Amendment to Swiss criminal procedure gives public prosecutors authority to decide on civil claims

On 1 January 2024, substantial amendments to the Swiss Criminal Procedure Code of 5 October 2007 (CrimPC) entered into force. One of these amendments gives the public prosecutor issuing a summary penalty order the authority to decide on civil claims related to the criminal offence. This new competence of the public prosecutor is limited to claims that do not exceed CHF 30,000 and do not require the taking of further evidence. The amendment of the law strengthens the position of the private claimant (e.g. individuals or companies) in criminal proceedings.

Summary penalty order procedure

Under the Swiss Criminal Procedure Code, most convictions are pronounced by the public prosecutor and not by a court. The public prosecutor's office renders its verdict with a summary penalty order. Essentially, the public prosecutor must issue a summary penalty order in the following circumstances:

• if the accused has accepted responsibility for the offence in the preliminary proceedings, or the accused’s responsibility has otherwise been satisfactorily established; and
• the public prosecutor regards a fine, a monetary penalty of no more than 180 daily penalty units or a custodial sentence of no more than six months as an appropriate sanction.

The accused may reject the summary penalty order within ten days. The rejection opens the possibility of a judgment by the criminal court.

Only if the conditions for a summary penalty order are not met, but the grounds for suspicion are sufficient, the public prosecutor will bring the charges directly in court.

Despite the importance of the summary penalty order procedure, the law in force until 31 December 2023 was not open to a decision on civil claims. Civil claims could only be judged in criminal proceedings if the charges were brought before the criminal court.

The former legal situation, however, was criticised as being inefficient and unfavourable to private claimants. Therefore, on 17 June 2022, the Swiss parliament passed an amendment to the law that gives the public prosecutor the authority to decide on civil claims in certain circumstances. This amendment entered into force on 1 January 2024. The following is a brief description of the requirements for a public prosecutor's decision on civil claims through a summary penalty order.

Requirements for a decision by the public prosecutor on civil claims

The key provision enabling the public prosecutor to decide on civil claims is the amended art. 353 al. 2 CrimPC. According to this provision, the public prosecutor may decide on a contested civil claim in the summary penalty procedure if:

• the civil claim can be assessed without the need for additional evidence; and
• the value in dispute does not exceed CHF 30,000.

No need for additional evidence

The first task of the public prosecutor is to clarify all the circumstances relevant to the assessment of the suspected criminal act and the accused. The civil claim therefore is only of secondary importance in the criminal proceedings.

Despite the minor role of the civil claim, the public prosecutor must gather additional evidence during the criminal investigation to assess the civil claim based on the private claimant's motions to take evidence. Evidence gathering, however, is limited to evidence that does not unduly extend or delay the investigation (art. 313 al. 1 CrimPC). In particular, the public prosecutor will not conduct extensive evidence gathering to quantify the damage incurred by the private claimant unless the evidence obtained is necessary to assess the offence committed by the accused.

Only at the end of the criminal investigation will the public prosecutor's office assess whether it can decide on the civil claim. At this stage of the criminal proceedings, the public prosecutor's office has already decided that the conditions for issuing a summary penalty order are met, and it has already collected the evidence related to the civil claim, which has not unduly extended or delayed the investigation. If no additional evidence is necessary, the public prosecutor's office will also decide on the civil claim in the summary penalty order. Otherwise, it will refer the civil claim to the civil proceedings.

In summary, once the investigation of the criminal act has been completed and the conditions for the public prosecutor to issue a summary penalty order have been met, the public prosecutor will also judge the civil claim if, at that point in time, no further evidence needs to be taken to decide on the civil claim.

Value of the claim

The authority of the public prosecutor to judge contested civil claims in the summary penalty order is limited to claims with a value in dispute not exceeding CHF 30,000.

With this limit, the legislator has chosen a well-known benchmark for claims under Swiss civil procedure law. For instance, an appeal to the Federal Supreme Court will generally only be admitted if the value in dispute is at least CHF 30,000. In addition, in the first and second instance financial disputes not exceeding CHF 30,000 are dealt with in a simplified procedure. Furthermore, the cantonal laws on the judiciary generally provide for a single judge to decide on claims not exceeding CHF 30,000.

Finally, the limit of CHF 30,000 refers to claims that the accused contests. Thus, the accused can still accept a higher claim by the private claimant, which will be recorded in the summary penalty order. Although the wording of the amended art. 353 al. 2 CrimPC is somewhat misleading, the public prosecutor does not have to make a judgment about claims that the accused accepts.

Open questions

As is the case with new legislation, legal practice must answer open questions regarding the authority of the public prosecutor to decide on civil claims. Three open questions are briefly discussed below:

The public prosecutor's discretion not to decide on a civil claim

Art. 353 al. 2 CrimPC can be read in such a way that the public prosecutor can still refuse to judge the contested civil claim of the private claimant and refer it to the civil proceedings, even if the conditions mentioned (i.e. no further collection of evidence is necessary, the value of the dispute does not exceed CHF 30,000) are met.

According to the present opinion, however, the wording of art. 353 al. 2 CrimPC only expresses the public prosecutor's discretion in assessing whether the conditions for a decision on the civil claim are fulfilled. If the public prosecutor concludes that this is the case, it must decide on the civil claim and cannot refer it to civil proceedings. In this respect, the public prosecutor may not refuse to judge the claim on the grounds that the legal assessment of the civil claim may prove difficult.

Admissibility of a partial claim

In civil proceedings, the possibility of filing a partial claim (i.e. not the whole claim due) is a well-established right of the claimant. Although civil claims can be brought in criminal proceedings, there is no provision in the Swiss Criminal Procedure Code that explicitly grants or denies the right to make a partial claim. Since civil claims exceeding a value in dispute of CHF 30,000 are inadmissible in the summary penalty order procedure, private claimants may have an interest in filing a partial claim of up to CHF 30,000. This ensures that at least part of the contested claim is decided upon in the summary penalty order proceedings.

In general, a private claimant is free to decide whether and to what extent he or she wishes to exercise his or her rights in the criminal proceedings. In particular, the private claimant may choose not to file a civil claim at all. The private claimant should also be allowed to claim compensation for only part of the damage caused by the accused's criminal act.

In summary, the private claimant should be admitted with a partial claim of up to CHF 30,000 to obtain a decision on the claim in the summary penalty order.

Admissibility of a decision in principle

A court may decide on the amount of the civil claim, but it also may make a decision in principle on the civil claim. In this case, the court only decides on the basic liability of the accused. The Swiss Criminal Procedure Code explicitly provides for a decision in principle on the civil claim if the charges are brought in court. The court may also decide in principle on the civil claim and refer it to civil proceedings for a decision on the amount if the full assessment of the claim would cause unreasonable expense and inconvenience (art. 126 al. 3 CrimPC).

On the contrary, there is no explicit provision giving the public prosecutor the authority to judge a civil claim in principle. However, there is no reason why the public prosecutor should not be able to do so now that it has the authority to decide on the amount of the claim. The public prosecutor may judge the civil claim in principle only if a decision on the amount of the civil claim would cause unreasonable expense and inconvenience.

Outlook

Since 1 January 2024, the public prosecutor has had the authority to judge claims up to CHF 30 000 in the summary penalty order procedure. In this respect, the public prosecutor now has the role of a civil judge, a competence that previously belonged only to the courts. The new authority of the public prosecutor strengthens the position of private claimants. Legal practice, however, will have to answer a number of open questions related to the public prosecutor's new competence.

For more information on criminal proceedings in Switzerland, contact your CMS client partner or local CMS experts.