Do Exclusionary Rules Ensure a Fair Trial?

Ius Gentium: Comparative Perspectives on Law and Justice 74

Sabine Gless

Thomas Richter Editors

Do Exclusionary Rules Ensure a Fair Trial?

A Comparative Perspective on

Evidentiary Rules

Perspectives on Law and Justice

Volume 74

Series Editors

Mortimer Sellers, University of Baltimore, Baltimore, MD, USA James Maxeiner, University of Baltimore, Baltimore, MD, USA Board of Editors

Myroslava Antonovych, Kyiv-Mohyla Academy, Kyiv, Ukraine Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil

Jasna Bakšic-Muftic, University of Sarajevo, Sarajevo, Bosnia and Herzegovina David L. Carey Miller, University of Aberdeen, Aberdeen, UK

Loussia P. Musse Félix, University of Brasilia, Federal District, Brazil Emanuel Gross, University of Haifa, Haifa, Israel

James E. Hickey Jr., Hofstra University, South Hempstead, NY, USA Jan Klabbers, University of Helsinki, Helsinki, Finland

Cláudia Lima Marques, Federal University of Rio Grande do Sul, Porto Alegre, Brazil

Aniceto Masferrer, University of Valencia, Valencia, Valencia, Spain Eric Millard, West Paris University, Nanterre Cedex, France

Gabriël A. Moens, Curtin University, Perth WA, Australia

Raul C. Pangalangan, University of the Philippines, Quezon City, Philippines Ricardo Leite Pinto, Lusíada University of Lisbon, Lisboa, Portugal

Mizanur Rahman, University of Dhaka, Dhaka, Bangladesh Keita Sato, Chuo University, Tokyo, Japan

Poonam Saxena, University of Delhi, New Delhi, India Gerry Simpson, London School of Economics, London, UK Eduard Somers, University of Ghent, Gent, Belgium Xinqiang Sun, Shandong University, Shandong, China Tadeusz Tomaszewski, Warsaw University, Warsaw, Poland

Jaap de Zwaan, Erasmus University Rotterdam, Rotterdam, Zuid-Holland, The Netherlands

Editors

Do Exclusionary Rules Ensure a Fair Trial?

A Comparative Perspective on Evidentiary

Rules

Sabine Gless

Juristische Fakultät der Universität Basel Basel, Switzerland

Thomas Richter

Freiburg im Breisgau, Germany

ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice

ISBN 978-3-030-12519-6 ISBN 978-3-030-12520-2 (eBook) https://doi.org/10.1007/978-3-030-12520-2

Library of Congress Control Number: 2019930360

©The Editor(s) (if applicable) and The Author(s) 2019. This book is an open access publication.

Open Access This book is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adap- tation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this book are included in the book’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the book’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

The use of general descriptive names, registered names, trademarks, service marks, etc. in this publi- cation does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use.

The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

We are grateful to all contributors or their work, commitment, and passion for this project. We studied how exclusionary rules are established in the respective pro- cedural codes and how they are applied in practice, with a focus on case law, and conducted interviews in almost all relevant jurisdictions. We explored the potential of alternative and supplementary means of compelling law enforcement to respect human rights, including criminal sanctions, disciplinary action, and civil liability.

Throughout the project, we learned a great deal from each other.

National issues and legal solutions, as well as comparative issues and basic principles, were discussed at two workshops and conferences. The first meeting took place in March 2016 in Taipei, Taiwan, and was co-organized by the Taiwan Ministry of Justice. We are especially grateful to Pauline Tsai for her exceptional support. The second meeting occurred in May 2017 in Basel, Switzerland, and received remarkablefinancial support from the Sino-Swiss Science and Technology Cooperation Program of the Swiss National Research Foundation.

Major financial funds for this project, including the publication of its results, have been provided by the Swiss National Research Foundation and without it, the project could never have been realized. We are very grateful for the Foundation’s generous assistance and enduring support.

Last but not least, we wish to thank MLaw Laura Macula for her meticulous planning and monitoring throughout the project and all her precious advice, stud.

iur. Lia Börlin for the time and energy she dedicated to checking references and material, and Claudine Abt for her support in finalizing all the papers for publication.

Basel, Switzerland November 2018

Sabine Gless Thomas Richter

v

Introduction. . . 1 Sabine Gless and Thomas Richter

Part I Comparative Perspectives

The Potential to Secure a Fair Trial Through Evidence Exclusion:

A Swiss Perspective . . . 15 Laura Macula

The Potential to Secure a Fair Trial Through Evidence Exclusion:

A German Perspective . . . 61 Thomas Weigend

Regulating Interrogations and Excluding Confessions in the United

States: Balancing Individual Rights and the Search for the Truth. . . 93 Jenia Iontcheva Turner

The Potential to Secure a Fair Trial Through Evidence Exclusion:

A Taiwanese Perspective . . . 131 Yu-Hsiung Lin, Shih-Fan Wang, Chung-Yen Chen, Tsai-Chen Tsai

and Chiou-Ming Tsai

The Potential to Secure a Fair Trial Through Evidence Exclusion:

A Chinese Perspective . . . 163 Na Jiang

Criminal Justice and the Exclusion of Incriminating Statements

in Singapore. . . 213 Hock Lai Ho

vii

Part II Exclusionary Rules—Quo Vadis

The Purposes and Functions of Exclusionary Rules:

A Comparative Overview. . . 255 Jenia Iontcheva Turner and Thomas Weigend

The Fair Trial Rationale for Excluding Wrongfully Obtained

Evidence. . . 283 Hock Lai Ho

Exclusionary Rule of Illegal Evidence in China: Observation

from Historical and Empirical Perspectives. . . 307 Weimin Zuo and Rongjie Lan

Securing a Fair Trial Through Exclusionary Rules: Do Theory

and Practice Form a Well-Balanced Whole? . . . 329 Susanne Knickmeier

Exclusionary Rules—Is It Time for Change?. . . 349 Sabine Gless and Laura Macula

About the Editors

Sabine Gless teaches criminal law, criminal procedure, and international criminal law at the University of Basel, Switzerland. Her research includes comparative work in evidence law and international cooperation with a focus on human rights issues and exclusionary rules.

Thomas Richter served as the Head of the East Asian Department of the Max Planck Institute for Foreign and International Law in Freiburg, Germany. In this capacity, he analyzed the criminal law and criminal procedure law of the People’s Republic of China and co-directed a comparative study on non-prosecution policies in Germany and the People’s Republic of China. In cooperation with the German Institute for Human Rights (DIMR), he evaluated the Human Rights Dialogue between the People’s Republic of China and Switzerland (2006/2007). Most recently, Thomas Richter assessed the Rule of Law Programme for Asia instituted by the Konrad Adenauer Foundation (2013). His research interests include criminal law, human rights law, and environmental law in East and Southeast Asia, espe- cially in China.

