¹ The crim­in­al justice au­thor­it­ies may ques­tion the ac­cused at any stage of the crim­in­al pro­ceed­ings in re­la­tion to the of­fences of which he or she is ac­cused.

² In do­ing so, they shall give the ac­cused the op­por­tun­ity to make a com­pre­hens­ive state­ment in re­la­tion to these of­fences.

¹ At the start of the first in­ter­view, the po­lice or pub­lic pro­sec­utor shall ad­vise the ac­cused in a lan­guage that he or she un­der­stands:

a.

that pre­lim­in­ary pro­ceed­ings have been com­menced against him or her, and of the of­fences that are the sub­ject of the pro­ceed­ings;

b.

that he or she is en­titled to re­main si­lent and may re­fuse to co­oper­ate in the pro­ceed­ings;

c.

that he or she is en­titled to ap­point a de­fence law­yer or if ap­pro­pri­ate to re­quest the as­sist­ance of a duty de­fence law­yer;

d.

that he or she may re­quest the as­sist­ance of an in­ter­pret­er.

² Evid­ence ob­tained at an ex­am­in­a­tion hear­ing con­duc­ted without the fore­go­ing cau­tion is in­ad­miss­ible.

¹ In the case of po­lice ex­am­in­a­tion hear­ings, the ac­cused has the right for his or her de­fence law­yer to be present and al­lowed to ask ques­tions.

² In the case of po­lice ex­am­in­a­tion hear­ings of a per­son who has been ar­res­ted, the per­son also is en­titled to com­mu­nic­ate freely with his or her de­fence law­yer.

³ The ex­am­in­a­tion hear­ing may not be post­poned to al­low time for the fore­go­ing rights to be ex­er­cised.

If the ac­cused has ad­mit­ted com­mit­ting the of­fence, the pub­lic pro­sec­utor and court shall as­sess the cred­ib­il­ity of the ad­mis­sion and re­quest the ac­cused to provide more pre­cise de­tails of the cir­cum­stances of the of­fence.

The pub­lic pro­sec­utor shall ques­tion the ac­cused with re­gard to his or her per­son­al cir­cum­stances only if it is ex­pec­ted that the ac­cused will be charged or is­sued with a sum­mary pen­alty or­der or if it is es­sen­tial for oth­er reas­ons.

A wit­ness is a per­son not in­volved in com­mit­ting an of­fence who can make a state­ment that may as­sist in the in­vest­ig­a­tion of an of­fence and who is not a per­son provid­ing in­form­a­tion.

¹ A per­son has the ca­pa­city to testi­fy if he or she is over the age of 15 and has the re­quired men­tal ca­pa­city with re­gard to the sub­ject mat­ter of the ex­am­in­a­tion hear­ing.

² Every per­son with the ca­pa­city to testi­fy is ob­liged to make a state­ment and to tell the truth, sub­ject to the pro­vi­sions on rights to re­fuse to testi­fy.

¹ En­quir­ies may be made in­to the pre­vi­ous con­duct and the per­son­al cir­cum­stances of a wit­ness only if this is rel­ev­ant to an as­sess­ment of his or her cred­ib­il­ity.

² If there are doubts as to the men­tal ca­pa­city of a wit­ness or if there are in­dic­a­tions of a men­tal dis­order, the dir­ect­or of pro­ceed­ings may or­der an out­pa­tient ex­am­in­a­tion of the wit­ness if this is jus­ti­fied by the im­port­ance of the crim­in­al pro­ceed­ings and of the wit­nesses testi­mony.

¹ The au­thor­ity con­duct­ing the ex­am­in­a­tion hear­ing may re­quire a wit­ness sub­ject to ad­vising him or her of the pen­al­ties un­der Art­icle 292 SCC⁷⁹ to treat the planned or com­pleted in­ter­view and its sub­ject mat­ter as con­fid­en­tial.

² This ob­lig­a­tion shall be made sub­ject to a time lim­it.

³ The or­der may be com­bined with the wit­ness's sum­mons.

¹ The per­son suf­fer­ing harm shall be in­ter­viewed as a wit­ness.

² The right to in­ter­view the per­son suf­fer­ing harm as a per­son provid­ing in­form­a­tion in ac­cord­ance with Art­icle 178 is re­served.

A wit­ness is en­titled to ap­pro­pri­ate com­pens­a­tion for loss of in­come and ex­penses.

¹ The fol­low­ing per­sons may re­fuse to testi­fy:

a.

the ac­cused's spouse or the per­son who co­hab­its with the ac­cused;

b.

any­one who has a child with the ac­cused;

c.

any­one who is re­lated to the ac­cused in dir­ect line or by mar­riage;

d.

the ac­cused's sib­lings and stepsib­lings and the spouse of a sib­ling or stepsib­ling;

e.

the sib­lings and stepsib­lings of the ac­cused's spouse, and the spouse of such a sib­ling or stepsib­ling;

f.

the ac­cused's foster par­ents, foster chil­dren and foster sib­lings;

g.⁸⁰

a per­son ap­poin­ted to act as guard­i­an or deputy for the ac­cused.

² The right to re­fuse to testi­fy un­der para­graph 1 let­ters a and f re­mains val­id if the mar­riage is dis­solved or if in the case of a foster fam­ily⁸¹, the foster re­la­tion­ship no longer ap­plies.

³ A re­gistered part­ner­ship is deemed equi­val­ent to mar­riage.

⁴ The right to re­fuse to testi­fy ceases to ap­ply if:

a.⁸²

the crim­in­al pro­ceed­ings con­cern an of­fence un­der Art­icles 111–113, 122, 124, 140, 184, 185, 187, 189, 190 or 191 SCC⁸³; and

b.

the crim­in­al act was dir­ec­ted at a per­son to whom the wit­ness in ac­cord­ance with para­graphs 1–3 is re­lated.

¹ A per­son may re­fuse to testi­fy if he or she would in­crim­in­ate him or her­self by testi­fy­ing such that he or she:

a.

could be found guilty of an of­fence;

b.

could be held li­able un­der the civil law and the in­terest in pro­tec­tion out­weighs the in­terest in pro­sec­u­tion.

² The right to re­fuse to testi­fy also ap­plies if the per­son by testi­fy­ing would in­crim­in­ate a closely re­lated per­son as defined in Art­icle 168 para­graphs 1–3; Art­icle 168 para­graph 4 re­mains re­served.

³ A per­son may re­fuse to testi­fy if by testi­fy­ing he or she or a closely re­lated per­son as defined in Art­icle 168 para­graphs 1–3 would be ex­posed to a con­sid­er­able risk to life and limb or oth­er ser­i­ous det­ri­ment that can­not be pre­ven­ted by tak­ing pro­tect­ive meas­ures.

⁴ A vic­tim of a sexu­al of­fence may in every case re­fuse to an­swer ques­tions that re­late to his or her private do­main.

¹ Pub­lic of­fi­cials as defined in Art­icle 110 para­graph 3 SCC⁸⁴ and their aux­il­i­ar­ies as well as mem­bers of au­thor­it­ies and their aux­il­i­ar­ies may re­fuse to testi­fy on secret mat­ters com­mu­nic­ated to them in their of­fi­cial ca­pa­city or which have come to their know­ledge in the ex­er­cise of their of­fice or their aux­il­i­ary activ­ity.⁸⁵

² They must testi­fy if they

a.

are sub­ject to a duty to re­port; or

b.

have been giv­en writ­ten au­thor­isa­tion to do so by their su­per­i­or.⁸⁶

³ The su­per­i­or shall grant au­thor­isa­tion to testi­fy if the in­terest in es­tab­lish­ing the truth out­weighs the in­terest in pre­serving secrecy.

¹ Mem­bers of the clergy, law­yers, de­fence law­yers, not­ar­ies, pat­ent at­tor­neys, doc­tors, dent­ists, phar­macists, psy­cho­lo­gists, nurses, physio­ther­ap­ists, oc­cu­pa­tion­al ther­ap­ists, mid­wives, di­eti­cians, op­to­met­rists, os­teo­paths and as­sist­ants to such per­sons may re­fuse to testi­fy in re­la­tion to con­fid­en­tial mat­ters that have been con­fided to them or come to their know­ledge in the course of their pro­fes­sion­al work.⁸⁷

² They must testi­fy if they:

a.

are sub­ject to a duty to re­port; or

b.

are re­lieved of their duty of con­fid­en­ti­al­ity in terms of Art­icle 321 num­ber 2 SCC⁸⁸ by the per­son to whom the con­fid­en­tial in­form­a­tion per­tains or through the writ­ten con­sent of the com­pet­ent au­thor­ity.

³ The crim­in­al justice au­thor­ity shall also re­spect pro­fes­sion­al con­fid­en­ti­al­ity in cases where the per­son en­trus­ted with con­fid­en­tial in­form­a­tion is re­lieved of the duty of con­fid­en­ti­al­ity but he or she es­tab­lishes that the in­terest of the per­son to whom the con­fid­en­tial in­form­a­tion per­tains out­weighs the in­terest in es­tab­lish­ing the truth.

⁴ The pro­vi­sions of the Law­yers Act of 23 June 2000⁸⁹ are re­served.

¹ Per­sons in­volved pro­fes­sion­ally in the pub­lic­a­tion of in­form­a­tion in the ed­it­or­i­al sec­tion of a me­di­um that ap­pears peri­od­ic­ally, to­geth­er with their aux­il­i­ary per­son­nel may re­fuse to testi­fy as to the iden­tity of the au­thor or as to the con­tent and sources of their in­form­a­tion.

² They must testi­fy if:

a.

the testi­mony is re­quired to save a per­son from im­me­di­ate danger to life and limb;

b.

without the testi­mony one of the fol­low­ing of­fences will not be solved or a per­son sus­pec­ted of com­mit­ting such an of­fence may not be ap­pre­hen­ded:

1.

hom­icide of­fences in terms of Art­icles 111–113 SCC⁹⁰,

2.

felon­ies car­ry­ing a cus­todi­al sen­tence of at least 3 years,

3.⁹¹

of­fences in terms of Art­icles 187, 189, 190, 191, 197 para­graph 4, 260^ter, 260^quin­quies, 260^sex­ies, 305^bis, 305^ter and 322^ter–322^sep­ties SCC,

4.⁹²

of­fences in terms of Art­icle 19 num­ber 2 of the Nar­cot­ics Act of 3 Oc­to­ber 1951 (NarcA)⁹³.

¹ Any per­son who is re­quired to pre­serve pro­fes­sion­al con­fid­en­ti­al­ity in ac­cord­ance with any of the fol­low­ing pro­vi­sions must testi­fy only if the in­terest in es­tab­lish­ing the truth out­weighs the in­terest in pre­serving con­fid­en­ti­al­ity:

a.

Art­icle 321^bis SCC⁹⁴;

b.

Art­icle 139 para­graph 3 of the Civil Code⁹⁵;

c.

Art­icle 2 of the Fed­er­al Act of 9 Oc­to­ber 1981⁹⁶ on Preg­nancy Ad­vis­ory Centres;

d.⁹⁷

Art­icle 11 of the Vic­tim Sup­port Act of 23 March 2007⁹⁸;

e.⁹⁹

Art­icle 3c para­graph 4 NarcA¹⁰⁰;

f.¹⁰¹

…

² Per­sons en­trus­ted with oth­er con­fid­en­tial in­form­a­tion pro­tec­ted by law are re­quired to testi­fy. The dir­ect­or of pro­ceed­ings may re­lieve them of the duty to testi­fy if they are able to es­tab­lish that the in­terest in pre­serving con­fid­en­ti­al­ity out­weighs the in­terest in es­tab­lish­ing the truth.

¹ The de­cision on wheth­er to al­low a per­son to re­fuse to testi­fy is made by:

a.

the au­thor­ity con­duct­ing the ex­am­in­a­tion hear­ing in the pre­lim­in­ary pro­ceed­ings;

b.

the court after charges have been brought.

² The wit­ness may re­quest a re­view by the court for Art­icle 393 ap­peals im­me­di­ately after re­ceiv­ing no­ti­fic­a­tion of the de­cision.

³ Un­til the court for Art­icle 393 ap­peals makes its de­cision, the wit­ness is en­titled to re­fuse to testi­fy.

¹ The wit­ness may in­voke his or her right to re­fuse to testi­fy at any time or re­voke his or her waiver of that right.

² State­ments made by a wit­ness after be­ing cau­tioned with re­gard to the right to re­fuse to testi­fy may be ad­mit­ted as evid­ence if the wit­ness sub­sequently ex­er­cises the right to re­fuse to testi­fy or re­vokes a waiver of the right to re­fuse to testi­fy.

¹ Any per­son who re­fuses to testi­fy without hav­ing the right to do so may be li­able to a fixed pen­alty fine and may be re­quired to pay the costs and com­pens­a­tion in­curred as a res­ult of such re­fus­al.

² If a per­son who is ob­liged to testi­fy in­sists on re­fus­ing to do so, he or she will again be re­ques­ted to testi­fy and cau­tioned as to the pen­al­ties un­der Art­icle 292 SCC¹⁰². In the event of con­tin­ued re­fus­al, crim­in­al pro­ceed­ings shall be com­menced.

¹ The au­thor­ity con­duct­ing the ex­am­in­a­tion hear­ing shall cau­tion the wit­ness at the be­gin­ning of each hear­ing with re­gard to the ob­lig­a­tions to testi­fy and to tell the truth and ad­vise the wit­ness of the pen­al­ties for per­jury in terms of Art­icle 307 SCC¹⁰³. If no cau­tion is giv­en, the ex­am­in­a­tion hear­ing is in­val­id.

² The au­thor­ity con­duct­ing the ex­am­in­a­tion hear­ing shall ques­tion each wit­ness at the be­gin­ning of the first hear­ing as to his or her re­la­tion­ship with the parties and as to oth­er cir­cum­stances that may be rel­ev­ant to the wit­ness's cred­ib­il­ity.

³ It shall cau­tion the wit­ness as to the rights to re­fuse to testi­fy as soon as it be­comes ap­par­ent through ques­tion­ing or the files that such rights ap­ply. If no cau­tion is giv­en and the wit­ness sub­sequently ex­er­cises the right to re­fuse to testi­fy, the ex­am­in­a­tion hear­ing is in­ad­miss­ible.

The fol­low­ing per­sons may be in­ter­viewed as per­sons provid­ing in­form­a­tion:

a.

a per­son who has giv­en no­tice that he or she is a private claimant;

b.

a per­son who is un­der the age of 15 at the time of the ex­am­in­a­tion hear­ing;

c.

a per­son who due to lim­ited men­tal ca­pa­city is not able to un­der­stand the sub­ject mat­ter of the ex­am­in­a­tion hear­ing;

d.

a per­son who is not an ac­cused but who can­not be ex­cluded as the per­pet­rat­or of or as a par­ti­cipant in the of­fence un­der in­vest­ig­a­tion or an­oth­er re­lated of­fence;

e.

a per­son who is a co-ac­cused who must be in­ter­viewed with re­gard to an of­fence of which he or she is not per­son­ally ac­cused;

f.

a per­son who is the ac­cused in oth­er pro­ceed­ings re­lat­ing to an of­fence con­nec­ted with the of­fence un­der in­vest­ig­a­tion;

g.

a per­son who has been or could be des­ig­nated as the rep­res­ent­at­ive of a cor­por­ate en­tity in crim­in­al pro­ceed­ings against that en­tity, as well as his or her em­ploy­ees.

