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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- 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
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- 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
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
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- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
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- Art. 55 PRA
- Art. 56 PRA
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- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 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. General
- II. Personal and material scope of application
- III. Request for a new assessment
- IV. Legal consequences / legal effect
- V. Relationship to ordinary appeals and other legal remedies
- Bibliography
I. General
1 Proceedings in absentia are only admissible against the background of Art. 6 No. 1 ECHR if the convicted person can subsequently (in principle also after the statute of limitations has run) demand that a court, after hearing him or her on the merits, re-examine whether the charges against him or her are well-founded. This right under international law is expressly taken into account with the remedy of reconsideration under Art. 368 Criminal Procedure Code and a retrospective assessment of the decision rendered in absentia is opened up. With this possibility, the encroachments on the right to participate and to make statements inherent in proceedings in absentia can be corrected or mitigated.
II. Personal and material scope of application
2 The remedy of reconsideration is expressly available only to the person convicted in absentia proceedings. It is thus clear that neither the public prosecutor's office nor the private plaintiff can demand a new assessment under Art. 368 Criminal Procedure Code. The public prosecutor's office or the private plaintiff who wishes to defend against a judgment handed down in his or her absence must be referred to the ordinary legal remedies of appeal and complaint.
3 With regard to a judgment that was not handed down in absentia proceedings, a new judgment is not possible in accordance with Art. 368 et seq. of the Code of Criminal Procedure. If the in absentia proceedings are discontinued due to the absence of a procedural requirement pursuant to Art. 329 para. 4 Criminal Procedure Code, the absent party may likewise not request a new assessment, as the requirement for a conviction is lacking.
III. Request for a new assessment
A. Personal service of the judgment (para. 1)
4 If the whereabouts of the accused person who has twice been absent from the main hearing without justification are established or if he or she is brought before the court in some other way, he or she shall be served with the disposition of the decision rendered in absentia. This may still be the case years after the conviction.
5 At the same time as the judgment is handed over, the convicted person must be informed of the possibility of requesting a new assessment in accordance with Art. 368 ff. of the Code of Criminal Procedure within 10 days of receipt (Art. 368 para. 1 Code of Criminal Procedure). In practice, this information is printed on the judgment as an instruction on the right of appeal. Attention must also be drawn to the obligation to state reasons under para. 2 and to the possibility, if any, of declaring the appeal in parallel under Art. 371 para. 1 CCP.
6 In Art. 368 para. 1 CCP, the law expressly requires personal service of the decision rendered in absentia in order to trigger the 10-day appeal period. The embassy assumes that the accused person's whereabouts are established or that he or she is otherwise brought before the court and can be served with the decision rendered in absentia. This is the case, for example, if a convicted person has been issued an alert for arrest and has been arrested on the basis of an arrest warrant.
7 In this case, the convicted person is handed over personally. What is meant by this is a hand-to-hand delivery. The handing over of the judgment to a person over sixteen years of age living in the same household pursuant to Art. 85 para. 3 CCP as well as the application of the fiction of service pursuant to Art. 85 para. 4 lit. a CCP, on the other hand, does not trigger the time limit pursuant to Art. 368 para. 1 CCP. In other words, it must be ensured that the accused actually receives the contumacious judgment and thus actually takes note of it. Service on the defence or on a domiciliary or publication of a judgment is likewise not sufficient in principle. According to the view expressed here, however, personal delivery may be dispensed with in exceptional cases if the defence is in contact with the sentenced person and can expressly confirm that the sentenced person has actually taken note of the judgment rendered in absentia and of the possibility of lodging an appeal, but this may conflict with the lawyer's duties, because the sentenced person may have an interest in not triggering the time limit, e.g. in order to wait for the limitation period to expire. The determination of the time of service and thus the beginning of the time limit could also present difficulties, which is why it makes sense to obtain a signed certificate of service from the defendant. The burden of proof in this regard lies with the state.
8 As long as the personal service of the judgment has not taken place and the time limit for appeal has neither begun to run nor expired as a result, and also as long as a request for a new assessment that has been made has not been rejected, the legal force of the judgment in absentia remains resolutely conditional and the judgment is not (yet) enforceable.
B. Request and obligation to state reasons (para. 2)
9 The proceedings under Art. 368 Code of Criminal Procedure require a written or oral request on the record by the person sentenced in absentia. The application must be submitted to the original sentencing court within 10 days of taking cognisance of the contumacious judgment. In the application for reconsideration, the sentenced person must briefly explain why he or she did not attend the main hearing or hearings. He or she must credibly present these reasons that justify his or her absence. The criminal justice authorities must examine any excuses submitted. If no reasons are given, the person making the request must first be granted a period of grace and if the period of grace expires unused, the request must be dismissed. The decision not to proceed is made in writing in the form of a decision or order (Art. 80 para. 1 Criminal Procedure Code). Decisions and orders of the courts of first instance are subject to appeal (Art. 393 para. 1 Code of Criminal Procedure).
10 The statutory obligation for the convicted person to give reasons for his or her absence is in line with the case law of the Convention and does not violate the principle of nemo tenetur se ipsum accusare, according to which no one is required to incriminate himself or herself. This is because it is generally true that appeals and legal remedies must be substantiated, otherwise they will not be pursued.
C. Grounds for refusal (para. 3)
11 Art. 368 para. 3 Code of Criminal Procedure regulates the question under which conditions the request for a reassessment is to be granted or when it is to be rejected. Accordingly, the court rejects the request if the convicted person was duly summoned but failed to attend the main hearing without excuse.