Contributors

Chung-Yen Chen University of Tübingen, Tübingen, Germany Sabine Gless Faculty of Law, University of Basel, Basel, Switzerland

Hock Lai Ho Faculty of Law, National University of Singapore (NUS), Singapore, Singapore

Na Jiang College for Criminal Law Science, Beijing Normal University (BNU

北 京师范大学

), Beijing, China

ix

Susanne Knickmeier Department of Criminology, Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany

Rongjie Lan Law School, Southwestern University of Finance and Economics, Chengdu, China

Yu-Hsiung Lin National Taiwan University, Taipei, Taiwan

Laura Macula MLaw, Faculty of Law, University of Basel, Basel, Switzerland Thomas Richter Freiburg im Breisgau, Germany

Chiou-Ming Tsai Department of International and Cross-Strait Legal Affairs, Ministry of Justice, Taipei, Taiwan

Tsai-Chen Tsai Shihlin District Court, Taipei, Taiwan

Jenia Iontcheva Turner SMU Dedman School of Law, Dallas, USA Shih-Fan Wang National Taipei University, New Taipei City, Taiwan Thomas Weigend Faculty of Law, University of Cologne, Cologne, Germany Weimin Zuo Law School, Sichuan University, Chengdu, China

ACHR African Charter of Human Rights of 1981 AG Aktiengesellschaft (=stock corporation) AGC Attorney-General’s Chambers

art./arts. Article/articles

ASEAN Association of Southeast Asian Nations ATCom Committee against Torture

BGE Bundesgerichtsentscheid (=Decision of the Swiss Supreme Court) BGer Bundesgericht (=Swiss Supreme Court)

BGG Bundesgesetzüber das Bundesgericht (=Federal Court Act of 17 June 2005, SR 173.110)

BGH Bundesgerichtshof (=German Federal Court of Justice)

BGHSt Entscheidungen des Bundesgerichtshofs in Strafsachen (=Decisions of the German Federal Court of Justice in criminal matters) BPCs Basic Peoples’Courts (China)

BVerfG Bundesverfassungsgericht (=German Federal Constitutional Court) BVerfGE Bundesverfassungsgerichtsentscheid (=Decision of the German

Federal Constitutional Court)

CAT UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 CCMS Criminal Case Management System

CCP Code of Criminal Procedure CCR Criminal Case Resolution

CCRC Criminal Code of the Republic of China

cf. Compare

Ch/CH Swiss/Switzerland

CID Criminal Investigation Department

cir. Circle

CL Criminal Law of 1979, revised in 1997 (China)

xi

co. Company col./cols. Column/columns consid. Consideration

CPC Criminal Procedure Code/Communist Party of China CPIB Corruption Practices Investigation Bureau

CPL Criminal Procedure Law of 1979, revised 1996 and 2012 (China) CRC Constitution of the Republic of China

CRC Convention on the Rights of the Child of 20 November 1989 CSSA Communication Security and Surveillance Act of 2018 CTDR Central Task Force of Deepening Reforms

de/DE German

DNA Deoxyribonucleic acid e.g./eg For example

EA Evidence Act (Singapore)

ECHR European Convention on Human Rights of 1950 ECJ European Court of Justice

ECtHR European Court of Human Rights ed./eds. Editor/editors

EHRR European Human Rights Reports et al. And others

et seq. And the following

EU European Union

GC Grand Chamber

Ger./Germ Germany

GSSt Grosser Senat in Strafsachen (Germany) HPC High Peoples’Court (China)

HRCom Human Rights Committee

i.e. That is

ibid. In the same place

ICCPR International Covenant on Civil and Political Rights of 16 December 1966

id. Same

IPC Intermediate People’s Court

JA Judge of Appeal

JR Joint regulation

JYI Judicial Yuan Interpretations

LAC Legislative Affairs Commission of the Standing Committee of the National People’s Congress

Ltd Private Limited Company MOJ Ministry of Justice

MOPS Ministry of Public Security

MPs Members of Parliament MPS Ministry of Public Security MSS Ministry of State Security MURUAH Singapore Human Rights NGO

n. Note

NGO Non-governmental organization

NJW Neue Juristische Wochenschrift (German journal)

no. Number

NStZ Neue Zeitschrift für Strafrecht (German journal)

NY New York

NZZ Neue Zücher Zeitung (Swiss newspaper) PACE Police and Criminal Evidence Act of 1984 para. Paragraph

PFA Police Force Act of 2004, revised 2006 PP Public Prosecutor

PPL People’s Police Law PPs People’s Procuratorates PRC People’s Republic of China

ret. Retired

ROC Republic of China

ROC Republik of China (Taiwan) s./ss. Section/sections

SC Supreme Court

SCHR Swiss Centre of Expertise in Human Rights SCL State Compensation Law

sec./secs. Section sent. Sentence

Sing Singapore

SPC Supreme People’s Court (China) SPF Singapore Police Force

SPP Supreme People’s Procuratorate

SR Systematische Rechtssammlung (=classified compilation of swiss law;https://www.admin.ch/gov/en/start/federal-law/classified- compilation.html)

SSC Swiss Supreme Court

StPO Strafprozessordnung (Swiss Criminal Procedure Code of 5 October 2007 (Status as of 1 October 2016), SR 312.0/German Code of Criminal Procedure of 7 April 1987 (Status as of 17 August 2017)) StV Strafverteidiger (german journal)

Taiw/TW Taiwan

tbl. Table

U.S./

US/USA

United States of America

UDHR Universal Declaration of Human Rights of 1948

UK United Kingdom

UN United Nations

UPR Universal Periodic Review USC United States Code v./vs. Versus

vol. Volume

Criminal procedure•Comparative criminal law•Exclusionary rules•

Fair trial•Torture •Right to silence• Right against self-incrimination•

Evidence law• Defense rights

xv

Sabine Gless and Thomas Richter

Abstract Criminal justice systems are barometers of social development. This claim, put forward by German criminal law scholars, alludes to the fact that inherent in the criminal justice process are conflicting interests between the need to ensure comprehensive fact-finding on the one hand, and the wish to safeguard individual rights, especially those of defendants, on the other hand. In all criminal justice systems, there exists a strong public interest in determining the truth due to the assertion that a determination of innocence or guilt is based upon“true”facts. This pursuit of “the truth” has led to procedural rules that expose both suspects and witnesses to coercive measures that often interfere with individual rights.