¹ The po­lice shall ques­tion any per­son who is not a sus­pect in the ca­pa­city of a per­son provid­ing in­form­a­tion.

² The fore­go­ing is sub­ject to the right to ques­tion a per­son as a wit­ness in ac­cord­ance with Art­icle 142 para­graph 2.

¹ Per­sons provid­ing in­form­a­tion in terms of Art­icle 178 let­ters b–g have the right to re­main si­lent; they are sub­ject to the pro­vi­sions on ex­am­in­a­tion hear­ings with the ac­cused, mu­tatis mutandis.

² A private claimant (Art. 178 let. a) is ob­liged to testi­fy be­fore the pub­lic pro­sec­utor, be­fore the courts and be­fore the po­lice if they in­ter­view the claimant on be­half of the pub­lic pro­sec­utor. In ad­di­tion, the pro­vi­sions on wit­nesses ap­ply mu­tatis mutandis, with ex­cep­tion of Art­icle 176.

¹ The crim­in­al justice au­thor­it­ies shall cau­tion per­sons provid­ing in­form­a­tion at the be­gin­ning of the ex­am­in­a­tion hear­ing with re­gard to their ob­lig­a­tion to testi­fy or their right to re­main si­lent or right to re­fuse to testi­fy.

² They shall cau­tion per­sons provid­ing in­form­a­tion who are ob­liged to testi­fy or who de­clare that they are pre­pared to testi­fy with re­gard to the pos­sible pen­al­ties for false ac­cus­a­tion, of mis­lead­ing ju­di­cial au­thor­it­ies and of as­sist­ing of­fend­ers.

The pub­lic pro­sec­utor and courts shall re­quest the ser­vices of one or more ex­pert wit­nesses if they do not have the spe­cial­ist know­ledge and skills re­quired to de­term­ine or as­sess the facts of the case.

¹ Any nat­ur­al per­son with the re­quired spe­cial­ist know­ledge and skills in the rel­ev­ant field may be ap­poin­ted as an ex­pert wit­ness.

² The Con­fed­er­a­tion and the can­tons may provide for the re­ten­tion of per­man­ent or of­fi­cial ex­pert wit­nesses for spe­cif­ic fields.

³ Au­thor­ised ex­perts are sub­ject to the grounds for re­cus­al in terms of Art­icle 56.

¹ The dir­ect­or of pro­ceed­ings shall ap­point the ex­pert wit­ness.

² The dir­ect­or of pro­ceed­ings shall provide writ­ten in­struc­tions; these shall con­tain:

a.

the per­son­al de­tails of the ex­pert wit­ness;

b.

if ap­plic­able, no­tice that the ex­pert wit­ness may in­struct oth­ers to as­sist in pre­par­ing the re­port sub­ject to his or her su­per­vi­sion;

c.

the pre­cisely for­mu­lated ques­tions;

d.

the dead­line for com­plet­ing the re­port;

e.

ref­er­ence to the duty of con­fid­en­ti­al­ity that ap­plies to the ex­pert wit­ness and any as­sist­ants;

f.

a ref­er­ence to the pen­al­ties for per­jury by an ex­pert wit­ness in terms of Art­icle 307 SCC¹⁰⁴.

³ The dir­ect­or of pro­ceed­ings shall give the parties pri­or op­por­tun­ity to com­ment on the ex­pert wit­ness and on the ques­tions and to sub­mit their own ap­plic­a­tions. The dir­ect­or of pro­ceed­ings may dis­pense with this re­quire­ment in re­la­tion to labor­at­ory tests, in par­tic­u­lar where they re­late to de­term­in­ing the blood-al­co­hol con­cen­tra­tion or the level of pur­ity of sub­stances, proof of the pres­ence of nar­cot­ics in the blood or the pre­par­a­tion of a DNA pro­file.

⁴ To­geth­er with the in­struc­tions, they shall provide the ex­pert wit­ness with the doc­u­ments and items re­quired to pre­pare the re­port.

⁵ They may re­voke their in­struc­tions at any time and ap­point new ex­pert wit­nesses if this is in the in­terests of the crim­in­al case.

⁶ They may re­quest an es­tim­ate of the costs be­fore is­su­ing the in­struc­tions.

⁷ If a private claimant re­quests an ex­pert re­port, the dir­ect­or of pro­ceed­ings may make in­struct­ing an ex­pert wit­ness de­pend­ent on the private claimant mak­ing an ad­vance pay­ment to cov­er costs.

¹ The ex­pert wit­ness is per­son­ally re­spons­ible for the ex­pert re­port.

² The dir­ect­or of pro­ceed­ings may re­quest the ex­pert wit­ness to at­tend pro­ced­ur­al hear­ings and au­thor­ise the ex­pert to put ques­tions to the per­son be­ing ques­tioned.

³ If the ex­pert wit­ness is of the view that doc­u­ments must be ad­ded to the case files, he or she shall make the rel­ev­ant ap­plic­a­tion to the dir­ect­or of pro­ceed­ings.

⁴ The ex­pert wit­ness may con­duct simple en­quir­ies that are closely con­nec­ted to his or her as­sign­ment and for this pur­pose may re­quest per­sons to co­oper­ate. These per­sons must com­ply with the in­struc­tions. If they re­fuse, they may be brought be­fore the ex­pert wit­ness by the po­lice.

⁵ In re­la­tion to en­quir­ies by the ex­pert wit­ness, the ac­cused and, to the ex­tent of their right to re­fuse to testi­fy, per­sons who have the right to re­main si­lent or to re­fuse to testi­fy may re­fuse to co­oper­ate. The ex­pert wit­ness shall cau­tion the per­sons con­cerned with re­gard to such rights at the start of his or her en­quir­ies.

¹ The pub­lic pro­sec­utor or courts may have an ac­cused ad­mit­ted to hos­pit­al if this is re­quired in or­der to pre­pare a med­ic­al re­port.

² The pub­lic pro­sec­utor shall ap­ply to the com­puls­ory meas­ures court for the ac­cused to be ad­mit­ted to hos­pit­al un­less the ac­cused is already on re­mand. The com­puls­ory meas­ures court shall de­cide on the mat­ter in writ­ten pro­ceed­ings.¹⁰⁵

³ If an in-pa­tient as­sess­ment proves ne­ces­sary dur­ing the court pro­ceed­ings, the court con­cerned shall de­cide on the mat­ter in writ­ten pro­ceed­ings.¹⁰⁶

⁴ The time spent in hos­pit­al shall be taken in­to ac­count in the sen­tence.

⁵ In ad­di­tion, the in-pa­tient as­sess­ment is gov­erned by mu­tatis mutandis by the reg­u­la­tions on re­mand and pre­vent­ive de­ten­tion.

¹ The ex­pert wit­ness shall pre­pare an ex­pert re­port in writ­ing. If ad­di­tion­al per­sons are in­volved in the pre­par­a­tion of the re­port, their names and the con­tri­bu­tion that they made to the pre­par­a­tion of the re­port must be spe­cified.

² The dir­ect­or of pro­ceed­ings may or­der the ex­pert re­port to be giv­en or­ally or that a writ­ten re­port be ex­plained or ad­ded to or­ally; in such an event, the reg­u­la­tions on wit­ness ex­am­in­a­tion hear­ings ap­ply.

The dir­ect­or of pro­ceed­ings shall no­ti­fy the parties of the con­tent of the writ­ten ex­pert re­port and al­low them time in which to com­ment there­on.

The dir­ect­or of pro­ceed­ings shall ex of­fi­cio or at the re­quest of a party ar­range for the ex­pert re­port to be ad­ded to or im­proved by the same ex­pert wit­ness or shall ap­point ad­di­tion­al ex­pert wit­nesses if:

a.

the ex­pert re­port is in­com­plete or un­clear;

b.

two or more ex­pert wit­nesses di­verge con­sid­er­ably in their con­clu­sions; or

c.

there are doubts as to the ac­cur­acy of the ex­pert re­port.

The ex­pert wit­ness is en­titled to an ap­pro­pri­ate fee.

If an ex­pert wit­ness fails to ful­fil his ob­lig­a­tions or does not do so in time, the dir­ect­or of pro­ceed­ings may:

a.

im­pose a fixed pen­alty fine;

b.

re­voke their in­struc­tions without pay­ing the ex­pert a fee for any work car­ried out.

¹ The crim­in­al justice au­thor­it­ies shall add all items of evid­ence in their ori­gin­al form to the case file.

² Cop­ies shall be made of of­fi­cial doc­u­ments and oth­er re­cords if this is suf­fi­cient for the pur­poses of the pro­ceed­ings. If ne­ces­sary, the cop­ies must be cer­ti­fied.

³ The parties may in­spect items of evid­ence in ac­cord­ance with the reg­u­la­tions on the in­spec­tion of files.

¹ The pub­lic pro­sec­utor, the courts and, in minor cases, the po­lice shall make an on-site in­spec­tion of all items, loc­a­tions and pro­cesses that are im­port­ant in as­sess­ing the cir­cum­stances but which are not im­me­di­ately avail­able as items of evid­ence.

² Every per­son con­cerned must tol­er­ate the in­spec­tion and al­low the par­ti­cipants the re­quired ac­cess.

³ If it is ne­ces­sary to enter houses, dwell­ings or oth­er premises that are not gen­er­ally ac­cess­ible, the au­thor­it­ies shall com­ply with the reg­u­la­tions ap­plic­able to the search of premises.

⁴ A re­cord shall be made of in­spec­tions by means of video or au­dio re­cord­ings, plans, draw­ings or de­scrip­tions, or by some oth­er meth­od.

⁵ The dir­ect­or of pro­ceed­ings may or­der that:

a.

oth­er pro­ced­ur­al acts be re­lo­cated to the place where the in­spec­tion is be­ing car­ried out;

b.

the in­spec­tion is com­bined with a re­con­struc­tion of the crim­in­al act or with a con­front­a­tion hear­ing; in such an event, the ac­cused, the wit­nesses and the per­sons provid­ing in­form­a­tion are ob­liged to take part, sub­ject to their right to re­main si­lent.

¹ The pub­lic pro­sec­utor and the courts shall con­sult files re­lat­ing to oth­er pro­ceed­ings if this is re­quired to prove the cir­cum­stances of the case or to as­sess the guilt of the ac­cused.

² Ad­min­is­trat­ive and ju­di­cial au­thor­it­ies shall make their files avail­able for in­spec­tion un­less there is an over­rid­ing pub­lic or private in­terest in pre­serving con­fid­en­ti­al­ity.

³ Con­flicts between au­thor­it­ies of the same can­ton shall be de­cided by the court for Art­icle 393 ap­peals of the can­ton con­cerned, and con­flicts between au­thor­it­ies of dif­fer­ent can­tons or between can­ton­al and fed­er­al au­thor­it­ies shall be de­cided by the Fed­er­al Crim­in­al Court.

¹ The crim­in­al justice au­thor­it­ies shall ob­tain of­fi­cial re­ports and med­ic­al cer­ti­fic­ates re­lat­ing to mat­ters that may be of sig­ni­fic­ance in the crim­in­al pro­ceed­ings.

² In or­der to es­tab­lish the per­son­al cir­cum­stances of the ac­cused, the pub­lic pro­sec­utor and courts in­form­a­tion shall ob­tain in­form­a­tion on the ac­cused's crim­in­al re­cord and repu­ta­tion and oth­er rel­ev­ant re­ports from pub­lic of­fices and mem­bers of the pub­lic.

Com­puls­ory meas­ures are pro­ced­ur­al acts car­ried out by the crim­in­al justice au­thor­it­ies that re­strict the fun­da­ment­al rights of the per­sons con­cerned and which serve:

a.

to se­cure evid­ence;

b.

to en­sure that per­sons at­tend the pro­ceed­ings;

c.

to guar­an­tee the ex­e­cu­tion of the fi­nal judg­ment.

¹ Com­puls­ory meas­ures may be taken only if:

a.

they are per­mit­ted by law;

b.

there is reas­on­able sus­pi­cion that an of­fence has been com­mit­ted;

c.

the aims can­not be achieved by less strin­gent meas­ures

d.

the ser­i­ous­ness of the of­fence jus­ti­fies the com­puls­ory meas­ure.

² Par­tic­u­lar cau­tion must be taken when car­ry­ing out com­puls­ory meas­ures that re­strict the fun­da­ment­al rights of per­sons not ac­cused of an of­fence.

¹ Com­puls­ory meas­ures may be ordered by:

a.

the pub­lic pro­sec­utor;

b.

the courts, or in cases of ur­gency, their dir­ect­or of pro­ceed­ings;

c.

the po­lice in cases spe­cific­ally provided for by law.

² The Con­fed­er­a­tion and the can­tons may re­strict the powers of the po­lice to or­der or carry out com­puls­ory meas­ures to po­lice of­ficers of a spe­cif­ic rank or func­tion.

Where a com­puls­ory meas­ure must be ordered in writ­ing and need not be kept secret, the per­sons dir­ectly con­cerned shall be giv­en a copy of the war­rant and of any re­cord re­lat­ing to its ex­e­cu­tion against con­firm­a­tion of re­ceipt.

Force may be used as a last re­sort when car­ry­ing out com­puls­ory meas­ures; any force used must be reas­on­able.

¹ A sum­mons shall be is­sued in writ­ing by the pub­lic pro­sec­utor, the au­thor­it­ies re­spons­ible for pro­sec­ut­ing con­tra­ven­tions and the courts.

² It con­tains:

a.

the name of the crim­in­al justice au­thor­ity is­su­ing the sum­mons and the per­sons who will carry out the pro­ced­ur­al act;

b.

the name of the per­son summoned and the ca­pa­city in which it is in­ten­ded that per­son should par­ti­cip­ate in the pro­ced­ur­al act;

c.

the reas­on for the sum­mons if the aim of the in­vest­ig­a­tion per­mits such in­form­a­tion to be dis­closed;

d.

the place, date and time of ap­pear­ance;

e.

no­tice of the re­quire­ment to ap­pear per­son­ally;

f.

a cau­tion as to the leg­al con­sequences of the fail­ure to ap­pear without ex­cuse;

g.

the date on which the sum­mons was is­sued;

h.

the sig­na­ture of the per­son is­su­ing the sum­mons.

¹ Sum­monses shall be served:

a.

in the pre­lim­in­ary pro­ceed­ings: at least 3 days be­fore the pro­ced­ur­al act is due to take place;

b.

in pro­ceed­ings in court: at least 10 days be­fore the pro­ced­ur­al act is due to take place.

² Pub­lic sum­monses shall be pub­lished at least one month be­fore the pro­ced­ur­al act is due to take place.

³ When de­cid­ing on the date of the pro­ced­ur­al act, ap­pro­pri­ate ac­count shall be taken of the avail­ab­il­ity of the per­sons be­ing summoned.

¹ A sum­mons may be is­sued in a form oth­er than that pre­scribed and sub­ject to short­er time lim­its:

a.

in cases of ur­gency; or

b.

with the con­sent the per­son be­ing summoned.

² Any per­son who is present at the place of the pro­ced­ur­al act or in de­ten­tion may be ques­tioned im­me­di­ately and without the is­sue of a sum­mons.