12 The term "without excuse" used in Art. 368 para. 3 CCP and Art. 369 para. 4 CCP is to be interpreted in the same way in both provisions and is the same as that used in Art. 366 CCP. What is required is a culpable absence. The focus is on cases in which the accused refuses to appear at the main hearing. For example, if it is known from statements made by the accused that he or she does not intend to comply with a summons. If the accused person, knowing that he or she will be prosecuted, unequivocally renounces participation in the main hearing or if there are clear and concrete indications that he or she intends to evade the criminal proceedings by fleeing, the reopening of the proceedings is excluded. In this case, the accused person has clearly waived participation in the (first and second) main hearing. He or she cannot come back to it later.
13 However, the burden of proof for the failure to appear through one's own fault lies with the state - as is also the case with default under Art. 366 Criminal Procedure Code. The fact that, according to Strasbourg practice, the accused may not be required to prove that he or she was not at fault does not mean, however, that in the proceedings concerning the request for a new assessment it is not necessary to take into account whether the reasons asserted make the absence appear to be credibly without fault. If it cannot be proven that the accused was absent from the main hearing without excuse, the application for a new assessment must be approved.
IV. Legal consequences / legal effect
14 Insofar as the application for reassessment is approved and a new judgment is handed down in accordance with Art. 369 f. Code of Criminal Procedure, the judgment in absentia lapses. In this respect, it is no longer considered a first-instance judgment under the statute of limitations.
15 If, on the other hand, the court rejects the request for a new judgment, it issues a formal order (collegiate court) or a decree (individual court) in accordance with Art. 80 para. 1 CCP. An appeal against this is admissible under the general provisions (Art. 393 para. 1 lit. b Code of Criminal Procedure). The decision rendered in absentia remains in force in this case (Art. 369 para. 4 Criminal Procedure Code). In this case, the judgment rendered in absentia becomes final in accordance with the general rules (cf. Art. 437 ff. Code of Criminal Procedure).
16 If no ordinary appeal is lodged against the judgment in absentia within the time limit for appeal, which - unlike the time limit for appeal - does not require personal service of the judgment, the judgment can in principle be said to be final. However, this is merely a resolutive (suspensive) conditional legal force and the judgment is not (yet) enforceable. 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 personal service of the decision within the meaning of Art. 368 Code of Criminal Procedure or if the court rejects the new assessment. This requires that the accused person's whereabouts could be ascertained or that he or she was otherwise placed before the court and that he or she was informed of the possibility of lodging an appeal.
17 The mere resolutive condition of res judicata applies even if the court does not grant the application for a new conviction a suspensive effect within the meaning of Art. 369 para. 3 Criminal Procedure Code.
V. Relationship to ordinary appeals and other legal remedies
A. Relationship to the appeal
18 The legislature devoted a separate statutory provision to the relationship of the new conviction to the appeal. Article 271 of the Code of Criminal Procedure stipulates that, as long as the appeal period is still running, the convicted person may, in addition to or instead of filing a request for a new assessment, also declare an appeal against the decision rendered in absentia. He or she must be informed of this possibility in terms of Art. 368 para. 1 Criminal Procedure Code. An appeal shall only be heard if the request for a new assessment has been rejected.
B. Relationship to the appeal
19 If the request for a new assessment is rejected, which takes the form of a decision or order, the person convicted in absentia may appeal to the appellate court (Art. 393 para. 1 letter b Code of Criminal Procedure).
20 If, after the application for reassessment has been granted, a further (third) main hearing was held at which the accused was again absent without excuse, a further application for reassessment is not considered. The accused who has again failed to appear may appeal against the court's finding under Art. 369 para. 4 Code of Criminal Procedure that the original decision on absence applies on the grounds that the court wrongly assumed an unexcused absence.
C. Relationship to restoration in the case of missed appointments (Art. 94 para. 5 Code of Criminal Procedure)
21 In the case of a contumacious judgment, the provisions of Art. 368 et seq. of the Code of Criminal Procedure take precedence as lex specialis over the provisions of Art. 94 of the Code of Criminal Procedure on restoration in the case of missed deadlines, as is clear from the reservation in Art. 94 para. 5 of the Code of Criminal Procedure in favour of the provisions on in absentia proceedings.
22 For reinstatement, the accused person must show credibly that he or she is not at fault for the default. In contrast, in the case of a request for a new trial, as already mentioned above, the state bears the burden of proving that it was at fault for the failure to appear. In this respect, the procedure under Art. 368 et seq. of the Code of Criminal Procedure is always the more favourable for the accused person.
23 In constellations in which Art. 368 et seq. of the Code of Criminal Procedure cannot be applied because an ordinary judgment has been issued rather than a judgment in absentia, the defaulting accused person has the right of appeal under Art. 94 of the Code of Criminal Procedure.
24 Likewise, according to the view taken here, restoration may be requested if the 10-day period for lodging the appeal under Art. 368 CCP has already elapsed but the 30-day period for restoring the time limit is still running.
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.
Riklin Franz, Schweizerische Strafprozessordnung mit JStPO, StBOG und weiteren Erlassen, Orell Füssli Kommentar (Navigator.ch), 2. Aufl. 2014.
Schmid Niklaus/Jositsch Daniel, Handbuch des schweizerischen Strafprozessrechts, 3. Aufl. Zürich/St.Gallen 2017 (zit. Handbuch).
Schmid Niklaus/Jositsch Daniel, Praxiskommentar zur schweizerischen Strafprozessordnung, Dike Kommentar, 3. Aufl. Zürich 2018 (zit. Praxiskommentar).
Summers Sarah, in: Donatsch Andreas/Lieber Viktor/Summers Sarah/Wohlers Wolfgang (Hrsg.), Kommentar zur Schweizerischen Strafprozessordnung, 3. Aufl., Zürich 2020.