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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
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- Art. 29a FC
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- 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
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- Art. 147 CO
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- 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. 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
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- Art. 14 FADP
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- Art. 19 FADP
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- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
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- Art. 72 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. The procedure in the case of a request for a new evaluation in particular
- III. Consequences of repeated unexcused absence (para. 4)
- IV. Withdrawal of the request (para. 5)
- Bibliography
I. General
1 Art. 369 Code of Criminal Procedure governs the procedure that applies if the request for a new assessment under Art. 368 Code of Criminal Procedure is likely to be approved. In this case, a third main hearing takes place, in which the procedural rights of the accused, in particular his or her rights to participate and testify, are fully respected. If evidence was taken at the hearing in absentia, these examinations must be repeated, regardless of whether the defence was present at the hearing in absentia or not. Consequently, no (!) judgement in absentia is issued within the framework of Art. 369/370 CCP.
II. The procedure in the case of a request for a new evaluation in particular
A. Summary preliminary examination and new main hearing (para. 1)
2 In accordance with the legal provision of Art. 369 para. 1 Code of Criminal Procedure, the court shall first examine, and in this respect only summarily, whether the requirements for the approval of the request for a new assessment could presumably be fulfilled. If this is to be affirmed, e.g. if the convicted person can show that he or she was either not summoned properly or was unable to attend the main hearing through no fault of his or her own, the court must summon him or her to a further, i.e. third, main hearing.
3 Only at the subsequent main hearing shall the court finally assess the request for a new assessment. If the court grants a new assessment, it shall immediately proceed to repeat the main hearing and conduct it in accordance with the principles of Art. 339 et seq. StPO and granting all the rights of the parties. There is no (independent) possibility of appeal against the granting of a retrial. However, the new judgment may be challenged on appeal, claiming that the requirements for a retrial were not met.
4 In the event that the requirements for granting the application are clearly not met, the court shall, after granting the parties the right to be heard, dismiss the application by means of a written decision. In this case, according to the opinion expressed here, it is unnecessary to schedule a third main hearing, especially since it would not make sense from a procedural economic point of view to have the parties prepare the pleadings if it is already clear from the outset that the application will be rejected. The sentenced person has the right to appeal against this interim decision, which is to be issued in written proceedings, to the appellate authority in accordance with Art. 393 et seq. StPO to the appellate court.
B. Suspension of appeal proceedings already initiated (para. 2)
5 According to Art. 369 para. 2 Code of Criminal Procedure, if appeals have been filed in addition to the application for a new conviction, they are suspended.
6 It is striking that Art. 369 para. 2 CCP only speaks of those appeal proceedings that have been initiated "by other parties". Appeal proceedings initiated by the sentenced person himself are thus excluded. This is due to the fact that Art. 371 para. 2 Code of Criminal Procedure contains a special provision for appeals by the sentenced person, according to which an appeal is only heard if the request for a new assessment has been rejected. If, on the other hand, the request is approved, a new first-instance decision is issued, which is why the appeal filed against the decision rendered in absentia is not to be heard. However, until a decision has been reached on the request for reassessment, it also appears reasonable to suspend the proceedings at the higher instance with regard to the appeals filed by the accused person, which means that the appeals of all parties are to be treated equally with regard to the suspension.
C. Decision on suspensive effect and preventive detention (para. 3)
7 If an appeal is lodged against a decision rendered in absentia, the decision is only resolutely conditional and is not (yet) enforceable, which means that any ordinary execution of sentence initiated on the basis of the decision rendered in absentia cannot take place. The (resolutively conditional) sentenced person is thus formally still in preventive detention, which means that requests for release from detention during the proceedings for reassessment are to be dealt with in the first instance proceedings according to Art. 230 CCP and in the appeal proceedings according to Art. 233 CCP. This also follows from Art. 369 para. 3 CCP, which expressly refers to decisions on preventive detention (and not ordinary detention) in connection with the reassessment.
8 The circumstance of a merely resolutive conditional res judicata and enforceability may appear problematic at first glance, especially since the "suspension period" until the appeal can be taken can last a long time, since the service of the decision rendered in absentia is decisive (Art. 368 para. 1 CCP). However, because in detention cases the sentenced person is physically available, there is nothing to prevent personal service, which means that the 10-day period for filing the request for a new judgment can be waited for before the ordinary detention is enforced.
9 The court also decides on the suspensive effect of the decision rendered in absentia that has become resolutively conditional. The mere resolutive conditional legal force applies even if the court does not grant suspensive effect within the meaning of Art. 369 para. 3 Criminal Procedure Code to the application for a new judgment.
III. Consequences of repeated unexcused absence (para. 4)
10 If the convicted person again fails to appear at the third main hearing without excuse, the decision rendered in absentia remains in force. This legal consequence must be pointed out in the summons to the new hearing.
11 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. Here too, unexcused means culpable absence. What is required is that the accused person deliberately and voluntarily stayed away from the hearing.
12 According to the wording of the law in Art. 369 para. 4 CCP, a further/second request for a new assessment is excluded after the first absence for the third main hearing. The law does not provide for any further such appeal. With the renewed unexcused absence within the meaning of Art. 369 para. 4 CCP, the convicted person forfeits, in other words, his or her right to a new assessment.
IV. Withdrawal of the request (para. 5)
13 The request for reassessment may be withdrawn until the conclusion of the party hearing at the third main hearing. In the event of a withdrawal, the decision rendered in absentia becomes formally and substantively final.
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.
Jositsch Daniel, Grundriss des schweizerischen Strafprozessrechts, 3. Aufl., Zürich/St.Gallen 2017, S. 219.
Oberholzer Niklaus, Grundzüge des Strafprozessrechts, 3. Aufl. 2012, S. 532, Rz. 1518.
Schmid Niklaus/Jositsch Daniel, Handbuch des schweizerischen Strafprozessrechts, 3. Aufl. Zürich/St.Gallen 2017 (zit. Handbuch).
Summers Sarah, in: Donatsch Andreas/Lieber Viktor/Summers Sarah/Wohlers Wolfgang (Hrsg.), Kommentar zur Schweizerischen Strafprozessordnung, 3. Aufl., Zürich 2020.