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to comment Art. 104 - 106

third Title: Parties and the other party

first Chapter: General Provisions

first Section: the concept and position

Article 104 Parties are 1
parties: a. the person accused
;
b. the private prosecutor issued;
c. in the main and on appeal: the public prosecutor.
two federal and cantonal authorities may grant further to safeguard the public interests, have full or limited party rights.

Article 105 of the other party are
1 Other party: a. the person injured
;
b. the person making the report;
c. the witness or the witness;
d. the respondent;
e. or experts;
f. or the procedural acts complained by any third party.
2 If affected in paragraph 1 to the proceedings directly in their rights, so they are entitled to the procedures necessary to safeguard their interests, rights of a party.

Article 106 process capability
1 The Party may make procedural only valid if it is able to act.
2 An incapacitated person is represented by its legal representative.
3 A judicious incapacitated person may exercise in addition to their legal representation, these procedural rights, the highly personal nature are.

The CHStPO different, as today's cantonal codes of criminal procedure, between the parties (Article 104) and other interested parties (Article 105). While the parties generally get all the procedural rights fully, the other parties that claim only insofar as necessary to safeguard their required by the crime or the criminal proceedings directly touched on interests. Thus, for example, the witness can exercise his right to refuse to testify and can by a house search or seizure interested parties require the sealing of information carriers or lodge complaint against the coercive measure.

Party status, in addition to the accused and the prosecutor at trial, only the private prosecutor shaft. Private prosecutor, the victim, who expressly to participate in criminal proceedings as criminal or civil action (Article 118 paragraph 1). This position comes the Criminal applicant automatically (Article 118 paragraph 2). Unlike some cantonal codes of criminal procedure provides for the CHStPO not restrict the rights before the private party plaintiff in the case that the prosecutor represents the prosecution in court. According to article 346 is the private prosecutor shaft thus argue in penalties.

Article 104 paragraph 2 empowers federal and cantonal authorities designated, public to protect interests have to give party status. Thus, for example, be granted to the Environmental Protection Agency in a criminal case for violation of environmental protection relevant criminal provisions (eg the EPA) or the Veterinary Office in a criminal conviction for violation of animal protection legislation, party status. Was also discussed, however, rejected the idea, even some privately organized clubs or associations to grant party status. This would contradict the state law enforcement monopoly. The imposition of the state criminal claim is subject to the prosecutor.

to the other parties in accordance with Article 105 of the Criminal Code:

victim is on facts, which protect individual rights, the victim directly, so the tatbeständlich injured. Damage is thus about the ownership of the proceeds of crime in the theft or handling stolen goods. But the tenant of a damaged object in property damage. No victim has come to the position only indirectly affected. example of insurance (see Schmid, Criminal Justice, p. 166 ff, para 503 -. 507). For offenses that primarily protect general public interests, even one who is regarded as victims, whose private interests are strongly affected directly. Damage is thus also about the owner or tenant of a damaged in an arson case, the Creditors in bankruptcy and debt offenses that exploited prostitutes in Article 195 of the Criminal Code, the see through property crimes victims in the case of forgery, which was used to commit the capital offense or wrong wrongly accused (see Schmid, supra, p. 168 f. , para. 508 et seq.)

the listing: This course will be practically no participation rights. He is not even, for example, based on the attitudes of criminal investigation (Article 321).

witness / informant: also this feeling out of the right to remain silent virtually no participation rights. However, they can take certain protective measures in claim (Article 149 et seq.)

The expert: This takes part in the proceedings so far as is necessary for the fulfillment of his order (for example, taking note of evidence).

The third complained of procedural acts: for example, the account holders to bank information and lock available (but probably not the bank).

Article 106 regulates the process capability. Unable to act may provide only highly personal process rights themselves, provided they are of sound mind. Moreover, they act through their legal representatives. Otherwise the necessary defense. According to Article 130 lit. c the accused must be defended necessary if it because of his physical or mental Condition or other reasons his procedural interests can not maintain adequate legal representation and this is not in the situation. Unless the accused is able to act, however, he may exercise his procedural rights in spite of necessary defense still itself, that act in addition to his own defense.

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CHStPO:: CHStPO commentary on Article 100-103

9th Section: records management, access to file and record-keeping

Article 100 case files
1 For each criminal case is created a document file. This includes: a.
the process and the hearing records;
b. compiled by the criminal authority files;
c. by the parties filings.
2 The process management is responsible for the systematic storage of files and for their continuous coverage in a directory, in simple cases, it may refrain from a directory.

Article 101 Inspection of files in pending proceedings
1 The parties may, no later than after the first interrogation of the suspect and the collection of other important evidence by the prosecution to view the files of the criminal proceedings, Article 108 is reserved.
2 Other authorities may view the documents if they need it for the processing of pending civil, criminal or administrative proceedings, the inspection of any overriding public or conflict with private interests. 3 Third
can view the files, if that means a scientific or other interest worthy of protection claim and preclude the inspection of any overriding public or private interests.

Article 102 procedure for requests for access to the file
1 The process management will decide on the file. It shall take appropriate measures to prevent abuses and delay requirements and to protect a legitimate interest in secrecy.
2 The document can be viewed at the headquarters of the relevant criminal authorities or other legal assistance, at a penal authority. Other authorities and the legal advisers of the parties they are delivered normally.
3 Who is entitled to inspect, may upon payment of a fee to make copies of the files require.

Article 103 of file storage
1 The records are kept at least until the end of the proceedings and the enforcement statute of limitations.
Except for 2 original documents that were taken on the files, they must be returned to the persons entitled to a receipt once the criminal case is finally decided.

Article 100:
The files have particular protocols on the performance of procedural acts (Art. 76 para 1) - including the records and reports on the identification of actions Police, the prosecutor should be submitted (Article 307 para 3 and 4) - as well as by the Staatsanwaltschft collected and included filings by the parties. This document must be complete. The CHStPO has neither the leadership of so-called "shadow files" even as the destruction or removal of files (which were once raised to the case file) before. About what is being placed on the file, decide the procedure line (and not a political authority). It must therefore be considered as absolutely inadmissible if arrange a political authority, such as the Federal Council, the destruction of files that have been raised in criminal proceedings as evidence of the case file would. These kinds of action would probably the fact of suppression of documents, respectively. abuse of office requirements. Based on the independence given under Article 4 of the penal authorities, it would also be inadmissible if the Federal Council would be about the federal prosecutor in a particular case, give instructions, which may be levied on the file and what does not.