In recent decades, human rights have come to the forefront in criminal justice systems around the world, but at the same time more and more jurisdictions have adopted exclusionary rules. Country reports on Germany, Switzerland, P.R. China, Taiwan, Singapore, and the U.S., along with contributions discussing the rationales behind exclusionary rules, legal practices, or potential alternatives, all address the question of whether, and under what circumstances, the use of exclusionary rules can be an effective means for protecting human rights in criminal proceedings.

1 Criminal Justice as a Barometer of Social Developments

Criminal justice systems are barometers of social development. This claim, put forward by German criminal law scholars,¹alludes to the fact that inherent in the criminal justice process are conflicting interests between the need to ensure com-

S. Gless (&)

Faculty of Law, University of Basel, Basel, Switzerland e-mail:Sabine.Gless@unibas.ch

T. Richter

Attorney-at-Law, Freiburg im Breisgau, Germany e-mail:info@sinojus.eu

1Roxin,2014at 9.

©The Author(s) 2019

S. Gless and T. Richter (eds.),Do Exclusionary Rules Ensure a Fair Trial?

Ius Gentium: Comparative Perspectives on Law and Justice 74, https://doi.org/10.1007/978-3-030-12520-2_1

1

prehensive fact-finding on the one hand, and the wish to safeguard individual rights, especially those of defendants, on the other hand. In all criminal justice systems, there exists a strong public interest in determining the truth due to the assertion that a determination of innocence or guilt is based upon“true”facts. This pursuit of“the truth” has led to procedural rules that expose both suspects and witnesses to coercive measures that often interfere with individual rights.

Modern day criminal justice systems are designed to not only ensure compre- hensive fact-finding, but also protect the human rights of defendants, victims, and witnesses. Individual rights applicable to criminal proceedings include the right to have one’s dignity respected, protection from physical force and torture, the right against self-incrimination, and the right to privacy of person and property. Because these rights run counter to authorities’ fact finding, they are regularly at risk of being disregarded. As such, preventing human rights violations remains a challenge within criminal procedure law worldwide and the means to do so are limited.

A promising method of reducing human rights violations is the exclusion of ille- gally obtained evidence from trial. The rationale behind these so-called exclu- sionary rules is the expectation that law enforcement officers will refrain from engaging in unlawful evidence-gathering techniques if they are aware that the physical or testimonial evidence produced will be inadmissible at trial.

Based on the hypothesis that excluding unlawfully obtained evidence is an effective tool for safeguarding human rights in criminal proceedings, the core question of this comparative project is twofold: How can criminal procedure law ensure respect for human rights and what role does the exclusion of illegally obtained evidence actually play in this regard? In order to answer this question in a global context, we investigated three European jurisdictions (Switzerland, Germany, England), three Asian jurisdictions (People’s Republic of China [PRC], Taiwan/Republic of China [ROC], Singapore), and the United States. The aim of the study was not to find a single universally applicable model of human rights protection, but to determine features that are conducive to enhancing respect for individual rights in different criminal justice systems.

2 Criminal Trials and Human Rights

In recent decades, human rights have become more prominent in criminal justice systems around the world. This was especially the case following the end of World War II, and, more recently, the Cold War, which essentially divided the world into The East and The West. The right to preserve one’s dignity and privacy, to be free from physical coercion and torture, and the right to avoid self-incrimination are paramount in the criminal process. At the same time, these human rights are especially vulnerable to abuse because they tend to conflict with law enforcement’s primary goal of obtaining information about potential crimes and because the source of such information is primarily human (suspects, victims, and witnesses).

For that reason, human rights require special protection in criminal proceedings.

The current project starts with the hypothesis that a potentially promising way of providing human rights protections is the exclusion of evidence obtained through violation of a procedural right. This hypothesis is tested by analyzing exclusionary rules and, as far as possible, their practical application in different legal and cultural contexts. It is our goal to determine whether the existence and application of exclusionary rules are an effective means to safeguard human rights in the criminal process and, if so, under what circumstances. In order to test our hypothesis, we considered several aspects of criminal procedure: Under what conditions does a given legal system recognize exclusionary rules? What additional or alternative ways does a system provide to hold authorities accountable? Who may challenge the admission of evidence, and, at what stage of the proceedings? The role of defense attorneys is also addressed, along with the extent and means by which a system separates judicial and executive powers in the context of criminal proceedings.

Starting with the adoption of the “Déclaration des droits de l’homme et du citoyen”by the leaders of the French Revolution at the end of the 18th century, the concept of human rights has continued to be a part of the identity of European countries.²In North America, libertarian ideals and the notion of inherent human rights led to the independence movement, culminating with the adoption of the United States Constitution and itsfirst ten amendments (The Bill of Rights). Based on the philosophical views of the Enlightenment and the idealism of the early 19th century, the Western concept of human rights emphasized the applicability of such rights to every human being regardless of the law in the person’s state of residence.

The promise of human rights, the propagation of the rule of law, and progress in the area of civil liberties is a recurring theme in modern criminal justice systems.

That said, East Asian and Western states have not yet developed a similar understanding of what basic individual human rights entails. Based, amongst other things, on Confucian traditions of thinking, the emphasis in Asian states has been on the collective (family and state) rather than the autonomy and rights of the individual. In the past, Chinese politicians have denounced the Western concept of protecting human rights as an ideological tool for justifying intervention in the internal affairs of East Asian states.³In the People’s Republic of China (PRC), the traditional priority of collective interests was reinforced by the influence of Marxist political thought, which simultaneously minimized the importance of individual interests relative to those of the collective.⁴ Recent research suggests that the

2The European Court of Justice (ECJ) has referred to human rights as the value system common to all EU member states, ECJ judgment of 13 December 1979, Hauer v Land Rheinland-Pfalz, C-44/

79,§15.

3For the implications on the understanding of human rights in criminal proceedings, see, for example, Jiang,2013at 745 et seq.

4Information Office of the State or China’s Cabinet, White Paper on Progress in China’s Human Rights in 2012, Beijing May 2013 <http://news.xinhuanet.com/english/china/2013-05/14/c_

132380706.htm>, accessed 19 November 2018; Freeman/Geeraerts, BICCS at 7 et seq.

Chinese public still holds this view.⁵Similarly, in Singapore, former Prime Minister Lee Kuan Yew emphasized the importance of Asian values, including the notion that the individual cannot claim individual rights separate from the family, which is considered to be an integral part of the society.⁶

This difference between the East and the West in the understanding of individual rights, and in particular human rights, has long been observed by legal scholars.⁷In recent years, however, there has been a distinct trend toward a universalization of certain human rights as well as globally recognized standards for the protection of human rights.⁸

Many Asian states, including the PRC, have joined major international human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR) which grants specific procedural rights in criminal proceedings.

