The Swiss Code of Criminal Procedure allows any person who has been harmed by a crime to participate as a party in criminal proceedings by constituting themselves as a private prosecutor vis-à-vis the public prosecutor. As explained in more detail in this article, the private prosecutor has a procedural status with relatively extensive rights, including the right to appoint a lawyer.
Constitution as a private plaintiff
Anyone whose rights have been directly violated by a criminal offense, for example if their assets have been stolen or if they have been physically injured as a victim of an assault, is considered to be an injured party. The injured party can use a so-called criminal lawsuit to demand that the law enforcement authorities find the perpetrator criminally guilty, and a so-called civil lawsuit to assert their civil claims for damages and satisfaction related to the criminal offense in the criminal proceedings (so-called adhesion action). The injured party who declares that they are bringing a criminal and/or civil lawsuit against the accused person becomes a private plaintiff – either a private criminal plaintiff, a civil plaintiff, or both – and thus a party in the criminal proceedings.
In criminal proceedings, the private plaintiff always appears alongside the state prosecution authorities. The word “private” in the term private plaintiff refers to the fact that the injured party pursues private interests, while the state – represented by the public prosecutor – pursues public interests in criminal proceedings, namely the prosecution and punishment of crimes. Private plaintiffs can be not only injured natural persons, but also injured companies, trustees and even foreign states.
Participation rights in general
During the investigation stage – the part of the proceedings that is generally conducted by the public prosecutor’s office – the private prosecutor has various rights to participate. In particular, they can request access to files, make submissions on the facts of the case, submit applications for evidence, participate in all interviews with accused persons and witnesses by the public prosecutor’s office, ask additional questions and file a complaint against non-prosecution, delays in proceedings or discontinuance of proceedings. The private prosecutor is therefore not just a pawn in the criminal proceedings, but can also play an active role. Through their insight into the investigation and their participation, a private prosecutor can influence the outcome of the criminal proceedings and understand them better. This leads to greater acceptance of the result and thus makes an important contribution to legal peace.
In principle, the public prosecutor’s office must collect both incriminating and exculpatory evidence during the investigation. Against this background, the participation rights of private prosecutors are also important. In addition, most public prosecutors’ offices are chronically overworked. An attentive private prosecutor can advance and promote the investigation through their intervention.
If the public prosecutor decides at the end of its investigation that there is sufficient evidence of a crime, it will file charges. This means that the public prosecutor also becomes a party. In the main proceedings – which are conducted by the criminal court – there are therefore three parties: the accused person, the public prosecutor and the private prosecutor. In court, the private prosecutor is heard in the same way as the other two parties. It is also entitled to appeal against an acquittal.
Obtaining legal advice
Criminal proceedings are complex and place a burden on victims of a crime. Not only is the victim usually involuntarily involved in a crime, which is often accompanied by a traumatic experience, they must also subsequently be available to the criminal authorities as a witness or informant and are confronted again with what they have experienced. At the same time, they are faced with the personal question of how they can achieve redress for the injustice done to them. In doing so, they are faced with two highly qualified actors: the accused person’s criminal defense lawyer on the one hand, and the public prosecutor on the other. Most laypeople would probably be overwhelmed by this too.
In this difficult situation, in the majority of cases the private prosecutor needs a prudent advisor who knows the facts precisely and, based on his experience, has an overview of the possible course of the entire criminal proceedings. This is also recognised by the Code of Criminal Procedure, which explicitly grants the private prosecutor the right to call in a lawyer and to demand compensation from the convicted person for the legal counsel’s work, which is objectively necessary. Case law recognises such a right to compensation, particularly in the case of serious crimes, but also in the case of victims who need a lawyer due to their age or foreign language skills.
The Private Prosecution Network PCN
The task of providing legal counsel to private plaintiffs is demanding and requires not only extensive knowledge of criminal law and criminal procedural law as well as liability law, but also practical experience in dealing with public prosecutors and courts. The Private Prosecutors Network (PCN) is primarily aimed at lawyers who are willing to work together to promote the professionalization of this area of practice.
The network’s logo, which shows the scales of Justice with three scales, reflects the fact that the main proceedings and appeal proceedings consist of the three parties mentioned above: The middle of the three scales represents the private prosecutor. The logo highlights the fact that they are the focus of the network through the central position and the gold color of this scale. The two dark blue scales on the left and right represent the accused person and the public prosecutor. For a functioning constitutional state, it is crucial that all three parties are represented competently and efficiently.
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