Article 101 paragraph 1 is
emphasized that regulates access to the file of the parties, especially the accused. The right to inspect records of the parties is part of the law to the Federal Constitution (Article 29 paragraph 2) guaranteed right ear. According to paragraph 1, the parties no later than after the first interrogation the defendant and the decrease in other important evidence in the files of public inspection. The right of the accused, to ask a question witnesses, may however indicate the defendant be granted prior to the hearing of the witnesses against him access to the file, since this can only be undertaken having regard to the document. It is the process line is of course also free to carry out an initial interrogation of the witnesses to the exclusion of the defense and to confront these later then in a period (after granted access to the file) with the accused. In custody proceedings, the right to inspect records is unlimited (Art. 225 para 2, s. Embassy, FF 2006, p. 1161st f.). A further restriction on access to documents is only possible under Article 108th However, it is very doubtful whether the maintenance of professional purpose under the lit in Article 108, paragraph 1. b is referred to safeguard public interests in secrecy. I would deny this. The maintenance of professional purpose, the CHStPO needs, by Article 101 paragraph 1 allows the exclusion of access to file until after the first interrogation of the accused or the loss of key evidence. A further exclusion of access to file to preserve the purpose of investigation, relying on Article 108 would be inadmissible. The latter provision could appropriately be used, however, when certain acts of public safety could jeopardize. In this case, justifies a restriction of access to the file, but not the destruction of files. It follows that the destruction of files and can not be justified, they could fall into the wrong hands. As a less drastic measure would be just the restriction of access to documents to be arranged, including but as mentioned, only the process line is authorized.

According to Article 102 decides, as already mentioned, the process management on the implementation and possible restriction of access to the file.

According to article 103 are basically the files kept by the end of the proceedings and the enforcement statute of limitations. Third-party documents were taken in the original of the document, they are after a final settlement of the criminal proceedings to hand over the claimant (paragraph 2). The wording of paragraph 2 would exclude it, strictly speaking, the process line in front of final settlement of the criminal acts of third parties that cause returns (such as when they have ceased to be relevant). In extensive criminal but it makes little sense, acts that have proved to be irrelevant to the end kept the criminal proceedings. A returning items to the rightful owner would be to make the process transparent and also log all parties a fair hearing would be granted.

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CHStPO: Comment on Article 95-99

8th Section: Data processing

Article 95 Collection of personal data
1 Personal data are from the data subject or to procure for the seen if this method is not endangered or excessively costly.
2 was not the procurement of personal data for the person identified, they must be informed immediately about it. The information can be omitted to protect overriding public and private interests, or be postponed.

Article 96 disclosure and use in a pending criminal proceedings, the criminal authority may order from an independent process personal data for use in another independent method to announce, it is likely if that data can provide important clues.
2 is subject to the notification requirements under Articles 11, 13, 14 and 20 of the Federal Law of 21 March 1997 on measures to preserve the internal security and the provisions of the Federal Act of 7 October 1994 on central criminal police bodies of the Federation.

Article 97 Right to information on pending cases as long as
a process is pending, the parties and the other parties have in accordance with the law they are entitled to access to the file the right to information concerning them processed personal data.

Amending Article 98 Data
1, personal data prove to be incorrect, correct the competent criminal authorities to immediately.
2 immediately inform the authorities to which they have communicated inaccurate data about the correction.

Article 99 of processing and storage of personal data after the procedure
a judge after the conclusion of the procedure, the processing of personal data, the procedure and the legal protection under the provisions of data protection laws of the federal government and the cantons.
2 The duration of retention of personal data following a procedure determined by Article 103
3 is subject to the provisions of the Federal Act of 7 October 1994 on criminal Central bodies of the Federation and the provisions of this Act on official documents and detection of DNA profiles.

Article 95 corresponds to the provision in Article 29 bis, paragraph 2 and 3 BSTP.

Article 96, paragraph 1 corresponds to Article 29 bis, paragraph 4 BSTP. Under this provision, the law enforcement agencies to disclose personal data from independent method for use in other pending cases justified. According to the internal security law, which refers to paragraph 2, etc. is, for certain data, a disclosure requirement for the criminal authorities. Apparently been controversial whether these reporting obligations under internal security law also apply to the criminal authorities (this wording, despite the clear fact lit with article 13, paragraph 1. a LMSI; ambassador pay to see, FF. 2006, p. 1159).

Article 97 regulates the right to information by interested parties in the pending criminal proceedings. The Data Protection Act (DPA) is in accordance with Article 2, paragraph 2 shall not apply to pending proceedings. Entitled to information concerning them processed to obtain personal information, only the parties in accordance with Article 104 and the other parties in accordance with Art 105th And then only in accordance with the access to file law (Article 101). According to Article 102bis was present BSTP request any person in the federal information on them and they Prsonendaten that handles the judicial police.

Article 98 receives from the DSG flowing 'rights to a correction of incorrect data. This should be corrected immediately. According to today for the federal criminal still in force Article 29 bis, paragraph 5 BSTP has made the adjustment to contrast, not later than at the conclusion of the investigation or preliminary investigation. Article 98 addresses only the obvious correction of incorrect data. Consist only of doubt as to the accuracy has to be no immediate correction (see message BBl. 2006, p. 1160).

Article 99 refers to the DSG, which applies after the procedure is generally unrestricted.

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CHStPO: Comment on Article 89-94

7th Section: Dates and Deadlines

Article 89 General provisions
1 Statutory time limits may not be extended.
2 gives the criminal proceedings are no vacations.

Article 90 and start calculating the time limits
a time-triggered by a release or the occurrence of an event to start the following day to run.
2 If the last day of the period on a Saturday, Sunday or at the place of the competent authority by the Federal criminal law or by the cantonal law recognized holiday, it ends on the next business day. The determining factor is the law of the canton in which the party or his lawyer or the residence is situated.

Article 91 deadlines
1 deadline met if the procedural act is performed by the last day with the competent authority.
two entries must be later than the last day of the deadline given by the criminal authorities or to pass their hands of the Swiss Post, the Swiss Code of diplomatic or consular office or, in the case of detained persons, the institutional circuit.
3 At the time of electronic transmission is maintained if the reception at the Law Enforcement has been confirmed by the last day of the period through their computer science system.
4 The period is also observed if the input by the last day of the period at a non-authorized Swiss Code of authority is received. This directs the entry immediately to the competent criminal authorities.
5 The deadline for a payment to a criminal authority is met if the amount passed by the last day of the period in favor of the criminal authority of the Swiss post office or a postal or bank account has been charged in Switzerland.

Article 92 Extension of time limits and shifting deadlines
The authorities may, ex officio or on application, extend the scheduled trial dates and deadlines of them move. The application must be submitted before the deadline and duly justified.


failure by Article 93 A party is in default, when a procedural act within the deadline, taking or failing to appear at a date.

Article 94 Recovery
1 If a party neglects a deadline and would you come up with a substantial and irreparable loss of rights arise, they can demand the restoration of the period and is to have to demonstrate that they meet at the default of not at fault.
2 The application must be submitted within 30 days after removal of Säumnisgrundes writing and shall provide to the Authority, in which would have the failed methods of action should be made. Within the same period, the procedure failed treatment will be made up.
3 The application has only a suspensive effect, if the competent authority granted them.
4 decides on the request of the criminal authority in a written procedure.
5 paragraphs 1-4 shall apply mutatis mutandis to missed appointments. If the recovery is granted, the procedures set line set a new date. The provisions on the safety procedures absence Reserved.

