditions at the time of persecution and not the commission of the act (Trechsel ref. 5 to Article 348 of the Criminal Code) are.

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CHStPO: Comment on Article 29 and 30

principle of Article 29 process unit
be a criminal offense and evaluated together if: a. a person
accused committed multiple offenses has, or
b. Complicity or participation is available. Is
2 it is crimes that fall partly within the competence of the Federation or in the various cantons and have been committed by several persons, so go to Articles 25 and 33-38.

Article 30 exceptions
The prosecutor and the court may for factual reasons combine separate criminal proceedings or.

Article 29 paragraph 1 normalizes the principle that an offender should be prosecuted in one process and evaluated for several crimes committed. The same applies to relations between the various main culprits or the main perpetrators and participants (agents, instigator). Article 30 allows for the purposes of an exception to depart for factual reasons thereof.

The provisions which deal with the delimitation of competence between the Federation and the cantons (Article 25) and the regulations governing the local jurisdiction (Art. 33 - 38) go according to Article 29 paragraph 2 of the provision of Article 29 paragraph 1 explicitly. On the issue of territorial jurisdiction, respectively. is the division of responsibilities between the Confederation and the cantons, it is strictly speaking a different issue than that of Articles 29 and 30 controlled. For this reason we have these two items in the final presentation in a separate second Section in the 2nd Chapter on the subject matter jurisdiction located. Before 3 Chapter which deals with the jurisdiction. Still in the design process, the principle of unity with the rules of the forum was mixed.

Article 29 paragraph 1 present in the final version as an independent procedural principle governs the process unit in the "internal relations", ie with several criminal offenses by the same offender or criminal acts which are committed by multiple perpetrators or participants for which each one and the same authority (federal or cantonal) but competent. Objectively, this principle has to do with Article 49 of the Criminal Code, which states that the perpetrators were forfeited for commission of several criminal acts for which similar punishments to condemn after the so-called Asperationsprinzip is (paragraph 1) and that this be taken into account even is, who the offender is sentenced at a later date in a separate process for acts which he in front of a previous conviction has committed (para. 2). In this case the offender does not incur more severe penalties than if he were assessed simultaneously for all actions.

under Article 49 of the Criminal Code (or formerly Article 68 of the Criminal Code) can, however, as the Supreme Court has explicitly stated that derive no right to be assessed for multiple offenses by the same judge in the same procedure ( Federal Court decision 6S.414 / 2002 6.3.2003 ). This claim, which follows from some cantonal codes of criminal procedure will now be created in the CHStPO by Article 29 paragraph 1 in principle.

as substantive reasons for derogation from the principle of process unit acc. allow article 29, paragraph 1 (Article 29 paragraph 2), came about the impending time of individual criminal acts or the complexity of the procedure in question. The principle of the acceleration process can command a separation of single (ready for decision) process components. Of the impact of (illegal) methods to separate the costs of the procedure: follow Federal Court decision 1P.705/2003 27.5.2004

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CHStPO: Comment on Article 22-28

Article 22 cantonal courts
The cantonal prosecuting authorities and assess the crime of federal law, the reserved statutory exceptions.

Article 23 of the Federal judiciary in general
1 The federal jurisdiction following offenses of the Penal Code under:
a. the crime of the first and fourth title and Articles 140, 156, 189 and 190, provided that they compared internationally protected persons who are magistrates of the federal government, against members of the Federal Assembly, against the federal law, the Federal Prosecutor the Deputy Prosecutor or the Deputy Federal Public Prosecutor directed;
b. the crimes of Articles 137-141, 144, 160 and 172ter as they share the premises, archives and documents of diplomatic missions and consular posts;
c. the hostage-taking under Article 185 to the coercion of federal authorities or institution;
d. crimes and misdemeanors Articles 224-226ter;
e. the crimes and misdemeanors of the tenth title on metallic money, paper money and coins, official stamps and other signs of the covenant, weights and measures;
f. crimes and misdemeanors of the eleventh title if it is documents of the federal act, except tickets and receipts of the postal funds transfer,
g. the crimes of the twelfth Titelsbis;
is, the crime of Article 260bis and the thirteenth - fifteenth and seventeenth title if it against the federal government, the federal, against the will of the people in federal elections, voting, referendum, initiative or desire, against the federal power or against the federal justice are addressed;
i. the crimes and misdemeanors of the sixteenth Title;
j. the crimes of the eighteenth and nineteenth title if they were committed by a member or employee of the federal authorities or against the Union;
k. the violations of Articles 329-331; are
l. political crimes and offenses that are cause or consequence of riots , by an armed federal intervention is initiated. remain
2 contained in special federal laws provisions on the jurisdiction of the Federal Criminal reserved.

