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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 )