The Swiss Criminal Procedure Code and the prosecution model

From twenty-seven codes to one

Until the end of 2010, criminal procedure in Switzerland was a cantonal matter. Each of the twenty-six cantons had its own code of criminal procedure, while a federal statute governed the proceedings conducted by the federal authorities. A bank employee accused of fraud in Zurich, Geneva or Lugano therefore faced three different sets of rules on searches, on the right to counsel and on the powers of the investigating magistrate. Economic crime, which rarely respects cantonal borders, suffered particularly from this fragmentation. The constitutional basis for unification was created by the reform of the federal judiciary adopted at the turn of the millennium. An expert commission presented a unified concept in 1998, the Federal Council adopted its dispatch on 21 December 2005 and Parliament passed the Swiss Criminal Procedure Code (Strafprozessordnung, StPO) on 5 October 2007. The Code entered into force on 1 January 2011 together with a separate code for juvenile proceedings and the Federal Act on the Organisation of the Federal Criminal Authorities.¹

The unification left the organisation of the criminal authorities to the cantons. Zurich decides how many prosecutors it employs, how it distributes cases among its offices and how its courts are composed. What the cantons lost was the power to shape the procedure itself. Since 2011 a prosecutor in Zurich and a prosecutor in Geneva apply the same provisions on coercive measures, on the rights of the parties and on the special forms of procedure, with the Federal Supreme Court in Lausanne ensuring a uniform interpretation. For international clients this has been a considerable gain in predictability. A defence strategy developed in a Geneva case can be transposed to Zurich. Over the years, a body of federal case law on sealing, on the right to be present at interviews and on the admissibility of evidence has grown up that applies throughout the country.

The prosecutor as master of the investigation

The most important structural choice of the new Code concerned the relationship between the investigating judge and the prosecutor. Several cantons, especially in French-speaking Switzerland, had followed the French model of an independent juge d’instruction who conducted the investigation, while the prosecutor acted as a party. Others, Zurich among them, had already concentrated investigative powers in the hands of prosecutors. The federal legislature chose the so-called prosecution model (Staatsanwaltschaftsmodell), under which the public prosecutor directs the preliminary proceedings from the first suspicion to the indictment and represents the prosecution before the court.² The prosecutor opens the investigation, orders searches, seizures and the surveillance of communications, questions the accused and the witnesses, and decides at the end whether to discontinue the case, to issue a summary penalty order or to indict.

The concentration of power in one authority is balanced in several ways. Coercive measures that intrude most seriously into fundamental rights, such as pre-trial detention or the surveillance of telecommunications, require the approval of a compulsory measures court (Zwangsmassnahmengericht). The same court decides on requests to unseal documents that the holder claims are protected. The parties have extensive rights of participation, including the right to attend the questioning of co-accused and witnesses. Every procedural act of the prosecutor can be challenged by way of an objection (Beschwerde) before a cantonal appeals authority, which in Zurich is the Obergericht.³ The prosecutor nevertheless remains the central figure of the Swiss criminal process. In economic cases, which are rarely decided by a court at all, the prosecutor’s assessment is often final in practice.

For the international client, this model has two consequences that deserve emphasis. First, the decisive phase of a Swiss economic criminal case is the preliminary investigation, which may last several years. Because evidence is gathered, witnesses are questioned and records are compiled in this phase, the trial court largely works from the file. Defence counsel who wait for the trial to present their case have usually waited too long. Second, the prosecutor is simultaneously investigator, negotiator and, through the summary penalty order, a kind of judge of first instance. Counsel familiar with common-law systems, where the functions of police, prosecutor and court are more sharply separated, must adapt their expectations accordingly.

