- PCN: Duri, you are widely known as a defense attorney. However, you also regularly receive clients who have been harmed by a criminal offense. Under what circumstances do you advise such clients – not least because of your experience in criminal law – against pursuing a criminal complaint/proceedings? Duri Bonin: Criminal proceedings not only “cost” time and potentially money but also represent a significant psychological burden. One is questioned, repeatedly encounters the accused person, the proceedings take forever, and closure is difficult to achieve. Depending on one’s personality, such a process can be overwhelming. For others, however, direct confrontation with the accused person can be helpful. It is therefore important to carefully weigh, together with the affected person, what the burden of criminal proceedings entails, what they hope to achieve, and what can realistically be expected. In the vast majority of cases, the decision then becomes clear on its own.
- PCN: What qualities must the representation of a private claimant – compared to criminal defense – possess in order to competently represent a harmed person? Duri Bonin: While the accused is affected by the criminal proceedings, the victim is affected by the crime itself. Depending on the offense, this can have traumatic consequences. As their representative, one must be able to read between the lines, to name just one aspect. Victims often appear very brave outwardly and simulate normality. Our work can go far beyond mere legal assistance, requiring a great deal of empathy and psychological skill. At the same time, one must recognize their own limits and seek expert help when needed. Ultimately, it is also important to help the affected person move beyond the victim role and develop a perspective. Criminal proceedings can assist in processing the experience, but they are often not enough on their own. With all this involvement as a representative, one must set boundaries and maintain a healthy distance. It is a highly demanding job.
- PCN: “Private claimants” encompass a broad group of harmed individuals, ranging from young victims of violence to affected businesses. How do the necessary qualifications for competent representation of private claimants vary in this regard? Duri Bonin: Regarding victims of violence, I can refer to my answer to question 2. In cases of economic crimes, one needs a passion for investigative work: delving into a vast array of complex documents, searching for inconsistencies, conducting inquiries, piecing together the suspicious circumstances like a puzzle, and then presenting the findings in a way that makes the complex situation understandable. It requires an understanding of interconnections, diligence, and curiosity to become knowledgeable in new areas. Finally, the ability to put oneself in the position of the accused can be beneficial. In this respect, extensive experience as a defense attorney is certainly an advantage.
- PCN: In his recently published practical guide to criminal defense, Stephan Bernard recommends that defense attorneys approach the private claimant early in the proceedings (see pp. 42, 73). What is your view on this, particularly in light of the distinction between violent crimes and financial crimes? Duri Bonin: My answer may not be entirely satisfying, but unfortunately, I have no better one: it always depends on the individual case. What is the offense? What is the relationship between the victim and the perpetrator? What is the evidence situation? What can be expected from the perpetrator? Is he confessing? What does the victim want? What would serve them best? There are too many factors for a one-size-fits-all approach. However, initiating a conversation is never the wrong approach. Even if it does not lead to a concrete result, it at least provides new insights.
- PCN: Are there circumstances in which the private claimant should, conversely, approach the accused person? If so, when and how? Duri Bonin: Absolutely, there are certain interests that cannot be resolved within the inherently polarizing nature of criminal proceedings. For example, I recently pushed for a victim-offender mediation in a case of attempted homicide within a family. The understanding that resulted from this process had a profound impact on the victim and greatly aided in their healing process. Likewise, the perpetrator gained an entirely different perspective on their actions.
- PCN: In the preliminary proceedings, procedural control lies with the public prosecutor’s office. The focus is regularly on the accused, while the private claimant often assumes a kind of “secondary role.” What options are available to still influence the investigation and assist the prosecution? Duri Bonin: My experience shows that an active representation of the private claimant is necessary. As a representative of private claimants, I am often dissatisfied with the work of the prosecution. Unlike in a defense role, the objective is to strengthen the evidentiary foundation, close potential loopholes, and take a much more active role in shaping the evidence. I constantly ask myself how I would act if I were the defense attorney. At the same time, one must put themselves in the role of the prosecutor and, based on this understanding, seek to support them—whether by submitting structured supplementary questions early in preparation for an upcoming interrogation or by pointing out weaknesses in the prosecution’s case. I have even gone so far as to draft my own indictment and present it to the accused when the prosecutor did not share my view. The first-instance court has now followed my argument. I am curious to see how things will unfold.
- PCN: That sounds very proactive and is certainly interesting for our readers to know that you have had success with this approach. In your opinion, what should the private claimant do if the public prosecutor remains inactive and, for example, does not respond “immediately” to a criminal complaint with requested coercive measures? You discussed this topic in an episode of your podcast series “On the Way to Becoming a Lawyer”, but perhaps we can delve into it a bit further. Duri Bonin: Depending on the urgency of the matter and considering the workload, I seek dialogue with the public prosecutor’s office after a reasonable period of time in such cases. Where is the bottleneck? Can I assist? More than in a defense role, one must actively stay engaged. If no common ground can be reached in discussions—which is rare—written submissions follow, possibly combined with motions and/or deadlines. Involvement of superiors or independent evidence gathering is also an option. Unfortunately, complaints are rarely effective, as the workload at the higher court is currently very high, leading to excessively long decision times.
- PCN: How do you assess the risk of permanently straining the relationship with the public prosecutor’s office by filing a complaint for judicial delay? Duri Bonin: If I file a complaint for judicial delay, the relationship is already permanently strained, so this does not carry additional weight. Therefore, I cannot recall ever refraining from filing a complaint for this reason.
- PCN: In another podcast episode, you discuss the role of settlements in the expedited procedure. The accused person must at least acknowledge the civil claims in principle. However, from that point on, it can still be a long way before the parties agree on a settlement. The crucial aspect is ensuring that the private claimant actually receives the settlement amount. What considerations should be taken into account here, and how should the private claimant effectively use their veto right regarding the indictment as a bargaining tool? Duri Bonin: The private claimant holds a very strong position in the expedited procedure. If the civil claim is not secured, I can hardly imagine that a person represented by me would agree to the expedited procedure.
- PCN: With regard to our network, we are of course interested in knowing where you see a need for a deeper exchange of experience and knowledge in the field of representing private plaintiffs. Duri Bonin: Many lawyers working in criminal law are either defense attorneys or private plaintiff representatives. Personally, I see the combination of representing private plaintiffs and defense as an added value for both roles. However, this naturally also leads to complications: I had a case – I was representing a private plaintiff – where the defense attorney presented my essay on participation rights during the main hearing, or in detention cases, I occasionally read arguments from our book on pretrial detention being used by the opposing side. But I find this stimulating and challenging. It sharpens the argumentation. In any case, I consider it crucial for the quality of our work that the exchange extends beyond the different roles.
Duri Bonin is a lawyer (Bonin & Uffer Attorneys) and podcaster (On the Way as a Lawyer). Soon, he will be conducting a seminar on arrest and initial interrogation.
The interview was conducted by the founders of NPK | RPP:
Dr. Tobias Schaffner LL.M., Niedermann Rechtsanwälte, Zürich
Dr. Adam El-Hakim LL.M., LALIVE SA
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