Lawyer of the First Hour under the Swiss Criminal Procedure Code

Transcription

1 Lawyer of the First Hour under the Swiss Criminal Procedure Code Sylvain SAVOLAINEN, Lawyer Human Rights Commission of the Geneva Bar Association Geneva, 7 March 2016

2 PLAN 1. Why a lawyer of the first hour? 2. What is a lawyer of the first hour? 3. When does a lawyer of the first hour intervene? 4. Who is entitled to have a lawyer of the first hour? 5. Where does the lawyer of the first hour intervene? 6. How is implemented the lawyer of the first hour? 2

3 1. Why a lawyer of the First Hour? Right to a fair trial (Art. 6 para 1 European Convention on Human Rights / ECHR ; Art. 29 para 1 Swiss Constitution) Rights of defence (Art. 6 para 3 ECHR ; Art. 32 para 2 Swiss Constitution) In particular, Defence through legal assistance (Art. 6 (3) let. c ECHR) : Everyone charged with a criminal offence has the following minimum rights: ( ) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. 3

4 1. Why a lawyer of the First Hour? Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination ( ) access to a lawyer should be provided as from the first interrogation of a suspect by the police ( ) (Salduz v. Turkey [GC], 54-55, ECHR 2008) Prohibition of torture, inhuman or degrading treatment: UN International Covenant on Civil and Political Rights; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 4

5 1. Why a lawyer of the First Hour? Message of the Federal Council on the unification of the law of criminal procedure, 21 December 2005: Both the UN Human Rights Committee and the UN Committee against Torture as well as the Council of Europe's Committee for the Prevention of Torture have been recommending, for some time, to Switzerland to allow accused who were arrested to be immediately in contact with their counsel. (p / FF ) 5

6 1. Why a lawyer of the First Hour? Lawyer of the First Hour (Art. 159 para 1 Swiss Criminal Procedure Code / CPC): In the case of police examination hearings, the accused has the right for his or her defence lawyer to be present and allowed to ask questions counterbalance Concentration of powers of the Prosecutor (Art. 61 let. a CPC): The person responsible for directing the proceedings is the public prosecutor until proceedings are abandoned or charges are brought to court 6

7 2. What is a lawyer of the First Hour Lawyer of the First Hour (Art. 159 CPC): para 1 : right for the accused to have his or her defence lawyer to be present and allowed to ask questions; para 2 : the accused is entitled to communicate freely with his or her defence lawyer. Active role of the defence counsel 7

8 3. When does a lawyer of the first hour intervene? First hearing (158 para 1 CPC ): At the start of the first interview, the police or public prosecutor shall advise the accused in a language that he or she understands: a. that preliminary proceedings have been commenced against him or her, and of the offences that are the subject of the proceedings; b. that he or she is entitled to remain silent and may refuse to cooperate in the proceedings; c. that he or she is entitled to appoint a defence lawyer or if appropriate to request the assistance of a duty defence lawyer; d. that he or she may request the assistance of an interpreter. 8

9 3. When does a lawyer of the first hour intervene? First hearing (158 para 1 CPC ): At the start of the first interview, the police or Public Prosecutor ( ) As soon as the police enquiries phase begins (Art. 306 ff CPC) Police power to stop (Art. 215 CPC) Before the formal investigation by the Public Prosecutor is opened (Art. 309 ff CPC) 9

10 3. When does a lawyer of the first hour intervene? 10

11 4. Who is entitled to have a lawyer of the first hour? Lawyer of the First Hour (Art. 159 para 1 CPC): In the case of police examination hearings, the accused has the right for his or her defence lawyer to be present and allowed to ask questions The Accused (Art. 111 CPC): para 1 : The accused is a person suspected, accused of or charged with an offence in a report of a criminal offence, a criminal complaint or in a procedural act carried out by a criminal justice authority. para 2 : The rights and the obligations of an accused also apply to persons in respect of whom it is intended to bring new proceedings following abandonment or a judgment in accordance with Article 323 or Articles

12 4. Who is entitled to have a lawyer of the first hour? 1) Right to choose a defence lawyer (Art. 129 para 1 CPC): The accused is entitled, in any criminal proceedings and at any stage of the proceedings either to instruct a legal agent as defined in Article 127 paragraph 5* to conduct his or her defence (right to choose a defence lawyer) or, subject to Article 130, to conduct his or her own defence. General principle * Private Defence : see French version of the CPC 12

13 4. Who is entitled to have a lawyer of the first hour? 2) Mandatory appointment of a defence lawyer (Art. 130 CPC): 1. custody for more than 10 days (let. a); 2. risk of custodial sentence of more than a year or a custodial measure (let. b); 3. the accused is unable to safeguard his interests in the proceedings due to physical or mental condition or for other reasons (let. c); 4. the Public Prosecutor is appearing in person before the court (let. d); 5. accelerated proceedings (Art ) are being conducted (let. e). 13

14 4. Who is entitled to have a lawyer of the first hour? 3) Duty defence lawyer (Art. 132 CPC): 1. The director of proceedings [see Art. 61 CPC] shall appoint a duty defence lawyer if: a. in the event of mandatory appointment of a defence lawyer: 1. the accused ( ) fails to appoint a defence lawyer of choice, or 2. the defence lawyer of choice has been dismissed or has resigned and the accused fails to appoint a new defence lawyer of choice within the time limit set; b. the accused lacks the necessary financial means and requires a defence lawyer to safeguard of his or her interests. 2. A defence lawyer is required to safeguard the interests of the accused in particular if the matter is not a minor case and the case involves factual or legal issues that the accused is not qualified to deal with alone. 3. A case is no longer regarded as minor if it is probable that a custodial sentence of more than 4 months, a monetary penalty of more than 120 daily penalty units or community service of more than 480 hours will be imposed on conviction. 14

15 5. Where does the lawyer of the first hour intervene? 15

16 6. How is implemented the lawyer of the first hour? Organisation of a permanent legal assistance service (in Geneva) At the start of the first interview, the police or public prosecutor shall advise the accused ( ) that he or she is entitled to appoint a defence lawyer or if appropriate to request the assistance of a duty defence lawyer (Art. 158 para 1 CPC) authority of the Geneva Bar Commission delegated to Geneva Bar Association which assumes the daily management of the service (Art. 8A para 3 Geneva State Law governing the profession of Lawyer / LPAv) 16

17 6. How is implemented the lawyer of the first hour? The duty lawyer contacted by the permanent legal assistance service must arrive at the indicated place within one hour time maximum For a full and detailed presentation of the permanent legal assistance service organisation, see the Vade mecum document provided 17