Art.89:
are in contrast to the court or the prosecution time limits to carry out party activities and the time limits set by the law not extended. Apply in criminal proceedings, no vacations. The applicable principle in criminal speeding up the procedure is paramount.

Article 90:
Section 1 provides that the period which is determined in days to run on the following day the time the triggering event begins.

Section 2 provides a legislative breakdown whereas the provisions is in fact contradictory. According to the first proposition is decisive for the determination of fristverlängernden holidays right in the place of law enforcement. The second sentence, however, shall ensure the address of the party or his representative who shall act within the deadline. What is true now, when the party and its representatives in each different cantons and residence, criminal proceedings are conducted again in another District? Example: Procedures Leading Canton, Canton Solothurn. The accused lives in the canton of Bern and his defense has headquarters in the canton of Zurich. Only can be prevailing in accordance with the proper interpretation of this provision is simply the law of the process leading Canton. The second sentence of paragraph 2 should be deleted without substitution. The law which applies at the point of the process leading authority will prevail in guided by federal criminal authorities procedures. If a criminal case, for example, through the Zurich branch of the federal prosecutor, shall apply to the canton Zurich law recognized holidays as a time prolonging. If the procedure is pending in federal criminal court, then the holiday from the canton of Ticino. The key test is whether a relevant days the relevant place of procedure leading authority is a state-recognized holiday. For example, the Boxing Day is for the cantonal law of 24 May 1964 on public rest days in the canton Solothurn is not recognized as a state holiday. So ends a period on Boxing Day, so make the appropriate party for action, even at face value the fact that the offices of the cantonal administration to this day are closed ( decision of the Federal Court, 25.7.2006).

Article 91: this scheme corresponds to the previous case.

Article 92: deadline extension requests must be made within the original period. A statutory period for the case that the competent authority rejects a deadline extension request is not provided. It is therefore appropriate, applications for extension of the deadline not until the last day of the period provide. However, it would be arbitrary, if the competent authority's decision on a deadline extension request, which is made several days before the deadline, until the last day of the period, and so rejects the party takes the opportunity to preserve the deadline after all.

Article 93 and 94 regulate such failure and the restoration of a period. Article 94, Section 1 was in Parliament g.ü. Draft aggravated by the recovery is only possible with completely involuntary delay. The draft would have allow the reconstructive even in the case of only slight fault or want.

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CHStPO: Comment on Article 84-88

6th Section: Opening of the decisions and delivery

Article 84 of the opening of the decisions
1 Is the method public so the ruling opens up the court after the verdict advice orally and justified it short.
2 The court issued the parties at the end of the trial the verdict of dispositive or provide them to within 5 days.
3 Can the court make the decision immediately, it takes this as soon after as possible, opening up the decision in a rescheduled hearing. If the parties in this Case to a public verdict, so the dispositive them, the court immediately after the verdict.
4, the court must justify the verdict, it shall within 60 days, 90 days in exceptional cases, the suspect and the prosecutor explained to the complete sentence, the other parties only those parts of the appeal, in which their applications will be treated.
5 The authorities opened criminal proceedings conducting simple decisions or orders the parties in writing or orally.
6 Decision are in accordance with the provisions of the federal and cantonal laws, other authorities, and the lower court of appeal decisions, final Decide the extent necessary to inform the law enforcement and the criminal authorities.

Article 85 of the form of messages and the delivery
1 The law enforcement agencies use for their communications be in writing, unless this Act provides otherwise.
2 The service is effected by registered mail or otherwise, against a receipt, in particular by the police.
3 is established when the mission was taken by the addressee or the addressee or by an employee or in the same household, at least sixteen years old person answers. We reserve the right instructions
the criminal authorities, a statement of the addressee or the addressee personally served.
4 is also considered a means of: a.
for a registered mail item which has not been picked up: on the seventh day after the unsuccessful delivery attempt, if that person had to expect a delivery;
b. is held by personal delivery, if the addressee or the addressee refuses to accept this and the bearer of the bearer or: on the day of refusal.

Article 86 Electronic delivery
With the consent of the person made any notification electronically.

Article 87
an address for legal service announcements are the addressees of their domicile, habitual residence or their Served seating.
two parties and counsel with domicile, habitual residence or headquarters abroad have to call an address for legal service in Switzerland; reserved state which states that messages can be delivered directly.
3 Communication to parties who have appointed a lawyer to be legally served on them.
4 If a party to appear in person to a hearing or proceedings conduct themselves, so her message is delivered directly. The legal advice will be sent a copy.

Article 88 Public Notice
1 The service is effected by publication in the federal government or the Canton designated the Official Journal if: a.
is unknown whereabouts of the addressee or addressees and despite reasonable investigation can not be determined;
b. notification is impossible or would be with extraordinary intrigues;
c. has a party or his lawyer has his domicile, habitual residence or headquarters abroad is no address for legal service referred to in Switzerland.
2 The notification on the date of publication have been made.
3 of final decisions will only be released dispositive.
4 Adjustment orders and summonses are served as well without publication.

Article 84 regulates the opening of the Judgments. Basically, the opening sentence in the public process has to be made orally, unless the parties waive right to an oral opening sentence (paragraph 3). In the case of the oral ruling opening the parties afterward served on the verdict in writing posture. The appeal period shall begin to run with the opening sentence and thus triggered in the case of the oral opening sentence not only through the delivery of the written verdict dispositive. Section 4 presents in concrete terms of the requirement for the written verdict on. This period is 60 days. Exceptionally, a prolonged period of 90 days comes into play. This period is justified, but only in criminal cases of extraordinary complexity (embassy, FF. 2006, p. 1157). The message seems likely therefore that these deadlines must be strictly observed and are not merely approximate values. This will involve considerable practical implications for the allocation of personnel have the courts rule in some cantons, but in practice today before much longer periods.

Article 85 governs the service. That the statement in paragraph 4 Communication fiction reflects current federal-court jurisdiction.

Article 86 allows the consent of the person concerned the electronic delivery. This agreement can as in the case issued by professionally active lawyers in general nature.

Article 87 regulates the delivery home. This principle has to be in Switzerland, unless the counsel or the party may have to make their stay or residence in a country where Switzerland according to international agreement deliveries directly (paragraph 2). The purpose of this provision is to prevent that are needed for each service legal assistance procedures. This provision thus serves the need for speed. According to paragraph 3, the service at verbeiständeten parties to the legal counsel, unless the party has to appear in person or even a procedural act to make (Para 4).

Article 88 provides a further notification fiction. In three cases, the service is effected by means of official publication: an unknown residence of the addressee, the service is impossible or subject to extraordinary machinations (which may not be lightly taken), a party or counsel has domiciled abroad certainly no address for legal service in Switzerland and direct delivery to foreign countries is not allowed. In these three cases (and only then. S. Embassy, FF 2006, p. 1158) apply adjustment orders and penal orders without public publication served as a (para 4). Also Article 88 is to enforce the requirement for speed is that The date on which to decide but not through endless deliveries are delayed.

