¹ The pre­lim­in­ary pro­ceed­ings com­prise the po­lice en­quir­ies and the in­vest­ig­a­tion by the pub­lic pro­sec­utor.

² In the pre­lim­in­ary pro­ceed­ings, based on the sus­pi­cion that an of­fence has been com­mit­ted, en­quir­ies shall be car­ried out and evid­ence gathered in or­der to es­tab­lish wheth­er:

a.

a sum­mary pen­alty or­der should be is­sued to the ac­cused;

b.

charges should be brought against the ac­cused;

c.

the pro­ceed­ings should be aban­doned.

¹ Pre­lim­in­ary pro­ceed­ings com­mence when:

a.

en­quir­ies are be­gun by the po­lice;

b.

an in­vest­ig­a­tion is opened by the pub­lic pro­sec­utor.

² The com­mence­ment of pre­lim­in­ary pro­ceed­ings may not be con­tested un­less the ac­cused claims it con­sti­tutes a vi­ol­a­tion of the rule against double jeop­ardy.

¹ Any per­son is en­titled to re­port an of­fence to a crim­in­al justice au­thor­ity in writ­ing or or­ally.

^1bis The per­son fil­ing the re­port may re­quest the crim­in­al justice au­thor­ity to provide con­firm­a­tion of a re­port made or­ally on re­cord.²³⁰

² The crim­in­al justice au­thor­ity shall if re­ques­ted no­ti­fy the per­son mak­ing the re­port of wheth­er crim­in­al pro­ceed­ings are be­ing com­menced and how they are pro­ceed­ing.

³ A per­son mak­ing a re­port who has neither suffered loss nor in­jury nor is a private claimant has no fur­ther pro­ced­ur­al rights.

¹ The crim­in­al justice au­thor­it­ies are ob­liged to re­port to the com­pet­ent au­thor­ity all of­fences that have come to light or that have been re­por­ted to them in the course of their of­fi­cial activ­it­ies, un­less they them­selves are re­spons­ible for pro­sec­ut­ing the of­fence.

² The Con­fed­er­a­tion and the can­tons shall reg­u­late the duty to re­port of mem­bers of oth­er au­thor­it­ies.

³ The duty to re­port ceases to ap­ply for per­sons who have the right to re­main si­lent or to re­fuse to testi­fy in ac­cord­ance with Art­icles 113 para­graph 1, 168, 169 and 180 para­graph 1.

¹ In the case of of­fences that are pro­sec­uted only on com­plaint or with of­fi­cial au­thor­isa­tion, pre­lim­in­ary pro­ceed­ings shall be com­menced only if a crim­in­al com­plaint has been made or au­thor­isa­tion gran­ted.

² The com­pet­ent au­thor­ity may act to se­cure evid­ence be­fore­hand where this can­not be delayed.

¹ In the case of of­fences against per­son­al hon­our, the pub­lic pro­sec­utor may re­quire the com­plain­ant to provide se­cur­ity for pos­sible costs and com­pens­a­tion with a cer­tain peri­od.

² If se­cur­ity is not provided with­in this peri­od, the crim­in­al com­plaint is deemed to be with­drawn.

¹ A crim­in­al com­plaint must be sub­mit­ted in writ­ing or made or­ally and noted down in an of­fi­cial re­cord. It must be made to the po­lice, the pub­lic pro­sec­utor or the au­thor­ity re­spons­ible for pro­sec­ut­ing con­tra­ven­tions.

² Where a per­son waives the right to file a com­plaint or with­draws a com­plaint, the same form is re­quired.

¹ The po­lice and the pub­lic pro­sec­utor shall in­form the vic­tim in full at their first ex­am­in­a­tion hear­ing of his or her rights and ob­lig­a­tions in the crim­in­al pro­ceed­ings.

² They shall at the same time in­form the vic­tim of:²³⁴

a.

the ad­dresses and ser­vices provided by vic­tim coun­selling ser­vices;

b.

the pos­sib­il­ity of claim­ing vari­ous vic­tim sup­port be­ne­fits;

c.

the time lim­it for the fil­ing claims for com­pens­a­tion and sat­is­fac­tion;

d.²³⁵

the right un­der Art­icle 92a SCC to re­quest in­form­a­tion on the de­cisions and cir­cum­stances of the ex­e­cu­tion of pen­al­ties and meas­ure in re­la­tion to the of­fend­er.

