For the first time across Switzerland, people who have been arrested or detained by the police have the right to counsel from the outset of the investigation.
How did this development come about? It is an illustration of how European countries are beginning to realize that their criminal systems require large-scale change in order to meet international standards.
Until this year, the 27 cantons (regions) in Switzerland have used 27 different systems of criminal proceedings. This caused problems; a lawyer from Geneva could not practice law easily in another town, because the rules about how crimes were investigated and prosecuted could be completely different. It also meant that your rights as a defendant varied depending on what part of Switzerland you happened to be arrested in. But everything changed this year, with Parliament bringing in a single, unified model for the whole country.
One of the most significant characteristics of this new model is that it is an “adversarial” model, with the powers of investigation and prosecution concentrated in the hands of the Prosecutor, as opposed to an “inquisitorial” model, using Investigating Magistrates.
Of course, these changes require a counterbalance. You cannot increase the powers of the Prosecution without also increasing the rights of the Defense. There is now a guarantee that people arrested for serious crimes can access a lawyer before the police interrogate them. This lawyer is also allowed to attend and provide ongoing advice during the interrogation itself.
How does this work in practice? The Geneva Bar has organized a 24 hour duty lawyer scheme in Geneva, whereby lawyers register to be on-call for the police station. No matter what time of the day or night, a person brought into the police station can get legal advice.
There are still some limitations on the powers of lawyers, which raise issues of compliance with ECHR standards. Whether you get a lawyer depends on the gravity of the crime. Only about 115 of the most serious crimes will attract the guarantee, leaving about 150 crimes in which the person may not get access to a lawyer. Also, the lawyer is only permitted a 20 minute consultation with their client before the interrogation. The lawyer is only permitted to access the casefile after the first interrogation, which means they sometimes are not sure about the charges or the evidence against their client. Finally, the model is currently only in operation in Geneva, and it is uncertain how it might be rolled out across the country.
The Justice Initiative will be monitoring how these reforms develop in the future.
The Justice Initiative thanks the law firm, Schellenberg Wittmer, for their input and expertise on this issue.
The issue of early access to counsel for criminal suspects has gained enormous momentum across Europe in 2011. To keep you abreast of these exciting developments, the Justice Initiative is presenting short “country snapshots”, showing how European countries are changing their systems and giving people who are suspected or accused with crimes the right to speak to a lawyer from the outset of police custody, both before and during the first questioning by police.