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- Art. 5a FC
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- Art. 43a FC
- Art. 55 FC
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- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
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- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
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- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
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- Art. 59a PRA
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- Art. 59c PRA
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- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Introduction
- II. The Prerequisites for Proceedings in Absentia
- III. Suspension (Art. 366 para. 2, last sentence of the Code of Criminal Procedure)
- IV. Exceptions and delimitations
- Schematic overview of the absence procedure
- Bibliography
I. Introduction
1 The term "proceedings in absentia", also known as "contumacious proceedings", refers to main judicial proceedings that are concluded with a judgment without the accused having appeared in court in person.
2 Proceedings in the absence of the accused person affect the right to a fair trial that flows from convention law (Art. 6 ECHR), constitutional law (Art. 29 para. 2 BV) and statutory law (Art. 3 StPO). According to this principle of "fair trial", the accused person can participate in criminal proceedings directed against him and exercise party rights, which he is denied if he does not participate in the court hearing. Likewise, the in absentia procedure contradicts the "immediacy principle" enshrined in Article 343 of the Code of Criminal Procedure, according to which the court shall obtain a personal impression of the accused person, whereby the questioning of the accused person shall by law take place in detail and right at the beginning of the evidentiary proceedings (Article 341(4) of the Code of Criminal Procedure). The direct impression of an accused person on the court may, under certain circumstances, be of essential importance for reaching a verdict. This impression is lacking if the accused person does not participate in the main hearing. Against the background of these tangential procedural principles, it is not surprising that the conduct of trials in absentia receives opposing votes.
3 Despite these concerns, according to the view expressed here, in absentia proceedings cannot and must not be eliminated from practice. Even if an accused person cannot be required to contribute to his conviction under the principle of nemo tenetur se ipsum accusare, there is a fundamental interest in effective prosecution in a constitutional state. The right to attend the trial in person can therefore - as has also been clearly stated by the Federal Supreme Court - not claim absolute validity.
4 Without the possibility of trial in the absence of the accused, numerous charges could not be dealt with by the courts and the proceedings could not be concluded, or at least not in a timely manner, because it is not possible to persuade the accused to appear in court for a wide variety of reasons (e.g. lack of knowledge of the accused's whereabouts or due to the accused's refusal to submit to criminal proceedings, etc.). The number of proceedings that would have to be delayed due to the impossibility of holding a main hearing would be too high, and at best they would have to be suspended and finally discontinued due to the occurrence of the statute of limitations for prosecution, which is unacceptable from the point of view of the rule of law. According to the view expressed here, it should not and must not be allowed to depend on the conduct of the accused person whether proceedings against that person can be concluded or not.
5 It is also unacceptable that the accused person can significantly delay the proceedings through his or her own conduct by staying away from the hearing for reasons that cannot be excused. This would also be contradicted by the acceleration requirement under Article 5(1) of the Code of Criminal Procedure, which is also based on convention law (Article 6 ECHR) and constitutional law (Article 29(1) of the Federal Constitution) and obliges the prosecution authorities to start the proceedings immediately and to conclude them without unjustified delay.
6 General preventive considerations also play a role. For example, the sense of justice should not be undermined by the pacification effect of the punishment between the offender and the victim by the fact that the accused person can evade the proceedings. Finally, the general public should be deterred from committing crimes, which is unlikely to produce the desired effect when proceedings are discontinued due to the accused person's refusal to submit to criminal proceedings.
7 Overall, the encroachment on the procedural rights of the accused person in the event of non-appearance in court by conducting proceedings in absentia is justified and - if the statutory requirements are met, which will be discussed in detail below - can be accepted accordingly.
II. The Prerequisites for Proceedings in Absentia
A. Preliminary remark
8 In order to be able to meet the demands of the "fair trial", proceedings in absentia must always be regarded as an exception. Accordingly, the legislator has strictly formulated the prerequisites for the conduct of such proceedings. In addition to the existence of general procedural requirements, such as a proper indictment, jurisdiction of the court, criminal complaint in the case of petition offenses, no other lis pendens or already occurred res judicata, ability of the accused to stand trial, etc., further requirements must be met by law when conducting a trial in absentia: Thus, a contumacious judgment cannot be issued already after the first unexcused absence of the accused person at the main hearing, but a summons must be issued for a second main hearing date (Art. 366 para. 1 StPO).
