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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 ).