Article 24 federal jurisdiction in organized crime, terrorist financing and financial crime
1 The Federal jurisdiction are also criminal offenses under Articles 260ter, 260quinquies, 305 bis, 305 ter and 322ter-322septies StGB6 and the crimes that go criminal by an organization within the meaning of Article 260ter Criminal Code, when the offenses:
in a. a substantial part of foreign have been committed;
b. been committed in several cantons, while there is no clear focus in the canton.
2, crimes at the second and the eleventh edition of the Criminal Code of the Federal Prosecutor open an investigation if: a.
are satisfied the conditions in paragraph 1, and
b. Cantonal Prosecutor's Office does not deal with the matter, or the cantonal Law enforcement authority of federal prosecutors to take charge of the procedure calls.
3 The opening of an investigation justified under paragraph 2 of the Federal jurisdiction.

Article 25 Delegation to the cantons
1 The federal prosecutor, a criminal case, which is necessary for federal jurisdiction under Article 23, the cantonal authorities for investigation and assessment, only in exceptional cases transferred for evaluation. Except for criminal cases under Article 23, paragraph 1, point g.
are 2 In simple cases they can also be a criminal case, given for which federal jurisdiction under Article 24, is transferred to the cantonal authorities for investigation and assessment.

Article 26 Multiple jurisdiction
one has been committed the offense in several cantons or abroad or are perpetrators, perpetrators, co-perpetrators, accomplices, participants or subscribers is domiciled or habitually resident in different cantons, so
decide the prosecution of the covenant, which Canton investigated the criminal case and assessed.
2 Is a criminal case in both federal and cantonal jurisdiction of competent jurisdiction, then the prosecutor may order the Federal Association of the procedures in the hands of the federal or cantonal authorities.
3 An established pursuant to paragraph 2 jurisdiction remains even if the jurisdiction giving rise to part of the process is terminated.
4 If a delegation for the purposes of this chapter in question, are the prosecutors of the government and the cantons, the records available for inspection to each other. After the decision, the document will go to the authority that will investigate the matter and assess
added.

Article 27 responsibility for initial investigations
1 is given in one case, federal jurisdiction, the matter is urgent and the criminal authorities of the federation has not taken action, so the police investigation and the investigation be conducted
by the cantonal authorities, which would be under the jurisdiction rules territorial jurisdiction. The Prosecutor of the Federation is to focus immediately and the case is passed to it as soon as possible or to make the decision under Article 25 or 26
.
2 At crimes that were committed in whole or in part in several cantons and abroad and which have not the competence of the Federation or of a canton is established, the criminal conduct of the federal authorities first cases.

Article 28 conflicts
decide conflicts between the prosecution of federal and cantonal authorities, the Federal Criminal Court.

Articles 22-28 limit the jurisdiction between the cantons and the federal government in law enforcement and Assessment of offenses from. It was basically the previous rules, as in today's Criminal Code Article 336 - and 338 are in the Federal Law on the Criminal Justice (BSTP) contain adopted without material changes.

Article 22 contains the principle that the prosecution and adjudication of criminal offenses under federal legislation (particularly the Penal Code but also the addition of federal criminal law) the responsibility of the cantons (Article 338 of the Criminal Code so today with respect to offenses of the Penal Code).

Article 23 is one of those criminal acts that already were under conventional as the Federal criminal jurisdiction.

Article 24 lists those offenses that since the entry into force are the so-called efficiency bill on 1.1.2002 prosecuted and judged by the Bundesanwaltschft since 1.4.2004 as the date of its activities by the Federal Criminal Court in Bellinzona. Article 24 takes the present Article 337 of the Criminal Code. Differences will remain between those offenses which (under the conditions of subparagraphs a and b above.) Subject to mandatory federal jurisdiction (membership of a criminal organization, Art 260ter Criminal Code and the financing of terrorism, Article 260quinquies Criminal Code, money laundering, Art . 305bis StGB; Lack Sorgfalg in financial transactions, Article 305 ter of the Penal Code and the corruption offenses of Art 322ter - septies Penal Code and punishable acts, which by a criminal organization within the meaning of Article expect 260ter Criminal Code ') and the optional federal jurisdiction for financial losses and Urkundsdelikten (economic crime) under paragraph 2 on the other.

