Facing criminal charges is one of the most stressful situations an individual or a business can encounter. Swiss criminal law — governed principally by the Criminal Code (CC) of 21 December 1937 and the Code of Criminal Procedure (CPC) of 5 October 2007 — offers robust procedural guarantees to every accused person, but these guarantees are only valuable if actively exercised. PBM Avocats intervenes from the earliest stages of a criminal investigation to ensure that defence rights are respected, to advise on procedural strategy, and to represent accused persons before the criminal authorities of Geneva and Vaud, as well as before the Federal Supreme Court.
Fundamental Principles of Swiss Criminal Procedure
The Swiss Code of Criminal Procedure (CPC), unified at the federal level since 1 January 2011, governs the entire criminal procedure from the criminal complaint to the final judgment. It enshrines several fundamental principles: the presumption of innocence (art. 10 CPC; art. 32 para. 1 Federal Constitution), the right to silence (art. 113 CPC), the accusatory principle (art. 9 CPC — an accused may only be judged for the facts described in the indictment), and the right to defence counsel (art. 128 et seq. CPC).
Ordinary criminal procedure comprises three main stages: preliminary proceedings (police investigation and instruction by the Public Prosecutor), first-instance trial proceedings, and appeal (cantonal appeal and, if applicable, criminal appeal to the Federal Supreme Court). The Public Prosecutor occupies a central position in the Swiss system: it directs the investigation, implements coercive measures with the approval of the compulsory measures court (CMC), and issues the indictment if it decides to refer the matter to trial.
An important feature introduced by the CPC is mandatory assigned defence (art. 130 CPC) in certain cases: where pre-trial detention lasts more than twenty-four hours, where the accused faces a custodial sentence of more than one year, or where important interests are at stake. In these situations, a lawyer must be appointed, even if the accused has not retained one.
Defence Rights and Role of the Lawyer
From the moment a person is suspected of an offence and is subjected to coercive measures or questioned as an accused, they must be informed of their rights (art. 158 CPC). These include the right to appoint a private defence lawyer (art. 129 CPC) or to benefit from assigned defence if the statutory conditions are met. The defence lawyer has access to the criminal file (art. 101 CPC) and may participate in the taking of evidence once the preliminary investigation is closed.
In practice, the swift intervention of a criminal lawyer is decisive. Statements made to the police during the first hearings, without legal advice, may be used as evidence even if subsequently retracted. The lawyer advises the accused on whether to exercise the right to silence, the strategy to adopt during hearings, and the steps to take to protect their interests. PBM Avocats is available on an emergency basis for police custody and police hearings in Geneva and the canton of Vaud.
Economic Crimes and Corporate Criminal Liability
Economic crimes constitute a specialised area of criminal law requiring combined knowledge of criminal law and business law. The Swiss Criminal Code penalises fraud (art. 146 CC), misappropriation (art. 138 CC), mismanagement (art. 158 CC), forgery of documents (art. 251 CC), active and passive bribery (art. 322ter et seq. CC), money laundering (art. 305bis CC) and criminal organisation (art. 260ter CC), among others.
On corporate criminal liability, art. 102 CC provides that a legal entity may be directly convicted if the offence was committed within the enterprise and cannot be attributed to a specific natural person due to deficient internal organisation. The sanction is a financial penalty of up to five million francs. Members of company management also incur personal criminal liability if they participated in the offence or failed to prevent it when they had the power to do so.
Coercive Measures: Detention and Seizures
Coercive measures are procedural acts that interfere with the fundamental rights of those concerned (personal liberty, privacy, property guarantee). They may only be ordered where the law expressly so provides, where there is sufficient suspicion against the accused, and where the objectives pursued are proportionate to the seriousness of the interference (art. 197 CPC).