¹ If per­sons who are abroad must be summoned, the pub­lic pro­sec­utor or the per­sons con­duct­ing the court pro­ceed­ings may guar­an­tee their safe con­duct.

² Per­sons who have been guar­an­teed safe con­duct may not be ar­res­ted or made sub­ject to oth­er meas­ures re­strict­ing their liberty in Switzer­land due to acts or con­vic­tions from the peri­od pri­or to their de­par­ture.

³ Safe con­duct may be sub­ject to con­di­tions. In this case, the per­sons con­cerned must be in­formed that the right to safe con­duct ex­pires if they fail to com­ply with the con­di­tions there­of.

¹ Any per­son summoned by a crim­in­al justice au­thor­ity must com­ply with the sum­mons.

² Any per­son who is pre­ven­ted from com­ply­ing with a sum­mons must in­form the au­thor­ity is­su­ing the sum­mons im­me­di­ately; he or she must give reas­ons for his or her in­ab­il­ity to ap­pear and if pos­sible provide doc­u­ment­ary evid­ence there­of.

³ A sum­mons may be re­voked if there is good cause. The re­voc­a­tion of the sum­mons takes ef­fect when the per­son summoned has been in­formed there­of.

⁴ Any per­son who, without an ac­cept­able reas­on, fails to com­ply with a sum­mons from a pub­lic pro­sec­utor, au­thor­ity re­spons­ible for pro­sec­ut­ing con­tra­ven­tions or a court or who ap­pears late shall be li­able to a fixed pen­alty fine and may also be brought be­fore the au­thor­ity con­cerned by the po­lice.

⁵ The fore­go­ing para­graph does not ap­ply to the pro­vi­sions on pro­ceed­ings in ab­sen­tia.

¹ In the course of po­lice en­quir­ies, the po­lice may sum­mon per­sons for the pur­poses of ques­tion­ing, es­tab­lish­ing their iden­tity or for oth­er iden­ti­fic­a­tion pro­ced­ures without the re­quire­ment to com­ply with spe­cial form­al­it­ies or time lim­its.

² Any per­son who fails to com­ply with a po­lice sum­mons may be brought be­fore the au­thor­ity con­cerned on the basis of a war­rant is­sued by the pub­lic pro­sec­utor provided the per­son summoned has been is­sued with a writ­ten warn­ing that this meas­ure may be taken.

¹ A per­son may be brought be­fore an au­thor­ity by the po­lice if:

a.

he or she has failed to com­ply with a sum­mons;

b.

there are spe­cif­ic in­dic­a­tions that he or she will not com­ply with a sum­mons;

c.

in pro­ceed­ings re­lat­ing to a felony or mis­de­mean­our, his or her im­me­di­ate ap­pear­ance is es­sen­tial in the in­terests of the pro­ced­ure;

d.

there is a strong sus­pi­cion that he or she has com­mit­ted a felony or mis­de­mean­our and there is reas­on to be­lieve that there are grounds for the per­son's de­ten­tion.

² An en­forced ap­pear­ance shall be ordered by the dir­ect­or of pro­ceed­ings.

¹ An en­forced ap­pear­ance is ordered in the form of a writ­ten war­rant. In cases of ur­gency, it may be ordered or­ally; it must however be con­firmed sub­sequently in writ­ing.

² The war­rant shall con­tain the same de­tails as a sum­mons and also the ex­press au­thor­isa­tion for the po­lice to use force and to enter build­ings, dwell­ings and oth­er spaces not gen­er­ally ac­cess­ible if this is ne­ces­sary in or­der to im­ple­ment the war­rant.

¹ The po­lice shall make every ef­fort to pro­tect the per­sons con­cerned when ex­ecut­ing a war­rant for an en­forced ap­pear­ance.

² They shall show the per­son con­cerned the war­rant for the en­forced ap­pear­ance and bring him or her be­fore the rel­ev­ant au­thor­ity im­me­di­ately or at the time spe­cified for the ap­pear­ance.

³ The au­thor­ity shall in­form the per­son con­cerned im­me­di­ately and in a lan­guage they can un­der­stand of the reas­on for the en­forced ap­pear­ance, carry out the pro­ced­ur­al act and re­lease the per­son im­me­di­ately there­after un­less the au­thor­ity is ap­ply­ing for his or her re­mand or pre­vent­ive de­ten­tion.

¹ The pub­lic pro­sec­utor, au­thor­it­ies re­spons­ible for pro­sec­ut­ing con­tra­ven­tions and courts may or­der the tra­cing of per­sons whose where­abouts are un­known and who are re­quired to ap­pear in the pro­ceed­ings. In cases of ur­gency, the po­lice may them­selves or­der that a wanted per­son be traced.

² A war­rant (ar­rest war­rant) may be is­sued for an ac­cused per­son to be ar­res­ted and brought be­fore the au­thor­it­ies if there is a strong sus­pi­cion that he or she has com­mit­ted a felony or mis­de­mean­our and there is reas­on to be­lieve that there are grounds for the per­son's de­ten­tion.¹⁰⁷

³ Un­less the pub­lic pro­sec­utor, the au­thor­ity re­spons­ible for pro­sec­ut­ing con­tra­ven­tions or the court or­ders oth­er­wise, the po­lice are re­spons­ible for tra­cing wanted per­sons.

⁴ Para­graphs 1 and 3 ap­ply mu­tatis mutandis to the tra­cing of items and as­sets. In pre­lim­in­ary pro­ceed­ings, the po­lice may them­selves or­der the tra­cing of items and as­sets.¹⁰⁸

¹ The pub­lic may be re­ques­ted to as­sist in tra­cing wanted per­sons or prop­erty.

² The Con­fed­er­a­tion and the can­tons may is­sue pro­vi­sions in ac­cord­ance with which mem­bers of the pub­lic may be re­war­ded for as­sist­ing in the suc­cess­ful tra­cing of wanted per­sons or prop­erty.

¹ An ac­cused per­son shall re­main at liberty. He or she may be sub­jec­ted to com­puls­ory meas­ures in­volving depriva­tion of liberty only in ac­cord­ance with the pro­vi­sions of this Code.

² Com­puls­ory meas­ures in­volving depriva­tion of liberty must be re­voked as soon as:

a.

their re­quire­ments are no longer ful­filled;

b.

the term of the meas­ure spe­cified by this Code or by a court has ex­pired; or

c.

al­tern­at­ive meas­ures achieve the same pur­pose.

³ Re­mand and pre­vent­ive de­ten­tion may not be of longer dur­a­tion than the an­ti­cip­ated cus­todi­al sen­tence.

¹ If it is ne­ces­sary to enter houses, dwell­ings or oth­er rooms that are not gen­er­ally ac­cess­ible in or­der to stop or ar­rest a per­son, the pro­vi­sions on search­ing premises must be com­plied with.

² If there is a risk in any delay, the po­lice may enter premises without a search war­rant.

¹ If a per­son is ar­res­ted, or placed on re­mand or in pre­vent­ive de­ten­tion, the rel­ev­ant crim­in­al justice au­thor­ity shall im­me­di­ately no­ti­fy:

a.

his or her next-of-kin;

b.

if so re­ques­ted, his or her em­ploy­er or the rel­ev­ant em­bassy or con­su­late.

² No no­ti­fic­a­tion shall be giv­en if this is pre­cluded by the pur­pose of the in­vest­ig­a­tion or the per­son con­cerned ex­pressly so re­quests.

³ Where an ar­res­ted per­son is sub­ject to a com­puls­ory meas­ure in­volving the depriva­tion of his or her liberty and a de­pend­ant suf­fers dif­fi­culties as a res­ult, the crim­in­al justice au­thor­ity shall no­ti­fy the rel­ev­ant so­cial ser­vices au­thor­it­ies.

⁴ The vic­tim shall be in­formed of the ac­cused be­ing placed in or re­leased from re­mand or pre­vent­ive de­ten­tion, the or­der­ing of an al­tern­at­ive meas­ure un­der Art­icle 237 para­graph 2 let­ter c or g, or if the ac­cused ab­sconds, un­less he or she has ex­pressly re­ques­ted not to be in­formed.¹⁰⁹ Such in­form­a­tion may not be provided if it would ex­pose the ac­cused to a ser­i­ous danger.

¹ For the pur­pose of in­vest­ig­at­ing an of­fence, the po­lice may stop a per­son and if ne­ces­sary bring that per­son to the po­lice sta­tion in or­der to:

a.

es­tab­lish the per­son's iden­tity;

b.

ques­tion the per­son briefly;

c.

es­tab­lish wheth­er he or she has com­mit­ted an of­fence;

d.

es­tab­lish wheth­er the per­son or items in his or her pos­ses­sion are be­ing traced.

² They may re­quire the per­son they have stopped to:

a.

provide their per­son­al de­tails;

b.

pro­duce iden­tity doc­u­ments;

c.

pro­duce prop­erty in his or her pos­ses­sion;

d.

open con­tain­ers or vehicles.

³ They may re­quest mem­bers of the pub­lic to as­sist them to stop per­sons.

⁴ If there are spe­cif­ic in­dic­a­tions that an of­fence is be­ing com­mit­ted or per­sons sus­pec­ted of an of­fence are loc­ated at a spe­cif­ic place, the po­lice may cor­don off the loc­a­tion and stop the per­son loc­ated there.

¹ The po­lice are en­titled in cases of ur­gency to pur­sue and stop a sus­pect on the ter­rit­ory of an­oth­er com­mune, an­oth­er can­ton and, if in­ter­na­tion­al agree­ments so per­mit, an­oth­er coun­try.

² If the per­son stopped is then ar­res­ted, he or she shall be handed over im­me­di­ately to the com­pet­ent au­thor­ity at the place where he or she was stopped.

¹ The po­lice are ob­liged to ar­rest a per­son and bring that per­son to the po­lice sta­tion if:

a.

they have caught the per­son in the act of com­mit­ting a felony or mis­de­mean­our or they have en­countered the per­son im­me­di­ately after he or she has com­mit­ted such an of­fence;

b.

the per­son is sub­ject to an ar­rest war­rant.

² They may ar­rest a per­son and bring him or her to the po­lice sta­tion if, based on en­quir­ies or oth­er re­li­able in­form­a­tion, the per­son is sus­pec­ted of com­mit­ting a felony or mis­de­mean­our.

³ They may ar­rest a per­son and bring him or her to the po­lice sta­tion if they have caught the per­son in the act of com­mit­ting a con­tra­ven­tion or they have en­countered the per­son im­me­di­ately after he or she has com­mit­ted such an of­fence in the event that:

a.

the per­son re­fuses to provide his or her per­son­al de­tails;

b.

the per­son does not live in Switzer­land and fails to provide se­cur­ity for pay­ment of the an­ti­cip­ated fine im­me­di­ately;

c.

the ar­rest is ne­ces­sary in or­der to pre­vent the per­son from com­mit­ting fur­ther con­tra­ven­tions.

¹ Where there is in­suf­fi­cient time to ob­tain po­lice as­sist­ance, mem­bers of the pub­lic have the right to ar­rest a per­son if:

a.

they have caught the per­son in the act of com­mit­ting a felony or mis­de­mean­our or they have the per­son im­me­di­ately after he or she has com­mit­ted such an of­fence; or

b.

the pub­lic have been re­ques­ted to as­sist in tra­cing of the per­son con­cerned.

² When mak­ing an ar­rest, private in­di­vidu­als may only use force in ac­cord­ance with Art­icle 200.

³ Ar­res­ted per­sons must be handed over to the po­lice as quickly as pos­sible.

¹ The po­lice shall es­tab­lish the iden­tity of the ar­res­ted per­son im­me­di­ately after the ar­rest, in­form him or her of the reas­on for the ar­rest in a lan­guage the per­son can un­der­stand and cau­tion the per­son as to his or her rights un­der Art­icle 158. There­after, they shall in­form the pub­lic pro­sec­utor im­me­di­ately of the ar­rest.

² They shall then ques­tion the ar­res­ted per­son in ac­cord­ance with Art­icle 159 on the sus­pec­ted of­fences and carry out ap­pro­pri­ate in­vest­ig­a­tions im­me­di­ately in or­der to sub­stan­ti­ate or re­but the al­leg­a­tions and any oth­er grounds for de­ten­tion.

³ If in­vest­ig­a­tions re­veal that there are no grounds for de­ten­tion or such reas­ons no longer ap­ply, they shall re­lease the ar­res­ted per­son im­me­di­ately. If the in­vest­ig­a­tions con­firm the sus­pi­cions and any grounds for de­ten­tion, they shall hand the per­son over to the pub­lic pro­sec­utor im­me­di­ately.

⁴ Re­lease or han­dover shall in any case take place at the latest with­in 24 hours; if the per­son was stopped be­fore the ar­rest, then the peri­od while stopped shall be taken in­to ac­count when cal­cu­lat­ing the time lim­it.

⁵ If the po­lice have pro­vi­sion­ally ar­res­ted a per­son in ac­cord­ance with Art­icle 217 para­graph 3, the per­son may only be held for more than 3 hours if a cor­res­pond­ing or­der is giv­en by a po­lice of­ficer au­thor­ised to do so by the Con­fed­er­a­tion or the can­ton.

¹ Re­mand be­gins when it is ordered by the com­puls­ory meas­ures court and ends with the re­ceipt by the court of first in­stance of the in­dict­ment, the ac­cel­er­ated com­mence­ment of a cus­todi­al sanc­tion or with the ac­cused's re­lease dur­ing the in­vest­ig­a­tion.

² Pre­vent­ive de­ten­tion is the peri­od of de­ten­tion between the time of re­ceipt by the court of first in­stance of the in­dict­ment and the is­sue of a fi­nal judg­ment, the com­mence­ment of a cus­todi­al sanc­tion, the en­force­ment of an ex­pul­sion or­der, or the ac­cused's re­lease.¹¹⁰

¹ Re­mand and pre­vent­ive de­ten­tion are only per­mit­ted if there is a strong sus­pi­cion that the ac­cused has com­mit­ted a felony or mis­de­mean­our and there is a ser­i­ous con­cern that the ac­cused:

a.

will evade crim­in­al pro­ceed­ings or the an­ti­cip­ated sanc­tion by ab­scond­ing;

b.

will in­flu­ence people or tamper with evid­ence in or­der to com­prom­ise ef­forts to es­tab­lish the truth; or

c.¹¹¹

will pose a con­sid­er­able and im­me­di­ate risk to the safety of oth­ers by com­mit­ting felon­ies or ser­i­ous mis­de­mean­ours as he or she has already com­mit­ted sim­il­ar of­fences.

^1bis Re­mand and pre­vent­ive de­ten­tion are per­mit­ted by way of ex­cep­tion if:

a.

there is a strong sus­pi­cion that the ac­cused has com­mit­ted a felony or mis­de­mean­our that has ser­i­ously harmed a per­son’s phys­ic­al, men­tal or sexu­al in­teg­rity; and

b.

there is a ser­i­ous and im­me­di­ate risk that the ac­cused will com­mit a sim­il­ar ser­i­ous felony.¹¹²

² De­ten­tion is also per­mit­ted if there is a ser­i­ous and im­me­di­ate risk that a per­son will carry out a threat to com­mit a ser­i­ous felony.¹¹³

Only the de­tain­ee may con­test de­cisions or­der­ing, ex­tend­ing or end­ing his or her re­mand or pre­vent­ive de­ten­tion be­fore the court for Art­icle 393 ap­peals, sub­ject to Art­icle 233.