9 Both summonses must be duly issued in each case. Next, a judgment may be rendered in the absence of the accused person only if the accused person has had sufficient opportunity in the proceedings to date to comment on the criminal offences with which he is charged (Art. 366 para. 4 lit. a CCP) and the facts of the case are liquid, i.e. ripe for adjudication (Art. 366 para. 4 lit. b CCP). The strict requirements and the risk that, in the event of a request for a new trial (Art. 368 StPO), a third main hearing may have to be held, which would mean a considerable effort for all parties involved - in particular for the criminal authorities - mean that the in absentia procedure is used rather cautiously in practice.
B. Unexcused non-appearance of the accused person
10 If the accused person fails to appear at the main hearing without excuse, the provisions on the in absentia procedure are applicable according to the law (Art. 336 para. 4 CCP). Absence means default under Art. 93 Code of Criminal Procedure, according to which a party is in default if he or she fails to appear at a hearing. The failure to appear must then be unexcused, which is why, for example, a prior dispensation cannot be considered a default. The defaulting person must credibly present any excusable reasons that may exist. The criminal authorities must examine the excusable reasons. The actual requirement of excusability is a question of proof. The assessment of the evidence is the task of the court of fact.
11 A summons must be obeyed and anyone who is prevented from attending must inform the summoning authority immediately (Art. 205 paras. 1 and 2 Criminal Procedure Code). In this respect, anyone who has received the correctly issued summons and has not appeared at the hearing date, although it would have been possible to request a postponement or at least to give reasons for the non-appearance in good time if there were reasons for being prevented, shall in principle be deemed to be without excuse.
12 Unexcused non-appearance within the meaning of Art. 366 f. StPO requires a culpable absence. It is required that the accused deliberately and voluntarily fails to attend the hearing. For example, absence without excuse can be assumed if the summoned person does not appear at the main hearing out of fear of a conviction, shame, laziness or indifference. Absence due to fear of arrest is also not considered an excusable subjective impossibility according to Federal Supreme Court case law, since the public interest in the conduct of the criminal proceedings (even against an absent person) outweighs the opposing personal interest of the accused person in being able to escape a sentence already pronounced in another proceeding by fleeing. Furthermore, non-appearance due to work overload, lack of language skills, mere ignorance of the law, etc. is not excusable. Failure to appear following a rejected request for postponement (Art. 205 Para. 2 Code of Criminal Procedure) or a rejected request for dispensation (Art. 336 Para. 3 Code of Criminal Procedure) also leads to unexcused tardiness.
13 A person who places himself in a state of incapacity to stand trial or refuses to be brought out of custody for the main hearing is then deemed by law to be without excuse. In both cases, proceedings in absentia may be conducted by law immediately, i.e. at the first hearing (Art. 366 para. 3 Code of Criminal Procedure). The refusal to bring the accused to court can usually be easily recognized by the fact that the police officers in charge of bringing the accused to court are unable to persuade the accused to be brought to court. The second variant of being placed in a state incapable of being heard is fulfilled by anyone who is physically and/or mentally incapable (any longer) of following the hearing (Art. 114 para. 1 StPO e contrario). An incapacity to stand trial is self-inflicted, for example, if participation in the trial is rendered impossible due to prior drug or alcohol consumption or due to prior self-injury or self-endangerment. Both by refusing to appear in court and by independently placing himself in a state incapable of negotiating, the accused person shows his disinterest in participating in the court proceedings. He or she is absent from the court hearing due to his or her own fault or is unable to follow the hearing. An implied waiver of the procedural rights to which he or she is entitled, in particular the right to attend the main hearing in person and the right to make a statement, must be assumed. If the personal presence of the duly summoned accused person is not mandatory, the court may hear the case in the absence of the defaulting party at the first hearing if the facts are liquid and render a contumacious judgment. Otherwise, the defaulting party must be summoned to the court by means of a summons to the police or the main hearing must be postponed or, if necessary, the proceedings must be suspended.
