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CHStPO: Comment on Article 54 and 55

5th Chapter: International Legal Assistance

applicability of Article 54 of this Act
The granting of international legal assistance and legal assistance procedures aimed only so far under this Act, other laws than the federal and international law
contracts contain no provisions for it.

Article 55 jurisdiction
1 Is a canton deals with a case of international judicial assistance, the prosecutor is in charge.
2 courts during the trial itself can provide legal assistance.
3 is subject to the powers of law enforcement agencies.
4 has the legal responsibilities of Federal assistance to a judicial authority, the Appeals Board jurisdiction.
5 Does the District, with a foreign Legal assistance is concerned, procedural actions in other cantons through, so this are the provisions on the national legal assistance cases.
6 The cantons regulate the procedure.

The international assistance has already been extensively covered by international law and by federal law. These provisions go according to Article 54 before the CHStPO. As for the passive from the perspective of Switzerland regards legal aid (ie the cases in which Switzerland is requested legal assistance from foreign countries), the process is governed by the IRSG and related regulation.

Furthermore, Switzerland is in relation bound to the provision of legal assistance to numerous bilateral and multilateral international agreements. These are also the active from the perspective of Switzerland legal assistance (legal assistance from Swiss law enforcement authorities to foreign countries) is relevant. It is worth mentioning at this point the primary European Convention of 20.04.1959 on mutual legal assistance in criminal matters .

The CHStPO can therefore confine itself to determine both the active and passive assistance for the competent authorities, what it does in Article 55th was in relation to Article 55 paragraph 4 nor particularly pointed out that according since 1.1.2007 Article 25 of IMAC for appeals against decisions by Swiss authorities (including cantonal) directly to the Federal Criminal Court has jurisdiction (other than the cantonal appeals instances).

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CHStPO: Comment on Article 49-53

Article 49 Principles
1 The prosecutors and the courts of the federal and cantonal authorities may require the punishment of other cantons or the federal government to carry out procedural actions. The requested authority shall examine the admissibility and not the adequacy of the required procedural steps.
2 For the handling of complaints against legal assistance measures, the authorities of the requesting cantonal or federal control. The authorities of requested canton or federal law, only the execution of the assistance measure
be challenged.

Article 50 Application for compulsory measures
1 requesting authority requires detention with a written presentation command
2 The requested authority shall, arrested people if possible within 24 hours.
3 Applications for other coercive measures are justified shortly. In urgent cases, the justification will be submitted later.

Article 51 Right to attend
1 The parties, their counsel and the requesting authority may attend the required procedural steps, if this law so provides. 2 Is
can attend, so there the authority, the requested authority, the parties and their counsel and where the method of action known.

Article 52 1 The principles
prosecutors, criminal offense and judicial authorities of the cantons and the federal government are entitled to all procedural acts for the purposes of this Act directly to order in another District and perform.
2 The prosecutor of the canton in which the procedure manual development to be carried out will be notified in advance. In urgent cases, a subsequent notification is possible. The request for information and requests for the handover of files
no notification is necessary.
3 The cost of the procedural steps and the resulting compensation obligations with the organizing federation or province, and he can charge in accordance with the Article 426 and 427 the parties.

Article 53 recourse to the police
Requires the requesting authority to provide a procedural measure to support the police, it shall make an appropriate request to the prosecutor of the canton requested, which shall issue the necessary orders to local police.

Articles 49 - 51, the process of the law governing the alternative, perform procedural actions requested by the District of (federal) on its territory at the request of the materially competent cantonal (Federation). Articles 52 and 53 contrast the Confederation and the cantons also the alternative possibility, the procedural steps to make foreign territory itself, if necessary with support from the local police. Court or the District of (federal) will remain free to choose which option he wants. The requested legal assistance from the canton (Federation) has to grant the Rechtsilfe and can not reject them around on the ground that the requested canton (Federation) can act to make the process even.