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CHStPO: Comment on Article 80-83

5th Section: Decide

Art Form 80
1 decisions, which is found in material relating to criminal and civil matters endure, in the form of an appeal. The other decisions adopted unless they are made by a collective authority
, in the form of a decision when they are felled by a single person in the form of a decision. that provisions of the penal procedure reserved.
two decisions rendered in writing and be substantiated. They are signed by the Board and the procedure protocol leading person and served on the parties.
3 Simple procedural decisions and executive orders need not be made out even more reason to be and will be noted in the record and the parties in an appropriate manner.

Article 81 Contents of the final decisions, judgments and other
a verfahrenserledigende decisions include: a.
an introduction;
b. justification;
c. a dispositive;
d. if they are actionable: the right of appeal.
2 The introduction includes: a.
the name of the criminal body and its members participating in the decision;
b. the date of the decision;
c. a sufficient description of the parties and their counsel;
d. in judgments, the Opinion of the parties.
3 The Memorandum includes: a. at
judgments: the actual and legal description of the suspect to the alleged conduct, the justification of the sanctions, the side-effects and the costs and damages;
b. other procedures must do, decisions: the reasons for the proposed discharge of the procedure.
4 The dispositive contains:
a. the name of the legal provisions applied;
b. in judgments, the decision on guilt and penalty, costs and damages and any civil actions;
c. other procedures must do, decide: the order on the execution of the procedure;
d. the subsequent judicial decisions;
e. the decision about the side effects;
f. the name of the persons and authorities who receive a copy of the ruling or the apparatus.

Article 82 Limitations of the obligation
1 The trial court to dispense with a written explanation if: a. oral
justified the verdict, and
b. not a prison sentence of 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 pronounce.
2 The court subsequently served on the parties to reach an informed assessment, if: a.
a party so requests within 10 days of delivery of dispositive;
b. one party takes an appeal.
3 requires only the private prosecutor stem an informed assessment or to take them alone an appeal, the court justified the verdict only in proportion as this relates to the criminal conduct to the detriment of the private prosecutor and to stem their civil rights.
4, On appeal, the court refer to the actual assessment of the accused and the facts on the grounds of the appeal.

Article 83 Explanation and correct decisions
1 Is the dispositive of a decision unclear, contradictory or incomplete, or is it on the ground in conflict, so does the criminal authority that made the decision, at the request of a party or ex officio, an explanation
or correction of decision.
2 The application must be submitted in writing to the disputed points or the changes are indicated.
3 The criminal authority gives the other parties an opportunity to comment on the petition.
4 explains the decision will be corrected or to the parties.

Article 80 differs according to the conventional terminology for the decisions on criminal proceedings in the matter, which undergo the process as judgments and decisions, which endure as decrees or decisions (paragraph 1). All decisions are to be adopted in principle in writing and justified (paragraph 2). Paragraph 3 provides for the possibility of conducting simple procedural decisions simply must be recorded and to dispense with a justification. The provision does not comment on when it is a simple decision is. It will be necessary to call on the one hand, that the decision does not significantly interfere with the rights of the parties or third parties. On the other hand, there must be probably a decision that which no legally complex considerations underlie, who sees thus virtually automatically. If paragraph 3 provides that such decisions to the parties to be opened in an appropriate manner, so that probably meant, an oral opening. Safe procedures for conducting the scheme is deciding which the court will take account of the trial and what appealed together with the ruling are. In the course of the preliminary restraint should only be made use of this provision.

Article 81 regulates the structure and content of final decisions. This one has been based on the date the federal government and the cantons in common and mostly uniform practice.

Article 82 provides for relief in two ways to state reasons. According to Section 1 - 3 can justify the trial court, the decision only verbally, if not imprisonment for 2 years, action under Article 59, paragraph 3 or custody pursuant to Article 64 of the Criminal Code is ordered. Section 4 allows the appeal on the reasoning of the lower court regarding factual and legal assessment of the accused refer to facts.

Article 83 provides for the identification and correction of decisions. This institute is also virtually all previous criminal procedure known. The clarification or correction can be ordered ex officio or at the request of a party be. Unlike an appeal of the decision so that no material change is brought about. Nevertheless, an explanation or correction be approved in time is not unlimited time. Although Article 83 provides no time limit for the explanation or correction should be reasonable to only during the appeal period, respectively. the same period of notification of the written opinion will be allowed. From Section 4, after which the said decision or corrected the parties will be opened, it can be concluded that this opening triggers a new appeal period.

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CHStPO: Comment on Article 76-79

4th Section: Minutes

Article 76 General provisions
1 The statements of the parties, the oral decisions of the authorities and all other procedural steps that are not made in writing to be logged.
2 The protocol lead person, the process management and possibly for translation enlisted person to confirm the correctness of the protocol.
3 The process management is responsible for ensuring that the procedural steps are recorded complete and correct.
4 may order that in addition to written procedural logging in whole or in part, be kept in sound or picture. Indicate this fact, the person known in advance.

Article 77 Process protocols
Procedures Protocols document all important procedural steps and give particular information on: a.
type, place, date and time of the procedure;
b. the names of the participating authorities members of the parties, their counsel and other persons present;
c. the parties' claims;
d. information on rights and obligations of the questioned persons
e. questioned the statements of persons;
f. the course of the proceedings, the criminal authority of the arrangements made and the compliance of each of the procedural steps provided procedural requirements;
g. submitted by the parties or otherwise acquired in criminal records and other evidence;
h. The decision and its reasons if these are the files not resolved in a separate copy.

Article 78 hearing protocols
1 The statements of the parties, witnesses, witnesses, informants and experts are constantly recorded.
2 The logging is in the language, but are important statements to be recorded as far as possible in the language, gave testimony in which the person questioned.
three crucial questions and answers are recorded verbatim.
4 The process line may allow the person questioned to dictate their own statements. 5 After
Conclusion of the hearing will be read to the person interrogated or the protocol submitted to it for reading. She has to sign the protocol after acceptance and to improvise each page. Where it fails to read the log or to sign, the refusal and the reasons given are recorded in the minutes. replaced
6 At hearings by video conference, the oral statement by the person questioned, they have taken note of the protocol, the signature and sights. The declaration will be recorded in the minutes.
7 Are handwritten records were not legible or the shorthand or recorded statements by technological means, they will immediately transferred in a fair copy. The notes and other records
be kept until completion of the procedure.

Article 79
a correction Obvious mistakes corrected, the process line with the protocol leading person, they then informed the parties.
2 About Applications for Protocol Amending the decision process line.
three corrections, changes, deletions and insertions are certified by the person conducting the protocol and procedures management. Substantive changes be made so that the original logging
recognizable remains.

The provisions of the 4th Section on logging are the logical consequence of the principle of orality. The documentation requirement, which states that all non-written procedural criminal authorities and the parties should be recorded, should ensure a record of criminal procedure. Thus it is also a condition of restriction on the principle of immediacy (Article 343). If you look just chooses to limit the immediacy of the trial, as did the federal legislature, then one requirement is that the court can understand, were raised as and how the evidence in preliminary proceedings. The documentation requirement has therefore not only memory or Perpetuierungsfunktion but also guarantee function, by aiming to ensure a proper conduct of proceedings (see Embassy, FF. 2006, p. 1155).

is related to the documentation requirement, the obligation to file management (Article 100) in close cooperation. Logging and record-keeping requirement, however, make the procedure is not written to ensure they are rather the correct process and the transparency of the oral proceedings. They serve not only the most comprehensive assessment of the process object by the court during the trial but also the assessment of the procedural steps by the appeal authorities.

