The revision of the Code of Criminal Procedure from a criminal defense perspective

As is well known, the partially revised Code of Criminal Procedure came into force on January 1, 2024. The aim of the revision was, among other things, to improve the suitability of individual provisions in practice, but also to enshrine the long-standing case law of the Federal Supreme Court in law. The amendments have also resulted in procedural changes from the perspective of the defense or the accused.

Technical aids during questioning

Art. 78 of the Code of Criminal Procedure stipulates that statements made by the parties must be recorded on an ongoing basis and that the minutes must then be read out or presented to the interrogated person and submitted for signature. Previously, only interrogations during the main court proceedings could be recorded, which meant that the minutes did not have to be read out or submitted. It is now possible to record all hearings using technical aids, i.e. as early as the preliminary proceedings (Art. 78a StPO).

On the one hand, this undoubtedly makes it easier for the person taking the minutes, especially if the interviewee’s answers are verbose. On the other hand, this is also welcome from the point of view of the defense, especially as it makes it possible to check whether leading questions were asked during the interrogation. In addition, there will probably be no more discussions in future about whether the statement was actually made as it was recorded in the minutes. However, it should be noted that the recording of statements is not a mandatory requirement and that it is at the discretion of the prosecuting authority to decide whether or not to make use of this option.

Changes to the civil action

Until now, the private plaintiff could only tell the court at the hearing why and how much compensation and/or satisfaction they were demanding from the defendant. From the point of view of the defense, this was particularly difficult in a complex criminal case, as a statement on the claim had to be made within a very short time and without the opportunity to prepare.

The private plaintiff now has to precisely quantify and substantiate their civil claim – within the scope of the deadline for providing evidence – before the main hearing (Art. 123 para. 2 and Art. 331 para. 2 StPO). This is an enormous relief for the defense, as it now has the opportunity to deal with the civil claim in advance and at its leisure.

According to Art. 353 para. 2 of the Code of Criminal Procedure, the public prosecutor’s office can now decide on civil claims of up to CHF 30,000.00 in summary penalty order proceedings, provided that no further evidence can be taken and the decision is based on sufficiently clarified circumstances.

The problem here is that summary penalty order proceedings are mass proceedings. The accused person is often not represented by a lawyer, which in the worst case can lead to them being ordered to pay a civil claim that might not have stood a chance in any civil proceedings.