Pre-trial detention (art. 220 et seq. CPC) requires authorisation from the compulsory measures court (CMC), which must verify the existence of sufficient charges and a statutory ground for detention. The accused and their lawyer are heard within forty-eight hours. Substitute measures for detention (bail, regular reporting to the police, confiscation of passport, electronic bracelet) may be imposed. Regarding seizures and sequestration of assets (art. 263 et seq. CPC), PBM Avocats intervenes to challenge disproportionate sequestration orders and to have unjustified measures lifted.
Appeals and Criminal Appellate Procedure
Decisions of the Public Prosecutor (discontinuation orders, penal orders) and first-instance judgments may be challenged. An appeal (art. 398 et seq. CPC) allows the cantonal court of appeal to freely review questions of fact and law. A cross-appeal allows the opposing party to appeal in response to the main appeal. Criminal appeal to the Federal Supreme Court (Federal Judicature Act) is in principle limited to questions of law and may only be filed against cantonal decisions of final instance.
PBM Avocats accompanies its clients throughout these appeal procedures, analysing prospects for success, drafting appeal briefs and pleading before cantonal and federal jurisdictions. In criminal matters, the quality of legal drafting and mastery of procedural deadlines — often short — are decisive for the outcome of the case.
Frequently Asked Questions about Criminal Law
What are my rights if summoned by the police as a suspect?
From the moment you are suspected of an offence, you enjoy the fundamental rights of the defence guaranteed by the Swiss Code of Criminal Procedure (CPC) and by art. 32 of the Federal Constitution. You have the right to remain silent (art. 113 CPC), the right to be assisted by a lawyer of your choice from the first coercive measures (art. 129 CPC), and the right to be informed of the offences attributed to you. It is strongly recommended not to answer police questions before consulting a lawyer, as statements made during the investigation may be used against you.
What is pre-trial detention and in what circumstances is it ordered?
Pre-trial detention is a coercive measure depriving a person of liberty ordered by the compulsory measures court (CMC) at the request of the Public Prosecutor, when there is sufficient suspicion of an offence and one of the statutory grounds for detention is met (art. 221 CPC): risk of flight, risk of collusion (obstruction of the investigation) or risk of re-offending with serious offences. Pre-trial detention cannot exceed the anticipated duration of the sentence. The accused has the right to apply for release at any time (art. 228 CPC), and their lawyer may file a release application with, where appropriate, substitute measures (art. 237 CPC).
What is the difference between a felony, a misdemeanour and a petty offence under Swiss law?
The Swiss Criminal Code (CC) distinguishes three categories of offence according to the severity of the applicable penalty (art. 10 CC). Felonies (crimes) are offences punishable by a custodial sentence of more than three years. Misdemeanours (délits) are offences punishable by a custodial sentence not exceeding three years or a financial penalty. Petty offences (contraventions) are offences punishable by a fine. This classification has important practical implications for limitation periods, jurisdictional rules and applicable procedure.
What is a penal order and how can it be challenged?
A penal order (art. 352 et seq. CPC) is a decision by which the Public Prosecutor convicts a suspect without a hearing, in cases involving a minor or medium-gravity offence (financial penalty, community service or a custodial sentence not exceeding six months). The suspect has ten days from notification to file an objection (art. 354 CPC). If an objection is filed, the Public Prosecutor may maintain the penal order and refer the matter to the court of first instance, or close the proceedings. The objection allows both guilt and sentence to be challenged.
What penalties does one risk for a serious economic offence in Switzerland?
Serious economic offences — fraud (art. 146 CC), mismanagement (art. 158 CC), money laundering (art. 305bis CC), misappropriation (art. 138 CC), offences under financial market legislation — are often classified as felonies or misdemeanours and may expose their perpetrator to custodial sentences of up to ten years depending on the circumstances, together with financial penalties and confiscation. In addition to criminal sanctions, administrative consequences (withdrawal of FINMA authorisation, prohibition on exercising an activity) and civil liability for damages may arise. An early criminal defence, from the first stages of the investigation, is decisive for the outcome of the proceedings.