¹ The de­fence law­yer may be present in de­ten­tion pro­ceed­ings when the ac­cused is in­ter­viewed or when oth­er evid­ence is be­ing gathered.

² The ac­cused may at any time com­mu­nic­ate privately with his or her de­fence law­yer in writ­ing or or­ally in pro­ceed­ings be­fore the pub­lic pro­sec­utor or the courts re­lat­ing to de­ten­tion.

¹ The pub­lic pro­sec­utor shall ques­tion the ac­cused im­me­di­ately and give the ac­cused the op­por­tun­ity to make a state­ment re­gard­ing the sus­pec­ted of­fence and the grounds for re­mand. It shall im­me­di­ately re­cord all evid­ence that may sub­stan­ti­ate or re­but the sus­pi­cions and the grounds for de­ten­tion provided such evid­ence is read­ily avail­able.

² If the sus­pi­cions and the grounds for re­mand are con­firmed, the pub­lic pro­sec­utor shall im­me­di­ately ap­ply to the com­puls­ory meas­ures court, but at the latest with­in 48 hours of the ar­rest, for the ac­cused to be re­manded or for an al­tern­at­ive meas­ure. It shall file its ap­plic­a­tion in writ­ing, with a brief state­ment of reas­ons and the most rel­ev­ant files.

³ If the pub­lic pro­sec­utor de­cides against ap­ply­ing for re­mand, it shall or­der the ac­cused's im­me­di­ate re­lease. If it ap­plies for an al­tern­at­ive meas­ure, it shall take the re­quired pre­vent­ive meas­ures.

¹ On re­ceipt of the ap­plic­a­tion from the pub­lic pro­sec­utor, the com­puls­ory meas­ures court shall im­me­di­ately ar­range a private hear­ing with the pub­lic pro­sec­utor, the ac­cused and his or her de­fence law­yer; it may re­quire the pub­lic pro­sec­utor to par­ti­cip­ate.

² If so re­ques­ted, it shall per­mit the ac­cused and the de­fence to in­spect the files in its pos­ses­sion be­fore the hear­ing.

³ Any per­son who is per­mit­ted not to at­tend the hear­ing may sub­mit ap­plic­a­tions in writ­ing or make ref­er­ence to earli­er sub­mis­sions.

⁴ The com­puls­ory meas­ures court shall gath­er all the im­me­di­ately avail­able evid­ence that may sub­stan­ti­ate or re­but the sus­pi­cions or the grounds for de­ten­tion.

⁵ If the ac­cused ex­pressly waives the right to a hear­ing, the com­puls­ory meas­ures court may de­cide in writ­ten pro­ceed­ings on the basis of the ap­plic­a­tion made by the pub­lic pro­sec­utor and the sub­mis­sions made by the ac­cused.¹¹⁵

¹ The com­puls­ory meas­ures court de­cides im­me­di­ately, but at the latest with­in 48 hours of re­ceipt of the ap­plic­a­tion.

² It shall give im­me­di­ate no­tice of its de­cision to the pub­lic pro­sec­utor, the ac­cused and his or her de­fence law­yer or­ally, or, if they are ab­sent, in writ­ing. It shall then provide them with a brief writ­ten state­ment of the grounds.

³ If it or­ders the ac­cused to be re­manded, it shall in­form the ac­cused that he or she may file an ap­plic­a­tion for re­lease from re­mand at any time.

⁴ In its de­cision it may:

a.

stip­u­late a max­im­um term for re­mand;

b.

in­struct the pub­lic pro­sec­utor to carry out spe­cif­ic in­vest­ig­at­ive activ­it­ies;

c.

or­der al­tern­at­ive meas­ures to re­mand.

⁵ If it de­cides not to or­der the ac­cused to be re­manded, the ac­cused shall be re­leased im­me­di­ately.

¹ If the peri­od on re­mand ordered by the com­puls­ory meas­ures court ex­pires, the pub­lic pro­sec­utor may file an ap­plic­a­tion to ex­tend the peri­od of re­mand. If the com­puls­ory meas­ures court has not lim­ited the peri­od of re­mand, the ap­plic­a­tion must be filed be­fore the ac­cused has spent 3 months on re­mand.

² The pub­lic pro­sec­utor shall file a writ­ten ap­plic­a­tion stat­ing the grounds with the com­puls­ory meas­ures court 4 days at the latest be­fore the ex­piry of the peri­od of re­mand, to­geth­er with the most rel­ev­ant files.

³ The com­puls­ory meas­ures court shall give the ac­cused and his or her de­fence law­yer the op­por­tun­ity to in­spect the files in its pos­ses­sion and to re­spond to the ap­plic­a­tion in writ­ing with­in 3 days.

⁴ It may or­der the pro­vi­sion­al con­tinu­ation of re­mand pending its de­cision.

⁵ The com­puls­ory meas­ures court shall de­cide at the latest with­in 5 days of re­ceipt of the re­sponse or the ex­piry of the time lim­it men­tioned in para­graph 3 above. It may in­struct the pub­lic pro­sec­utor to carry out spe­cif­ic in­vest­ig­at­ive activ­it­ies, or or­der an al­tern­at­ive meas­ure.

⁶ The pro­ceed­ings are nor­mally con­duc­ted in writ­ing, but the com­puls­ory meas­ures court may or­der a hear­ing, which shall be held in private.

⁷ An ex­ten­sion of the peri­od on re­mand may be gran­ted for a max­im­um of 3 months, or in ex­cep­tion­al cases for a max­im­um of 6 months.

¹ The ac­cused may ap­ply to the pub­lic pro­sec­utor at any time in writ­ing or or­ally on re­cord for re­lease from re­mand, sub­ject to para­graph 5 be­low. The ap­plic­a­tion must be ac­com­pan­ied by a brief state­ment of grounds.

² If the pub­lic pro­sec­utor grants the ap­plic­a­tion, it shall re­lease the ac­cused from re­mand im­me­di­ately. If it does not wish to grant the ap­plic­a­tion, it shall pass the same to­geth­er with the files no later than 3 days after re­ceipt to the com­puls­ory meas­ures court ac­com­pan­ied by a state­ment of its opin­ion.

³ The com­puls­ory meas­ures court shall send the opin­ion to the ac­cused and his or her de­fence law­yer and al­low them 3 days to re­spond.

⁴ The com­puls­ory meas­ures court shall de­cide at the latest with­in 5 days of re­ceiv­ing the re­sponse or of the ex­piry of the time lim­it men­tioned in para­graph 3 above. If the ac­cused ex­pressly waives the right to a hear­ing, the de­cision may be is­sued in writ­ten pro­ceed­ings. Art­icle 226 para­graphs 2–5 also ap­plies mu­tatis mutandis.

⁵ The com­puls­ory meas­ures court may in its de­cision spe­cify a time lim­it of a max­im­um of one month with­in which the ac­cused is not per­mit­ted to file a fur­ther ap­plic­a­tion for re­lease.

¹ In cases where the ac­cused has already been on re­mand, an ap­plic­a­tion for pre­vent­ive de­ten­tion is filed in writ­ing by the pub­lic pro­sec­utor and the de­cision on wheth­er to or­der pre­vent­ive de­ten­tion is taken by the com­puls­ory meas­ures court.

² Where grounds for de­ten­tion arise only after charges have been brought, the dir­ect­or of pro­ceed­ings in the court of first in­stance shall con­duct de­ten­tion pro­ceed­ings in ana­log­ous ap­plic­a­tion of Art­icle 224 and shall re­quest the com­puls­ory meas­ures court to or­der pre­vent­ive de­ten­tion.

³ The pro­ceed­ings be­fore the com­puls­ory meas­ures court are gov­erned by:

a.

Art­icles 225 and 226 mu­tatis mutandis where the ac­cused has not been on re­mand;

b.

Art­icle 227 mu­tatis mutandis where the ac­cused has already been on re­mand.

¹ The ac­cused and the pub­lic pro­sec­utor may file an ap­plic­a­tion for re­lease from de­ten­tion dur­ing the pro­ceed­ings be­fore the court of first in­stance.

² The ap­plic­a­tion must be sub­mit­ted to the dir­ect­or of pro­ceed­ings in the court of first in­stance.

³ If the dir­ect­or of pro­ceed­ings grants the ap­plic­a­tion, he or she shall re­lease the ac­cused from de­ten­tion im­me­di­ately. If the dir­ect­or of pro­ceed­ings does not wish to grant the ap­plic­a­tion, it shall be passed on to the com­puls­ory meas­ures court for a de­cision to be made.

⁴ The dir­ect­or of pro­ceed­ings in the court of first in­stance may also or­der the ac­cused to be re­leased from de­ten­tion provided the pub­lic pro­sec­utor con­sents. If the pub­lic pro­sec­utor does not con­sent, the com­puls­ory meas­ures court de­cides.

⁵ The pro­vi­sions of Art­icle 228 also ap­ply mu­tatis mutandis.

¹ The court of first in­stance shall de­cide in its judg­ment wheth­er a per­son con­victed should be placed or should re­main in pre­vent­ive de­ten­tion:

a.

in or­der to en­sure that a sen­tence or meas­ure is duly ex­ecuted;

b.

with a view to ap­pel­late pro­ceed­ings.

² If an ac­cused in de­ten­tion is ac­quit­ted and the court of first in­stance or­ders his or her re­lease, the pub­lic pro­sec­utor may:

a.

ap­ply to the court of first in­stance for the re­lease to be com­bined with meas­ures, giv­ing no­tice of the pen­al­ties un­der Art­icle 292 SCC¹¹⁶, in or­der to en­sure that the per­son re­leased at­tends the ap­pel­late pro­ceed­ings. The per­son re­leased and the pub­lic pro­sec­utor may con­test de­cisions on the meas­ures ordered be­fore the court for Art­icle 393 ap­peals;

b.

ap­ply to the court of first in­stance for the dir­ect­or of ap­pel­late pro­ceed­ings to or­der the con­tinu­ation of pre­vent­ive de­ten­tion if there is a ser­i­ous and im­me­di­ate risk to the safety of oth­ers as the res­ult of a felony or ser­i­ous mis­de­mean­our. In such a case, the per­son con­cerned shall re­main in de­ten­tion un­til the dir­ect­or of ap­pel­late pro­ceed­ings makes a de­cision. The dir­ect­or of ap­pel­late pro­ceed­ings shall de­cide on the ap­plic­a­tion made by the pub­lic pro­sec­utor with­in 5 days of the ap­plic­a­tion be­ing filed.¹¹⁷

³ If the Art­icle 398 ap­peal is with­drawn, the court of first in­stance shall de­cide on how the peri­od spent in de­ten­tion fol­low­ing the judg­ment will be taken in­to ac­count.

¹ If grounds for de­ten­tion arise only dur­ing pro­ceed­ings be­fore the court for Art­icle 398 ap­peals, the dir­ect­or of ap­pel­late pro­ceed­ings shall or­der the per­son to be placed in de­ten­tion to be brought be­fore the court im­me­di­ately in or­der to a fair hear­ing.

² A de­cision shall be made with­in 48 hours of the hear­ing; their de­cision is fi­nal.

The dir­ect­or of ap­pel­late pro­ceed­ings shall de­cide on an ap­plic­a­tion for re­lease from de­ten­tion with­in 5 days; the de­cision is fi­nal.

¹ Re­mand and pre­vent­ive de­ten­tion is nor­mally car­ried out in de­ten­tion centres re­served for this pur­pose and which are oth­er­wise used only for the ex­e­cu­tion of short cus­todi­al sen­tences.

² If it is ad­vis­able for med­ic­al reas­ons, the rel­ev­ant can­ton­al au­thor­ity may ar­range for the de­tain­ee to be ad­mit­ted to a hos­pit­al or psy­chi­at­ric hos­pit­al.

¹ The de­tain­ee's per­son­al free­dom may not be more strictly lim­ited than is re­quired for the pur­pose of de­ten­tion or for or­der and se­cur­ity in the de­ten­tion centre.

² Con­tact between the de­tain­ee and oth­er per­sons re­quires au­thor­isa­tion from the dir­ect­or of pro­ceed­ings. Vis­its shall if ne­ces­sary be su­per­vised.

³ The dir­ect­or of pro­ceed­ings shall in­spect in­com­ing and out­go­ing post, with the ex­cep­tion of cor­res­pond­ence with the su­per­vis­ory and crim­in­al justice au­thor­it­ies. Dur­ing pre­vent­ive de­ten­tion, the dir­ect­or of pro­ceed­ings may del­eg­ate this task to the pub­lic pro­sec­utor.

⁴ The de­tain­ee may com­mu­nic­ate freely with his or her de­fence law­yer without the con­tent of com­mu­nic­a­tions be­ing in­spec­ted. If there is jus­ti­fied sus­pi­cion that this right is be­ing ab­used, the dir­ect­or of pro­ceed­ings may with ap­prov­al of the com­puls­ory meas­ures court re­strict free com­mu­nic­a­tion for a lim­ited peri­od, provided pri­or no­tice is giv­en to the de­tain­ee and the de­fence law­yer of the re­stric­tions.

⁵ The can­tons shall reg­u­late the rights and ob­lig­a­tions of per­sons in cus­tody, their rights to leg­al re­dress, dis­cip­lin­ary meas­ures and the su­per­vi­sion of de­ten­tion centres.

¹ The dir­ect­or of pro­ceed­ings may au­thor­ise the ac­cused to be­gin a cus­todi­al sen­tence or cus­todi­al meas­ure in ad­vance of the an­ti­cip­ated date, provided the status of the pro­ceed­ings per­mit this and un­less this con­flicts with the pur­pose of the ac­cused's re­mand or pre­vent­ive de­ten­tion.¹¹⁸

² If the charges have already been filed, the dir­ect­or of pro­ceed­ings shall con­sult the pub­lic pro­sec­utor.

³ The Con­fed­er­a­tion and the can­tons may provide that the ex­e­cu­tion of a meas­ure in ad­vance of the an­ti­cip­ated date re­quires the con­sent of the au­thor­it­ies re­spons­ible for its ex­e­cu­tion.

⁴ On ad­mis­sion to a pen­al in­sti­tu­tion, the ac­cused be­gins his or her sen­tence or meas­ure; from this point the ac­cused is gov­erned by the rel­ev­ant re­gime.¹¹⁹

¹ The rel­ev­ant court shall or­der one or more le­ni­ent meas­ures in­stead of re­mand or pre­vent­ive de­ten­tion if such meas­ures achieve the same res­ult as de­ten­tion.

² Al­tern­at­ive meas­ures in­clude in par­tic­u­lar:

a.

the pay­ment of money bail;

b.

the sur­ren­der­ing of a pass­port or iden­tity pa­pers;

c.

the re­quire­ment to stay or not to stay in a spe­cif­ic place or in a spe­cif­ic house;

d.

the re­quire­ment to re­port to a pub­lic of­fice at reg­u­larly in­ter­vals;

e.

the re­quire­ment to do a reg­u­lar job;

f.

the re­quire­ment to un­der­go med­ic­al treat­ment or a med­ic­al ex­am­in­a­tion;

g.

the pro­hib­i­tion of mak­ing con­tact with spe­cif­ic per­sons.

³ In or­der to mon­it­or such al­tern­at­ive meas­ures, the court may or­der the use of tech­nic­al devices and that they be se­curely fastened to the per­son be­ing mon­itored.