14 On the other hand, a person who cannot appear at the hearing due to objective impossibility (force majeure) or subjective impossibility (personal circumstances, error) is excused from appearing. The prerequisite is that it was impossible for the person concerned to appear at the hearing, e.g. due to natural disasters, war events, accidents with serious health consequences, imprisonment, serious illness of the person concerned himself or, if applicable, of a third person in need of assistance for whom the person concerned is responsible, death in the family, short-term deployment in military service, etc.
15 If there is an error regarding the obligation to appear, the court must ascertain how this error occurred and whether the accused person himself is responsible for the error. In this context, it must be taken into account whether the default occurred due to a circumstance which, according to the rules of reasonable protection of interests, must not be feared even by a diligent person. Thus, for example, the erroneous assumption of an accused person that the subpoena has become obsolete through the submission of what he or she considers to be a sufficient evidence photo cannot be protected as an excusable reason. This is all the more the case if the defendant was expressly informed on the subpoena of the obligation to appear.
16 In the current pandemic situation, the question arises with regard to excusability as to how to proceed in the case of persons who go to court on time but refuse to enter the courthouse because of the mask requirement that applies temporarily in public buildings. According to the opinion expressed here, in such constellations a voluntary or self-inflicted non-appearance may be assumed and consequently an unexcused absence of the accused person with the corresponding legal consequences.
17 In order for proceedings in absentia to be conducted, it is a prerequisite in personal terms that the accused person is in default. If the accused but not the defense appears at the main hearing, no in absentia proceedings are to be conducted - except in cases of abuse - and the hearing is to be postponed (Art. 336 para. 5 Code of Criminal Procedure). If the public prosecutor's office fails to appear, a new date must also be set (Art. 337 para. 5 CCP). Likewise, there is no reason for conducting proceedings in absentia if the private plaintiff fails to appear at the hearing without excuse: in this case, the hearing may be continued in accordance with Art. 339 et seq. StPO and concluded with a judgment in the ordinary proceedings. The private plaintiff may appeal against the judgment rendered in his absence. The possibility of requesting a new assessment pursuant to Art. 368 Code of Criminal Procedure is not available to it, since this legal remedy is directed solely at the convicted person.
18 The court must decide in each individual case, exercising its due discretion, when a default exists in terms of time. If, for example, the accused person has made it known in advance that he or she is not interested in attending the main hearing, it does not appear necessary to wait for a longer period of time until the main hearing is broken off and a new hearing is summoned or the in absentia proceedings are conducted at the second hearing. If the accused is unknown and the summons has been published in a public announcement, the granting of a so-called "respectful quarter of an hour" appears to be sufficient according to the opinion represented here. If a delay has been announced by the accused, it seems appropriate to wait for the arrival of the accused or to accept a longer delay, i.e. beyond the respect quarter of an hour, and to open the main hearing only in the presence of the accused. Otherwise, the court would run the risk of lapsing into excessive formalism or entering into an unreasonable violation of the constitutionally guaranteed procedural rights.
C. Summons to the main hearing in due form
19 Only those who have been duly summoned in advance may be absent from a hearing without excuse. Properly summoned within the meaning of Art. 201 et seq. in conjunction with Art. 85 et seq. Art. 85 ff. Code of Criminal Procedure means that the summons was either served directly on the accused or - if the relevant requirements are met - a public summons was issued in accordance with Art. 88 SCC and the deadlines for a legally valid summons were met.
