I. Parallel filing of appeal/appeal.

1 Art. 371 para. 1 sentence 1 CCP unambiguously states that the convicted person may, in addition to or instead of the request for a new assessment, also declare an appeal under Art. 398 et seq. CCP against the judgment rendered in absentia as long as the appeal period of 10 days is still running.

2 The provision of Art. 371 Code of Criminal Procedure merely clarifies the relationship between the legal remedy (request for a new assessment under Art. 368 Code of Criminal Procedure) and the appeal (appeal under Art. 398 ff. Code of Criminal Procedure) against a judgment rendered in absentia under Art. 367 Code of Criminal Procedure. The appeal may be of particular importance if it is claimed that the requirements for a judgment in absentia did not exist and that the proceedings should therefore have been suspended.

3 The following must be taken into account when choosing the appeal/appeal: If the accused person chooses exclusively the appeal without at the same time requesting a new assessment, he or she loses an instance. If, on the other hand, he/she chooses exclusively the new assessment, he/she runs the risk that the request will not be granted because the requirements of Art. 368 para. 3 Code of Criminal Procedure are not met. In this case, he has no legal remedy at all. The accused person is therefore well advised to keep both options open as a precaution.

4 If both the appeal and the remedy of a request for reassessment are taken, Art. 371 para. 2 Code of Criminal Procedure states that the request for reassessment must be decided first and that only if this is rejected will the - previously suspended - appeal proceedings be taken up by the appellate court. This results in the subsidiarity of the appeal proceedings compared to the petition proceedings, which is also reflected in any appeals by other parties (Art. 369 para. 2 and 370 para. 2 CCP).

II. Special features of the running of time limits

5 As far as the running of the time limit is concerned, the following should be noted: The time limit for appeal begins to run with the service of the dispositive, whereby personal service is not required, but also the surrogates of service (such as, for example, the fiction of service or the delivery to a person living in the same household) can come into play. In contrast, personal service is necessary for the start of the time limit for filing a request for a new assessment, which is why the time limits of the appeal and the appeal do not necessarily have to coincide. For example, it may be that the time limit for appeal has long expired before the time limit for appeal even begins to run with service on the convicted person.

III. Relationship to the appeal and to the restoration

6 With regard to the relationship of the request for a new assessment to the appeal and to the restoration of the time limit, reference can be made to the commentary in n. 19 ff. on Art. 368 StPO. A schematic overview of the appeals and remedies in absentia proceedings can be found in No. V. of the commentary on Art. 366 StPO.

Bibliography

Message on the Unification of the Law of Criminal Procedure of 21 December 2005, BBl 2006 1085 ff.

Maurer Thomas, in: Niggli Marcel Alexander/Heer Marianne/Wiprächtiger Hans (eds.), Basler Kommentar zur Strafprozessordnung, 2nd ed.

Summers Sarah, in: Donatsch Andreas/Lieber Viktor/Summers Sarah/Wohlers Wolfgang (eds.), Kommentar zur Schweizerischen Strafprozessordnung, 3rd ed.