Additionally, the Member States of The Association of Southeast Asian Nations (ASEAN) executed a regional human rights instrument in 2012.⁹As a consequence of the growing prominence of human rights, the domestic laws of some jurisdic- tions, including Vietnam¹⁰and the Republic of China (ROC),¹¹have been amended to expressly guarantee such rights. Despite this trend, while the PRC signed the ICCPR, it has neither ratified the Covenant nor incorporated it into national law.

After a long debate, Art. 33 para. 3 of the PRC Constitution was amended in 2004 to read that “the State respects and protects human rights.” In 2012, a similar reference to the“respect and protection of human rights”was inserted in Art. 2 of the PRC Criminal Procedure Code (PRC-CPC) and described to be one of several reasons for the newly revised Code. Although these changes to written law may not have a discernible effect upon daily law enforcement in the PRC, they represent a major shift towards official recognition of individual human rights. They may also signify a move away from the strict adherence to Eastern values, which, histori- cally, have afforded limited protections for individuals.

5Freeman/Geeraerts,2011at 25–26.

6See Zakaria, Fareed,A Conversation with Lee Kuan Yew, Foreign Affairs March/April 1994.See alsoElgin,2010at 138.

7See, for example, Steiner/Alston/Goodman,2008.

8SeeParlett,2011; Klabbers/Peters/Ulfstein,2012; Peters,2006.

9The ASEAN Human Rights Declaration was adopted by Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam on 18 November 2012;

<https://asean.org/asean-human-rights-declaration/>, accessed 19 November 2018.

10For Vietnam,seeNguyen,2009at 1 et seq.

11Human rights law in Taiwan is primarily domestic law because the United Nations has decided to recognize the representatives of the Government of the PRC as“the only lawful representatives of China to the UN”(UN Resolution 2758 (XXVI) of 1971) and have thus excluded the ROC from official participation in UN organizations.

3 Exclusionary Rules as Safeguards

Inherent in criminal procedure is the conflict between the state’s interest in deter- mining the facts relevant to a suspect’s guilt (and potential sentence) and the interests of the other parties (i.e. the accused, witnesses, victims). The state’s pursuit of“the truth”has led to the adoption of procedural rules that expose suspects and witnesses to coercive measures. In some jurisdictions this takes the form of a legal obligation to tell the truth when questioned. The recognition of human rights for suspects and witnesses, particularly the right to remain silent, clearly conflicts with the state’s interest in fact finding. Therefore, the potential for state agents to dis- regard individual human rights in pursuit of“the truth”is a real risk. Preventing human rights violations in the context of criminal procedure thus remains an ongoing challenge and the means available for preventing such violations are limited. Legal prohibitions on torture and other human rights violations, as well as the threat of criminal sanctions and disciplinary measures, may help but are often ineffective due to issues of evidentiary proof and enforcement. The same problem is true where civil damages are offered as a potential remedy.

A more promising means of preventing human rights violations is the exclusion of illegally obtained evidence at trial. If, for example, a police officer has unlawfully coerced a suspect’s confession, the confession and, ifthe fruit of the poisonous tree doctrine is followed, subsequent evidence found on the basis of this confession, all become inadmissible at trial. The rationale behind this rule is the expectation that law enforcement will refrain from engaging in such methods if they know that the resulting physical and testimonial evidence will be excluded. The effectiveness of this incentive-based approach has been challenged on the basis of limited appli- cability. For example, in cases where a defendant pleads to a charge and is con- victed without a trial, as is the case in many jurisdictions, the opportunity to exclude illegally obtained evidence may be limited. Moreover, using the exclusion of evi- dence as a remedy for human rights violations raises other important questions. Is it acceptable to release an offender who would otherwise be convicted because a police officer has violated a procedural rule? What about the interests of the community and, in particular, of the victim(s)? Should the exclusionary rule also be applied where there was a violation, but the officer acted in good faith? And what should the rule be if illegally obtained evidence, such as a confession obtained under the threat of torture, leads to crucial evidence, like the body of a victim? All of these questions are difficult to answer, particularly where the underlying rationale of the exclusionary rule is not clear: Is the exclusion of evidence meant to discipline police and prosecutors? Is it a means of protecting the integrity of court proceed- ings? Does exclusion ensure that the trial court does not consider inherently unreliable evidence? Or is the purpose to protect human rights?

In spite of these controversial issues, many Western legal systems have followed the United States and adopted a variant of the exclusionary rule with the hope of curbing procedural violations intended to protect individual human rights. Some

East Asian jurisdictions have also followed suit and enacted legislation requiring courts to reject evidence obtained through torture or other illicit means.

4 Comparative Perspectives on Exclusionary Rules

The first part of this project entails a comparison of exclusionary rules and their application in three Asian jurisdictions (PRC, JIANG Na, see also ZUO Weimin/

LAN Rongjie; Taiwan, LIN Yu-Hsiung/WANG Shih-Fan/CHEN Chung-Yen/

TSAI Tsai-Chen/TSAI Chiou-Ming; Singapore, HO Hock Lai) and three Western jurisdictions (Switzerland, Laura MACULA; Germany, Thomas WEIGEND; U.S.

Jenia Iontcheva TURNER). The jurisdictions tend to diverge, not along geo- graphical lines, but rather by legal heritage. There is the common law tradition of the adversarial system (e.g., Singapore, the U.S., England and Wales), the European continental “inquisitorial” system (e.g., Germany, Switzerland, and France), and

“mixed systems”(PRC, ROC) all represented in our sample. The project covers a broad selection of legal systems where we can see exclusionary rules at work, and from which we can learn about the possibilities of alternative mechanisms for ensuring compliance with legal rules.

The six country reports cover the relevant legal framework. While each legal system provides for the exclusion of evidence obtained in violation of certain rules, each has its own distinct approach. The two continental European jurisdictions differ in legislative technique:Switzerlandhas adopted a blanket statute calling for the exclusion of some (but not all) illegally obtained evidence in a single stand-alone provision.¹² By contrast, Germany’s procedural code contains few explicit rules, which leaves the decision of exclusion to be made on a case-by-case basis, and primarily by the courts.¹³WhileEnglandhas adopted a statute governing

12The Swiss Criminal Procedure Code outlaws torture in Art. 140 para 1 and requires all authorities to treat fairly everyone involved in criminal proceedings (Art. 3 para 2). Art.

141 CH-CPC declares in absolute terms that any evidence acquired through torture or other undue coercion is inadmissible, but grants the trial court discretion when other procedural rules have been violated.

