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If you are confronted with a deprivation of liberty or criminal proceedings, it is important that you know your rights. If you have any questions or need advice on this topic, contact one of our criminal law attorneys in St. Gallen, Zurich or Frauenfeld.
First of all, a deprivation of liberty must be distinguished from a restriction of liberty. Deprivation of liberty is defined as detention against the will of a person in a designated place for a certain duration. Deprivation of liberty must have a certain intensity as a measure, which must be assessed on the basis of the entire circumstances with regard to the nature, duration, effect and modalities of its enforcement. Deprivation of liberty includes all forms of deprivation of liberty, including preventive detention, remand detention or police custody.
Principle of legality (Art. 31 para. 1 FC; Art. 5 para. 1 ECHR; Art. 9 para. 1 UN Covenant II)
The principle of legality grants that a person’s liberty may be deprived only in cases provided for by law and only in the manner prescribed by law.
Information on rights (Art. 31 para. 2 BV; Art. 5 para. 2 ECHR; Art. 9 para. 2 UN Covenant II)
Every person deprived of liberty has the right to be informed without delay about the reasons for their detention and about their rights during the period of deprivation in a language they understand. This does not have to be done immediately upon arrest, as is often shown in films, but can also be done shortly after the arrest. The relatives of the arrested person must also be notified if he or she so wishes.
Timely judicial protection in cases of pre-trial detention and non-judicial deprivation of liberty (Art. 31 para. 3 and 4 BV; Art. 5 para. 3 ECHR; Art. 9 para. 3 UN Covenant II)
During pre-trial detention, the person taken into custody has a right to be brought before a court without delay. This must be done within 24-48 hours after the arrest. The judgment must be made in another 48 hours. For other forms of deprivation of liberty, the accused person must be brought before a judge as soon as possible, usually within 7 days. The sentence must be passed as soon as possible.
Periodic review of deprivation of liberty (Art. 5 para. 4 ECHR; Art. 9 para. 4 UN Covenant II)
Any person who has been arrested has the right to have the lawfulness of the deprivation of liberty reviewed by a court at any time. This review may be requested at reasonable intervals. Detention periods are only permissible on a conditional basis and for a maximum of one month. Between one and three months are permissible if no changes have occurred with regard to the grounds for detention and the duration of detention.
Right to compensation (Art. 5 para. 5 ECHR; Art. 9 para. 5 UN Covenant II)
If one of the above guarantees is violated, there is a right to compensation.
The guarantees in place for criminal proceedings can be invoked in proceedings on criminal charges. In police investigation proceedings, many of the same claims apply, but especially important is the presumption of innocence. Furthermore, they also apply in contravention, administrative criminal, criminal tax and misdemeanor proceedings.
Presumption of innocence - in dubio pro reo (Art. 32 para. 1 FC; Art. 6 para. 2 ECHR)
Every person is presumed innocent until they are convicted by a final court decision. This guarantee is also known as the presumption of innocence. The presumption of innocence is divided into the burden of proof rule and the assessment of evidence rule. The burden of proof rule states that the burden of proof lies with the state. It is therefore the state’s task to clarify the facts of the case ex officio. The rule on the assessment of evidence prohibits the legal assessment of a criminal offense from proceeding on the basis of incriminating facts if, after an objective assessment of all the evidence, there are serious doubts as to whether the defendant is guilty. Simple probability is not sufficient. The defendant must then be acquitted.
Right to defense (Art. 32 para. 2 FC; Art. 6 para. 3 lit. b-d ECHR)
The right to a defense presupposes that the accused person must be informed in as short a time as possible, in a language he or she understands, of all the details of the nature and cause of the accusation against him or her. This information may also be provided after arrest, as already stated in the guarantees relating to deprivation of liberty. The right to defense includes the right to sufficient time and opportunity to prepare for trial. The accused has right to defend oneself, to have a defense counsel present, the right to contact the defense and the right to question witnesses. If you need a lawyer for criminal law in Frauenfeld, Zurich or St. Gallen who can support your defense in a criminal proceeding, you are welcome to contact us. If you are accused by the police or public prosecutor’s office of having committed a criminal offense, you also have the right to a so-called “lawyer of the first hour”. This attorney is available outside of office hours and will accompany you to the initial interrogation. If the accused person does not understand or speak the language of the court, he or she is entitled to the free assistance of an interpreter.
Right to refuse to testify (expressly: Art. 14 para. 3 lit. g UN Covenant II)
The accused person is entitled not to incriminate themselves during ordinary criminal proceedings, meaning they must not testify against themselves as a witness or to plead guilty, and to remain silent. This applies both before the police, public prosecutor’s office and in court.
Review by a higher court (Art. 32 para. 3 FC; Art. 2 of C.P. No. 7 ECHR; Art. 14 para. 5 UN Covenant II)
If someone has been convicted of a criminal offense, they have the right to have the verdict reviewed by a higher court. For example, if the District Court of St. Gallen has passed a sentence, this sentence can be reviewed by the next higher judicial instance, in this case the Cantonal Court of St. Gallen.
Prohibition of double prosecution (Art. 11 Criminal Procedure Code; Art. 4 of C.P. No. 7 ECHR; Art. 14 para. 7 UN Covenant II).
After an acquittal or conviction, no new prosecution or punishment may take place in the same country for the same criminal act committed by the same offender.
Prohibition of non-retroactivity (Art. 7 ECHR; Art. 15 UN Covenant II)
According to the principle of non-retroactivity, what was not punishable at the time the crime was committed cannot be punished with hindsight.