20 Proper direct service on the accused is deemed to have taken place if dispatch was by registered mail and the summons was delivered against signature. In this context, service on an employee or housemate is sufficient in principle (Art. 85 Para. 3 StPO). It is also sufficient if the accused person actually received knowledge of the summons. This must be examined on a case-by-case basis and can be affirmed, for example, if the accused person makes dispositions shortly after (presumably) receiving the summons, such as booking airline tickets or absconding abroad or going into hiding. It can also be assumed that the summons has been duly served if the accused submits evidence in view of the date of the main hearing within the period set by the summons. In these cases, according to the view taken here, it may be assumed that the accused person has actually become aware of the main hearing date and the corresponding summons, otherwise he or she would hardly make submissions in compliance with the deadline. However, the burden of proof for actual knowledge and thus for the existence of proper service lies in any case with the criminal authorities.
21 A service is also valid under the assumption of the fiction of service pursuant to Art. 85 para. 4 CCP if the registered mail has not been collected or if the addressee has refused to accept the registered mail. In application of the fiction of service, in the event of failure or refusal to collect, service is deemed to have been effected on the seventh day after the unsuccessful attempt at service, provided that the accused person could have expected service. This is usually the case if a preliminary investigation has already been conducted against the accused person and charges have been brought against him or her or a penalty order has been issued.
22 On the other hand, service of the summons is not proper if it is issued solely to the official or private defense counsel. In practice, both the courts and the legal profession often fail to recognize that this method of service does not satisfy the statutory requirements. Although service on the defense is explicitly provided for by law for notices (Art. 87 para. 3 CCP), it does not apply to service of the summons, which requires personal service on the party appearing at the hearing and thus on the accused person himself, due to the explicit provision of Art. 87 para. 4 CCP. A feasible way seems to be to hand over an additional copy of the summons to the defense together with its orientation copy, so that it forwards it to its client - quasi as an auxiliary person of the court. In such cases, however, the court must be provided with a certificate of service, signed by the accused person, proving that the subpoena was actually taken note of by the accused person. Not all attorneys are willing to act as the "court's messenger for service." However, this would be desirable from the point of view of the criminal authorities in view of the simplification of sometimes complicated and often lengthy service routes - especially in the case of service abroad, which must be effected by mutual legal assistance.
23 A valid summons to a main hearing can also be issued by means of a public announcement in accordance with Art. 88 SCC. This is subject to the alternative conditions that the whereabouts of the addressee are unknown and cannot be ascertained despite reasonable inquiries (Art. 88 lit. a CCP), service is impossible or would involve extraordinary inconvenience (Art. 88 lit. b CCP) or a party or his legal counsel with domicile, habitual residence or registered office abroad has not designated an address for service in Switzerland (Art. 88 lit. c CCP). The lawful public announcement creates the fiction of service, i.e. the irrebuttable presumption that the content of the communication has come to the attention of the addressee. Service is deemed to have been effected from the date of publication of the notice (Art. 88 para. 2 Criminal Procedure Code). A summons by public notice is not sufficient if an accused person has been declared untraceable even though his foreign address was known to the authorities or at least could have been ascertained by the exercise of due diligence.
24 A subpoena is always validly served only if the time limit under Article 202 of the Code of Criminal Procedure has been observed. Thus, subpoenas in judicial proceedings must be served at least 10 days before the procedural act (Art. 202 para. 1 lit. b CCP). Public subpoenas must be published at least one month before the procedural act (Art. 202 para. 2 CCP).
D. Sufficient opportunity to make representations (right to be heard; para. 4 lit. a)
25 The substantive requirement contained in Art. 366 para. 4 lit. a CCP flows directly from the convention and constitutional principle under Art. 6 ECHR or the general procedural guarantees of Art. 29 BV, according to which the accused person has the right to participate in the proceedings and to be able to express his or her views on all allegations. The provision makes it clear that there are no preliminary proceedings against absent persons; if the accused person cannot be heard in the preliminary proceedings due to unknown whereabouts, the proceedings must already be suspended by the public prosecutor's office. In this respect, Art. 366 et seq. of the Code of Criminal Procedure only regulate the absence of an accused person from the main hearing.
