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- Art. 55 FC
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- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
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- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
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- Art. 143 CO
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- Art. 701 CO
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- Art. 734f CO
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- 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. 3 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
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- Art. 31 para. 2 lit. e 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. General
1 If, at the first hearing, the court finds that the accused has failed to appear without justification despite having been duly summoned, it shall schedule a second main hearing. If the accused fails to appear at this hearing without excuse, the in absentia proceedings may be conducted at the second main hearing. Article 367 of the Code of Criminal Procedure deals with the modalities of conducting the in absentia proceedings on the occasion of this second main hearing.
II. Conduct of the in absentia proceedings
A. Granting of the parties' rights (para. 1)
2 The procedural rights of the parties shall also be guaranteed wherever possible in the conduct of the proceedings in absentia. Any further discrimination against the absent accused would no longer be in keeping with current ideas or with the international requirements of a fair trial in accordance with Article 6 of the ECHR.
3 If the in absentia proceedings are conducted, it must be possible for the accused who is absent without excuse to submit motions in the proceedings through the defence, which is guaranteed by law in Art. 367 para. 1 Criminal Procedure Code by admitting the parties and the defence to present their case. The accused must then have the opportunity to request access to the files or to appeal and/or seek redress against procedural acts or against the judgment that concludes the proceedings.
4 The same applies to the other parties, whose rights in the proceedings in absentia must also be guaranteed as far as possible. The private plaintiff's right to (renewed) public questioning of the accused at the main hearing or to be granted the right to ask questions in accordance with Article 147 of the Code of Criminal Procedure cannot, by its very nature, be satisfied in the absence of the accused. Such restrictions on the parties' procedural rights are conditional on the absence and are to be accepted within the limits of what is constitutionally permissible.
B. Evidence on which the judgment is based (para. 2)
5 Pursuant to Art. 367 para. 2 Code of Criminal Procedure, the court shall judge on the basis of the evidence gathered in the preliminary proceedings and in the main proceedings. In doing so, the early evidence collected pursuant to Art. 332 para. 3 Code of Criminal Procedure may also be taken into account. In application of the investigative principle, the court is then free to take additional evidence during the main hearing, e.g. to question witnesses, persons providing information or experts, to edit documents, to have expert opinions drawn up, etc. The parties are entitled to have evidence taken in the preliminary proceedings and in the main proceedings. However, the parties do not have a right to conduct an evidentiary proceeding pursuant to Art. 341 et seq. StPO does not exist, however.
6 Nevertheless, it seems appropriate that the court does not conduct a pure file trial, but rather conducts a complete evidentiary procedure with the exception of the questioning of the accused person. This is because it already follows from Art. 366 para. 4 lit. b Code of Criminal Procedure that for a judgment in absentia proceedings, there must be a liquid factual basis, i.e. it must be ripe for adjudication. In other words, the court must be in a position to render a judgement based on the available evidence. If the file and the resulting evidence do not permit a judgement without the presence of the accused, the hearing must be terminated and a new hearing summoned or the proceedings suspended.
C. Judgment in absentia proceedings or suspension (para. 3)
7 If all the requirements are met, the court may give a judgment in absentia or suspend the proceedings. Since this is an "optional" provision, the court has discretion as to the choice of procedure. According to the dispatch, a judgement is generally to be handed down if there is a public interest in an immediate conclusion of the criminal case, e.g. if the statute of limitations for prosecution is threatening to expire or in the case of a case that has caused a stir in the public. In addition, according to the view expressed here, pending proceedings are to be concluded by a judgement whenever possible. The court is bound by the acceleration requirement under Art. 5 of the Code of Criminal Procedure and must bring criminal proceedings to a conclusion without unjustified delay. It could even be tantamount to a denial of justice if, given the prerequisites for a contumacious judgement, the proceedings were to be suspended and ultimately discontinued because the statute of limitations for prosecution had run.
8 In the choice of further proceedings, the interests of any victims or injured parties must be taken into account. Not least from the point of view of atonement and retribution for the wrong committed by the accused, the latter have an interest in the criminal proceedings being concluded by a final judgement.
9 Suspension, on the other hand, always appears to be appropriate if it can be assumed that ordinary proceedings can be conducted within a reasonable period of time - i.e. at least before the statute of limitations for prosecution has run - while preserving the rights of the accused to participate. This is the case, for example, if the accused is merely on holiday abroad.
10 The provisions on the main proceedings in the first instance as referred to in para. 1 also apply with regard to the service of the judgment handed down under para. 3 in accordance with Art. 82 ff. Code of Criminal Procedure as well as with regard to the legal force of this judgment, which occurs in accordance with the usual requirements of Art. 437 ff. Code of Criminal Procedure, but is a legal force that is merely resolutive (resolutive). The final legal force of the decision rendered in absentia only comes into effect if the convicted person does not request a new assessment within 10 days of being personally served with the decision or if this is rejected by the court. This requires that the accused person's whereabouts could be established or that he or she was otherwise surrendered.
11 Appeals and complaints against a judgment rendered in absentia are then possible, as is the additional remedy of a new assessment under Article 368 of the Code of Criminal Procedure.
D. Applicable procedural provisions (para. 4)
12 Pursuant to Art. 367 para. 4 CCP, proceedings in absentia are in principle governed by Art. 367 CCP and - where this norm does not contain a special provision - subsidiarily by the provisions on the main proceedings in the first instance pursuant to Art. 335 et seq. CCP. Of course, for proceedings in absentia to be conducted, the generally applicable procedural requirements such as local, subject-matter and functional jurisdiction, criminal complaint in the case of petition offences, no other lis pendens or res judicata already having occurred, etc. must be met and the parties must be duly summoned to both the first and the second main hearing. If the defence or a party to the proceedings fails to appear, the court must also examine at the second hearing whether there is an unexcused failure to appear or whether a further postponement of the hearing is necessary. In cases of necessary defence pursuant to Art. 130 Code of Criminal Procedure, the hearing may only be held in the presence of a lawyer; if the defence also fails to appear, the hearing must be postponed again.
Bibliography
Botschaft zur Vereinheitlichung des Strafprozessrechts vom 21. Dezember 2005, BBl 2006 1085 ff.
Maurer Thomas, in: Niggli Marcel Alexander/Heer Marianne/Wiprächtiger Hans (Hrsg.), Basler Kommentar zur Strafprozessordnung, 2. Aufl., Basel 2014.
Schmid Niklaus/Jositsch Daniel, Handbuch des schweizerischen Strafprozessrechts, 3. Aufl. Zürich/St.Gallen 2017 (zit. Handbuch).