According to article 49, paragraph 1, the District requested (federal government) not to establish the legitimacy or appropriateness of the legal aid act (see BGE 119 IV 90). Consequently, determined about Article 49 paragraph 2 also that handles complaints against the applicant by the District of (federal) with these measures is the appeal body. The Appeal Board of the requested canton (Federation) has assessed only complaints against the way the execution of mutual legal assistance act (eg if the concrete procedures of the emergency action by leading police alleging).

Article 50 governs the legal assistance during arrests and other coercive measures. The legal assistance as enforcement of arrest warrants is now governed by Article 357 of the Criminal Code and Article 21 of the Concordat. According to Article 357 para 4 of the Criminal Code, the arrested person before the supply to the requesting to listen to Canton by the competent authority for the record. Article 21 of the Concordat specifies that this hearing must take place within 24 hours and the arrested person in summary, the reasons for the arrest and it was accused of criminal offenses must be reported. In contrast, now are in accordance with Article 50 para 2 of the CHStPO injections as possible within 24 hours to make. This short period is made in regard to Article 219 para 4 Under this provision, the police arrested the provisional within 24 hours be brought before the competent prosecutor. This has to question the Fesgenommenen according to Article 224 paragraph 1 immediately. In the case of a supply within 24 hours is unnecessary interview by the authorities of the requested Canton.

start under current law the detention period (the time limit for detention opening by the prosecutor and for the application to the magistrate and the period of detention judge within which he has to decide on remand) to run practice provided only after the injection of the relevant canton. This is likely the entry into force of CHStPO no longer be the case. Article 50 paragraph 2 i.Vb.m. Article 224 paragraph 1 and 2 suggest that also apply in the case of inter-cantonal supply the same period. This makes the light of the geographical narrowness of Switzerland and the fact that the whole of Switzerland with the entry into force of CHStPO same liability regime applies to meaning.

Article 51 governs the participation of law of the requesting authority and the parties. This has primarily well-defense rights of the accused in mind.

According to article 52 is not for the conduct of proceedings in another canton acts contrary to Article 359 para 1 of the Criminal Code requires the consent of the canton (so it actually looks even before the force today Concordat by Article 3 only the notification required). No notification is in accordance with Article 52 paragraph 2 on orders Edition required. According to paragraph 3, the costs (in particular also with respect to such allf. Compensation claims), consequently, by the performing and to take court or Canton.

The arrangement and perform procedural acts in another canton is in accordance with the terms of Article 52 paragraph 1, also the offense criminal authorities allowed. This, however, are not authorized to make the request to perform procedural actions in other cantons (this is in accordance with Article 49 paragraph 1 to the prosecutors and courts reserved). ME is this is a legislative oversight. If can be created even for the law enforcement authorities in violation of their own stuff, they should, consequently, all the powers of law enforcement in infringement cases have. In addition, there is no reason why the offense criminal authorities District can not apply for another, even what they themselves could perform in this canton.

According to article 53 are requesting Untersützung be addressed by the police of another canton to the prosecutor of the canton. Law enforcement authorities is therefore denied, give the police forces of other cantons to direct orders.

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CHStPO: Comment on Article 43-48

National Legal Assistance

Article 43 Scope and concept
1 The provisions of this chapter governing the legal assistance in criminal matters by federal authorities and the cantons in favor of prosecutors, transgression criminal authorities and courts of the Federation and the cantons.
2 For the police to the extent that they are acting under instructions of the prosecutor, violation of penal authorities and courts.
3 The direct legal assistance between police authorities of the federal government and cantonal level, by itself is permitted if it does not have compulsory measures for the subject, can only decide on what the prosecutor or the court.
4 applies as a legal aid any measure which is requested by an agency under its jurisdiction in a pending criminal proceedings.

