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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.