⁴ The or­der­ing of al­tern­at­ive meas­ures and ap­peals against such meas­ures are gov­erned mu­tatis mutandis by the reg­u­la­tions on re­mand and pre­vent­ive de­ten­tion.

⁵ The court may re­voke the al­tern­at­ive meas­ures at any time, or or­der oth­er al­tern­at­ive meas­ures or the ac­cused's re­mand or pre­vent­ive de­ten­tion if new cir­cum­stances so re­quire or if the ac­cused fails to ful­fil the re­quire­ments stip­u­lated.

¹ Where there is a risk that the ac­cused may ab­scond, the rel­ev­ant court may or­der pay­ment of a sum of money in or­der to en­sure that the ac­cused ap­pears for all pro­ced­ur­al acts or to be­gin a cus­todi­al sanc­tion.

² The amount of the bail pay­ment is as­sessed on the basis of the ser­i­ous­ness of the of­fences of which the ac­cused is sus­pec­ted and of the ac­cused's per­son­al cir­cum­stances.

³ The pay­ment of money bail may be made in cash or by means of a guar­an­tee is­sued by a bank or in­sur­ance com­pany per­man­ently es­tab­lished in Switzer­land.

¹ The bail pay­ment shall be re­turned if:

a.

the grounds for de­ten­tion no longer ap­ply;

b.

the crim­in­al pro­ceed­ings are con­cluded by a fi­nal judg­ment of aban­don­ment or ac­quit­tal;

c.

the ac­cused has be­gun a cus­todi­al sanc­tion.

² Be­fore the bail pay­ment made by the ac­cused is re­turned, any mon­et­ary pen­al­ties, fines, costs and com­pens­a­tion that have been im­posed on the ac­cused may be de­duc­ted from it.

³ The au­thor­ity be­fore which the case is pending or was last pending shall de­cide on the re­turn of the bail pay­ment.

¹ If the ac­cused ab­sconds dur­ing the pro­ceed­ings or the ex­e­cu­tion of a cus­todi­al sanc­tion, the bail pay­ment shall be for­feited to the Con­fed­er­a­tion or to the can­ton whose court ordered the same.

² If a third party made the bail pay­ment, the for­feit­ure may be waived if the third party provides the au­thor­it­ies with in­form­a­tion in good time to en­able the ac­cused to be ap­pre­hen­ded.

³ The au­thor­ity be­fore which the case is pending or was last pending shall de­cide on the for­feit­ure of the bail pay­ment.

⁴ A for­feited bail pay­ment shall be used in ana­log­ous ap­plic­a­tion of Art­icle 73 SCC¹²⁰ to cov­er the claims of per­sons suf­fer­ing harm and, if a sur­plus re­mains, to cov­er the mon­et­ary pen­al­ties, fines and the pro­ced­ur­al costs. Any sur­plus still re­main­ing shall pass to the Con­fed­er­a­tion or the can­ton.

¹ Searches shall be au­thor­ised by writ­ten war­rant. In cases of ur­gency, they may be au­thor­ised or­ally, but this must be con­firmed sub­sequently in writ­ing.

² The war­rant shall in­dic­ate:

a.

the per­sons, premises, items or re­cords or re­cord­ings to be searched or searched for;

b.

the pur­pose of the meas­ure;

c.

the au­thor­it­ies or per­sons au­thor­ised to con­duct the meas­ure.

³ If there is a risk in any delay, the po­lice may au­thor­ise the manu­al search of body ori­fices and body cav­it­ies and carry out searches without a war­rant; they shall in­form com­pet­ent crim­in­al justice au­thor­ity about the search im­me­di­ately.

⁴ The po­lice may search a per­son who has been stopped or ar­res­ted per­son, in par­tic­u­lar in or­der to guar­an­tee the safety of oth­er per­sons.

¹ The au­thor­it­ies or per­sons car­ry­ing out the search shall take suit­able safety pre­cau­tions in or­der to achieve the aim of the meas­ure.

² They may pro­hib­it per­sons from leav­ing dur­ing a search.

¹ Forensic evid­ence or items found that are not con­nec­ted with the of­fence un­der in­vest­ig­a­tion, but which ap­pear to re­late to a dif­fer­ent of­fence shall be se­cured.

² The items shall be handed over with a re­port there­on to the dir­ect­or of pro­ceed­ings, who shall de­cide on the fur­ther course of ac­tion.

¹ Houses, dwell­ings and oth­er rooms not gen­er­ally ac­cess­ible may only be searched with the con­sent the pro­pri­et­or.

² The pro­pri­et­or's con­sent is not re­quired if it is sus­pec­ted that on the premises:

a.

there are wanted per­sons;

b.

there is forensic evid­ence or items or as­sets that must be seized;

c.

of­fences are be­ing com­mit­ted.

¹ The per­sons au­thor­ised to carry out the search shall pro­duce the search war­rant at the start of the search.

² Pro­pri­et­ors of premises be­ing searched who are present must re­main on the premises dur­ing the search. If they are ab­sent, if pos­sible an adult fam­ily mem­ber or an­oth­er suit­able per­son must re­main present.

Doc­u­ments, au­dio, video and oth­er re­cord­ings, data car­ri­ers and equip­ment for pro­cessing and stor­ing in­form­a­tion may be searched if it is sus­pec­ted that they con­tain in­form­a­tion that is li­able to seizure.

¹ The hold­er may com­ment be­fore a search on the con­tent of re­cords.

² Ex­perts may be called in to ex­am­ine the con­tent of re­cords, and in par­tic­u­lar to identi­fy re­cords with pro­tec­ted con­tent.

³ The hold­er may provide the crim­in­al justice au­thor­ity with cop­ies of re­cords and prin­touts of stored in­form­a­tion if this is suf­fi­cient for the pur­pose of the pro­ceed­ings.

¹ If the hold­er claims that, in view of Art­icle 264, spe­cif­ic re­cords or oth­er items may not be seized, crim­in­al justice au­thor­ity shall place the same un­der seal. The hold­er must make the re­quest with­in three days of the items be­ing se­cured. Dur­ing this peri­od and fol­low­ing any seal­ing, the crim­in­al justice au­thor­ity shall neither in­spect nor use the re­cords or items.

² If the crim­in­al justice au­thor­ity es­tab­lishes that the hold­er is not the same per­son as the pro­pri­et­or, it shall give the pro­pri­et­or the op­por­tun­ity to re­quest seal­ing with­in three days.

³ Un­less the crim­in­al justice au­thor­ity files a re­quest for the re­mov­al of the seals with­in 20 days, the sealed re­cords and prop­erty shall be re­turned to the hold­er.

¹ If the crim­in­al justice au­thor­ity files a re­quest for the re­mov­al of the seals, the fol­low­ing are re­spons­ible for the de­cision:

a.

in pre­lim­in­ary pro­ceed­ings and in pro­ceed­ings be­fore the court of first in­stance: the com­puls­ory meas­ures court;

b.

in oth­er cases: the dir­ect­or of pro­ceed­ings in the court be­fore which the case is pending.

² If, after re­ceiv­ing the re­quest for the re­mov­al of seals, the court es­tab­lishes that the hold­er is not the same per­son as the pro­pri­et­or, it shall in­form the pro­pri­et­or of the seal­ing. On re­quest, it shall per­mit the pro­pri­et­or to in­spect the case files.

³ The court shall al­low the pro­pri­et­or a non-ex­tend­able peri­od of 10 days, with­in which to ob­ject to the re­quest for the re­mov­al of seals and state to what ex­tent he or she wishes to main­tain the seal­ing. Fail­ure to re­spond is deemed equi­val­ent to the with­draw­ing the re­quest for seal­ing.

⁴ If the mat­ter is ready for a de­cision to be made, the court shall is­sue a fi­nal de­cision with­in 10 days of re­ceipt of the re­sponse in writ­ten pro­ceed­ings.

⁵ Oth­er­wise, the court shall with­in 30 days of re­ceipt of the re­sponse ar­range a private hear­ing with the pub­lic pro­sec­utor and the pro­pri­et­or. The pro­pri­et­or must cred­ibly ex­plain why and to what ex­tent the seals should not be re­moved from the re­cords or items. The court shall is­sue its de­cision im­me­di­ately; the de­cision is fi­nal.

⁶ The court may:

a.

call in an ex­pert in or­der to ex­am­ine the con­tent of re­cords and items, be gran­ted ac­cess to the same or to guar­an­tee their in­teg­rity;

b.

des­ig­nate po­lice of­ficers as ex­perts in or­der that they are gran­ted ac­cess to the con­tent of the re­cords and items or guar­an­tee their in­teg­rity.

⁷ If the pro­pri­et­or fails to at­tend the hear­ing without provid­ing an ex­cuse and if they do not ar­range to be rep­res­en­ted either, the re­quest for seal­ing is deemed to have been with­drawn. If the pub­lic pro­sec­utor fails to at­tend, the court shall de­cide in its ab­sence.

Per­sons and prop­erty may only be searched without con­sent if it is sus­pec­ted that forensic evid­ence or items or as­sets that must be seized may be found.

¹ Search­ing per­sons in­cludes the ex­am­in­a­tion of cloth­ing, items car­ried by the per­son con­cerned, con­tain­ers and vehicles, the sur­face of the body and vis­ible body ori­fices and body cav­it­ies.

² Searches of a per­son's gen­it­al area shall be car­ried out by a per­son of the same gender or by a doc­tor, un­less the meas­ure can­not be delayed.

¹ An ex­am­in­a­tion of a per­son in­cludes an ex­am­in­a­tion of their phys­ic­al or men­tal con­di­tion.

² The ac­cused may be ques­tioned in or­der to:

a.

es­tab­lish the facts of the case;

b.

es­tab­lish wheth­er the he or she had the men­tal ca­pa­city to be held crim­in­ally li­able, is fit to plead and to with­stand de­ten­tion.

³ In­ter­ven­tions in the phys­ic­al in­teg­rity of the ac­cused may be ordered provided they do not cause par­tic­u­lar pain or any risk to health.

⁴ Ex­am­in­a­tions and in­ter­ven­tions in the phys­ic­al in­teg­rity of per­sons oth­er than the ac­cused are only per­mit­ted without con­sent if they are es­sen­tial in or­der to prop­erly in­vest­ig­ate an of­fence un­der Art­icles 111–113, 122, 124, 140, 184, 185, 187, 189, 190 or 191 SCC¹²³.¹²⁴

In or­der to es­tab­lish fit­ness to drive, the po­lice may:

a.

con­duct an al­co­hol breath test;

b.

take a blood sample and or­der its ana­lys­is in cases in which fed­er­al law pre­scribes a blood test;

c.

or­der the tak­ing and ana­lys­is of a ur­ine sample.

Ex­am­in­a­tions of per­sons and in­ter­ven­tions in their phys­ic­al in­teg­rity shall be car­ried out by a doc­tor or an­oth­er med­ic­al spe­cial­ist.

¹ If there are in­dic­a­tions that a death did not oc­cur nat­ur­ally, and in par­tic­u­lar in­dic­a­tions of an of­fence, or if the body is uniden­ti­fied, the pub­lic pro­sec­utor shall or­der an ex­am­in­a­tion of the body to be car­ried out by a spe­cial­ist doc­tor in or­der to es­tab­lish the cause of death or to identi­fy the body.

² If, after the ex­am­in­a­tion of the body, there is no evid­ence that an of­fence has been com­mit­ted and if iden­tity is es­tab­lished, the pub­lic pro­sec­utor shall re­lease the body for the fu­ner­al.

³ The pub­lic pro­sec­utor shall oth­er­wise or­der the body to be se­cured and fur­ther tests, and if ne­ces­sary an autopsy to be car­ried out by an in­sti­tute for forensic medi­cine. It may or­der the body or parts there­of to be re­tained for as long as re­quired for the pur­pose of the in­vest­ig­a­tion.

⁴ The can­tons shall de­cide per­sons in the med­ic­al pro­fes­sion are re­quired to re­port un­nat­ur­al deaths to the crim­in­al justice au­thor­it­ies.

If it ap­pears ne­ces­sary in for the prop­er in­vest­ig­a­tion of an of­fence, the ex­huma­tion of a body or the open­ing of an urn con­tain­ing its ashes may be ordered.

¹ In or­der to in­vest­ig­ate the felony or mis­de­mean­our that is the sub­ject of the pro­ceed­ings, a sample may be taken to cre­ate a DNA pro­file of:¹²⁷

a.

the ac­cused;

b.

oth­er per­sons, in par­tic­u­lar vic­tims or per­sons en­titled to be present at the place of com­mis­sion, in­so­far as this is ne­ces­sary to dis­tin­guish their bio­lo­gic­al ma­ter­i­al from that of the ac­cused;

c.

de­ceased per­sons;

d.

bio­lo­gic­al ma­ter­i­al rel­ev­ant to the of­fence.

^1bis A sample may be taken from and a DNA pro­file cre­ated of the ac­cused if there are spe­cif­ic in­dic­a­tions that the ac­cused could have com­mit­ted fur­ther felon­ies or mis­de­mean­ours.¹²⁸

² The po­lice may or­der:

a.

a sample to be taken from per­sons by non-in­vas­ive meth­ods;

b.

the cre­ation of a DNA pro­file from bio­lo­gic­al ma­ter­i­al rel­ev­ant to the of­fence.

³ If it is only pos­sible to cre­ate the Y-DNA pro­file from bio­lo­gic­al ma­ter­i­al rel­ev­ant to the of­fence, the pub­lic pro­sec­utor may when in­vest­ig­at­ing a felony or­der its com­par­is­on with data in the in­form­a­tion sys­tem in ac­cord­ance with Art­icle 10 of the DNA Pro­files Act of 20 June 2003¹²⁹.¹³⁰

¹ In an in­vest­ig­a­tion in­to a felony, the com­puls­ory meas­ures court may at the re­quest of the pub­lic pro­sec­utor or­der that samples be taken to cre­ate DNA pro­files from per­sons who dis­play spe­cif­ic char­ac­ter­ist­ics es­tab­lished as be­ing rel­ev­ant to the com­mis­sion of the of­fence. The group of per­sons to be in­vest­ig­ated may be more strictly defined by means of phen­o­typ­ing in ac­cord­ance with Art­icle 258b.

² If the pro­file com­par­is­on in ac­cord­ance with para­graph 1 does not pro­duce a match, the com­puls­ory meas­ures court may, at the re­quest of the pub­lic pro­sec­utor, or­der that a fa­mili­al re­la­tion­ship with the per­son to whom forensic evid­ence per­tains be used as a basis for fur­ther in­vest­ig­a­tions.

The court may in its judg­ment or­der that a sample be taken to cre­ate a DNA pro­file from per­sons con­victed of a felony or a mis­de­mean­our if there are spe­cif­ic in­dic­a­tions that the con­victed per­son could com­mit fur­ther felon­ies or mis­de­mean­ours.

Where in­vas­ive meth­ods are used to take samples, the sample shall be taken by a doc­tor or an­oth­er med­ic­al spe­cial­ist.