to federal jurisdiction in respect of offenses which proceed from a criminal organization that was at this point to refer BGE 133 IV 235 . According to this decision is against federal jurisdiction in cases in which Article of the Criminal Code does not 260ter is applicable, but there is a strong suspicion or was that criminal acts were committed by people who belong to an organization that meets the criteria of Article 260ter StGB . In this regard, subsidäre Nature of the article to note 260ter Criminal Code. This shall not apply if the exhaustion of the participation of the offender in a criminal organization in the Begeheung or participating in a specific crime, the commission of or participation in, the offender can be demonstrated. Article 337 of the Criminal Code should also be applied to such cases. In addition to the one adopted under federal jurisdiction must be made not later without distress in question exist, that the competence of the Federal Criminal Court, although results later that the criteria of Article 260ter respectively. the case-law developed are not met. An exception to justify the subsequent change in the jurisdiction would, would be only about before then, if the assumption of jurisdiction by the federal prosecutor in the investigations would have been manifestly unfair.

Article 25 takes the existing provisions of the Criminal Code respectively. BSTP with two exceptions. The Delegation of cases under Article 23 is the wording no longer limited to simple cases. In addition, the delegation of genocide (in this event are probably not simple cases anyway possible) excluded.

Article 26 also adopts the provisions of the present BSTP with the exception that the decision as to the District in the case of Section 1 for prosecution and authorizes verpflichet is only the Prosecutor of the Federation and not (also) the Federal Criminal Court has jurisdiction.

Article 27 Section 1 empowered to make the cantons in urgent cases in federal court investigation or investigative actions. According to Section 2 is also the federal government to carry out the first investigative actions authorized in cases where it is still no jurisdiction of a single canton or the federal government. It is intended primarily to cases of cross-border crime network (see FF, 2006, p. 1141). Unlike Section 1, paragraph 2, only speaks of action and not investigative actions.

corresponds to Article 28 of the present regime in BSTP.

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CHStPO: Comment on Article 18-21

Article 18 compulsory measures
1 The court coercion court has jurisdiction to order the investigation and security prison and to the extent provided in this Act, for approving the arrangement or other coercive measures.
2 Members of the Court of coercive measures in the same case can not act as judges or judges of property.

Article 19 first instance courts
1 The trial court assessed in the first instance all crimes which do not fall within the jurisdiction of other agencies. 2
Confederation and the cantons can be used as a single court of first instance court provide for the assessment of: a.
transgressions;
b. Crimes and misdemeanors, except those for which the prosecution with imprisonment for more than two years, a protest under Article 64 of the Criminal Code, a treatment under Article 59, paragraph 3 of the Criminal Code or, at the same time to be revoked due to sanctions, deprivation of liberty of more than two years requested.

Article 20 Appeals
1 The Appeals Board hears appeals of procedural actions, and not against the unsuccessful appeal decisions: a.
first instance of the courts;
b. the police, prosecutors and law enforcement agencies of the violation;
c. Court of coercive measures as provided for in this Act cases. 2
Confederation and the cantons, the Powers of Appeals transferred the appeal court.

Article 21 appeals court
1 The Court of Appeal decides on: a.
appeals against judgments of the courts of first instance;
b. Revision requests.
2 Who has acted as a member of the Appeals Board can not act in the same case as a member of the appellate court.
3 Members of the Court of Appeals in the same case can not be working as auditors judges and Law Lords.

These provisions deal with the various courts, which provides CHStPO. In the actual design of these courts in organizational and functional terms Confederation and cantons relatively freely (Article 14). It permits them to transfer the functions of several courts one and the same court. So it would be permissible, for example, to transfer the role of court coercion a first instance court or even the appeal court. Only the variant that separates transfer function of the coercive measures of the Court of Appeals probably because the procedure proposed by the Board of CHStPO are ensured against decisions by the compulsory measures must court. But it would, both the function of the Court of coercive measures as well as the function to transfer the appeal to the Court of Appeal. In this case, to ensure, however, not that those members of the appellate court involved in the appeal process, which have already performed in the same case as a judge or coercive measures as a member of the Appeals Board (Article 18 paragraph 2 and Article 21, Section 2).

also not permitted, although the legal text is not explicitly mentioned, would be composed of the same judge in the same case at the appeal regarding an appeal against a decision in which he has acted as a constraint measures Judge or Judge of first instance (this also applies in relation Court of Appeal - court of first instance). Similarly excluded is composed of coercive measures in the same case with the judge erstinsanzlichen Court (Article 18 paragraph 2).