Article 44 obligation to assist
The authorities of the Federation and the cantons are obliged to provide legal assistance when crimes under federal law in this application Act will be pursued and evaluated.


support Article 45 1 The cantons set the criminal authorities of the Federation and the other cantons where necessary and possible areas for their duties and for the accommodation of Untersuchungsge-collected for disposal.
2 The cantons shall, on application of the criminal authorities of the Federal the necessary measures to ensure the safety of the official activities of these authorities to ensure.

Article 46 Direct commerce
1 The authorities shall communicate directly with each other.
2 requests for legal assistance can be provided in the language of the requesting or the requested authority.
3 When there is doubt about which authority is competent, the applicant authority addresses to the request to the chief prosecutor of the canton or the federal government requested. This conveys it to the appropriate authority.

Article 47 1 The cost
legal aid is provided free of charge.
2 The federal government pays the cantons, it causes to support costs for the purposes of Article 45th
3 Any costs to be reported to the requesting District or federal government, so they paid the parties may be imposed.
4 Compensation obligations of mutual assistance measures with the applicant or the Federal District.

Article 48 conflicts
1 About the conflict Mutual legal assistance between authorities in the same canton decides the final appeal body of the canton. 2 About
conflicts between the federal and cantonal authorities and between authorities of different cantons, the Federal Criminal Court.

After 3 Chapter of the 2nd Title, which deals with the territorial jurisdiction governs, now the 4th Chapter, the national legal aid. So it is here to process transactions which in other cantons (or by the State) are to be made, without which they have jurisdiction. The national legal aid is now in Articles 356 - 361 of the Penal Code regulated and 252 f. BSTP. In addition, there is a concordat of 5 November 1992 Legal Aid and the inter-cantonal cooperation in criminal matters. These provisions are largely adopted without substantial changes in content. The legislature waived the adoption of the Penal Code also contained provisions on mutual assistance in the field of police. These should be integrated into a separate act of the federal police (see message BBl. 2006, p. 1144).

The rules for the national legal aid based on the principle of mutual obligation to provide free legal assistance of the federal government and the cantons. In addition, to perform the law enforcement authorities of Canton procedural steps in any other District. Neither this purpose requires a license from the canton in which the actions be made. Still, this has to examine the legality of a material point (so explicitly BGE 119 IV 90 ). This applies both to the case of performing legal assistance as requested by the District and in the case of direct execution of procedural action by the competent District in another canton.

made special mention of this principle especially against the background that both the criminal law as well as the criminal law matters covered cantonal, meaning. After his standardized in future not only of the substantive criminal law but also the criminal law, the above-mentioned principle is really a matter of course. However change the uniform Code of Criminal Procedure not alter the fact that the cantons generally perceive law enforcement in their own territory and sovereign. Based on the given under Article 14 of the cantons Organistaionsfreiheit it should theoretically be possible to use several cantons joint law enforcement authorities. Article 191b paragraph 2 provides for this possibility explicitly against BV for judicial authorities. To administrative authorities (such as the Public Prosecutor) should be possible even without a basis in the Federal Constitution.

Articles 43-48 regulate the general principles of national legal aid.

Article 43: All law enforcement agencies (prosecutors, Violation of criminal authorities, courts) of the federal government and the cantons are of mutual legal assistance right and obligation. The direct legal assistance between police authorities, however, is only permissible when it is not about coercion.

Article 44: The obligation to provide legal assistance is only in the application of federal criminal law by CHStPO. Not included in it is therefore approximately the cantonal prosecution of criminal or administrative prosecution under criminal law.

Article 45: It reflects the principle in the present Article 28 and 29 BSTP.

Article 46: This provision posited direct commerce. This is already in accordance with Article 357 paragraph 1 of the Criminal Code and Article 15 prov. 1 of the Concordat.

Article 47: The legal assistance between the cantons to be generally free of charge. The cost of legal assistance may be imposed in case of conviction of the accused. The federal government has the cantons according to their support. to compensate Article 45th Section 4 incorporates the federal court jurisdiction: BGE 118 Ia 336 .