In or­der to in­vest­ig­ate a felony un­der Art­icles 111−113, 118 para­graph 2, 122, 124, 140, 156 num­bers 2−4, 182, 184, 185, 187, 189 para­graphs 1 and 3, 190 para­graphs 1 and 3, 191, 260^ter or 264−264l SCC¹³⁴, a fa­mili­al DNA search may be ordered in ac­cord­ance with Art­icle 2a of the DNA Pro­files Act of 20 June 2003¹³⁵, provided the in­vest­ig­at­ive meas­ures up to that point have been un­suc­cess­ful or the in­vest­ig­a­tion would oth­er­wise have no pro­spect of suc­cess or would be made dis­pro­por­tion­ately more dif­fi­cult.

Phen­o­typ­ing in ac­cord­ance with Art­icle 2bof the DNA Pro­files Act of 20 June 2003¹³⁸ may be ordered when in­vest­ig­at­ing felon­ies un­der the fol­low­ing Art­icles: Art­icles 111−113, 118 para­graph 2, 122, 124, 140, 156 num­bers 2−4, 182, 184, 185, 187, 189 para­graphs 1 and 3, 190 para­graphs 1 and 3, 191, 260^ter or 264−264lSCC¹³⁹.

The DNA Pro­files Act of 20 June 2003¹⁴⁰ also ap­plies.

¹ When re­cord­ing iden­ti­fic­a­tion data, the phys­ic­al char­ac­ter­ist­ics of a per­son shall be noted and prints taken of parts of the body.

² The po­lice, the pub­lic pro­sec­utor and the courts, or in cases of ur­gency the dir­ect­or of pro­ceed­ings may or­der the re­cord­ing of identi­fy­ing data.

³ The re­cord­ing of identi­fy­ing data shall be ordered in a writ­ten war­rant, with a brief state­ment of the reas­ons. In cases of ur­gency, it may be ordered or­ally, but must sub­sequently be con­firmed and ex­plained in writ­ing.

⁴ If the per­son con­cerned re­fuses to ac­cept the po­lice or­der, the pub­lic pro­sec­utor shall de­cide.

¹ Doc­u­ments that identi­fy the ac­cused may be re­tained out­side the case file and, in the event of a reas­on­able sus­pi­cion that a new of­fence has been com­mit­ted, may also be used:

un­til the ex­piry the time lim­its for the de­le­tion of DNA pro­files in ac­cord­ance with Art­icles 16–18 of the DNA Pro­files Act of 20 June 2003¹⁴²; or

b.¹⁴³

in the event of a con­vic­tion for a con­tra­ven­tion: for five years from the date of the judg­ment, provided the judg­ment is fi­nal.

² Doc­u­ments identi­fy­ing per­sons oth­er than the ac­cused must be des­troyed as soon as the pro­ceed­ings against the ac­cused have been con­cluded or aban­doned or it has been de­cided not to bring pro­ceed­ings.

³ If it be­comes clear be­fore the ex­piry of the time lim­its un­der para­graph 1 that there is no longer any in­terest in re­tain­ing or us­ing the identi­fy­ing doc­u­ments, they shall be des­troyed.

¹ Ac­cused per­sons, wit­nesses and per­sons provid­ing in­form­a­tion may be re­quired to provide hand­writ­ing or voice samples for com­par­is­on with oth­er such samples.

² Any per­son who re­fuses to provide such a sample may be is­sued with a fixed pen­alty fine. The fore­go­ing does not ap­ply to the ac­cused and, where such rights ap­ply, per­sons who have the right to re­main si­lent or to re­fuse to testi­fy.

¹ Items and as­sets be­long­ing to an ac­cused or to a third party may be seized if it is ex­pec­ted that the items or as­sets:

a.

will be used as evid­ence;

b.

will be used as se­cur­ity for pro­ced­ur­al costs, mon­et­ary pen­al­ties, fines or com­pens­a­tion;

c.

will have to be re­turned to the per­sons suf­fer­ing harm;

d.

will have to be for­feited;

e.¹⁴⁴

will be used to cov­er com­pens­a­tion claims made by the State in ac­cord­ance with Art­icle 71 SCC¹⁴⁵.

² Seizure shall be ordered on the basis of a writ­ten war­rant con­tain­ing a brief state­ment of the grounds. In ur­gent cases, seizure may be ordered or­ally, but the or­der must there­after be con­firmed in writ­ing.

³ Where there is a risk in any delay, the po­lice or mem­bers of the pub­lic may pro­vi­sion­ally seize items or as­sets on be­half of the pub­lic pro­sec­utor or the courts.

¹ The fol­low­ing items may not be seized ir­re­spect­ive of their loc­a­tion and of when they were cre­ated:

a.

doc­u­ments used in com­mu­nic­a­tions between the ac­cused and his or her de­fence law­yer;

b.

per­son­al re­cords and cor­res­pond­ence be­long­ing to the ac­cused if the in­terest in pro­tect­ing his or her pri­vacy out­weighs the in­terest in pro­sec­u­tion;

c.¹⁴⁶

items and doc­u­ments used in com­mu­nic­a­tions between the ac­cused and per­sons who may re­fuse to testi­fy in ac­cord­ance with Art­icles 170–173 and who are not ac­cused of an of­fence re­lat­ing to the same case;

d.¹⁴⁷

items and doc­u­ments used in com­mu­nic­a­tions between an­oth­er per­son and his or her law­yer provided the law­yer is en­titled to rep­res­ent cli­ents be­fore Swiss courts in ac­cord­ance with the Law­yers Act of 23 June 2000¹⁴⁸ and is not ac­cused an of­fence re­lat­ing to the same case.

² The re­stric­tions in ac­cord­ance with para­graph 1 do not ap­ply to items and as­sets that must be seized with a view to their re­turn to the per­son suf­fer­ing harm or their for­feit­ure.

³ If the hold­er of items or as­sets claims that their seizure is not per­mit­ted, the crim­in­al justice au­thor­it­ies shall pro­ceed in ac­cord­ance with the reg­u­la­tions on the seal­ing of evid­ence.¹⁴⁹

¹ The hold­er is ob­liged to hand over items or as­sets that should be seized.

² The fol­low­ing per­sons are not re­quired to hand over items or as­sets:

a.

the ac­cused;

b.

per­sons who have the right to re­main si­lent or to re­fuse to testi­fy, to the ex­tent that that right ap­plies;

c.

cor­por­ate un­der­tak­ings, if by hand­ing over items they could in­crim­in­ate them­selves such that they:

1.

could be held li­able un­der crim­in­al law or

2.

could be held li­able un­der civil law and if their in­terest in pro­tec­tion out­weighs the in­terest in pro­sec­u­tion.

³ The crim­in­al justice au­thor­ity may de­mand that the per­son ob­liged to hand over items or as­sets does so, may fix a dead­line, and no­ti­fy him or her that in the event of non-com­pli­ance the pen­al­ties men­tioned in Art­icle 292 SCC¹⁵⁰ or a fixed pen­alty fine may be im­posed.

⁴ Com­puls­ory meas­ures are only per­mit­ted if the per­son con­cerned re­fuses to hand over the items or as­sets or if it may be as­sumed that a de­mand to hand over the items or as­sets may pre­ju­dice the suc­cess of the meas­ure.

¹ The crim­in­al justice au­thor­ity or­der­ing seizure shall con­firm that it has re­ceived the prop­erty and as­sets seized or handed over in the seizure or­der or in a sep­ar­ate re­ceipt.

² It shall draw up a list and safe­guard the prop­erty and as­sets ap­pro­pri­ately.

³ If im­mov­able prop­erty is seized, an in­hib­i­tion shall be ordered; this shall be re­cor­ded in the Land Re­gister.¹⁵¹

⁴ The seizure of a debt shall be no­ti­fied to the debt­or, who shall be ad­vised that re­pay­ment to the cred­it­or will not settle the debt.

⁵ Prop­erty that is sub­ject to rap­id de­pre­ci­ation or re­quires ex­pens­ive main­ten­ance, as well as se­cur­it­ies or oth­er as­sets with a stock ex­change or mar­ket price may be sold im­me­di­ately in ac­cord­ance with the Fed­er­al Act of 11 April 1889¹⁵² on Debt En­force­ment and Bank­ruptcy (DEBA). The pro­ceeds shall be seized.

⁶ The Fed­er­al Coun­cil shall reg­u­late the in­vest­ment of seized as­sets.

¹ If the grounds for seizure no longer ap­ply, the pub­lic pro­sec­utor or court shall re­voke the seizure or­der and hand over the prop­erty or as­sets to the per­son en­titled to them.

² Where it is un­dis­puted that a per­son has as a dir­ect res­ult of the of­fence been de­prived of an item of prop­erty or an as­set be­long­ing to him or her, the crim­in­al justice au­thor­ity shall re­turn the prop­erty or as­set to the per­son en­titled to it be­fore the con­clu­sion of the pro­ceed­ings.

³ Un­less the or­der to seize an item of prop­erty or an as­set has already been re­voked, a de­cision on its re­turn to the en­titled per­son, its use to cov­er costs or its for­feit­ure in shall be made in the fi­nal judg­ment.

⁴ If two or more per­sons lay claim to an item of prop­erty or an as­set in re­spect of which the seizure or­der is to be re­voked, the court may de­cide on the is­sue.

⁵ The crim­in­al justice au­thor­ity may award prop­erty or as­sets to a per­son and set the oth­er claimants a time lim­it with­in which to raise a civil ac­tion.

⁶ If at the time when the seizure or­der is re­voked the iden­tity of the per­son en­titled to the prop­erty or as­sets is un­known, the pub­lic pro­sec­utor or the court shall give pub­lic no­tice that the prop­erty or as­sets are avail­able to be claimed. If no one makes a claim with­in five years of no­tice be­ing giv­en, the seized prop­erty and as­sets shall pass to the can­ton or to the Con­fed­er­a­tion.

¹ As­sets be­long­ing to the ac­cused may be seized to the ex­tent that is an­ti­cip­ated to be re­quired to cov­er:

a.

pro­ced­ur­al costs and com­pens­a­tion;

b.

mon­et­ary pen­al­ties and fines.

² The crim­in­al justice au­thor­ity shall take ac­count of the fin­an­cial cir­cum­stances of the ac­cused and his or her fam­ily when de­cid­ing on seizure.

³ Ex­emp­ted from seizure are as­sets that may not be seized in ac­cord­ance with Art­icles 92–94 DEBA¹⁵³.

¹ The pub­lic pro­sec­utor may ar­range for post and tele­com­mu­nic­a­tions to be mon­itored if:

a.

there is a strong sus­pi­cion that an of­fence lis­ted in para­graph 2 has been com­mit­ted;

b.

the ser­i­ous­ness of the of­fence jus­ti­fies sur­veil­lance; and

c.

in­vest­ig­at­ive activ­it­ies car­ried out so far have been un­suc­cess­ful or the en­quir­ies would oth­er­wise have no pro­spect of suc­cess or be made un­reas­on­ably com­plic­ated.

² Sur­veil­lance may be ordered in the in­vest­ig­a­tion of the of­fences un­der the fol­low­ing Art­icles:

a.¹⁵⁴

SCC¹⁵⁵: Art­icles 111–113, 115, 118 para­graph 2, 122, 124, 127, 129, 135, 138–140, 143, 144 para­graph 3, 144^bis num­ber 1 para­graph 2 and num­ber 2 para­graph 2, 146–148, 156, 157 num­ber 2, 158 num­ber 1 para­graph 3 and num­ber 2, 160, 163 num­ber 1, 180, 181, 182–185, 187, 188, 189–191, 193, 193a, 195–197, 220, 221 para­graphs 1 and 2, 223 num­ber 1, 224 para­graph 1, 226–226^ter, 227 num­ber 1 para­graph 1, 228 num­ber 1 para­graph 1, 230^bis, 231 num­ber 1, 232 num­ber 1, 233 num­ber 1, 234 para­graph 1, 237 num­ber 1, 240 para­graph 1, 242, 244, 251 num­ber 1, 258, 259 para­graph 1, 260^bis–260^sex­ies, 261^bis, 264–267, 271, 272 num­ber 2, 273, 274 num­ber 1 para­graph 2, 285, 301, 303 num­ber 1, 305, 305^bis num­ber 2, 310, 312, 314, 317 num­ber 1, 319, 322^ter, 322^quater and 322^sep­ties;

b.¹⁵⁶

For­eign Na­tion­als and In­teg­ra­tion Act¹⁵⁷ of 16 Decem­ber 2005¹⁵⁸: Art­icles 116 para­graph 3 and 118 para­graph 3;

c.

Fed­er­al Act of 22 June 2001¹⁵⁹ on the Hag­ue Con­ven­tion on Ad­op­tion and on Meas­ures to Pro­tect Chil­dren in In­ter­na­tion­al Ad­op­tion Cases: Art­icle 24;

d.¹⁶⁰

War Ma­ter­i­al Act of 13 Decem­ber 1996¹⁶¹: Art­icles 33 para­graph 2 and 34–35b;

e.

Nuc­le­ar En­ergy Act of 21 March 2003¹⁶²: Art­icles 88 para­graphs 1 and 2, 89 para­graphs 1 and 2 and 90 para­graph 1;

f.¹⁶³

NarcA¹⁶⁴: Art­icles 19 num­ber 1 second sen­tence and num­ber 2, and 20 num­ber 1 second sen­tence;

g.¹⁶⁵

En­vir­on­ment­al Pro­tec­tion Act of 7 Oc­to­ber 1983¹⁶⁶: Art­icle 60 para­graph 1 let­ters g–I, m and o as well as para­graph 1^bis;

h.

Goods Con­trol Act of 13 Decem­ber 1996¹⁶⁷: Art­icle 14 para­graph 2;

i.¹⁶⁸

Sport Pro­mo­tion Act of 17 June 2011¹⁶⁹: Art­icle 22 para­graphs 2 and 25a para­graph 3;

j.¹⁷⁰

Fin­an­cial Mar­ket In­fra­struc­ture Act of 19 June 2015¹⁷¹: Art­icles 154 and 155;

k.¹⁷²

Weapons Act of 20 June 1997¹⁷³: Art­icle 33 para­graph 3;

l.¹⁷⁴

Medi­cin­al Products Act of 15 Decem­ber 2000¹⁷⁵: Art­icle 86 para­graphs 2 and 3;

m.¹⁷⁶

Gambling Act of 29 Septem­ber 2017¹⁷⁷: Art­icle 130 para­graph 2 for the of­fences un­der Art­icle 130 para­graph 1 let­ter a;

n.¹⁷⁸

In­tel­li­gence Ser­vice Act of 25 Septem­ber 2015¹⁷⁹: Art­icle 74 para­graph 4.

³ If the ad­ju­dic­a­tion an of­fence sub­ject to mil­it­ary jur­is­dic­tion is as­signed to the jur­is­dic­tion of the civil courts, the sur­veil­lance of post and tele­com­mu­nic­a­tions may also be ordered in the in­vest­ig­a­tion of the of­fences un­der Art­icle 70 para­graph 2 of the Mil­it­ary Crim­in­al Pro­ced­ure Code of 23 March 1979¹⁸⁰.

¹ The pub­lic pro­sec­utor may or­der the use of spe­cial tech­nic­al devices for the sur­veil­lance of tele­com­mu­nic­a­tions in or­der to listen to or re­cord con­ver­sa­tions, identi­fy a per­son or prop­erty or de­term­ine their loc­a­tion if:

a.

the re­quire­ments of Art­icle 269 are met;

b.

pre­vi­ous tele­com­mu­nic­a­tions sur­veil­lance meas­ures un­der Art­icle 269 have been un­suc­cess­ful or sur­veil­lance with these meas­ures would be fu­tile or dis­pro­por­tion­ately dif­fi­cult;

c.

the au­thor­isa­tion re­quired un­der tele­com­mu­nic­a­tions law has been ob­tained to use these devices at the time of use.