According to Article 21, paragraph 3, members of the appellate court does not also act as Law Lords in the same case. This provision is particularly so of practical relevance because CHStPO does not provide separate appeal instance. According CHStPO there are only two appeals against non-judgment: the call (as an ordinary appeal) and the auditors as to quite strong (first-or second) judgments. According to article 21 paragraph 1 lit. b, the appeals court judges also review requests.

freedom in the organization of the courts (Article 14) also with respect to their designation. It would in principle the Confederation and cantons allowed to name the appellate level as a Court of Appeal, but the kind described 18-21, only the tasks of the courts and not their name.

are also based on Article 14 autonomous cantons and federal government in principle on the question of whether to use the courts as individual or collegiate courts. This, however, with certain restrictions:

The first instance court in accordance with Article 19 paragraph 2 is lit. b is the establishment of a single judge inadmissible regarding cases in which the prosecutor requested a sentence of more than 2 years, a protest under Article 64 of the Criminal Code or treatment under Article 59, paragraph 3 StGB. This has probably makes sense to also apply to the Court of Appeal , Are so clear that although not specified in the text of the law. Clearly, should be allowed the establishment of a single judge as a sanction judges (sa embassy, FF 2006, p. 1138). As far as the appeal body, derives from Article 395, that the Confederation and the cantons have the authority, a judge use as an appeal instance.

A note was lit at this point to Article 20, paragraph 1. c fixed:

evident from this provision requires that coercive measures against all decisions of the Court of appeal may be brought. Interestingly, this is just the most far measure, namely, the detention order is not the case. According to article 222 is the appeal against detention decisions only possible if the custody or security detention lasted 3 months. Legitimized in each case, only the detained person, not including the prosecution.

is permitted to appeal, however, for the monitored (whilst the prosecution is not in turn legitimizes the taking of appeals against refusal of permission by the coercion court) have full regard, practically of all the other decisions by the compulsory measures Court (Anorndung the Telefonüerwachung, Article 279 para 3 ; monitoring of technical surveillance equipment, Article 281 para 4 i.Vb.m. Article 279 para 3; monitoring of banking relationships, Article 285 para 4; undercover investigation, Article 298 paragraph 3). No appeal is against the granting of a DNA mass examination by the court coercion (Article 256 i.Vb.m. Art. 20 para 1. C). While the meaning of the exclusion of redress for DNA mass screening still evident (just complaining legitimacy would be the "mass" which would be beyond the capacity of Appeals well), it is common for the investigation and security prison while in the previous cantonal codes of criminal procedure, but in my opinion not comprehensible at first glance.

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CHStPO: Comment to Article 17

violation of Article 17 law enforcement agencies
a Confederation and the cantons, the prosecution and assessment of administrative violations transmitted.
two offenses that are related to a crime or offense had been committed to be together with that pursued by the prosecutor and the courts and judges.

Article 17 gives the cantons of the opportunity for the prosecution and adjudication of violations (which are not related to crimes or offenses prosecuted and judged) to create special authorities. This can also be administrative authorities (eg government governor, magistrate, etc.). The violation criminal authorities such as the prosecutor and the criminal courts in applying the law irrespective (Article 4 paragraph 1). The criminal offense is regulated in Article 357th This provision refers back to the penal procedure. According to Article 127 paragraph 5, the cantons provide for criminal offense that the defense of the accused may also be exercised by persons -

:

The CHStPO elsewhere contains specific provisions which relate to the prosecution and adjudication of violations which, according to Attorney Act (BGFA) is not approved for party representation.

- Article 217 para 3, the provisional arrest allows for violators only under restricted conditions (for unknown personal details, lack of Residence in Switzerland or if the arrest is necessary to deter the suspect from committing further violations). In the case of the missing resident in Switzerland for the provisional arrest is only permissible if the suspect does not immediately make a deposit for the expected fine. In any case, the only suspect is a violation within 24 hours to release again because the order of detention for violators out of the question (Article 219 i.Vb.m. Article 221).