26 Sufficient opportunity to make a statement was always granted if the accused person was questioned by the public prosecutor's office in the pre-trial proceedings on all the facts charged. In this context, the questioning delegated to the police authorities in accordance with Art. 312 para. 2 of the Code of Criminal Procedure as well as the questioning carried out by a prosecutor's office outside the canton or a foreign prosecutor's office in accordance with the rights of the parties are to be equated with the questioning by the public prosecutor's office. Even if the law does not expressly prescribe a hearing by the public prosecutor, a police hearing is generally not sufficient. However, if the accused has also contacted the prosecution authorities, e.g. by letter or e-mail, and made a statement on the matter, this may be sufficient according to the view expressed here. This is particularly the case if the accused person expressed his or her disinterest in participating in the hearing from the outset or vehemently refused to testify on the matter during the earlier hearing(s). It is also decisive whether the accused person was able to comment on the results of the preliminary proceedings or on the facts of which he was accused. It goes without saying that questioning on the charge of simple bodily injury is not sufficient to satisfy the right to be heard with regard to an intentional homicide that is later brought to trial. Consequently, the court must weigh up in each individual case whether the accused's right to be heard has been satisfied.
27 If the accused did not have sufficient opportunity to make a statement in the preliminary proceedings and cannot be granted the right to be heard in the main judicial proceedings either, no judgment may be handed down at this stage. The proceedings shall be conducted in application of Art. 366 para. 2 in conjunction with Art. Art. 329 para. 2 Code of Criminal Procedure.
E. Liquid facts (para. 4 lit. b)
28 For the conduct of proceedings in absentia, it is further required that the facts of the case are liquid or ripe for adjudication. In other words, the court must be in a position to render a judgment based on the available evidence.
29 The facts of the case are liquid if the accused makes a verifiable or credible confession to the facts of which he is accused. If this confession can be supported by the files, there is nothing to prevent an immediate assessment of the case in the in absentia proceedings - provided the other requirements are also met.
30 If there is no confession by the accused, it is a prerequisite for the existence of a verdict that the evidence is clear and the guilt can be proven by sound evidence. It may also be clear already at the beginning of the trial that a conviction in application of the principle "in dubio pro reo" does not appear possible. In this case, the accused person may also be acquitted in absentia proceedings.
31 On the other hand, the facts of the case are not liquid if the personal impression of the person summoned but who failed to appear without excuse is of decisive importance for the court in reaching a verdict. If the file and the resulting evidence do not permit an assessment without the presence of the accused, the hearing must be terminated and a new hearing summoned or the summoned person must be brought to the court hearing with the assistance of the police. If the summons is also unsuccessful, the proceedings must be suspended in accordance with Art. 366 para. 2 last sentence of the Code of Criminal Procedure.
III. Suspension (Art. 366 para. 2, last sentence of the Code of Criminal Procedure)
32 As an alternative to conducting proceedings in absentia, the law allows the proceedings to be suspended in the absence of the accused under Article 366(2), last sentence, of the Code of Criminal Procedure. This procedure makes sense primarily if the accused is only temporarily absent (e.g. on vacation) or unable to stand trial and it can be expected that the proceedings can be completed within a reasonable period of time while granting the constitutionally guaranteed right to participate in the ordinary proceedings. A stay is also indicated if the court deems it necessary to question the accused or to take further evidence. The decision whether to suspend proceedings is at the discretion of the court.
IV. Exceptions and delimitations
A. Dispensation from the main hearing (Art. 336 StPO)
33 Unexcused failure to appear must be distinguished from the possibility under Art. 336 Code of Criminal Procedure of being excused from attending the main hearing in person. Pursuant to Art. 336 para. 3 Code of Criminal Procedure, the director of proceedings may excuse the accused from appearing in person at the main hearing at his request if he puts forward important reasons and his presence is not required. If the defendant requests to be excused and the request is granted, the court may hold the main hearing and pass judgment at the first hearing. In this case, an ordinary trial will take place. As a rule, in the case of a dispensation, the accused person is defended by a lawyer in court, but this is not mandatory. If the accused person's whereabouts are unknown and there is no contact between the defense and the client, the filing of a request for dispensation is generally not conceivable, since the defense is usually not in a position to file such a request with the court due to a lack of appropriate instruction. In this case - in the absence of a request for dispensation - only the procedure in absentia can be considered under the condition that the defense is summoned to a second hearing.
