Private Claimant

The Swiss Code of Criminal Procedure allows any person who has been injured by a criminal offence to join the criminal proceedings as private claimant. As explained in more detail in this article, private claimants are granted a procedural status with relatively broad rights, including the right to retain counsel.

Joining criminal proceedings as private claimant

A person whose rights have been directly violated by a criminal offence, for example, who has suffered damage to his or her property as a result of fraud or who, as a victim, has been physically injured as a result of an assault, is considered to be an injured person. The injured person can – by way of a criminal complaint – demand that the criminal prosecution authorities prosecute and convict the accused, and – by way of a civil claim – assert his or her civil law claims for damages resulting from the criminal act in the criminal proceedings. The injured person who declares that he or she is bringing a criminal complaint and/or civil claim against the accused person is thereby granted the status of private claimant and thereby joins the criminal proceedings as party on equal footing with the accused person.

The private claimant appears in the criminal proceedings only alongside the state prosecuting authorities. The word «private» in the term «private claimant» refers to the fact that the injured party pursues private interests, while the state – represented by the public prosecutor's office – pursues public interests in criminal proceedings, namely the prosecution and punishment of criminal offences. Not only injured individuals can be private claimants, but also, for example, injured corporations, trustees and even foreign states.

Rights to participate in the proceedings in general

In the investigation stage – i.e. the part of the proceedings generally conducted by the public prosecutor's office – private claimants have various rights to participate in the proceeding. In particular, they can request access to the case file, make submissions on the facts of the case, file requests for the taking of evidence, take part in all examinations of the accused person and witnesses by the public prosecutor's office, ask supplementary questions and lodge a complaint against the prosecutor’s decision to terminate the investigation, against undue delay of the investigation or against the decision closing the proceedings. The private claimant is thus not merely a pawn in the criminal proceedings but can actively participate. Thanks to their insight into the investigation and through their active participation, private claimants often have the possibility to influence the course of the criminal proceedings and will generally better understand the final outcome. This leads to greater acceptance of the final decision and thereby contributes to the reestablishment of social order.

As a matter of principle, the public prosecutor's office must collect both incriminating and exculpatory evidence at the investigation stage. Against this background too, the rights of private claimants to participate in the proceedings play a significant role. In addition, most offices of the public prosecutors in Switzerland are chronically overburdened. Attentive private claimants can advance and promote investigations through their intervention.

If, at the conclusion of its investigation, the prosecutor’s office decides that there is sufficient evidence for the commission of a crime, it files charges against the accused person in the competent criminal court. By this act, the prosecutor also becomes a party to the proceedings. In the main proceedings – which are conducted by the criminal court – there are thus three parties: The accused person, the public prosecutor's office and the private claimant. In court, the private claimant is heard in the same way as the other two parties. The private claimant, moreover, has the right to appeal an acquittal of the accused person.

Retaining a legal counsel

Criminal proceedings are complex and generally constitute a heavy burden for the victims of crime, i.e. the private claimant. Not only has the injured party been involuntarily drawn into a crime, which frequently involves a traumatic experience, but she must also make herself available to the criminal authorities as a witness or as a source of information and is confronted again with what she has experienced. At the same time, she will want to seek compensation for the injustice suffered. On top of this all, the private claimant is facing two highly qualified professional actors: The defence attorney acting for the accused person on the one hand, and the public prosecutor on the other. Most laypersons are likely to be overwhelmed by this situation.

In these difficult circumstances, the private claimant in the majority of cases needs a skilled counsel who has a precise knowledge of the facts and, thanks to his experience, will be in a position to anticipate the possible course of the entire criminal proceedings. This need is also recognised by the Code of Criminal Procedure, which explicitly grants the private plaintiff the right to retain legal counsel and to demand compensation from the convicted person for the legal counsel's work to the extent that such work was called for by the circumstances. Case law recognises such a right to compensation especially in cases of serious crimes, but also grants it to victims who need a lawyer because of their age or lack of proficiency of the language of the proceedings.

The Private Claimants Network PCN

The task of legal counsel acting for private claimants is challenging and requires not only extensive knowledge of criminal law, of the law of criminal procedure and of civil liability law, but also practical experience in dealing with public prosecutors and criminal courts. The Private Claimants Network PCN is primarily aimed at lawyers who are willing to work together to promote the professionalisation of this area of legal practice.

The network's logo, showing the scales of Justice with three scales, picks up on the fact – already mentioned above – that there are three parties to main and appellate criminal proceedings in Switzerland: The middle of the three scales represents the private claimant. The fact that the private claimant is at the heart of the network is emphasized in the logo by the central position and the golden colour of this scale. The two dark blue scales on the left and right represent the accused person and the public prosecutor's office respectively. For a state respectful of the Rule of Law, it is key that all three parties are represented competently and efficiently.