Article 76: This provision
posited the principle of documentation logging or obligation. It involves the process logs (Article 77) and the interrogation logs (Article 78). The logging requirement applies to all stages, including in police investigations (embassy, FF. 2006, p. 1155). For the police investigation are also mentioned in Article 307 para 3 and 4 further provisions. Article 307 para 3 holds, however, explicitly stated in the documentation requirement for the police investigation. The police have basically all their findings and measures taken regularly to be recorded in written reports that the latest after completion of the investigation, together with the other files of the prosecutor forward are. According to paragraph 4 was the police may dispense with the exception of reporting, if it is obvious to the other steps of the prosecution is no need and no coercion or other formal investigative procedures are performed .

This provision (Article 307 paragraph 4) contains a lot of good design needs. You certainly can not be read that can be omitted in reporting by the police about acts of investigation, about which no reports have been produced (but what else is meant by non-formal investigative procedures?) Would be understood paragraph 4 so, so would the cat literally "bite the tail."

Simply put, that the police have to monitor all the essential acts of investigation, regardless of whether the prosecutor has opened a criminal investigation or not. To meet the reporting obligation, the process line is responsible (paragraph 3). This is also in the police investigation (and thus before the formal opening of criminal investigations), the Public Prosecutor (Article 61). Probably true of Article 76 paragraph 2 are poorly understood so narrowly that the prosecutor has to sign as a process manager and all the logs generated by the police (but probably only those regarding the procedural steps to which he himself participated).

Article 77:
This provision is intended to cover all substantial procedural actions (including the interrogations) and determines what must stipulate the procedure protocol.

Article 78:
Its scope is narrower. It refers only to a set of procedural steps, namely the interrogations. Striking is the determination under paragraph 2, that essential information (also) must be recorded in the language that speaks the interrogated person. This can probably be applied only to the major languages (imagine some logging statements in Chinese or before in Cyrillic languages, and in this sense expresses the message: FF. 2006, p. 1156). Moreover, the spread in most cantons tradition is taken to create not a verbatim record but only a reasonable per-protocol statements. Crucial questions and answers are recorded verbatim, but (paragraph 3). Section 6 allows the hearing by video conference. In this case, however, is still a protocol drawn up. This also applies in the case where the hearing is held on tape or video (or DVD) (Article 76 paragraph 4).

Article 79: Article 79
posited the (widely used in practice) principle that to understand protocol Corrections be documented. This determination depends in turn on all protocol types (not just the interrogation protocols).

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CHStPO: Article comment u 73-75

third Section: Secrecy, direction of public opinion, notification to authorities

Article 73 Confidentiality
1 The members of law enforcement agencies, their employees and the managers appointed by criminal authorities, experts maintain secrecy regarding
facts to them in the performance of their official duties are brought to the attention.
2 The process line, the private prosecutor shaft and the other party and their legal advisers in regard to Article 292 StGB9 undertake not to disclose the proceedings and the persons concerned to disclose if the purpose of the proceedings or a private interest so requires. The obligation is limited in time.

Article 74 direction of public
1 The prosecutor and the courts and with the permission of the police, the public focus of pending proceedings, if necessary: a.
to the population in the investigation of crime or in the pursuit of suspected of assisting;
b. to warn or reassure the population;
c. for correction of incorrect messages or rumors;
d. special because of the importance of tightening everything.
2 The police may also focus on its own from the public about accidents and crimes, without naming names.
3 At the direction of public opinion is the principle of presumption of innocence and the persons concerned must be observed.
4 In cases where a victim is involved, may publish and private agencies outside of a public court proceedings and his identity information to allow him to be identified, only if: a.
involvement of the population in the investigation of crime or the search for suspects necessary is, or
b. the victim or his surviving family members agree to the publication.

article 75 notification to other authorities
1 is an accused person in criminal or enforcement measures, so inform the competent authorities of the criminal law enforcement agencies a new criminal
and handed down decisions.
2 The law enforcement agencies to inform the social and guardianship authorities in the prosecution of criminal judgments and, if necessary for the protection of an accused or injured party or its nationals.
3 Set in the prosecution of offenses involving minors are involved, concludes that further measures are necessary, it shall immediately inform the
guardianship authorities.
four federal and cantonal authorities to require the criminal to the authorities or other communications to entitle

Article 73:
para 1 requires members of the criminal authorities and their employees regarding the facts to them in the performance of their official duties to knowledge have come to remain silent. This duty is the logical consequence of the limited public principle, which applies in criminal proceedings. In accordance with article 69 paragraph 3 shall not be public as well as the process posited by article 70 Ability to limit, respectively. the exclusion of the public regarding the other methods require a corresponding Inpflichtnahme of members of the criminal authorities. For definitions of the term secret is, moreover, article 320 of the Criminal Code respectively. the law developed to prevail.

Confidentiality is also addressed to the officially appointed experts. Other persons subject to confidentiality obligations pursuant to article 73 paragraph is not 1.

Paragraph 2 therefore extends the obligation of confidentiality - by order of the process line - to the other parties (Article 104 and 105) from. The confidentiality requirement may only be ordered if the process purpose or a private interest so requires. It is limited in time (in this sense, yes BGE 131 I 425 ). The confidentiality requirement may be connected to the threat of punishment under Article 292nd This is necessary because Article 293 of the Criminal Code (which is the official publication of secret negotiations under penalty) only to messages that are addressed to the general public, refers, not to the message to individuals (see Message, FF. 2006, p. 1154).

Article 74:
Article 74 provides for specific purposes, the orientation of the public. The orientation of the public may be in the interest of law enforcement and the public interest. The orientation of the public (article 74 paragraph 1. D) of particularly important criminal cases in turn represents an outflow from the principle of public dar. Since, in principle, only the main trial is public, but can impose the orientation of the public at the stage of the pre- to the criminal authorities based on Article 74 in particularly important cases, may inform the public. Thus, the public and the media is also possible, by the opportunity to attend the trial in a specific case, to be attentive.

Article 75: Allows
the criminal authorities, other authorities to focus on criminal procedure. This provision means the one hand, that the secrecy of investigations and g.ü. other authorities and the other is that the orientation needs of other authorities a legal basis. Confederation and the cantons can extend this to Article 75 also. Interesting considerations to bear the confidentiality of investigations g.ü. the supervisory authority can the so-called "flip-chart decision" of the federal criminal courts are removed, 18.12.2007 ( AU.2007.1 )

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CHStPO: Comment on Article 69-72

second Section: Public


principles of Article 69 1 The proceedings in the first instance Court and the Court of Appeal and the oral opening of judgments and decisions of these courts shall be public except for the advice.
2 Unless waived by the parties in such cases on a public sentencing or punishment is delivered, interested persons may inspect the judgments and penalty orders.
3 are not related: a. the pre
; reserved releases the criminal authorities to the public;
b. the method of coercion Court;
c. the proceedings of the Appeals Board and, if it is done in writing, the Appellate Court;
d. the penal procedure.
4 Public Negotiations are generally accessible for persons under 16 years but only with the approval of the process line.