³ If the vic­tim agrees, they shall pass his or her name and ad­dress on to a coun­selling ser­vice.

⁴ Para­graphs 1–3 also ap­ply mu­tatis mutandis to the re­l­at­ives of the vic­tim.

⁵ Con­firm­a­tion that the pro­vi­sions this Art­icle have been com­plied with must be re­cor­ded in the case file.

¹ The po­lice shall in the course of their en­quir­ies es­tab­lish the facts rel­ev­ant to an of­fence on the basis of re­ports, in­struc­tions from the pub­lic pro­sec­utor or their find­ings.

² They must in par­tic­u­lar:

a.

se­cure and eval­u­ate forensic and oth­er evid­ence;

b.

identi­fy and in­ter­view per­sons suf­fer­ing harm and sus­pects;

c.

if ne­ces­sary, stop and ar­rest or at­tempt to trace sus­pects.

³ Their activ­it­ies are gov­erned by the reg­u­la­tions on in­vest­ig­a­tions, evid­ence and com­puls­ory meas­ures, sub­ject to the spe­cial pro­vi­sions of this Code.

¹ The po­lice shall in­form the pub­lic pro­sec­utor im­me­di­ately of ser­i­ous of­fences and oth­er ser­i­ous in­cid­ents. The fed­er­al and can­ton­al pub­lic pro­sec­utors may is­sue more de­tailed pro­vi­sions on this duty to provide in­form­a­tion.

² The pub­lic pro­sec­utor may is­sue in­struc­tions and as­sign­ments to the po­lice at any time or take over the con­duct of the pro­ceed­ings. In the cases un­der para­graph 1, it shall if pos­sible con­duct the first es­sen­tial ex­am­in­a­tion hear­ings it­self.

³ The po­lice shall re­cord all their find­ings and the meas­ures they have taken in writ­ten re­ports and pass these on con­clu­sion of their en­quir­ies to­geth­er with the re­ports of of­fences, tran­scripts of ex­am­in­a­tion hear­ings, oth­er files and prop­erty and as­sets that have been seized dir­ectly to the pub­lic pro­sec­utor.

⁴ They may dis­pense with mak­ing a re­port if:

a.

there is clearly no need for the pub­lic pro­sec­utor to take fur­ther pro­ceed­ings; and

b.

no com­puls­ory meas­ures or oth­er form­al en­quir­ies have been car­ried out.

¹ In the in­vest­ig­a­tion, the pub­lic pro­sec­utor shall cla­ri­fy the fac­tu­al and leg­al as­pects of the case in or­der that it may con­clude the pre­lim­in­ary pro­ceed­ings.

² If it is an­ti­cip­ated that charges will be brought or a sum­mary pen­alty or­der is­sued, it shall cla­ri­fy the per­son­al cir­cum­stances of the ac­cused.

³ If charges are to be brought, the in­vest­ig­a­tion must provide the court with the ba­sic in­form­a­tion re­quired to as­sess the guilt of the ac­cused and to im­pose a sen­tence.

¹ The pub­lic pro­sec­utor shall open an in­vest­ig­a­tion if:

a.

there is a reas­on­able sus­pi­cion that an of­fence has been com­mit­ted based on the in­form­a­tion and re­ports from the po­lice, the com­plaint or its own find­ings;

b.

it in­tends to or­der com­puls­ory meas­ures;

c.

it has re­ceived in­form­a­tion from the po­lice in terms of Art­icle 307 para­graph 1.

² It may re­turn po­lice re­ports and crim­in­al com­plaints that do not con­tain clear in­dic­a­tions that an of­fence has been com­mit­ted to the po­lice so that they may carry out ad­di­tion­al en­quir­ies.

³ It shall open the in­vest­ig­a­tion by is­su­ing a rul­ing in which it shall name the ac­cused and the of­fence that he or she is sus­pec­ted of com­mit­ting. The rul­ing need not con­tain a state­ment of reas­ons or be made pub­lic. It is non-con­test­able.

⁴ The pub­lic pro­sec­utor may not open an in­vest­ig­a­tion if it im­me­di­ately is­sues a no-pro­ceed­ings or­der or a sum­mary pen­alty or­der.