Article 48: This provision provides the dispute before them for decision by relevant authorities such as conflicts of jurisdiction (Article 40, except the jurisdiction of the upper or Attorney General).

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CHStPO: Comment on Article 39-42

Article 39 Examination the competence and agreement
1 The criminal jurisdiction of authorities check their official duties and conduct a case if necessary, the responsible department.
2 shows several law enforcement agencies as a local jurisdiction, then the participating prosecutor informed immediately of the essential elements of the case and seek a possible agreement.

Article 40 Jurisdiction 1 Is
conflicts of jurisdiction in criminal authorities of the canton of the same dispute, the decision is the top or Attorney General or if not so provided, the final appeal body of the canton.
2 Can the law enforcement authorities different cantons can not agree on jurisdiction, it shall submit the prosecutor of the canton, which was first seized of the matter, the question immediately, in any case before the
indictment, the Federal Court for decision.
3 can for decision on jurisdiction competent authority to set a different than those provided for in Articles 31-37 of jurisdiction, especially where the focus of the tortious activity or the personal circumstances of the suspect is or there is other good reason.

Article 41 challenge to the jurisdiction of the parties involved
1 Will a party with the responsibility of the criminal proceedings Challenge authority, it shall apply for this immediately transfer the case to the competent criminal authorities.
2 against the decision taken by the relevant decision on the prosecutor's jurisdiction (Article 39 paragraph 2) to the parties within 10 days with the complaint under Article 40 for a decision on jurisdiction competent authority
. Prosecutors have agreed to a different jurisdiction (Article 38 paragraph 1), so that complaint is only open to possibility of the party whose application has been rejected under paragraph 1.

Common provisions Article 42 1 Up
the mandatory provision of the forum shall take the first with the Case authority dealing with the urgent measures. If necessary, referred to the decision on jurisdiction competent authority that authority, the
tentatively has to deal with the matter.
two arrested persons are supplied to the authorities of other cantons only if the jurisdiction has been designated as binding.
3 A defined in accordance with Articles 38-41 of jurisdiction can only be changed from new good cause and only before the indictment.

Articles 39 - 42, the control method for the determination of jurisdiction.
This was hitherto regulated by Articles 345 and 264 of the Criminal Code BSTP very summarily. These provisions to and supplemented by existing case law (see message BBl. 2006, p. 1143). Article 264 BSTP has, however, repealed with the enactment of the Federal Law on the Federal Court (SGG). According to article 28 paragraph 1 lit. g SGG the Federal Criminal Court has jurisdiction to rule on contentious jurisdiction among the cantons. At this responsibility is not changed (Article 40 para 2 CHStPO). More marginal procedural rules for court proceedings as are now found also in Article 279 BSTP.

Article 39 is the consequence of the criminal investigation force principle (Article 6 CHStPO). Accordingly it is just the local jurisdiction, ex officio be clarified. Does a criminal authority to decline jurisdiction, it shall immediately forward the documents to the competent authority in their view (paragraph 1). Several potentially relevant criminal authorities have to agree, ex officio and as soon as possible to reach an agreement (paragraph 2).

Article 40 governs the procedure if they disagree on potentially to law enforcement can not. In intra-cantonal money decides the appeal stage. In the cantons, which provide an upper or Attorney General, will decide this. Decisions on intra-cantonal jurisdiction can not be appealed to the Federal Criminal Court. They also bind the judging court (Paragraph 1).

the inter-cantonal relations, the first to call the matter dealt with criminal authorities in case of dispute, the Federal Court (para 2).

According to paragraph 3 can also specify the competent authority in case of dispute a different jurisdiction (see Article 38).