Article 70 restrictions, and exclusion of the public
1 The court may exclude the public from court proceedings in whole or in part if:
a. public safety or order or legitimate interests of an interested person, in particular the victim, this may require;
b . crowd pressing in.
2 is excluded the public, so can the suspect, the victim and the private prosecutor shaft of three confidants be accompanied. 3 The court may
court rapporteurs and court reporters and other people who have a legitimate interest allowed under certain conditions
access to the negotiations under paragraph 1 are not public.
4 was excluded the public, shall open the court ruling in a public hearing or oriented to the public as required by other appropriate means on the outcome.

Article 71 video and audio recordings
1 image and sound recordings within the court building as well as recordings of procedural steps outside the courthouse are not allowed.
two offenses can be punished with administrative fine pursuant to Article 64 paragraph 1. Unauthorized recordings may be seized.

Article 72 court reporting
Confederation and the cantons to regulate the registration and the rights and duties of the court reporter and court reporter inside.

Article 69: The principle of public
of state court proceedings already in Article 6 para. 1 ECHR and Article 30 paragraph 3 of the constitution enshrined. He has two thrusts. On the one hand, it is to make the people involved in the process of correct treatment. On the other hand, the public be allowed to determine "how the law administered and the administration of justice is exercised" BGE 133 I 106 . The principle of public access is therefore in the public interest by allowing public scrutiny of justice.

basic distinction between party and public audience public. As an aspect of public audience appears and indirect public (in press). Public audiences are in principle before the trial of First Instance and on appeal. In contrast, the Pre-Trial is basically only party publicly and public audience.

Furthermore there points of contact between the public and the principle of orality. The procedure can only be public as far as It is also spoken. Is the appeal process, exceptionally written, it is not in public. Nor is the public method of punishment. Under no circumstances, however, related to proceedings before the Court of compulsory measures, is even if it is verbally. waived

Unless the parties to an oral verdict, interested parties can take in the judgments of insight. This also applies to the penalty orders (paragraph 2).

Article 70:
Under certain conditions (Section 1), the court may exclude the public from the hearing. Of this, however, is to make only with great restraint use. What legitimate interests of The parties concerned, which may justify the exclusion of the public, is primarily thinking of the interests of the victim. The accused, however, has the public with any negotiations related interventions inevitably, to accept in his personal relationships usually BGE 119 Ia 99 .

Has the public be excluded from the trial, they may accompany the accused, the victim and the private prosecutor shaft, each more than 3 confidence people have (this way at least reduced to some extent an or selective public (paragraph 2). It is after possible, at least the To ensure indirect public by the representatives of the media under certain conditions, the participation and reporting is allowed on the process (paragraph 3). Also, the opening sentence is to be made public in this case, or the public to focus appropriately on the outcome of the procedure (paragraph 4).

Article 71: A general limitation
receives the public claim to the prohibition of image and sound recordings within the court building or in conjunction with actions of the court proceedings outside the court building. Article 71 provides for no exceptions. In contrast to the Anglo-American legal system has the so-called "live court coverage" ("Court TV") in Switzerland have no tradition.

Article 72:
This provision deals with the indirect public. Confederation and the cantons can regulate the registration and the rights and duties of the court reporter. Would be allowed as a so-called accreditation system.

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CHStPO: Comment on Article 66-68

8th Chapter: Code of practice

first Section: orality, language

Article 66
The oral proceedings before the criminal authorities are oral, as far as the law does not provide for literacy.

Article 67 Language of
1 The Confederation and cantons determine the Language of their criminal authorities.
2 lead the criminal authorities of the cantons through all the procedural steps in their language of
, the process line can allow exceptions.

Article 68 Translations
one understands a person involved in the procedure that language does not or can not express it enough, it pulls in the process line, a translator or a translator. It can be simple or urgent cases
dispense with the consent of the person concerned, of cases and the protocol person at the foreign language mastered enough.
2 The suspect who is even if it is defended in a language they can understand at least the substance of the most important procedural actions verbally or in writing to be made known. A claim for full translation of all procedural steps and the file does not exist.
3 acts that are not input from parties as necessary for submission in writing or orally translated to the Protocol.
4 For the translation of the interview the victim of a crime against the sexual integrity is a person of the same sex call in if the victim so requests and if this is possible without undue delay of the process is
.
5 apply for interpreters and translators, the provisions of experts (Article 73, 105, 182-191) by analogy.

Article 66: The criminal case after the
CHStPO is basically oral, unless the law explicitly provides for literacy.

follows that all procedural steps, which take place not in writing, are recorded (Article 76). In this documentation requirement, it is therefore an effect of the principle of orality, and not a limitation of the principle of orality. The criminal case will not become a written procedure that oral proceedings actions are logged.

Article 110 paragraph 1 performs the Principle of orality further elaborated on by stating that submissions by the parties can be given orally for the record. This will turn around regarding the release request of the accused under Article 228 paragraph 1 again explicitly stated (without this being necessary of course).

limitations of the principle of orality sees CHStPO about the following procedures:

- in the detention process, aside from the parole request, which may be mentioned verbally, the order sought by the prosecutor to order for arrest and detention extension be made in writing (Article 224 para . 2, Article 227 paragraph 2) the court has custody his decision give reasons in writing (Article 226 paragraph 2) the decision process regarding the custody arrangement is basically an oral contrast again, the accused can waive a hearing (Article 225 paragraph 1 and 5) and the same applies to the decisions on release prisoners ( Article 228 para 4), whereas the decision on detention procedures extensions up in writing and orally exception (Article 227 paragraph 6).

- the penal process is invariably in writing (including the inlet, Article 352 ff, especially Article 354, paragraph 1)

- the complaints procedure (Article 393 ff, especially Article 396 paragraph 1 and 397 para 1.) and the revision procedure (art. 410 ff, in particular Article 411 paragraph 1 and 412 para 1) are without exception in writing to the appeal procedure (Article 398 et seq) and the first-instance trial procedure (Article 328 ff) oral contrast (the main proceedings, without exception, the appeals process is in certain cases decided by written procedure: Article 403).

Article 67: The Confederation and the cantons are autonomous in the determination of the proceedings.

Article 68:
This provision provides for the translation.

Section 1 posited the principle that a translator is call in when a person involved in the procedure that language does not control. In simple or urgent cases, when the process line and the protocol leading Person, the foreign language mastered enough can be waived with the consent of the person concerned. However, this should be done with great caution (see message BBl. 2006, p. 1151). Paragraph 1 refers not only to parties but also other people involved in the procedure (Article 105), insofar as they are required to attend certain procedural steps.