¹ The pub­lic pro­sec­utor shall rule that no pro­ceed­ings be taken as soon as it is es­tab­lished on the basis of the com­plaint or the po­lice re­port that:

a.

the ele­ments of the of­fence con­cerned or the pro­ced­ur­al re­quire­ments have clearly not been ful­filled;

b.

there are pro­ced­ur­al im­ped­i­ments;

c.

there should be no pro­sec­u­tion for the reas­ons stated in Art­icle 8.

² The pro­ced­ure is oth­er­wise gov­erned by the pro­vi­sions on abandon­ing pro­ceed­ings.

¹ The pub­lic pro­sec­utors shall gath­er the evid­ence them­selves. The Con­fed­er­a­tion and the can­tons shall de­cide on the ex­tent to which they may del­eg­ate spe­cif­ic in­vest­ig­at­ive activ­it­ies to their staff.

² The pub­lic pro­sec­utor may ex­tend the in­vest­ig­a­tion to in­clude ad­di­tion­al per­sons or of­fences. Art­icle 309 para­graph 3 ap­plies.

¹ The pub­lic pro­sec­utor may in­struct the po­lice to carry out ad­di­tion­al en­quir­ies after the in­vest­ig­a­tion has been opened. It shall is­sue writ­ten in­struc­tions, or in cases of ur­gency or­al in­struc­tions, that lim­it the en­quir­ies to clearly defined is­sues.

² In the case of ex­am­in­a­tion hear­ings car­ried out by the po­lice on be­half of the pub­lic pro­sec­utor, the per­sons in­volved in the pro­ceed­ings have the pro­ced­ur­al rights that they would be ac­cor­ded in the case of ex­am­in­a­tion hear­ings by the pub­lic pro­sec­utor.

¹ The pub­lic pro­sec­utor shall gath­er the evid­ence re­quired to as­sess the civil claim provided the pro­ceed­ings are not un­duly ex­ten­ded or delayed thereby.

² It may the make the gath­er­ing of evid­ence that primar­ily serves to fur­ther the civil claim con­di­tion­al on an ad­vance pay­ment by the private claimant to cov­er costs.

¹ The pub­lic pro­sec­utor may sus­pend an in­vest­ig­a­tion, in par­tic­u­lar if:

a.

the iden­tity of the of­fend­er or his or her where­abouts is un­known is or there are oth­er tem­por­ary pro­ced­ur­al im­ped­i­ments;

b.

the out­come of the crim­in­al pro­ceed­ings de­pends on oth­er pro­ceed­ings and it seems ap­pro­pri­ate to await their con­clu­sion;

c.

private set­tle­ment pro­ceed­ings are on­go­ing and it seems ap­pro­pri­ate to await their out­come;

d.

a de­cision on the sub­stance of the case de­pends on how the con­sequences of the of­fence de­vel­op.

² In the case of para­graph 1 let­ter c, the peri­od of sus­pen­sion shall be lim­ited to 3 months; it may be ex­ten­ded on one oc­ca­sion by a fur­ther 3 months.

³ Be­fore sus­pend­ing pro­ceed­ings, the pub­lic pro­sec­utor shall gath­er any evid­ence that is at risk of be­ing lost. If the iden­tity of the of­fend­er or his or her where­abouts is un­known, it shall or­der that he or she be traced.

⁴ The pub­lic pro­sec­utor shall give no­tice of the sus­pen­sion to the ac­cused, the private claimant and the vic­tims.

⁵ The pro­ced­ure is oth­er­wise gov­erned by the pro­vi­sions on the aban­don­ment of pro­ceed­ings.

¹ The pub­lic pro­sec­utor shall re­sume a sus­pen­ded in­vest­ig­a­tion ex of­fi­cio if the grounds for sus­pen­sion no longer ap­ply.

² A de­cision to re­sume pro­ceed­ings may not be con­tested.

¹ Where the pro­ceed­ings re­late to an of­fence that is pro­sec­uted only on com­plaint, the pub­lic pro­sec­utor may sum­mon the com­plain­ant and the ac­cused to a hear­ing with the aim of achiev­ing a set­tle­ment. If the com­plain­ant fails to at­tend, the com­plaint is deemed to have been with­drawn.