13German criminal procedural law recognizes the right to a fair trial and prohibits the use of torture and coercion in any interrogation of a suspect or witness (§§136a, 69 sec. 3 Code of Criminal Procedure, DE-CCP). There is no general rule prohibiting the use of illegally obtained evidence, but statements made after prohibited means of interrogation have been used cannot be used as evidence (§136a sec. Art. 3 DE-CCP). With respect to most other violations of procedural rules or human rights, the DE-CCP does not explicitly provide for exclusion and courts follow a case-by-case approach. In recent years, the Federal Constitutional Court has shown an increased readiness to exclude illegally obtained evidence, especially where law enforcement authorities had intentionally violated the suspect’s rights or applicable procedural rules. See, for example, German Bundesverfassungsgericht of 12/04/2005–2 BvR 1027/02, 113 Entscheidungen des Bundesverfassungsgerichts 29 (2005).

the exclusion of certain evidence, it is not comprehensive.¹⁴The assumption across European states is that every legal system seeks to protect human rights in criminal proceedings. It is this common attitude that is the reason there has not been an in-depth analysis of the impact of these legislative differences to date.¹⁵

The Criminal Procedure Code of the PRC (PRC-CPC,

中华人民共和国刑事诉 讼法

) dates back to 1979 but underwent a major reform in 1996. After proclamation of the People’s Republic in 1949 and rejection of all former legislation of the Republic of China (founded in 1911), it was thefirst code of criminal procedure in its history. The original version of the Code emphasized strict enforcement of the law and the language alluded to a strong stance against crime. Confronted with frequent international and domestic criticism of illegally coerced confessions and torture in criminal proceedings,¹⁶ the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security adopted the Rules Concerning Questions about Exclusion of Illegal Evidence in Handling Criminal Cases (2010 Exclusionary Rules).¹⁷ A thorough revision of the PRC-CPC culmi- nated in an amended version of the Code, which was passed in 2012. This updated version of the Code was intended to better protect the human rights of defendants.

For example, Art. 50 PRC-CPC grants the right against self-incrimination and Art.

54 PRC-CPC provides for the exclusion of statements obtained by illegal means, particularly by torture. However, the PRC-CPC does not acknowledge thefruit of the poisonous treedoctrine and, as a result, secondary evidence obtained through torture or other illegal means remains admissible at trial.¹⁸ The breadth of this exclusionary rule as interpreted by Chinese prosecutors and courts has yet to be seen.

Taiwan’s Code of Criminal Procedure (TW-CCP,

刑事訴訟法

)¹⁹dates back to a statute of the Republic of China (ROC) adopted in 1928 and has been revised many

14Torture is implicitly barred by Code of Practice C for theDetention, Treatment and Questioning of Persons by Police Officersmade under s. 66Police and Criminal Evidence Act1984 (PACE), which sets minimum standards of treatment and specifies procedural and welfare rights. Under s.

76(2)(a) PACE, the court must exclude a confession if the defendant asserts that it was obtained by oppression and the prosecution fails to demonstrate that this was not the case. Oppression is partially defined as including“torture or inhuman or degrading treatment”. Although the English courts are tolerant of the enhanced psychological pressure experienced by a suspect under inter- rogation (Holgate-Mohammedv Duke[1984] A.C. 437;Fulling[1987] 2 All E.R. 65;Heaton [1993] Crim L.R. 593), extensive hectoring or bullying of a suspect will be treated as oppression (Paris, Abdullahi, Miller) [1992], 97 Cr.App.R. 99). Additionally, under s. 78 PACE, the court has discretionary power to exclude any prosecution evidence where, having regard to the circum- stances in which the evidence was obtained, the admission of the evidence would have an adverse effect on the fairness of the trial.

15Thaman,2013; Jackson/Summers,2012.

16SeeHe/He,2013at 73 et seq.

17Rosenzweig et al., 2013 at 466–467.

18Jiang,2013at 746.

19For an English translation (dating from 2007) see: <http://law.moj.gov.tw/Eng/LawClass/

LawContent.aspx?PCODE=C0010001>, accessed 19 November 2018.

times.²⁰ In 2003, a number of Western ideas were integrated into Taiwanese criminal procedure²¹and an increase in awareness of human rights has shaped the rules around evidence gathering. For example, section 156 para. 1 TW-CCP²² stipulates that only confessions “of an accused not extracted by violence, threat, inducement, fraud, exhausting interrogation, unlawful detention or other improper means and consistent with facts may be admitted as evidence.” The protection against involuntary self-incrimination is guaranteed through provisions on the admissibility of confessions.²³ In 2009, Taiwan incorporated the ICCPR into domestic law,²⁴ thus requiring all law enforcement personnel to adhere to inter- national standards. Some new rules, such as the rules on exclusion of evidence,²⁵ mirror those found in continental Europe.²⁶

By contrast, in Singapore there is no explicit constitutional prohibition of torture, nor is there a constitutional provision on the exclusion of illegally obtained evi- dence. However, Section 258(3) of the Criminal Procedure Code, read together with Explanation 1, renders inadmissible any statement by an accused obtained through“inducement, threat or promise”or by oppression. Section 258(3) does not cover all cases of illegally obtained evidence and it does not apply where the evidence is anything other than a statement (i.e. physical evidence). Whether the judicial power of exclusion extends beyond cases covered by Section 258(3) remains a contentious matter. However, in recent years the Singapore courts have narrowed the scope of exclusionary discretion,²⁷thus sacrificing the protection of individual liberties for the state’s interest in convicting wrongdoers.

20SeeHe,2011at 172 et seq.

21SeeLin,2003at 224 et seq.

22SeeLin,2013at 190–195.

23See, for example,§156 para 3–4 TW-CCP.

24SeeLiao,2009at 223 et seq.

25§§156, 158–2, 158–4 TW-CCP.

26SeeArt. 141 CH-CCP.

27In 1964, the majority in Cheng Swee Tiang v PP acknowledged the existence of a broad and general discretion to exclude unlawfully obtained evidence. This discretion was to be exercised on a case-by-case basis by balancing “the interest of the individual to be protected from illegal invasions of his liberties”against“the interest of the State to secure evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from the courts on any merely technical ground”. The existence of this exclusionary power was put in doubt by the decision in the 2007 case of Law Society of Singapore v Tan Guat Neo Phyllis. In Muhammad bin Kadar v PP, the Court clarified that a general discretion does exist but held that the discretion was available only where the prejudicial effect of the wrongfully obtained evidence exceeds its probative value.