Section 2 states the right of the accused all the main method of translation processes. This right is derived from BV 4 and 6 point. 3 lit. e from the ECHR. According to federal court jurisdiction is in principle a right to translation of all documents and oral statements, on the understanding The accused is instructed to get the benefit of a fair trial. These typically include the indictment, the instruction of the defender and the essential processes of the oral trial (BGE 118 Ia 462 ). Depending on the circumstances, however, other procedural documents, or document components are to be translated, such as the central element of witness statements, expert reports, and other significant evidence. The right of the accused to all the translation goes, the more substantial the suspensions against the accused are (the Gen. BGE 118 Ia 462 and message BBl Sat 2006, p. 1151). In no case, however, a right to integral translation of all Procedural documents, or the entire case file (paragraph 2 at the end).

Paragraph 3 requires the case management, records that are not submissions by the parties as necessary in writing or orally to translate protocol. Where necessary otherwise hot, as far as the accused in accordance with the above-cited case law has a right to translation or this for the participation of a party or other parties is necessary.

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CHStPO: Comment on Article 61-65

7th Chapter: Jurisdiction

Article 61 jurisdiction
started the procedure: a.
to the setting or indictment: the prosecutor;
b. in violation of criminal proceedings: the violation of penal authority;
c. in court proceedings in collegiate bodies: the President or the President of the court;
d. in court procedures for individual courts: the judge or the judge.

Article 62 General duties
1 The procedure takes the lead arrangements to ensure a lawful and orderly conduct of proceedings.
2 come in before a collegiate court to her all the powers which are not subject to the court.

Article 63 hearing police measures
1 The process management ensures security, peace and order during the negotiations.
2 people can disturb the course of business or violate decency rules, warn. In case of recurrence, they can cut you off, they have from the courtroom and set if necessary, until the end of the hearing in police custody can
. You can clear the courtroom.
3, the support of most places in the procedural act require local police.
4 is excluded, a party, the procedures for action will nevertheless continue.

Article 64 Disciplinary measures
1 The procedure can lead people who disrupt the course of business that violate the decency or disregard procedural orders issued, with fines of up to order
punish to 1000 francs.
2nd order buses prosecutors and courts of first instance may be appealed within 10 days at the appeal stage. This decision
final.

Article 65 disputable key procedural orders issued by the courts
an arrangement of the courts can be appealed only with the final award.
2 Has made the process management of a collegiate court before the trial procedural orders issued, it may amend or repeal the court ex officio or upon request, or.

The 7th Chapter shall, under the title, the responsibility for the operational management institutions and competent criminal their powers.

Article 61:

lit. A: Until the indictment, the prosecutor directs the proceedings. Which is under the direction of the prosecution pre-trial consists of the so-called police investigation (Article 306 et seq) and the actual examination procedure (Article 308 et seq.) The examination procedure begins with the opening of the disposal of the public prosecutor (Article 309 § 3). Article 61 lit. a confirmation of the principle (which in many areas of significant impact on the activities of the Judicial Police have) is that the public prosecutor belongs also the process is transmitted over the police investigation. Article 307 provides for the interfaces of the police investigation and the criminal lawsuit.

lit. c: In the court proceedings in collegial courts is the President of the procedure line. Apart from the actual session chair at the trial of Chief Justice is responsible for preparing the trial. The relevant functions and powers of the chief justice to go forth primarily under Articles 329 et seq. This purpose in accordance with Article 332 includes the power to conduct preliminary negotiations concerning organizational issues, or settlement negotiations. According to article 332 paragraph 3 can carry out the president and prior inquiry (if the evidence expected from the trial will not be possible: for example, the examination of a witness or the dying of appearances in acute danger of collapsing buildings). It can thus also a delegation of the court or entrusted in urgent cases, the public prosecutor.

Article 62: According to paragraph 2
president to come to the court all the powers which are not reserved for the collegiate court. The CHStPO calls this exclusively reserved for the collegiate court, decisions nowhere explicitly. Clearly, it is likely long as these mainly involve the verfahrensabschliessenden decisions (conviction, acquittal, setting). According to article 339, the collegiate court after the trial has begun and all necessary to make preliminary and interim decisions. However, these can also be made by the President in that it in time before the start of the trial are adopted and do not complete the process.

Article 63: As part of the so-called session
police measures, the process management of a party, even to the accused, the word withdraw or exclude from the trial (paragraph 2). The hearing will be continued without the excluded party (paragraph 4). By this means can result in a limitation of the right to a fair hearing of the parties (Art. 107 and 108). Here, the aspect of proportionality should be respected. The exclusion of the accused by the Trial should be ordered only with the utmost restraint. The right to be heard should be taken in this case by appropriate compensation measures into account.

Article 64: Article 64 provides
as possible disciplinary action or simply order before buses (not as in the past few cantonal procedural codes or imprisonment).

Article 65:
procedural orders issued by the Chief Justice may collegiate court during the trial upon request or ex officio be amended (paragraph 2). Procedural orders issued the collegiate court (pre-or intermediate decisions) are only with the final verdict appealed (Section 1, see also Article 393 para 1 lit. b). The same goes for conducting procedural decisions of the Court Presidents, will be presented during the trial not taken into reconsideration. In contrast, procedural decisions of the senior public prosecutor and the criminal offense authorities are challenged by appeal (Article 393 para 1 lit. A).

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addendum to Article 56 et seq CHStPO

With Judgement of 01/08/2008 the Supreme Court of the Canton Solothurn an appeal against a decision of the district court dismissed Olten-Gösgen. In the contested decision, the District Court a recusal of the prosecutor leaned against the District Court President, two magistrates and a court clerk from which adjusts in a previous decision of the criminal proceedings against officials of the Oltner Vera Pevos Foundation. The setting was justified by the final decree violates the principle of prosecution. After the Supreme Court approved of a complaint the public prosecutor against the recruitment decision, the Amtsgerichtspärsidentin the final order had to improve back to the prosecutor. The prosecutor argued now in his recusal, the district court could not judge on the same line on the new final order, as it was prior knowledge. The Supreme Court denied an improper prior involvement, because no special circumstances are evident which a Close bias could. In addition, the recusal had been made too late.

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CHStPO: Comment on Article 57-60

Article 57
disclosure requirement in respect of a person engaged in a criminal authorities before a strike due, it shall inform the person, this time with the process line.

Article 58 of the recusal request of a party
1 Will allow a party to the strike of engaged in a criminal authority person, so she has to make the process line without delay an appropriate request once it has the strike basic knowledge, which are on strike the facts establishing credible to make.
2 The affected person takes the position request.

Article 59 decision
1 When a recusal ground in accordance with Article 56 paragraph a or f made or opposed to work in a penal authority person to a recusal request of a party which is supported Article 56 letter b-e, then decide, without
further proof procedure and final:
a. the prosecution if the police are involved;
b. the Appeals Board, if the prosecutor, the authorities or the criminal offense of first instance courts are concerned;
c. the appellate court if the Appeals Board or individual members of the Court of Appeal are concerned;
d. the Federal Court if the entire appeals court is concerned. 2 The decision was made
writing and must be justified.
3 shall exercise until the decision the person serve on more.
4 If approved the application, so go the legal costs paid by the federal or the canton. Is rejected or it was obvious later or vandalized, the costs are borne by the requesting the person.

