Impact Of COVID-19 On Swiss Criminal Proceedings - Crime

In order to mitigate the impact of COVID-19 on judicial proceedings, the Federal Council extended, by means of an ordinance issued on 20 March 2020, the Easter holiday court recess from 21 March 2020 through to 19 April 2020. However, subject to the below, there is in principle no court recess in criminal proceedings (article 89 para. 2 Criminal Procedure Code [CPC]). As a result, the Federal Council's ordinance has only a limited impact on criminal proceedings in Switzerland. Various cantonal and federal authorities have nevertheless implemented certain measures, in order to cope with the unprecedented situation caused by the COVID-19 pandemic.

Proceedings before the Swiss Federal Tribunal

Proceedings before the Swiss Federal Tribunal (SFT) are governed by the Swiss Federal Tribunal Act (SFTA). As an exception to the general exclusion of court recess in criminal proceedings (art. 89 CPC), the deadlines (whether statutory or set by the SFT) for filing an appeal or a submission or for making cost advancements before the Swiss Federal Tribunal, even in criminal matters, are suspended during the Easter court recess accord- ing to Art. 46 para. 1 SFTA. Although the heading of the Federal Council's ordinance of 20 March 2020 only refers to civil and administrative proceedings, the Federal Department of Justice has recently clarified that the extended recess also applies to proceedings before the SFT in criminal matters.

proceedings regarding the granting of suspensive effect and for other interim measures; and
proceedings regarding international mutual legal assistance in criminal matters.

It is important to remember in this respect that, according to case law, matters dealing with the freezing of assets are deemed "interim measures" within the meaning of Art. 46 para. 2 SFTA.

On 19 March 2020, the SFT advised that, due to the COVID-19 pandemic, it will focus its activity on urgent matters and will not hold any public hearings. No precise guidance was provided as to what is deemed an "urgent matter"; in criminal matters, this most likely encompasses proceedings dealing with deten- tion cases or those where the statute of limitation is at risk.

Proceedings before the Swiss Federal Criminal Court

The Swiss Federal Criminal Court has cancelled all of its court hearings for the time being and is rescheduling on a case-by-case basis. However, we have not as yet experienced any slowdown in proceedings with regard to written submissions, although deadline extensions appear to be granted more generously.

Administrative Criminal Proceedings

As per article 31 para. 2 of the Federal Act on Adminis- trative Criminal Law (ACL), deadlines in court proceed- ings follow the rules of the CPC (i.e. article 89 para. 2 Criminal Procedure Code, in principle no court recess in criminal proceedings).

However, during the investigation phase, administra- tive criminal proceedings follow the rules of the Adminis- trative Procedure Act (APA). Thus, the Federal Council's ordinance extends the respective Easter holiday recess in this phase of the proceedings (article 31 para 2 ACL and Art. 22a APA).

Proceedings before the Office of the Attorney General of Switzerland

So far, the Office of the Attorney General of Switzerland (OAG) has not issued any official statement with regard to any practical implications of the COVID-19 pandemic on its investigations. However, we expect that the same general principles apply (i.e. priority given to urgent matters, postponement of non-urgent hearings and increased flexibility with regard to deadline extensions).

Apart from non-urgent hearings which are not scheduled for the time being, we have not observed a significant slowdown in the OAG's activities. This may, however, vary on a case-by-case basis, depend- ing on the particular circumstances of each matter.

Criminal proceedings before cantonal authorities

Most cantonal public prosecution offices have limited their activities to urgent matters, i.e. severe crimes and cases involving detention. Most of the hearings have been postponed until further notice and, where possible, deadline extensions are granted more generously. Where hearings are held or urgent coercive measures are carried out, the enforcement authorities have to comply with the hygiene measures and social distancing rules implemented by the Federal Office of Public Health.

However, statutory deadlines remain fully applicable, e.g. to oppose a summary penalty order (art. 352 et seqq. CPC) or to appeal a procedural decision (art. 393 et seqq. CPC). To avoid placing parties in a difficult situation under the current circumstances, we are currently aware that prosecution offices seem to be refraining from serving such official acts, unless the circum- stances do not permit otherwise (e.g. in cases where there is a risk that the statute of limitation elapses).

The activity of the cantonal (criminal) courts is currently limited to urgent matters, e.g. requests for interim measures, suspensive effect, detention and the release of frozen assets. Court hearings, if any, are held in camera.

The approach and specific measures in criminal proceedings may vary from one canton to another. It is clearly sensible to engage proactively with the respective authority on a case-by-case basis, espe- cially with regard to pending deadlines and hearings scheduled before the outbreak of the COVID-19 pandemic.

No standstill of criminal statute of limitation

None of the extraordinary measures implemented so far by the Federal Council based on emergency law, in connection with the COVID-19 pandemic, deal with or otherwise affect the statute of limitation applicable in criminal matters. At a press conference on 9 April 2020, the Federal Council clarified that this was a deliberate decision. This means that the deadlines set out notably in articles 97 et seqq. of the Swiss Criminal Code remain fully applicable.

ConclusionM

The various measures implemented by the Swiss Federal Council related to the COVID-19 pandemic do not materially affect criminal proceedings. However, various measures have been adopted on a federal and/or cantonal level, which impact and/or delay the course of such proceedings. Furthermore, non-urgent hearings and other official acts have broadly been put on hold across Switzerland. In any event, the concrete impact of COVID-19 related measures should be assessed on a case-by-case basis. Finally, statutory and other deadlines, including limitation periods, are not currently suspended and should be monitored closely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Switzerland: Impact Of COVID-19 On Swiss Criminal Proceedings