5 Core Issues Surrounding the Effectiveness of Exclusionary Rules

The reports included in this publication address the question whether, and under what circumstances, the use of exclusionary rules is an effective means for pro- tecting human rights in criminal proceedings. We started with the hypothesis that the exclusion of illegally obtained evidence could potentially be an effective tool for ensuring that certain human rights are respected in criminal proceedings. Given that the starting point for any legal comparison is the law itself,²⁸ an analysis of the existing legal rules in the selected jurisdictions was needed to test our hypothesis, which was done via individual country reports.

In the interest of comprehensiveness, our study sought to look beyond the law to its application. If the primary goal is the protection of human rights, states need not only establish the corresponding legal framework, but also incentivize law enforcement to abide by such provisions. Cultural values appear to heavily influ- ence a number of criminal justice systems, particularly those that place a strong emphasis on confessions, presumably as a result of the societal belief in the importance of admitting wrongdoing and experiencing regret. In such systems, the desire to extract a suspect’s confession may override any concern that the con- fession could later be deemed inadmissible.²⁹Importantly, the efficiency of criminal justice systems is affected by aspects outside the law, including tolerance of abuse by state authorities and support of state authority over civil rights. In the current study an effort was made to consider relevant cultural norms, as well as the social roles of the police, prosecutors, and the courts.

One defining feature of our project is its emphasis on social and inter-cultural discourse, which are directly linked to the overarching debate of whether human rights are universal or culturally-relative. By studying human rights protections in criminal procedure within selected European, American, and Asian jurisdictions, we sought to highlight the extent to which the effective protection of suspect and witnesses’rights has been recognized as a necessity in both the East and the West, and how it is linked to the implementation of exclusionary rules. This analysis is covered in five topical chapters: The Purposes and Functions of Exclusionary Rules: A Comparative Overview (Jenia Iontcheva TURNER and Thomas WEIGEND), Exclusionary Rule of Illegal Evidence in China: Observation from Historical and Empirical Perspectives(ZUO Weimin and LAN Rongjie),The Fair Trial Rationale for Excluding Wrongfully Obtained Evidence (HO Hock Lai), Securing a fair trial through exclusionary rules: Do theory and practice form a well-balance whole?(Susanne KNICKMEIER) andExclusionary Rules—Is it Time for Change?(Sabine GLESS and Laura MACULA).

28See, for example, Ellis,2011at 971.

29SeeHe/He,2013at 73 et seq.

References Books

Jackson, John D. / Summers, Sarah J.,The Internationalisation of Criminal Evidence, Beyond the Common Law and Civil Law Traditions, Cambridge 2012. [Jackson/Summers, 2012]

Klabbers, Jan / Peters, Anne / Ulfstein, Geir, The Constitutionalization of International Law, Oxford 2012. [Klabbers/Peters/Ulfstein, 2012]

Lin, Yu-Hsiung (林鈺雄), (Criminal Procedure Law (I)) 7^thedition, Taipei 2013.

[Lin, 2013]

Parlett, Kate, The Individual in the International Legal System: Continuity and Change in International Law, Cambridge 2011. [Parlett, 2011]

Roxin, Claus/Schünemann, Bernd, Strafverfahrensrecht, 28. Aufl., München 2014. [Roxin, 2014]

Steiner, Henry J. / Alston, Philip / Goodman, Ryan,International Human Rights in Context: Law, Politics, Morals, 3^rded., Oxford 2008. [Steiner/Alston/Goodman, 2008]

Journal Articles

Elgin, Molly,‘Asian Values: A New Model for Development?’, (2010)Southeast Asia, 135–145 [Elgin, 2010]

Freeman, Duncan / Geeraerts, Gustaaf, ‘Europe, China and Expectations for Human Rights’, (2011) 4The Chinese Journal of International Politics, 179–203 [Freeman/Geeraerts, 2011]

Freeman, Duncan / Geeraerts, Gustaaf,‘Europe, China and the expectations for human rights’, Brussels Institute of Contemporary China Studies (BICCS) Asia Paper Vol. 5 (1), 7–31.

[Freeman/Geeraerts, BICCS]

He, Lai-Jier (何賴傑),論刑事訴訟法之傳承與變革–從我國與德國晚近刑事訴訟法修法談起

(‘Continuity and Reform in Criminal Procedure–Discussion about recent revisions of Criminal Procedure Law in Taiwan and Germany’), (2011) 100Taiwan Jurist, 172–183. [He, 2011]

Jiang, Na ‘The Presumption of Innocence and Illegally Obtained Evidence: Lessons from Wrongful Convictions in China?’, (2013) 43Hong Kong Law Journal,745–769. [Jiang, 2013]

Peters, Anne, ‘Compensatory Constitutionalism. The Function and Potential of Fundamental International Norms and Structures’(2006) 19Leiden Journal of International Law, 579–610.

[Peters, 2006]

Contributions to Edited Volumes and Annotated Law

Ellis, Jaye, ‘General Principles and Comparative Law’, (2011) 20 European Journal of International Law, 949–971. [Ellis, 2011]

He, Jiahong / He, Ran,‘Wrongful Convictions and Tortured Confessions: Empirical Studies in Mainland China’, in: McConville, M. / Pils E. (eds.),Comparative Perspectives on Criminal Justice in China, Cheltenham 2013, 73–90. [He/He, 2013]

Liao, Fu-Te (廖福特),批准聯合國兩個人權公約及制訂施行法之評論(‘Comments on the Two Ratified United Nations Covenants on Human Rights and the Enforcement Act’), (2009) 174 The Taiwan Law Review, 223–229. [Liao, 2009]

Lin, Yu-Hsiung (林鈺雄),鳥瞰2003年1月刑事訴訟法之修法, (‘A Summary about the Code of Criminal Procedure Amendment in January 2003’), (2003) 45 Taiwan Law Journal ( ), 224–246. [Lin, 2003]

Nguyen, Thi Thuy,‘Criminal Justice Reform in Viet Nam. Achievement and Lesson’in: (2009) ASEAN Law Association 10^thGeneral Assembly, 1–5. [Nguyen, 2009]

Rosenzweig, Joshua / Sapio, Flora / Jiang, Jue / Teng, Biao / Pils, Eva‘The 2012 Revision of the Chinese Criminal Procedure Law: (Mostly) Old Wine in New Bottles’, in: McConville, M. / Pils E. (eds.),Comparative Perspectives on Criminal Justice in China, Cheltenham 2013, 405– 503. [Rosenzweig et al., 2013]

Thaman, Stephen C.,‘Balancing Truth Against Human Rights: A Theory of Modern Exclusionary Rules’, in: Thaman, St. C. (ed.),Exclusionary Rules in Comparative Law, Heidelberg 2013, 403–443. [Thaman, 2013]

Sabine Glessholds a chair for criminal law, criminal procedure, and international criminal law at the University of Basel, Switzerland. Her research includes comparative work in evidence law and international cooperation with a focus on human rights issues, procedural safeguards, and in particular exclusionary rules.