Article 41 deals with the appeals of the other parties (other than the prosecutor). Essence of this provision is that the parties involved can appeal against decisions of the prosecutor's appeal by the competent authority in accordance with Article 40. Do they want to challenge a different jurisdiction, they are only legitimate complaint when they advance a have filed for referral to another authority. Such a need to make it even if a prosecutor without negotiating with other prosecutors are considered responsible and therefore by itself is no formal decision. The request of the parties to transfer to another authority has carried out in accordance with the terms of Article 41, paragraph 1 immediately. It can be concluded that the right to defend itself against the acceptance of responsibility by a criminal authority, it is forfeited if not immediately (to the knowledge of the facts establishing the jurisdiction) asserted.

Article 42 seeks to ensure that the process does not suffer from conflicts of competence.

According to paragraph 1, the prosecution, pending a definitive decision on the jurisdiction of the lead first with the case have authority, at least as far as urgent measures. If necessary, means the competent authority according to Article 40 the competent authority for urgent measures.

According to paragraph 2 shall be supplied to persons arrested only after binding clarification of jurisdiction to another canton.

According to paragraph 3, a once-defined jurisdiction only be changed from new good cause and only before the indictment. This also means that the judging court can not declare jurisdiction. After charge, may order only the Appeals Board a "transfer" of jurisdiction (Article 38 paragraph 2).

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CHStPO: Comment to Article 33-38

Article 33 jurisdiction in the case of parties
1 The participants of a crime will be prosecuted and judged by the same authorities as the perpetrator or perpetrators.
2 If a crime has been committed by several co-perpetrators or accomplices, the authorities of the place are responsible for the acts of persecution are first been made.

Article 34 The venue for multiple offenses committed at different locations

1 When a person accused of multiple offenses committed at different locations, so for the prosecution and adjudication of all actions by the authorities in charge of the place where that has been committed with the most severe punishment threatened action.
With the same threat of punishment, the authorities in charge of the place where the first acts of persecution have been made
.
2 If a party in Canton at the time of the jurisdiction under Articles 39-42 for one of the offenses have been indicted, then the procedures done separately.
3 If convicted a person of different dishes at a number of similar sentences, it is the court that the heaviest Penalty is pronounced, firm at the request of the convicted person has a cumulative sentence.

Article 35 The venue for crime through media
1 For an offense committed in Switzerland pursuant to Article 28 of the Criminal Code, the authorities in charge of the place at which the media company has its headquarters.
2 If the author or the author has known and he or she is the resident or ordinarily resident in Switzerland, so are the authorities of the domicile or habitual residence jurisdiction. In this case, the process is carried out there, where are the first acts of persecution have been made. Case of the latter may choose the claimant between the two jurisdictions.
3 If there is no jurisdiction under paragraphs 1 and 2, are the authorities in charge of the place where the media product has been distributed. If the spread in several places, the authorities of the place are responsible for the acts of persecution are first been made.

Article 36 The venue for enforcement and bankruptcy crimes and criminal proceedings against companies

1 For offenses under Articles 163-171bis of the Penal Code are the authorities on domicile, ordinary residence or at the seat of the debtor or the debtor's jurisdiction.
2 For criminal proceedings against the company under Article 102 of the Criminal Code are the authorities at the headquarters of the company responsible. This also applies if the proceeding is governed by reason of the same facts against a person acting for the company.
3 If there is no jurisdiction under paragraphs 1 and 2, it shall be governed by Articles 31-35.

Article 37 The venue for self recovers
a self recovery (Art. 376-378) shall be performed at the site, located at which the recovered objects or assets.
2 are the recovered objects or assets in several cantons, provided it was because of the same crime or offense by the same work, so the authorities in charge of the place where the recovery procedure was first opened is.