B. Leaving the place of trial (Art. 340 para. 1 lit. c Code of Criminal Procedure)
34 If the main hearing was opened in the presence of the accused and if he or she leaves the place of the hearing at a later date without having been excused in advance, the hearing shall be continued and concluded without the absent accused (Art. 340 para. 1 lit. c CCP). In this case, the proceedings shall be continued in the manner specified at the beginning of the hearing. The in absentia procedure shall not apply in this case.
C. Failure to appear at the continuation hearing
35 If the accused appears at the main hearing in accordance with the summons, but the main hearing must be discontinued for other reasons and continued at a continuation hearing, then, according to the view expressed here, proceedings in absentia are also not to be conducted in the event of unexcused non-appearance at the continuation hearing.
36 The type of proceedings was determined at the opening of the hearing on the first date and cannot be changed afterwards. Failure to appear at the continuation hearing is considered a special form of leaving the place of the hearing according to the view expressed here, and what has been said above regarding item II. B. is to be applied by analogy. Under the circumstances, however, it seems appropriate to grant the accused person a "respect quarter hour" and, if possible, to attempt to contact him. Based on the appearance at the first appointment, it cannot be assumed per se, without indications to the contrary, that the accused person is not (or no longer) interested in the further course of the proceedings.
37 If it turns out that the accused person missed the continuation date through no fault of his or her own, he or she must be given a second chance according to the view expressed here and the hearing must be terminated again. If the default is repeated at the next continuation hearing, the proceedings can be concluded in the ordinary procedure without further ado. In any case, abuse of rights and purely procedural conduct on the part of the accused person remains reserved. Such conduct is not to be protected.
D. Exclusion from further proceedings (Art. 63 para. 4 Code of Criminal Procedure)
38 If the accused person who is obliged to attend must be excluded from further proceedings as a result of his or her conduct in application of session police measures (Art. 63 para. 4 Criminal Procedure Code), the hearing shall be continued and concluded without the accused person. Here, too, the type of proceedings established at the beginning of the hearing in the presence of the party or parties shall be maintained. The in absentia procedure shall not apply.
E. Default in objection proceedings against a penalty order (Art. 356 para. 4 Code of Criminal Procedure)
39 If the court has to rule on an objection to a penalty order, the person lodging the objection has a duty to cooperate: if, despite being summoned, he fails to attend a hearing without excuse, his objection is deemed by law to have been withdrawn (Art. 355 para. 2 Code of Criminal Procedure). According to Art. 356 para. 2 Code of Criminal Procedure, this fiction of withdrawal, which was conceived primarily for the public prosecutor's objection proceedings, also applies by analogy if the objecting person fails to appear at the main court hearing. Accordingly, the withdrawal of the objection is deemed to have occurred if the accused was duly summoned to the main hearing and is not represented by a lawyer in court. If the defense appears at the main hearing but not the objecting person, the hearing must be terminated and rescheduled for a later date. This is subject to any dispensation by the accused that permits the hearing to be held without the accused.
40 For the question of when an opposing person is deemed to be in default without excuse pursuant to Art. 356 para. 4 Code of Criminal Procedure, reference can be made to what has been said above. Also, according to the view taken here, refusal to be brought out of custody or independently placing oneself in a state incapable of being heard (Art. 366 para. 3 Criminal Procedure Code) are considered inexcusable reasons by analogy in the criminal warrant proceedings as well. In these cases, however, the conduct of proceedings in absentia becomes obsolete - unlike in ordinary proceedings - and the objection proceedings are to be written off from the record as irrelevant the first time the objection fails to appear at the first hearing due to withdrawal of the objection.