Thomas Richterserved as the Head of the East Asian Department of the Max Planck Institute for Foreign and International Law in Freiburg, Germany. In this capacity, he analyzed the criminal law and criminal procedure law of the People’s Republic of China and co-directed a comparative study on non-prosecution policies in Germany and the People’s Republic of China. In cooperation with the German Institute for Human Rights (DIMR), he evaluated the Human Rights Dialogue between the People’s Republic of China and Switzerland (2006/2007). Most recently, Thomas Richter assessed the Rule of Law Programme for Asia instituted by the Konrad Adenauer Foundation (2013). His research interests include criminal law, human rights law, and environmental law in East and South-East Asia, especially in China.

Open AccessThis chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

Part I

Comparative Perspectives

Through Evidence Exclusion: A Swiss Perspective

Laura Macula

Abstract Swiss criminal procedure has a strong inquisitorial tradition and its primary purpose is the search for the “material truth.” However, authorities are neither obliged nor allowed to search for this truth at any cost and are limited by procedural rules, which also serve to protect a defendant from the authorities. One possible means of enforcing such procedural rules is the exclusion of improperly obtained evidence. In Switzerland, the legislature established explicit provisions around the collection of evidence and its admissibility in criminal proceedings by adopting art. 139–141 of the Criminal Procedure Code in 2011. This is a com- prehensive statutory regulation that is unique in Europe. Nevertheless, the Swiss Supreme Court continues tofind ways to preserve its own power over the admission of evidence and often errs on the side of admitting evidence. With a focus on this tension between the legal framework and the jurisprudence of the Supreme Court, the Swiss country report describes the relevant legal framework, phases of the criminal process, and the relevant parties to criminal proceedings. Also discussed in detail are the current regulations as well as the Supreme Court’s case law on exclusionary rules. An assessment of the potential for such rules to safeguard individual rights and prevent improper evidence acquisition is a focus of the paper.

1 Introduction

It was not until 2011 that a unified Swiss criminal procedure code amalgamated the legal framework for criminal trials in the 26 cantons of Switzerland. Bringing together different legal traditions of continental Europe, Swiss criminal procedure is characterized by legal scholars as inquisitorial. This assessment corresponds with a traditional focus on searching for the“material truth”(or, what actually happened)¹

L. Macula (&)

MLaw, University of Basel, Basel, Switzerland e-mail:Laura.Macula@unibas.ch

1Schmid,2017at§1 no. 7.

© The Author(s) 2019

S. Gless and T. Richter (eds.),Do Exclusionary Rules Ensure a Fair Trial?

Ius Gentium: Comparative Perspectives on Law and Justice 74, https://doi.org/10.1007/978-3-030-12520-2_2

15

as the primary aim of criminal proceedings.²Today, however, the search for truth is neither an absolute goal in the Swiss criminal justice system nor do police, pros- ecutors, or courts have unlimited powers.³ Rather, present-day legislation acknowledges the competing interests of the State and the individuals involved and appreciates a need for them to be balanced on a case-by-case basis via legislation and, more specifically, law enforcement authorities and courts. Accordingly, Swiss criminal proceedings are characterised by formal requirements that seek to ensure a fair trial while also safeguarding individual rights and preventing abuses of power by the authorities.⁴According to the theory espoused in legal texts, exclusionary rules play an important role in establishing this balance by banning the use of illegally obtained evidence and enforcing limitations in criminal proceedings.⁵ However, the exclusion of evidence also poses a constraint on the establishment of the material truth.⁶Thus, by defining formal requirements and individual rights in criminal procedure, the legislature determines the cost of finding the material truth⁷—at least in theory.

The first Swiss Criminal Procedure Code (CPC)⁸ explicitly stipulates exclu- sionary rules in art. 141, which establishes a far-reaching and relatively compre- hensive legal regime.⁹These largely clear-cut rules represent a new approach since they have significantly reduced the amount of judicial discretion allowed relative to the prior cantonal regime. Before the advent of the CPC, the Swiss Supreme Court (SSC) made decisions around the admissibility of evidence by balancing competing interests on a case-by-case basis¹⁰and often admitted illegally obtained evidence in pursuit of the material truth.¹¹ In a 2007 case (prior to the implementation of the CPC), the Court rejectedstrictexclusion of indirect evidence on the ground that the acquittal of an obviously guilty defendant would be “disturbing” (“stossend”).¹²

2See e.g., Gless/Martin,2015at 164 with further references.

3Wohlers in Donatsch et al.,2014at art. 6 no. 2 with further references.

4Keller,2011at 231.

5Oberholzer,2012at no. 695.

6Wohlers in Donatsch et al.,2014at art. 6 no. 2.

7Keller,2011at 231 et seq.

8Schweizerische Strafprozessordnung (StPO), officially translated as Swiss Criminal Procedure Code (CPC) of 5 October 2007 (Status as of 1 October 2016), SR 312.0, available online at

<https://www.admin.ch/opc/en/classified-compilation/20052319/index.html>, accessed 22 November 2018.

9With exceptions,seebelow 3.1.3.

10Wohlers/Bläsi,2015at 160.

11Keller,2011at 234 with further references;see alsobelow 3.1.3 and 3.2.5.2.

12Entscheidungen des Schweizerischen Bundesgerichts (BGE) 133 IV 329, consideration (consid.) 4.5; the decisions of the Swiss Supreme Court are available online at <http://www.bger.

ch/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht.htm>, accessed 22 November 2018.

Even after the CPC was put into place, the Supreme Court has continued to rule in favor of admitting illegally obtained evidence.¹³

With a focus on this tension between the legal framework in the CPC and the jurisprudence of the Swiss Supreme Court, this report seeks to:

– explain the fundamental principles, stages, and actors in Swiss criminal proceedings;

– detail the present regulation in the CPC as well as the Swiss Supreme Court’s case law on exclusionary rules;

– assess the potential of those exclusionary rules to safeguard individual rights and to prevent torture and improper compulsion in particular.

2 Establishing Facts in Swiss Criminal Proceedings 2.1 Legal Framework and Relevant Actors

2.1.1 General Rules

Until 2011, Switzerland, a country of approximately eight million inhabitants, had 26 diverse¹⁴ cantonal criminal procedure codes, three federal codes of military law,¹⁵ laws around administrative criminal procedure,¹⁶ and laws around federal criminal procedure.¹⁷ The different cantonal codes, as well as the Swiss legal system in general, were significantly influenced by the German and the French legal systems due to the various German-speaking and Francophone parts of the country.