Article 38 designation of a different jurisdiction
1 The prosecutor may agree among themselves a place other than those specified in Articles 31-37 provided for jurisdiction, especially where the focus of the tortious activity or the personal circumstances of the suspect is or there is other good reason.
2 In order to safeguard the procedural rights of a party, the Appeal Board to transfer the canton at the request of that party or ex officio to impeach the finding in derogation of the jurisdiction provisions of this chapter to another court or court of first instance of Canton for evaluation.

does Article 33, with some modifications in the present Article 343 of the Criminal Code. Moreover, Article 33, the already repeated in Article 29 paragraph 1 in so-called "internal relations" established principle that criminal acts involved multiple perpetrators of the crime (as accomplices or participants) will be assessed jointly.

Section 2 defines the "forum präventionis" set, again with the modification that instead of investigative actions must be based on acts of persecution is. This refers to the case where several accomplices an act - perpetrate in different places - or more actions. Otherwise, the question of jurisdiction would not even ask.

Article 34 does the current Article 344 of the Criminal Code.

Section 1 deals with the constellation, where an offender has committed several crimes in various places. Responsible, the authorities at the site of action which is threatened with severe punishment. In determining the "most serious offense" is primarily due to the threat maximum sentence to an end. With the same maximum penalty on the amount of the threatened Mindesstrafe. This qualifying and unfair privileges to the factual circumstances of the Special Section of the Criminal Code to be considered. Rules that apply are those offenses that the accused are charged by the respective law enforcement agency at the time of the determination of jurisdiction, that is what this time in the process object is. Deviate from the suspension of the respective law enforcement authority is only when this is clearly untenable. It is also the principle in dubio per duriore ", ie when there is uncertainty whether the alleged facts meet this or that event, in case of doubt on the facts with the heavier penalty prescribed remedy: BG.2006.20 .

In determining the "worst act" as reduced sentences are objective reasons to consider (such as that of the only attempted perpetration: BK_G 031/04). Not included, however, is raising the penalty because of the multiple offense;: BK_G 092/04.

If the Perpetrators of crimes committed several different places, which are threatened each with the same penalty, that in turn is the "forum präventionis" applies.

causes a material change in the law of Paragraph 2 of Article 34th Under this provision, procedure no longer unite, if already charges were filed. So far, the Federal Court that date to adopt the first-instance ruling was postponed. The bring forward the date on which a union is no longer in question is appropriate. Otherwise, the trial would be delayed by the fact that it is still to unite with methods that at best do not yet ripe accusatory.

para 3 is a subsequent corrective, in the event that has not been met for any reason Article 49 of the Criminal Code.

It is now the question is how to proceed when multiple parties at one or more acts of perpetrators (or participants) one or more accomplices in addition to, or has the jointly committed act (s) nor delinquiert otherwise. In this case, the principles of Articles 33 and 34 are to combine. This means that a person who is the District of evaluating all acts of jurisdiction in which one of the accomplices has committed the most serious offense punishable respectively. with the same threat of punishment the canton, who first performed acts of persecution ( BG.2006.12 )

Article 35, which governs the jurisdiction for criminal acts by the media, takes over the current content of Article 341 of the Criminal Code. In this connection, paragraphs 2 and 3 of the present Article 356 of the Criminal Code be deleted. This means in effect that a District of another extradition of the accused may not refuse on the grounds that it involves the prosecution of political crimes or offenses committed via the media. For this reason, also Article 341 para 3 of the Criminal Code to be deleted (see the message this purpose, FF 2006, p. 1142 f).

Article 36 sets out the jurisdiction for enforcement and bankruptcy crimes, as well as for criminal acts by companies. This is the current practice adopted.

Article 37 does the present Article 344a of the Criminal Code.

Article 38 allows for the determination of departure from the above rules of jurisdiction. This purpose to the competent prosecutor's some (paragraph 1). After charge, the Board has jurisdiction (paragraph 2). This possibility already exists under the present Article 262 and 263 BSTP each para 3 The departure from the legal jurisdiction shall be the exception, be based on clear grounds and are intended to speed up the process or the process economics. The reflection on the inappropriateness of the legal jurisdiction must imperatively force ( BG.2005.9 ).