- According to Article 381 para 3, the legitimacy of authorities on the taking of appeals in derogation from the procedure laid down concerning crimes and misdemeanors be.

- According Art. 395th a view does the President (Art. 61 lit. c) the appeal (if the cantons provide for appeal body collegiate courts) appeals in criminal violation of a single judge. According to article 19 paragraph 2, lit. may provide a Cantonese for violators as well as individual judges judging instance.

- Article 398 paragraph 4 limits the grounds for appeal in a criminal offense. The complaint may be only a sentence fraught with errors of law and is manifestly incorrect or based on fact-finding violations. New allegations and evidence can not be advanced. According to article 406 para 1 lit. c can the cantons in violation of criminal appeals provide a written procedure.

Apart from these variations, the transgression of law enforcement agencies (such as next to the prosecutor and the courts and the police) assumes basically no restrictions on CHStPO. All these methods differing provisions for violators seek obviously seeking to facilitate greater efficiency in these processes. It should not be overlooked that it is the criminal offense by far the most common criminal. The cantons that make use of different rules for Übertetungsstrafverfahren do, must therefore be aware that these "exceptions" (from the normal procedure) numerically represent the norm.

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CHStPO: Comment on Article 16

Article 16 Prosecutor
1 The prosecutor is responsible for the uniform enforcement of state criminal claim.
2 conducts the Pre-Trial, crimes prosecuted in the investigation, prosecution and, where appropriate, does represent the prosecution.

According to the approach of the prosecutor CHStPO model II is seen to the prosecutor about the entire criminal proceedings to a dominant position. He leads the pre-trial indictment charges, and represents them in court. After at the beginning of the legislative process still much debated was the right choice of model, are the - ultimately silenced critics of this model - mainly originating from western Switzerland. Today we can say is that that the election of the Prosecutor II model for the whole of Switzerland CHStPO a broad-based consensus.

pressed one advantage of this model in the Senate, the former prosecutor Dick Marty like this: ".. La deuxième concerne le modèle réflexion que l'on a choisi On veut un ministère public on" The pense que c'est la meilleure parmi celles solution proposée. Lorsqu'on parle d'un ministère public continue, ça ne veut pas dire "Too strong". And rather than "strong", I say to myself "a prosecutor who has more responsibilities," that is to say a more responsible public prosecutor. What was happening with the previous system, I knew, for the reform which I fought, and which was eventually changed in Ticino? Is that this sharing of responsibilities between judge and prosecutor led to a certain lack of responsibility, but now you have a prosecutor who is master and director of the proceedings from day one until he comes before the judge. It can no longer say - as we have often seen and heard in the halls de justice: "C'est le juge d'instruction qui a fait cet acte, c'est le juge d'instruction qui a cette Urdun perquisition, qui a cet reconduit interrogatoire." Non! Maintenant, au tribunal, on aura quelqu'un qui lui-même de la RÉPOND conduite de l'enquête. Et cela, selon moi, est une importante pour le warranty prévenu et pour le procès pénal déroulement you correct. "

In fact, it should increase the quality of Vorvefahrens tend, if the person who is responsible for the pre, during the course always certain, is that he has during the trial personally stand for his work on virtually straight. In the continuous process control in one hand is also an efficiency gain. On the other hand, lacks the four-eye principle, which constitutes one of the advantages of models with law enforcement investigator.

The exclusive process management by the prosecutor without investigating judge gives the prosecutor on the other hand a lot of power. Meanwhile, aware of the legislature and therefore has added some controls that would restrict the power of attorney:

- Article 18 requires the cantons to provide so-called coercive measure dishes. Its approval subject to investigation and security prison, the covert coercive measures (telephone monitoring, use of undercover Investigators, use of technical surveillance equipment, surveillance of banking relationships), and the arrangement of DNA mass analysis.

- expansion of the defense: according to Article 159 paragraph 1 may participate in the defense in any case already in police interrogations (so-called "law of the first hour"), Article 130 provides for the necessary defense rel. generous.

- According to Article 393, all orders and procedural steps of the prosecutor, the police and prosecuting authorities of the violation be challenged by appeal. can be claimed rights violations, including excess and abuse of discretion and legal delay and denial of justice and finally an incomplete or inaccurate findings of fact and inadequacy.

this sense can be said that the investigating judge but disappears, but its future tasks are placed in the hands and Veranwtortung of Defense, the constraint measure Tribunal and the Appeals Board.