² The pub­lic pro­sec­utor shall keep stat­ist­ics on the use of these forms of sur­veil­lance. The Fed­er­al Coun­cil shall reg­u­late the de­tails.

¹ The pub­lic pro­sec­utor may or­der the in­tro­duc­tion of spe­cial soft­ware in­to a data pro­cessing sys­tem in or­der to in­ter­cept and re­cov­er the con­tent of com­mu­nic­a­tions and tele­com­mu­nic­a­tions metadata in un­en­cryp­ted form provided:

a.

the con­di­tions of Art­icle 269 para­graphs 1 and 3 are met;

b.

the pro­ceed­ings re­late to an of­fence lis­ted in Art­icle 286 para­graph 2;

c.

pre­vi­ous tele­com­mu­nic­a­tions sur­veil­lance meas­ures un­der Art­icle 269 have been un­suc­cess­ful or sur­veil­lance with these meas­ures would be fu­tile or dis­pro­por­tion­ately dif­fi­cult.

² In the sur­veil­lance or­der, the pub­lic pro­sec­utor shall spe­cify:

a.

the de­sired data types; and

b.

the non-pub­lic spaces that may have to be entered in or­der to in­tro­duce spe­cial soft­ware in­to the rel­ev­ant data pro­cessing sys­tem.

³ Data not covered by para­graph that is col­lec­ted when us­ing such soft­ware must be des­troyed im­me­di­ately. No use may be made of in­form­a­tion ob­tained from such data.

⁴ The pub­lic pro­sec­utor shall keep stat­ist­ics on these forms of sur­veil­lance. The Fed­er­al Coun­cil shall reg­u­late the de­tails.

¹ The only special software that may be used is that which records the surveillance unalterably and without interruption. The record forms part of the case files.

² The recovery of data from the data processing system under surveillance to the relevant criminal justice authority must take place securely.

³ The criminal justice authority shall ensure that the source code can be checked in order to verify that the software has only legally permitted functions.

The post and tele­com­mu­nic­a­tions of the fol­low­ing per­sons may be mon­itored:¹⁸⁴

a.

the ac­cused;

b.

third parties if there is reas­on to be­lieve based on spe­cif­ic in­form­a­tion that:

1.¹⁸⁵

the ac­cused uses the postal ad­dress or the tele­com­mu­nic­a­tions ser­vice of the third party, or

2.

the third party re­ceives cer­tain com­mu­nic­a­tions on be­half of the ac­cused or passes on com­mu­nic­a­tions from the ac­cused to an­oth­er per­son.

¹ When mon­it­or­ing a per­son be­long­ing to one of the pro­fes­sions men­tioned in Art­icles 170–173, the court must en­sure that in­form­a­tion that is rel­ev­ant to the en­quir­ies or the reas­on why this per­son is be­ing mon­itored is sep­ar­ated from in­form­a­tion that is rel­ev­ant, in or­der to guar­an­tee that no pro­fes­sion­al secrets come to the know­ledge of the crim­in­al justice au­thor­ity. The sep­ar­ated data must be des­troyed im­me­di­ately; it may not be eval­u­ated.

² In­form­a­tion un­der para­graph 1 need not be sep­ar­ated be­fore­hand if:

a.

there is a strong sus­pi­cion that the per­son sub­ject to pro­fes­sion­al con­fid­en­ti­al­ity is guilty of an of­fence; and

b.

there are spe­cif­ic reas­ons jus­ti­fy­ing the dir­ect in­ter­cep­tion of com­mu­nic­a­tions.

³ In the sur­veil­lance of oth­er per­sons, as soon as it is es­tab­lished that they have links with a per­son men­tioned in Art­icles 170–173, in­form­a­tion on com­mu­nic­a­tion with the per­son must be sep­ar­ated in ac­cord­ance with para­graph 1. In­form­a­tion in re­spect of which a per­son men­tioned in Art­icles 170–173 may re­fuse to testi­fy must be re­moved from the case doc­u­ments and des­troyed im­me­di­ately; it may not be eval­u­ated.

¹ The sur­veil­lance of post and tele­com­mu­nic­a­tions re­quires the au­thor­isa­tion of the com­puls­ory meas­ures court.

² If en­quir­ies re­veal that the per­son un­der sur­veil­lance is chan­ging his or her tele­com­mu­nic­a­tions ser­vice reg­u­larly, the com­puls­ory meas­ures court may by way of ex­cep­tion au­thor­ise the sur­veil­lance of all iden­ti­fied ser­vices used by the per­son un­der sur­veil­lance for tele­com­mu­nic­a­tions so that au­thor­isa­tion is not re­quired in each in­di­vidu­al case (gen­er­al au­thor­isa­tion).¹⁸⁷ The pub­lic pro­sec­utor shall sub­mit a re­port to the com­puls­ory meas­ures court for ap­prov­al every month and on con­clu­sion of the sur­veil­lance.

³ If dur­ing the sur­veil­lance of a ser­vice in terms of a gen­er­al au­thor­isa­tion, meas­ures are re­quired to pro­tect pro­fes­sion­al con­fid­en­ti­al­ity and such meas­ures are not men­tioned in the gen­er­al au­thor­isa­tion, an ap­plic­a­tion for au­thor­isa­tion for the in­di­vidu­al sur­veil­lance op­er­a­tion con­cerned must be sub­mit­ted to the com­puls­ory meas­ures court.¹⁸⁸

¹ If there is a strong sus­pi­cion that a felony or mis­de­mean­our has been com­mit­ted, and if the re­quire­ments of Art­icle 269 para­graph 1 let­ters b and c are met, the pub­lic pro­sec­utor may re­quest the fol­low­ing metadata:¹⁹⁰

a.

metadata re­lat­ing to tele­com­mu­nic­a­tions in ac­cord­ance with Art­icle 8 let­ter b of the Fed­er­al Act of 18 March 2016¹⁹¹ on the Sur­veil­lance of Postal and Tele­com­mu­nic­a­tions Traffic (SPTA) by the ac­cused, a third party in ac­cord­ance with Art­icle 270 let­ter b of this Code or a per­son suf­fer­ing harm;

b.

metadata re­lat­ing to post in ac­cord­ance with Art­icle 19 para­graph 1 let­ter b SPTA to or from the ac­cused or a third party in ac­cord­ance with Art­icle 270 let­ter b of this Code.¹⁹²

² The or­der re­quires the ap­prov­al of the com­puls­ory meas­ures court.

³ The in­form­a­tion men­tioned in para­graph 1 may be re­ques­ted ir­re­spect­ive of the dur­a­tion of sur­veil­lance and for the 6 months pri­or to the date of the re­quest.

¹ The pub­lic pro­sec­utor shall sub­mit the fol­low­ing doc­u­ments to the com­puls­ory meas­ures court with­in 24 hours of sur­veil­lance or the re­lease of in­form­a­tion be­ing ordered:

a.

the or­der;

b.

a state­ment of the reas­ons and the case doc­u­ments rel­ev­ant for au­thor­isa­tion.

² The com­puls­ory meas­ures court shall de­cide and provide a brief state­ment of the reas­ons with­in 5 days of the sur­veil­lance or the re­lease of in­form­a­tion be­ing ordered. It may grant au­thor­isa­tion sub­ject to a time lim­it or oth­er con­di­tions, or re­quest fur­ther in­form­a­tion or in­vest­ig­a­tions.

³ The com­puls­ory meas­ures court shall give no­tice of the de­cision im­me­di­ately to the pub­lic pro­sec­utor and to the Post and Tele­com­mu­nic­a­tions Sur­veil­lance Bur­eau in terms of Art­icle 3 SPTA¹⁹³.¹⁹⁴

⁴ The au­thor­isa­tion shall ex­pressly state:

a.

which meas­ures must be taken to pro­tect pro­fes­sion­al con­fid­en­ti­al­ity;

b.

wheth­er non-pub­lic spaces may be entered in or­der to in­tro­duce spe­cial soft­ware in­to the rel­ev­ant data pro­cessing sys­tem.¹⁹⁵

⁵ The com­puls­ory meas­ures court shall grant au­thor­isa­tion for a max­im­um of 3 months. The au­thor­isa­tion may be ex­ten­ded on one or more oc­ca­sions for a max­im­um of 3 months at a time. If an ex­ten­sion is re­quired, the pub­lic pro­sec­utor shall file an ap­plic­a­tion for the ex­ten­sion, stat­ing the reas­ons there­for, be­fore ex­piry of the cur­rent au­thor­isa­tion.

¹ The pub­lic pro­sec­utor shall stop sur­veil­lance im­me­di­ately if:

a.

the re­quire­ments are no longer ful­filled; or

b.

the au­thor­isa­tion or its ex­ten­sion is re­fused.

² In cases un­der para­graph 1 let­ter a, the pub­lic pro­sec­utor shall no­ti­fy the com­puls­ory meas­ures court that sur­veil­lance has been con­cluded.

¹ Re­cords of au­thor­ised sur­veil­lance op­er­a­tions that are not re­quired for crim­in­al pro­ceed­ings shall be stored sep­ar­ately from the case doc­u­ments and des­troyed im­me­di­ately on con­clu­sion of the pro­ceed­ings.

² Postal items may be re­tained for as long as this is ne­ces­sary for the crim­in­al pro­ceed­ings; they must be re­leased to the ad­dress­ee as soon as the status of the pro­ceed­ings per­mits.

¹ Doc­u­ments and data car­ri­ers ob­tained in un­au­thor­ised sur­veil­lance activ­it­ies must be des­troyed im­me­di­ately. Postal items must be de­livered to the ad­dress­ee im­me­di­ately.

² The res­ults of un­au­thor­ised sur­veil­lance op­er­a­tions may not be used.

¹ If in the course of sur­veil­lance op­er­a­tions of­fences oth­er than those spe­cified in the sur­veil­lance or­der come to light, these find­ings may be used against the ac­cused provided sur­veil­lance would have been per­mit­ted in the in­vest­ig­a­tion of the of­fences con­cerned.

^1bis If of­fences come to light dur­ing sur­veil­lance op­er­a­tions in terms of Art­icles 35 and 36 SPTA¹⁹⁶, the find­ings may be used sub­ject to the re­quire­ments spe­cified in para­graphs 2 and 3.¹⁹⁷

² Find­ings re­lat­ing to of­fences com­mit­ted by a per­son who is not named as a sus­pect in the sur­veil­lance or­der may be used if the re­quire­ments for the sur­veil­lance of this per­son are ful­filled.

³ In cases un­der para­graphs 1, 1^bis and 2, the pub­lic pro­sec­utor shall or­der sur­veil­lance im­me­di­ately and be­gin the au­thor­isa­tion pro­ced­ure.¹⁹⁸

⁴ Re­cords that may not be used as ac­ci­dent­al finds must be stored sep­ar­ately from the case doc­u­ments and des­troyed on con­clu­sion of the pro­ceed­ings.

⁵ Any find­ings made in a sur­veil­lance op­er­a­tion may be used to trace wanted per­sons.

¹ The pub­lic pro­sec­utor shall no­ti­fy the sus­pect un­der sur­veil­lance and third parties un­der sur­veil­lance in terms of Art­icle 270 let­ter b of the reas­on for and form and dur­a­tion of the sur­veil­lance op­er­a­tion on con­clu­sion of the pre­lim­in­ary pro­ceed­ings at the latest.

² With the con­sent of the com­puls­ory meas­ures court, no­tice may be de­ferred or dis­pensed with if:

a.

the find­ings are not used as evid­ence in court pro­ceed­ings; and

b.

de­fer­ring or dis­pens­ing with no­tice is ne­ces­sary to pro­tect over­rid­ing pub­lic or private in­terests.

³ Per­sons whose post or tele­com­mu­nic­a­tions have been un­der sur­veil­lance or who have used a postal ad­dress or tele­com­mu­nic­a­tions ser­vice that has been un­der sur­veil­lance may file an Art­icle 393 ap­peal un­der Art­icles 393–397.¹⁹⁹ The peri­od for fil­ing the ap­peal be­gins on re­ceipt of the no­tice.

The pub­lic pro­sec­utor may use tech­nic­al sur­veil­lance devices in or­der to:

a.

listen to or re­cord words spoken in private;

b.

ob­serve or re­cord events in private or not gen­er­ally ac­cess­ible places;

c.

es­tab­lish the where­abouts of per­sons or prop­erty.

¹ Devices may only be used in re­la­tion to a sus­pect.

² Premises or vehicles of third parties may only be mon­itored if there is reas­on to be­lieve on the basis of spe­cif­ic in­form­a­tion that a sus­pect is present on those premises or us­ing that vehicle.

³ Use of devices may not be ordered in or­der to:

a.

re­cord as evid­ence in court pro­ceed­ings events in­volving an ac­cused who is in cus­tody;

b.

mon­it­or premises or vehicles of a third party who be­longs to one of the pro­fes­sions men­tioned in Art­icles 170–173.

⁴ The use of tech­nic­al sur­veil­lance devices is oth­er­wise gov­erned by Art­icles 269–279.

¹ The pub­lic pro­sec­utor and, in the en­quir­ies, the po­lice may cov­ertly ob­serve per­sons and prop­erty in gen­er­ally ac­cess­ible loc­a­tions and make im­age or sound re­cord­ings while do­ing so if:

a.

there is reas­on to be­lieve on the basis of spe­cif­ic in­form­a­tion that felon­ies or mis­de­mean­ours have been com­mit­ted; and

b.

the en­quir­ies would oth­er­wise have no pro­spect of suc­cess or be made un­reas­on­ably com­plic­ated.

² Where ob­ser­va­tion activ­it­ies ordered by the po­lice have been con­duc­ted for one month, their con­tinu­ation re­quires au­thor­isa­tion by the pub­lic pro­sec­utor.

¹ The pub­lic pro­sec­utor shall no­ti­fy the per­sons dir­ectly con­cerned by ob­ser­va­tion activ­it­ies of the reas­on for and form and dur­a­tion of the ob­ser­va­tion activ­it­ies on con­clu­sion of the pre­lim­in­ary pro­ceed­ings at the latest.

² No­tice may be de­ferred or dis­pensed with if:

a.

the find­ings are not used as evid­ence in court pro­ceed­ings; and

b.

de­fer­ring or dis­pens­ing with no­tice is ne­ces­sary to pro­tect over­rid­ing pub­lic or private in­terests.

In or­der to in­vest­ig­ate felon­ies or mis­de­mean­ours, the com­puls­ory meas­ures court may, at the re­quest of the pub­lic pro­sec­utor, or­der the sur­veil­lance of trans­ac­tions between a sus­pect and a bank or bank-type in­sti­tu­tion.

¹ If the com­puls­ory meas­ures court au­thor­ises the ap­plic­a­tion, it shall is­sue the bank or bank-type in­sti­tu­tion with writ­ten in­struc­tion on:

a.

the in­form­a­tion and doc­u­ments to be provided

b.

the secrecy meas­ures to be taken.

