NPK:
Dear Professor Donatsch. Thank you for accepting our request for an interview with the Private Prosecution Network (PCN). We would like to ask you some basic questions about the position of private prosecution in criminal proceedings.
The Code of Criminal Procedure allows a person who has been directly harmed by a crime to participate in criminal proceedings as a party in the criminal case, in the civil case, or in both cases. What is the legislative idea behind these possibilities?
Andreas Donatsch:
There are no comments on this in the message on the standardization of criminal procedural law of 21 December 2005. It seems that the previous legislation of the cantons has essentially been adopted. In addition, the objectives underlying the Victims’ Assistance Act probably played a significant role. Finally, the right to file a criminal complaint gives the injured person the opportunity to influence the punishment of any perpetrator through substantive law.
NPK:
How do you assess this basic idea? Do you support the right of the injured person to become a party in criminal proceedings?
Andreas Donatsch:
If the aim of criminal law is to restore the legal peace disturbed by the crime and thereby, among other things, to prevent the victim or the injured person from “taking matters into their own hands”, then the involvement of the injured person in the criminal proceedings is very important. After significant violations of legal interests, legal peace can only be restored if all persons involved in the crime or affected by it are involved.
NPK:
And what is your position on the fact that private plaintiffs can assert civil law claims by way of adhesion?
Andreas Donatsch:
This is provided for by law in Article 122 ff of the Code of Criminal Procedure. The regulation is – at least as a rule – sensible from a procedural economy perspective and takes into account the interests of the victim and the injured party as the party presumed to have been harmed by the crime. In this sense, a certain privilege for the injured party (in comparison to the plaintiff in civil proceedings) is justified in the sense that they can benefit from the results of the public prosecutor’s investigation with regard to the determination of the facts.
NPK:
The Code of Criminal Procedure has been in force for just over 10 years. Have the participation rights granted to private prosecutors by the legislature generally proven their worth in this first phase?
Andreas Donatsch:
The rights to participate have largely proven their worth. In my view, however, it would be sufficient if the accused person were granted the right to participate in the questioning of witnesses for the prosecution in accordance with the minimum guarantee under Article 6(3)(d) of the ECHR or Article 14(3)(e) of the ICCPR, as a rule once during the proceedings.
NPK:
The very different position of the private prosecutor is striking when looking at the specific types of procedure. In the abbreviated procedure, they have a right of veto and can thus force an offense to be judged in the regular procedure. The private prosecutor has an interest in this in particular if the accused person in the abbreviated procedure refuses to agree to a settlement of the civil claims. In contrast, in the penal order procedure, the civil claims are referred to the civil route unless the accused person exceptionally recognizes them. What do you think of this contradictory solution?
Andreas Donatsch:
In the abbreviated procedure, not only the investigation principle but also the legal remedies are significantly restricted. In addition, there is the possibility – at least in practice – that the accused person and the public prosecutor negotiate the facts relevant to the charge and the level of the sanction. Such a possibility was foreign to the previous criminal procedural law. From this perspective, the Code of Criminal Procedure gives private prosecutors a strong position because they can reject the outcome of the negotiations by refusing their consent. In contrast, the penal order stands and falls with the consent or waiver of objection by the accused person. For this reason, it is understandable that in penal order proceedings, the civil claim is referred to the civil courts if the accused person does not accept it.
PCN:
One more follow-up question on abbreviated proceedings with multiple private plaintiffs. In the canton of Zurich, the public prosecutors have developed the practice of separating the proceedings in relation to a private plaintiff who rejects the indictment and bringing the case to trial separately in the regular procedure, while the cases of the private plaintiffs who agree are judged in advance in the abbreviated procedure. Do you think this approach is justifiable?
Andreas Donatsch:
The statutory option of abbreviated proceedings restricts several principles of traditional criminal procedural law. Among other things, if there are several co-accused, the public prosecutor’s office can only carry out abbreviated proceedings for the accused who requests it and prosecute the others in the ordinary procedure. This means that not only the position of the accused but also the procedural options of the private prosecutor are different in the two types of proceedings. In my opinion, this is compatible with the law, as is the separation of proceedings in which the private prosecutor rejects the indictment.
NPK:
Particularly in the area of economic crime, public prosecutors are massively overburdened. In cases where no pre-trial detention is ordered and there is no media interest, criminal charges are sometimes not even dealt with for ten months or longer. In such cases, the state does not exercise its monopoly on violence. Should the legislature examine whether certain aspects of criminal prosecution should be privatised, similar to what is already the case with investigators in financial market law or as in England, where lawyers selected by the Crown Prosecution Service (CPS) appear in court as representatives of the state prosecution? Of course, an alternative option would be to strengthen the rights of private prosecutors.
Andreas Donatsch:
I will not comment on the question of the overburdening of public prosecutors and your statement that the state does not exercise its monopoly on violence. If public prosecutors are overburdened in the area of economic crime, this is primarily due to insufficient prosecution capacity. In my view, it makes no sense to create the necessary capacity in the private sector, as the associated costs are unlikely to be any less. Apart from that, the privatization of prosecution would bring with it considerable additional problems.
In addition to the number of public prosecutors, their training and ongoing further education are also of great importance for dealing with complicated economic cases.
Finally, it should not go unmentioned that the involvement of private prosecutors in economic crime cases does not lead to a reduction in the costs associated with such cases.
PCN:
Do you see a need for reforms in private prosecution overall – do the rights of private prosecution go too far in certain respects or are they insufficiently designed in certain constellations?
Andreas Donatsch:
A central problem lies in the admission of the injured person as a private plaintiff. In my view, it is difficult in practice to come up with concise and uniform criteria for distinguishing between directly and indirectly injured persons, particularly with regard to case law on the right to file a criminal complaint and the injured party’s status in crimes that protect public interests (e.g. in the case of document offenses or racial discrimination).
PCN:
Finally, we are of course interested to hear what you think about the idea of our network and where you see a need for an in-depth exchange of experience and knowledge in the area of representing private plaintiffs?
Andreas Donatsch:
I congratulate you on your initiative to promote the exchange of experience and knowledge in connection with the position of private prosecutors. Taking private prosecutors into account is of considerable importance in restoring legal peace.
Prof. em. Dr. Andreas Donatsch was initially an officer in the Graubünden cantonal police and subsequently qualified as a professor in criminal law and criminal procedural law. He was a professor at the University of Zurich for 30 years and a regular judge at the Court of Cassation of the Canton of Zurich for 17 years. Even before his retirement, he was a consultant in a law firm, and for several years he has been with Umbricht Rechtsanwälte.
The interview was conducted by the founders of NPK | RPP:
Dr. Adam El-Hakim LL.M., LALIVE SA
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