The revision in force since 1 January 2024

Barely a decade after its entry into force, the Code was subjected to a broad revision based on the experience of practice. After lengthy parliamentary deliberations, the amended provisions entered into force on 1 January 2024. For economic criminal proceedings, four changes stand out. The first concerns sealing, which is discussed in detail in section VIII: the holder of seized records must now request sealing within three days, the prosecutor must apply for unsealing within twenty days, and the holder then has a non-extendable period of ten days to respond. Silence is treated as a withdrawal of the sealing request. The decision lies with the compulsory measures court, whose ruling can be taken directly to the Federal Supreme Court.⁴

The second change concerns civil claims. Prosecutors must now decide civil claims of up to CHF 30,000 in a summary penalty order where this is possible without further evidence. The third concerns the recording of interviews, which may now be conducted with audio or video recording and later reduced to writing. The fourth, and for economic cases perhaps the most significant, concerns the summary penalty order itself: where the prosecutor intends to impose a custodial sentence, the accused must now be heard in person.⁵ A proposal of the Office of the Attorney General to introduce a form of deferred prosecution for companies did not become part of the revision. The reasons, and the debate that continues, are traced in section VI.

Commentators specialising in economic crime have observed that the new deadlines in the sealing procedure fit poorly with the realities of large investigations. A non-extendable period of ten days to substantiate the sealing of several terabytes of data, as can occur after the search of a bank or a trading house, is, in the words of one German-Swiss report, barely sufficient.⁶ The revision thus shifts part of the burden of speed from the authorities to the holders of documents, and defence counsel in Zurich now treat the first seventy-two hours after a search as a phase in which substantial decisions have to be made.

Notes

1. Federal Office of Justice (BJ), “Vereinheitlichung des Strafprozessrechts”, https://www.bj.admin.ch/de/vereinheitlichung-des-strafprozessrechts. The page states that the reform replaced the twenty-six cantonal codes and the federal criminal procedure by two uniform federal codes, while the cantons retained the organisation of their courts and prosecution authorities. ↩
2. Plattform J, “Von 2011 an gibt es keine Untersuchungsrichter mehr”, 5 November 2010, https://www.plattformj.ch/artikel/106331/. The article describes the transition in the Canton of Bern, where the investigating magistrates’ functions passed to prosecutors who henceforth led the preliminary investigation, brought the charges and represented the prosecution in court. ↩
3. Arts. 393 ff. StPO (objection) and § 49 of the Zurich Gesetz über die Gerichts- und Behördenorganisation im Zivil- und Strafprozess (GOG, LS 211.1): “Das Obergericht ist Berufungsgericht und Beschwerdeinstanz gemäss StPO und JStPO”, text as reproduced by humanrights.ch, https://www.humanrights.ch/cms/upload/pdf/2020/200806_GOG_ZH.pdf. ↩
4. Dario Marzorati and Fabienne Schaub, “The Revised Criminal Procedure Code Enters into Force on 1 January 2024”, Pestalozzi Attorneys at Law, 7 December 2023, https://pestalozzilaw.com/en/insights/news/legal-insights/the-revised-criminal-procedure-code-enters-into-force-on-1-january-2024/. The authors also describe the abandonment of the proposed restriction of participation rights (Art. 147a StPO), which Parliament rejected because of concerns about the balance of power between the prosecution and the defence. ↩
5. Legal Partners Zurich, “StPO-Revision: Neuerungen im Strafverfahren”, https://lp-zurich.ch/legal-news/stpo-revision. The page summarises the new Art. 352a StPO, the prosecutor’s competence over civil claims up to CHF 30,000, the stricter three-day deadline for asserting grounds for sealing and the rule that most amendments apply to cases pending before the prosecution on 1 January 2024. ↩
6. Friedrich Frank and Nora Markwalder, “Länderbericht Schweiz: Aktuelles aus Gesetzgebung und Rechtsprechung im Wirtschaftsstrafrecht”, WiJ – Journal der Wirtschaftsstrafrechtlichen Vereinigung, 24 January 2024, https://wistev.de/journal/2024/01/24/laenderbericht-schweiz-aktuelles-aus-gesetzgebung-und-rechtsprechung-im-wirtschaftsstrafrecht/. The report also notes that a private claimant can no longer introduce civil claims for the first time in the final pleadings at trial. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of September 2025.