² The bank or bank-type in­sti­tu­tion is not re­quired to provide in­form­a­tion or doc­u­ments if in do­ing so it would in­crim­in­ate it­self to the ex­tent that:

a.

it could be con­victed of a crim­in­al of­fence; or

b.

it could be held li­able un­der civil law and if the in­terest to be pro­tec­ted out­weighs the in­terest in pro­sec­u­tion.

³ The ac­count hold­er shall be no­ti­fied of the meas­ure after it has been car­ried out in ac­cord­ance with of Art­icle 279 para­graphs 1 and 2.

⁴ Per­sons whose bank­ing trans­ac­tions have been mon­itored may file an Art­icle 393 ap­peal in ac­cord­ance with Art­icles 393–397. The peri­od for fil­ing the ap­peal be­gins on re­ceipt of the no­tice.

In an un­der­cov­er in­vest­ig­a­tion, po­lice of­ficers or per­sons tem­por­ar­ily ap­poin­ted to carry out po­lice du­ties make con­tact with per­sons un­der false pre­tences by us­ing a false iden­tity (cov­er) sup­por­ted by doc­u­ments with the aim of gain­ing the trust of those per­sons and in­filt­rat­ing a crim­in­al en­vir­on­ment in or­der to in­vest­ig­ate par­tic­u­larly ser­i­ous of­fences.

¹ The pub­lic pro­sec­utor may or­der an un­der­cov­er in­vest­ig­a­tion if:

a.

it is sus­pec­ted that an of­fence lis­ted in para­graph 2 has been com­mit­ted;

b.

the ser­i­ous­ness of the of­fence jus­ti­fies the cov­ert in­vest­ig­a­tion; and

c.

pre­vi­ous in­vest­ig­at­ive activ­it­ies have been un­suc­cess­ful or the en­quir­ies would oth­er­wise have no pro­spect of suc­cess or be made un­reas­on­ably com­plic­ated.

² An un­der­cov­er in­vest­ig­a­tion is per­mit­ted in re­spect of of­fences un­der the fol­low­ing Art­icles:

a.²⁰²

SCC²⁰³: Art­icles 111–113, 122, 124, 129, 135, 138–140, 143 para­graph 1, 144 para­graph 3, 144^bis num­ber 1 para­graph 2 and num­ber 2 para­graph 2, 146 para­graphs 1 and 2, 147 para­graphs 1 and 2, 148, 156, 160, 182–185, 187, 188, 189, 191, 193, 193a, 195, 196, 197 para­graphs 3–5, 221 para­graphs 1 and 2, 223 num­ber 1, 224 para­graph 1, 226^bis, 226^ter, 227 num­ber 1 para­graph 1, 228 num­ber 1 para­graph 1, 230^bis, 231 num­ber 1, 232 num­ber 1, 233 num­ber 1, 234 para­graph 1, 237 num­ber 1, 240 para­graph 1, 242, 244 para­graph 2, 251 num­ber 1, 260^bis–260^sex­ies, 264–267, 271, 272 num­ber 2, 273, 274 num­ber 1 para­graph 2, 301, 305^bis num­ber 2, 310, 322^ter, 322^quater and 322^sep­ties;

b.²⁰⁴

For­eign Na­tion­als and In­teg­ra­tion Act of 16. Decem­ber 2005²⁰⁵: Art­icles 116 para­graph 3 and 118 para­graph 3;

c.

Fed­er­al Act of 22. June 2001²⁰⁶ on the Hag­ue Con­ven­tion on Ad­op­tion and on Meas­ures to Pro­tect Chil­dren in In­ter­na­tion­al Ad­op­tion Cases: Art­icle 24;

d.²⁰⁷

War Ma­ter­i­al Act of 13 Decem­ber 1996²⁰⁸: Art­icles 33 para­graph 2 and 34–35b;

e.

Nuc­le­ar En­ergy Act of 21 March 2003²⁰⁹: Art­icles 88 para­graphs 1 and 2, 89 para­graphs 1 and 2 and 90 para­graph 1;

f.²¹⁰

NarcA²¹¹: Art­icles 19 num­ber 1 second sen­tence and num­ber 2, and 20 num­ber 1 second sen­tence;

g.

Goods Con­trol Act of 13 Decem­ber 1996²¹²: Art­icle 14 para­graph 2;

h.²¹³

Sport Pro­mo­tion Act of 17 June 2011²¹⁴: Art­icles 22 para­graph 2 and 25a para­graph 3;

i.²¹⁵

Weapons Act of 20 June 1997²¹⁶: Art­icle 33 para­graph 3;

j.²¹⁷

Medi­cin­al Products Act of 15 Decem­ber 2000²¹⁸: Art­icle 86 para­graphs 2 and 3;

k.²¹⁹

Gambling Act of 29 Septem­ber 2017²²⁰: Art­icle 130 para­graph 2 for the of­fences un­der Art­icle 130 para­graph 1 let­ter a;

l.²²¹

In­tel­li­gence Ser­vice Act of 25 Septem­ber 2015²²²: Art­icle 74 para­graph 4.

³ If the ad­ju­dic­a­tion an of­fence sub­ject to mil­it­ary jur­is­dic­tion is as­signed to the jur­is­dic­tion of the civil courts, an un­der­cov­er in­vest­ig­a­tion may also be ordered in re­spect of of­fences un­der Art­icle 70 para­graph 2 of the Mil­it­ary Crim­in­al Pro­ced­ure Code of 23 March 1979²²³.

¹ The fol­low­ing per­sons may be de­ployed as un­der­cov­er in­vest­ig­at­ors:

a.

mem­bers of a Swiss or for­eign po­lice force;

b.

per­sons em­ployed tem­por­ar­ily on po­lice du­ties even if they have not re­ceived po­lice train­ing.

² Only mem­bers of a po­lice force may be de­ployed as com­mand staff.

³ If mem­bers of a for­eign po­lice force are de­ployed, they are nor­mally led by their reg­u­lar com­mand­er.

¹ The po­lice shall provide un­der­cov­er in­vest­ig­at­ors with a cov­er.²²⁴

² The pub­lic pro­sec­utor may guar­an­tee to un­der­cov­er in­vest­ig­at­ors that their true iden­tity will not be re­vealed even if they ap­pear in court pro­ceed­ings as a per­son provid­ing in­form­a­tion or as a wit­ness.²²⁵

² It may guar­an­tee to un­der­cov­er in­vest­ig­at­ors that their true iden­tity will not be dis­closed even if they ap­pear in court pro­ceed­ings as per­sons provid­ing in­form­a­tion or wit­nesses.

³ If un­der­cov­er in­vest­ig­at­ors com­mit an of­fence while de­ployed, the com­puls­ory meas­ures court shall de­cide on the iden­tity un­der which crim­in­al pro­ceed­ings are brought.

¹ The de­ploy­ment of an un­der­cov­er in­vest­ig­at­or re­quires the au­thor­isa­tion of the com­puls­ory meas­ures court.

² The pub­lic pro­sec­utor shall sub­mit the fol­low­ing doc­u­ments to the com­puls­ory meas­ures court with­in 24 hours of or­der­ing the un­der­cov­er in­vest­ig­a­tion:

a.

the or­der;

b.

a state­ment of the reas­ons and the case doc­u­ments rel­ev­ant for au­thor­isa­tion.

³ The com­puls­ory meas­ures court shall de­cide and provide a brief state­ment of the reas­ons with­in 5 days of the un­der­cov­er in­vest­ig­a­tion be­ing ordered. It may grant au­thor­isa­tion sub­ject to a time lim­it or oth­er con­di­tions, or re­quest fur­ther in­form­a­tion or in­vest­ig­a­tions.

⁴ The au­thor­isa­tion shall ex­pressly state wheth­er it is per­mit­ted:

a.

to pro­duce or al­ter of­fi­cial doc­u­ments in or­der to cre­ate or main­tain a cov­er;

b.

to guar­an­tee an­onym­ity;

c.

to de­ploy per­sons with no po­lice train­ing.

⁵ The com­puls­ory meas­ures court shall grant au­thor­isa­tion for a max­im­um of 12 months. Au­thor­isa­tion may be ex­ten­ded on one or more oc­ca­sions for a max­im­um of 6 months at a time. If an ex­ten­sion is re­quired, the pub­lic pro­sec­utor shall file an ap­plic­a­tion for the ex­ten­sion, stat­ing the reas­ons there­for, be­fore ex­piry of the cur­rent au­thor­isa­tion.

⁶ If au­thor­isa­tion is not gran­ted or no au­thor­isa­tion has been ob­tained, the pub­lic pro­sec­utor shall ter­min­ate de­ploy­ment im­me­di­ately. All re­cords must be des­troyed im­me­di­ately. Find­ings made by means of the un­der­cov­er in­vest­ig­a­tion may not be used.

The pub­lic pro­sec­utor shall brief the com­mand­ing of­ficer and the un­der­cov­er in­vest­ig­at­or be­fore de­ploy­ment.

¹ Dur­ing de­ploy­ment, the un­der­cov­er in­vest­ig­at­or is sub­ject to the dir­ect in­struc­tions of the com­mand­ing of­ficer. Dur­ing de­ploy­ment, any con­tact between the pub­lic pro­sec­utor and the un­der­cov­er in­vest­ig­at­or shall take place ex­clus­ively via the com­mand­ing of­ficer.

² The com­mand­ing of­ficer has the fol­low­ing du­ties in par­tic­u­lar:

a.

he or she shall brief the un­der­cov­er in­vest­ig­at­or in de­tail and con­tinu­ously on the as­sign­ment and powers and on how to deal with the cov­er story.

b.

he or she shall in­struct and ad­vise the un­der­cov­er in­vest­ig­at­or and con­tinu­ally as­sess the risk situ­ation.

c.

he or she shall keep a writ­ten re­cord of or­al re­ports made by the un­der­cov­er in­vest­ig­at­or and a full dossier on the op­er­a­tion.

d.

he or she shall in­form the pub­lic pro­sec­utor reg­u­larly and in full on the op­er­a­tion.

¹ Un­der­cov­er in­vest­ig­at­ors shall carry out their op­er­a­tion in ac­cord­ance their du­ties and in line with their in­struc­tions.

² They shall re­port to their com­mand­ing of­ficer reg­u­larly and in full on their activ­it­ies and their find­ings.

¹ Un­der­cov­er in­vest­ig­at­ors may not gen­er­ally en­cour­age oth­ers to com­mit of­fences or in­cite per­sons already will­ing to com­mit of­fences to com­mit more ser­i­ous of­fences. They must lim­it their activ­it­ies to sub­stan­ti­at­ing an ex­ist­ing de­cision to com­mit an of­fence.

² Their activ­it­ies may only be of minor sig­ni­fic­ance in the de­cision to com­mit a spe­cif­ic of­fence.

³ If re­quired in or­der to bring about the main trans­ac­tion, they may make tri­al pur­chases or provide evid­ence of their abil­ity to pay.

⁴ If the un­der­cov­er in­vest­ig­at­or ex­ceeds the re­mit of the au­thor­ised op­er­a­tion, the court must take due ac­count of this in as­sess­ing the sen­tence im­posed on the per­son sub­ject to the in­vest­ig­at­or's in­flu­ence, or may dis­pense with im­pos­ing any sen­tence.

Provided un­der­cov­er in­vest­ig­at­ors are act­ing in the course of an au­thor­ised un­der­cov­er in­vest­ig­a­tion, they shall not be held crim­in­ally li­able un­der the fol­low­ing pro­vi­sions:

a.

in re­la­tion to the pro­sec­u­tion of por­no­graphy in­volving minors or sexu­al acts with minors: un­der Art­icle 197 para­graphs 4 and 5 SCC²²⁷, provided the items or per­form­ances do not con­tain genu­ine sexu­al acts with minors;

b.

in re­la­tion to the pro­sec­u­tion of of­fences un­der the NarcA²²⁸: un­der Art­icles 19 and 20–22 NarcA.

¹ At the re­quest of the pub­lic pro­sec­utor, the Con­fed­er­a­tion may provide sums of money via the Na­tion­al Bank in the re­quired amounts, forms and de­nom­in­a­tions for the pur­pose of sim­u­lated trans­ac­tions and to provide evid­ence of an abil­ity to pay.

² The re­quest must be sub­mit­ted to the Fed­er­al Of­fice of Po­lice to­geth­er with a sum­mary of the facts of the case.

³ The pub­lic pro­sec­utor shall take the pre­cau­tions re­quired to pro­tect the money provided. In the event of loss, the Con­fed­er­a­tion or the can­ton to which pub­lic pro­sec­utor be­longs is li­able.

¹ Where evid­ence of an of­fence oth­er than that named in the in­vest­ig­a­tion or­der comes to light in the course of an un­der­cov­er in­vest­ig­a­tion, the evid­ence may be used provided the or­der­ing of a cov­ert in­vest­ig­a­tion would have been per­mit­ted in or­der to in­vest­ig­ate the of­fence newly dis­closed.

² The pub­lic pro­sec­utor shall or­der an un­der­cov­er in­vest­ig­a­tion im­me­di­ately and be­gin the au­thor­isa­tion pro­ced­ure.

¹ The pub­lic pro­sec­utor shall ter­min­ate the op­er­a­tion im­me­di­ately if:

a.

the re­quire­ments are no longer met;

b.

au­thor­isa­tion or an ex­ten­sion there­of is re­fused; or

c.

the un­der­cov­er in­vest­ig­at­or or the com­mand­ing of­ficer fails to fol­low in­struc­tions or fails to carry out his or her du­ties in some oth­er way, in par­tic­u­lar by wil­fully provid­ing false in­form­a­tion to the pub­lic pro­sec­utor.

² In cases un­der para­graph 1 let­ters a and c, the pub­lic pro­sec­utor shall no­ti­fy the com­puls­ory meas­ures court of the ter­min­a­tion of the op­er­a­tion.

³ When ter­min­at­ing an op­er­a­tion, it must be en­sured that neither the un­der­cov­er in­vest­ig­at­or nor any third parties in­volved in the in­vest­ig­a­tion are ex­posed to any avoid­able risks.

¹ The pub­lic pro­sec­utor shall give no­tice to the ac­cused at the latest on con­clu­sion of the pre­lim­in­ary pro­ceed­ings that he or she has been the sub­ject of an un­der­cov­er in­vest­ig­a­tion.

² No­tice may be de­ferred or dis­pensed with, sub­ject to the con­sent of the com­puls­ory meas­ures court, if:

a.

the find­ings are not used as evid­ence; and

b.

de­fer­ring or dis­pens­ing with no­tice is ne­ces­sary to pro­tect over­rid­ing pub­lic or private in­terests.

³ Per­sons who have been the sub­ject of an un­der­cov­er in­vest­ig­a­tion may file an ap­peal in ac­cord­ance with Art­icles 393–397. The peri­od for fil­ing the ap­peal be­gins on re­ceipt of no­tice of the in­vest­ig­a­tion.

¹ In un­der­cov­er en­quir­ies, po­lice of­ficers de­ployed for short peri­ods in such a way that their true iden­tity and func­tion re­mains con­cealed at­tempt to in­vest­ig­ate felon­ies and mis­de­mean­ours and to do so enter in­to or pre­tend that they wish to enter in­to fic­ti­tious trans­ac­tions.

² Un­der­cov­er agents are not provided with a cov­er with­in the mean­ing of Art­icle 285a. Their true iden­tity and func­tion are dis­closed in the case files and at hear­ings.