The Swiss cantonal codes thus embodied diverse components of continental European legal traditions.¹⁸

This fragmented regulation of criminal procedure necessitated the criminal justice system beflexible enough to accommodate the various legal regimes. The cantonal and federal legislature assured this flexibility by leaving considerable discretion to law enforcement authorities.¹⁹ The Federal CPC, which came into

13Schweizerisches Bundesgericht (Swiss Supreme Court, BGer) 6B_684/2012 of 15 May 2013;

BGE 138 IV 169; Wohlers/Bläsi,2015at 169.

14Ruckstuhl et al.,2011at no. 59.

15Militärstrafgesetz of 13 June 1927 (Status as of 1 January 2017), SR 321.0, available online at

<https://www.admin.ch/opc/de/classified-compilation/19270018/index.html>, accessed 22 November 2018.

16Bundesgesetzüber die Bundesstrafrechtspflege of 15 June 1934, SR 312.0, invalidated.

17Bundesgesetzüber das Verwaltungsstrafrecht of 22 March 1974 (Status as of 1 Oktober 2016), SR 313.0, available online at <https://www.admin.ch/opc/de/classified-compilation/19740066/

index.html>; accessed 22 November 2018.

18Gless/Martin,2015at 160.

19Gless/Martin,2015at 160.

effect in January 2011, represents the effort to unify and harmonize all of the different cantonal criminal procedure codes. Its primary goal is not to accommodate different regional traditions, rather it is to create nation-wide consistency in criminal law and procedure, and promote uniform and efficient enforcement of those laws.²⁰ Accordingly, the CPC of 2011 established a stricter legal framework compared to the former cantonal procedure codes, and particularly so for exclusionary rules.²¹ Currently, a further reform of selected articles of the CPC is being planned.²²

2.1.1.1 Duties in Criminal Investigations

Swiss criminal procedure is rooted in the inquisitorial tradition with the primary purpose of searching for the material truth. At least in theory, the proceedings aim to create a “precise reproduction of the historical incidents”²³ and convict and punish defendants only for the acts or omissions for which he or she is responsi- ble.²⁴ The inquisitorial principle, explicitly laid out in art. 6 CPC, commits all prosecution authorities (police, public prosecution),²⁵ as well as the courts²⁶ to establish all relevant facts in the assessment of an alleged criminal offense in addition to an evaluation of the accused’s personal situation. Different from adversarial systems, authorities in Swiss criminal proceedings act ex officio—re- gardless of the parties’conduct and requests.²⁷ As art. 6 (2) CPC stipulates, the authorities must investigate all circumstances—exculpatory and incriminatory— with equal care, requiring them to keep an open mind throughout the investigation.

If prosecution authorities fail to comply with art. 6 CPC, the relevant evidence must be“re-taken”and presented to the appellate court where possible. If this is not feasible, the failure to do so cannot be interpreted to the detriment of the defen- dant.²⁸ On the contrary, the presumption of innocence (art. 10 (1) CPC) and the principle in dubio pro reo (“when in doubt, for the accused,” art. 10 (3) CPC) impose the burden of proof on the prosecution. It is their duty not only to inves- tigate, but toproveall circumstances creating criminal liability. This duty is limited by art. 139 (2) CPC, which states that“no evidence shall be led on matters that are irrelevant, obvious, known to the criminal justice authority or already adequately

20Keller,2011at 230.

21Gless/Martin,2015at 161.

22<https://www.bj.admin.ch/bj/de/home/sicherheit/gesetzgebung/aenderungstpo.html>, accessed 22 November 2018.

23Keller,2011at 230.

24Schmid,2017at§1 no. 7.

25Spelled out in detail in art. 306 et seq. and 308 et seq. CPC;seebelow 2.1.3.1 and 2.1.4.

26Spelled out in detail in art. 343 CPC;seebelow 2.1.3.1 and 2.1.4.

27Art. 6 (1) CPC; Schmid,2017at§9 no. 154.

28Wohlers in Donatsch et al.,2014at art. 6 no. 10 et seq.

proven in law.”²⁹Where this evidentiary duty cannot be fulfilled or insurmountable doubts as to the defendant’s guilt persist, the court must base its decision on the circumstances that are most favorable to the defendant and, where necessary, acquit.³⁰ The court, however, has wide discretion in this regard; art. 10 (2) CPC provides that the court shall assess all available evidence in accordance with the opinions it has formed throughout the entire course of the proceedings. Consequently, in Swiss criminal proceedings, there is no ranking order for evidence; as long as all evidence is gathered lawfully, each piece can be relevant. The weight of any one piece of evidence depends on how persuasive the courtfinds it to be.³¹Importantly, the court’s decision, including the assessment of evidence, has to be objective, transparent and comprehensible.³²Indeed, the aim of art. 10 (2) CPC is to avoid the arbitrary assessment of evidence while simultaneously fulfilling the principles of the inquisitorial system. The rationale behind this provision is that judgments are more likely to be based on the material truth if the court is not bound by rigid evidentiary rules and is free to form an opinion based on the entire proceeding.³³

2.1.1.2 Securing a Fair Trial

The general principle of a fair trial, both in Swiss law and elsewhere,finds its origin in a variety of legal principles. Firstly, it is binding as a general principle of international law imposed by art. 6 (1) of the European Convention on Human Rights (ECHR)³⁴and art. 10 and 14 (1) of the International Covenant on Civil and Political Rights, Part II³⁵ (ICCPR II).³⁶ Second, it has been expressly codified in Swiss law in art. 29 (1) of the new Federal Constitution of 1999³⁷and in art. 3 (2) lit. c of the new CPC.³⁸Article 3 (2) lit. c CPC explicitly stipulates that all persons involved in criminal proceedings should be treated equally and fairly and should be granted the right to be heard.

29Gless in Niggli et al.,2014at art. 139 no. 31;seebelow 2.1.4.

30Pieth,2016at 55 et seq.;alsoBGE 124 IV 88 consid. 2.a.

31Schmid,2017at§13 no. 229; Pieth,2016at 186.

32Pieth,2016at 186 with further references.

33Schmid,2017at§13 no. 225.

34European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, available online at <http://www.echr.coe.int/Documents/Convention_ENG.pdf>, accessed 22 November 2018.

35Second Optional Protocol to the International Covenant on Civil and Political Rights of 16 December 1966, available online at <http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.

pdf>, accessed 22 November 2018.

36Brun,2015at 55 with further references.

37Swiss Federal Constitution of 18 April 1999 (Status as of 12 February 2017), SR 101, available online at <https://www.admin.ch/opc/de/classified-compilation/19995395/index.html>, accessed 22 November 2018.

38Schmid,2017at§6 no. 95.