Article 60 episodes of the violation of strike rules
an official act, has been involved in where a recusal person required to be canceled and to be repeated if this is a party within 5 days required after receiving the decision on the strike note. 2
evidence that can not be raised again, may the penalty authority . Consider 3 If
discovered the reason for the first strike after the procedure, the provisions on the appeal.

Article 57 requires members of the criminal authorities, any Austandsgründe the process line in due time. When such notice is deemed to still be on time is not further defined.
probably thinks the same as Article 57 Article 58th In this latter provision, the parties, which want to strike pleas, urged to do so after having regard to the recusal appeal without delay. This corresponds to the current federal court practice.

in time for the purposes of Article 57 means so without delay, after the Member of the penal authority a possible strike against the basic knowledge to get, but in any case before making (with this note) further procedural steps.

Article 58 does not respond to the question of the consequences of a late application must strike. In BGE 118 Ia 282 it considered the Federal Court be permitted to consider a belated recusal as forfeited, not as actual exclusion would be invoked. This is probably also the one day CHStPO term validity of the case.

Article 59 governs the procedure for assessment of recusal. In this regard a distinction between rejection reasons (Lit. a and f) and exclusion reasons (lit. b - e). About grounds for refusal shall, in each case, the gem. lit. a competent authority to decide ff, even if the member of the criminal authority considers himself to be compromised. This is to prevent that a member of a criminal authority of convenience goes on strike lightly (see Message, FF 2006, p. 1149). With the exclusion reasons, however, the competent authority to decide is if the officials resisted.

Ref a - d call the decision to the competent authorities. It is noteworthy that according to lit. decide the prosecution of a recusal against the police. This is A result that is shown by the CHStPO the police is considered explicitly as a penal authority, and entrusted the prosecution to lead the criminal investigation and as such supervisory authority of the police. It remains to who is to decide within the prosecutor's office. Logically, this will be for the criminal investigation in that case prosecutor.

The decision on recusal is final. Until the decision of the official concerned shall exercise his office continues. This is to prevent that the process can be delayed by unauthorized recusal.

Article 60: Amthsandlungen, which were made despite recusal reasons, are only at the request of a party to repeat. This is my opinion, as far as grounds for exclusion are concerned, wrong. Official acts, which undertakes a member of a criminal authority having a reason for exclusion and in violation of the disclosure requirement under Article 57 are, quite simply void. It should also Article 60 CHStPO change anything (see BGE 118 Ia 282 ).

Another concession to the validity of the method of action makes Section 2: evidence that can not be raised (for example, the re-examination of a witness since deceased), may be considered, even if a party sought to be repeated. This can also just my opinion regarding rejection reasons applicable, not in exclusion reasons.

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CHStPO: Comment on Article 56

6th Chapter: strike

Article 56 reasons
strike enters a person acting in a criminal authority on strike if they: a.
has a personal interest in the matter;
b. in a different position, particularly as a member of the authority, as the legal counsel of a party, as an expert or expert witness, a witness or witnesses, in the same case was active;
c. with a party, its counsel or a person who worked in the same case as a member of the lower court, married, in a registered partnership lives or maintains a de facto union;
d. is related by blood or with a party in a straight line or in the collateral line up to and including the third degree;
e. with the counsel of a party or a person than to the same thing Member the lower court acted in a straight line or in the collateral line up to and including the second degree is related by blood or;
f. any other reason, could be biased in particular because of friendship or enmity with any party or their counsel.

Article 56, acting under the term recusal reasons one hand, the literature in the process commonly referred to as Exclusion criteria designated (which includes this letter b - e.), (Lit here this includes the a and f.) On the other grounds for the so-called together. The difference is that the exclusion in the affected judicial person generally exclude from the exercise of their duties in a particular case. The official concerned has made of himself to step into the strike, even if no such request made by a party. In contrast, the reasons for refusal of the official concerned has only gone on strike then, when he was challenged by a party successfully (see Message, FF 2006, p. 1148 and BGE 126 III 249 ). The exclusion are objective in nature and are due to the (outer) position of the official concerned (prior involvement or legitimate, similar to marriage or family relationship to the litigants). In contrast, the reasons for rejection shod the "internal independence" of the officials concerned and are of a relative nature.

The right to reject a judicial officer or exclude is part of the constitutional right to an independent and impartial judge (Article 6 para. 1 of the ECHR and Article 30 paragraph 1 BV).

lit.a: in addition to the item c - e referred to cases where there is a special relationship between the judicial officers and a party, one can in criminal proceedings is hard to imagine a constellation, where a member of a criminal authority in the matter has a personal interest. This would be in in practice hardly ever occurring constellations of the case, is involved in which a judge or prosecutor in on the offense to be assessed (whether as participants or victims). Thus, for example by the fact that a judge in a rape is committed process for feminist concerns, no bias can be derived (BGE 118 Ia 282 ).

item b normalized on strike because of prior involvement. A judicial officer may then be biased if, in the same case in another position already was active. The different functions that in lit. b mentioned are merely examples and not exhaustive. For this reason, there is a strike rich and casuistic law. Accordingly, there is such an impermissible prior involvement in the following cases:

- was a judge in the same case previously worked as a prosecutor and carried out investigative actions (Schmid, Criminal Law, 4th A., p. 44 f, Rz 134 with further examples.)

- judging the judges have previously ruled on the admission charge (BGE 114 Ia 50 )

- is prohibited in general, the dual role of judge and magistrate (BGE 113 Ia 72 )

- incompatibility of the function as a judge with the function as a prosecutor ( decision of the ECHR v. 23.10.1990, Jutta Huber v. Switzerland )

not generally unlawful prior involvement lies in the following constellations:

- Judges , in the same case already as a judge officiated ( BGE 117 Ia 182 )

- Law Lords, in the same case already decided earlier in the case ( BGE 113 Ia 62 )

- Judges, after rejection by the appellate court again ( 113 Ia 407 )

judges - also no prior knowledge of the unlawful Judge who precipitated earlier concerning the same facts, a verdict against an accomplice ( BGE 115 Ia 34 )

- the speaker who drew up before the trial a written ruling request is no prior knowledge (ZR 86 No. 87)

- not even the president of a collegiate court, after an initial summary viewing the affected applicants recommended the withdrawal of the appeal ( SOG 2000 No. 31 )

ref f: After constant case law requires a judge or other judicial officer, that he is disqualified can be rejected, not to be biased in fact. It is sufficient that circumstances Present are able to justify the appearance of bias and the risk of bias objectively (BGE 115 Ia 180 ). Is not sufficient merely the subjective perception of a party, the officer was biased. Thus, for example a judge is not forbidden to be active politically in his spare time and to express their commitment to political issues. A judge is biased but then when he started on a process to a specific event and expressed the appreciation that he had to consider after (BGE 108 Ia 48 ).