41 However, the fiction of withdrawal is not applicable in objection proceedings if the accused lives abroad and the summons is to be served abroad. According to Art. 69 IMAC (SR 351.1), anyone who receives a summons to appear before a foreign authority is not obliged to comply with it (para. 1). Subpoenas containing threats of coercion are not served (para. 2). In this respect, the Swiss authorities may send summonses to the accused who is abroad, but these may not contain threats of coercion. In substance, they constitute mere invitations, which the accused person may or may not accept. If the opponent residing abroad does not appear at the main hearing, the court must, in analogous application of Art. 366 para. 1 Code of Criminal Procedure, if the conditions are met, hold out the prospect of proceedings in absentia and summon him or her to a second hearing. If the opposing party fails to appear at the second hearing without excuse, the in absentia proceedings must be conducted if all the requirements are met. The Swiss authorities may only threaten the accused with the fiction of withdrawal if he or she voluntarily goes to Switzerland and the summons can be served here.
F. Default in summary proceedings (Art. 358 ff. StPO)
42 In summary proceedings pursuant to Art. 358 et seq. of the Code of Criminal Procedure, proceedings in absentia cannot be conducted if the accused fails to appear. Proceedings without the presence of the accused person would contradict the express provision of Art. 361 para. 2 CCP, according to which in abbreviated proceedings the personal questioning of the accused person is mandatory for the purpose of verifying the confession and checking the consistency of the facts with the case file. If the accused person fails to appear at the trial date without excuse, the trial shall be rescheduled. It may be assumed that the accused person has an interest in attending the main hearing, especially since he or she can usually expect a lower sentence and lower procedural costs in summary proceedings than in ordinary proceedings.
G. Absence of the accused in the proceedings in the case of persons incapable of committing criminal offences (Art. 374 para. 2 lit. a Code of Criminal Procedure)
43 No proceedings in absentia pursuant to Art. 366 et seq. of the Code of Criminal Procedure must be conducted if the court sits in the absence of an incapacitated person in view of his or her state of health or in order to protect his or her personal rights. In this case, it is a form of application of the dispensation from the main hearing pursuant to Art. 336 Para. 3 Code of Criminal Procedure that is specifically regulated in the law. In application of Art. 374 para. 2 CCP, ordinary proceedings shall be conducted in the absence of the accused person.
H. Default in appeal proceedings
44 In appeal proceedings, the conduct of proceedings in absentia based on Art. 407 para. 2 Code of Criminal Procedure may only be considered if the public prosecutor or the private plaintiff has filed an appeal against the first-instance judgment. If, in this constellation, the accused person, as a non-appealing person, remains absent from the appeal hearing without excuse, the absence proceedings pursuant to Art. 366 et seq. of the Code of Criminal Procedure must be envisaged and summoned to a second hearing. If the accused fails to appear at the second hearing and the other requirements are met, a judgment in absentia may also be handed down in the appeal proceedings.
45 If the accused is the appellant and in this capacity fails to appear at the appeal hearing without excuse and is not represented, the appeal is deemed by law to be withdrawn (Art. 407 para. 1 lit. a Code of Criminal Procedure). If the defaulting defendant is represented by a lawyer before the second instance, the appeal hearing must nevertheless be held in the ordinary proceedings. In this case, proceedings in absentia pursuant to Art. 366 et seq. of the Code of Criminal Procedure shall not take place (Art. 407 para. 2 Code of Criminal Procedure, e contrario). If the appellant accused appears at the appeal hearing, but the (official) necessary defense fails to appear, the hearing must be postponed by operation of law (Art. 336 para. 5 Code of Criminal Procedure in conjunction with Art. 405 para. 1 Code of Criminal Procedure).
46 If proceedings in absentia took place before the first instance and the official defense filed an appeal in the exercise of its duty of care as a lawyer on behalf of the accused who is still absent, an appeal that has been withdrawn must be assumed on the basis of the fiction of withdrawal pursuant to Art. 407 para. 1 subpara. c Code of Criminal Procedure due to the lack of knowledge of the whereabouts of the appellant and thus due to the impossibility of serving the summons to the appeal hearing.
Schematic overview of the absence procedure
Schematic overview of the absence procedure
Bibliography
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