² If con­sid­er­a­tion is be­ing giv­en to an ex­emp­tion from any pen­alty be­cause re­par­a­tion has been made in ac­cord­ance with Art­icle 53 SCC²³⁶, the pub­lic pro­sec­utor shall in­vite the per­son suf­fer­ing harm and the ac­cused to a hear­ing with the aim of agree­ing on re­par­a­tion.

³ If an agree­ment is reached, this shall be placed on re­cord and signed by those in­volved. The pub­lic pro­sec­utor shall then aban­don the pro­ceed­ings.

⁴ If the ac­cused fails to at­tend a hear­ing in ac­cord­ance with para­graphs 1 or 2 or if no agree­ment is reached, the pub­lic pro­sec­utor shall im­me­di­ately pro­ceed with the in­vest­ig­a­tion. In cases where it is jus­ti­fied, it may re­quire the com­plain­ant to provide se­cur­ity for costs and com­pens­a­tion with­in ten days.

In ex­tens­ive and com­plex pre­lim­in­ary pro­ceed­ings, the pub­lic pro­sec­utor shall ques­tion the ac­cused again in a fi­nal ex­am­in­a­tion hear­ing be­fore con­clud­ing the in­vest­ig­a­tion and re­quest the ac­cused to com­ment on the find­ings.

¹ If the pub­lic pro­sec­utor re­gards the in­vest­ig­a­tion as com­pleted, it shall is­sue a sum­mary pen­alty or­der or give writ­ten no­tice to those parties whose ad­dress is known of the im­min­ent con­clu­sion of the in­vest­ig­a­tion and in­form them wheth­er it is in­ten­ded to bring charges or aban­don the pro­ceed­ings. At the same time, it shall al­low the parties a peri­od with­in which to sub­mit re­quests for fur­ther evid­ence to be taken.

^1bis It shall give writ­ten no­tice to per­sons suf­fer­ing harm whose ad­dress is known but who have not yet been in­formed of their rights that it in­tends to con­clude the pro­ceed­ings by is­su­ing a sum­mary pen­alty or­der, bring­ing charges or abandon­ing the pro­ceed­ings, and al­low them a peri­od with­in which they may give no­tice that they wish to be­come a private claimant and re­quest that evid­ence be taken.²³⁷

² It may re­ject re­quests for fur­ther evid­ence to be taken only if the evid­ence in­volves mat­ters that are ir­rel­ev­ant, ob­vi­ous, known to the crim­in­al justice au­thor­ity or already sat­is­fact­or­ily proven in leg­al terms. The de­cision shall be is­sued in writ­ing and with a brief state­ment of the grounds. Re­quests for fur­ther evid­ence to be taken that are re­fused may be made again in the main pro­ceed­ings.

³ No­tice in ac­cord­ance with para­graphs 1 and 1^bis and de­cisions in ac­cord­ance with para­graph 2 are non-con­test­able.²³⁸

¹ The pub­lic pro­sec­utor shall or­der the com­plete or par­tial aban­don­ment of the pro­ceed­ings if:

a.

no sus­pi­cions are sub­stan­ti­ated that jus­ti­fy bring­ing charges;

b.

the con­duct does not ful­fil the ele­ments of an of­fence;

c.

grounds jus­ti­fy­ing the con­duct mean that it does not con­sti­tute an of­fence;

d.

it is im­possible to ful­fil the pro­ced­ur­al re­quire­ments or pro­ced­ur­al im­ped­i­ments have aris­en;

e.

a stat­utory reg­u­la­tion ap­plies that per­mit the pub­lic pro­sec­utor to dis­pense with bring­ing charges or im­pos­ing a pen­alty.

² It may also aban­don the pro­ceed­ings by way of ex­cep­tion if:

a.

this is es­sen­tial in the in­terests of a vic­tim who was un­der the age of 18 at the time of the of­fence and this in­terest clearly over­rides the in­terest of the state in a pro­sec­u­tion; and

b.

the vic­tim or in the event that the vic­tim lacks leg­al ca­pa­city, his or her leg­al agent con­sents to the aban­don­ment.

¹ The form and gen­er­al con­tent of the rul­ing abandon­ing pro­ceed­ings are gov­erned by Art­icles 80 and 81.

² The pub­lic pro­sec­utor shall re­voke ex­ist­ing com­puls­ory meas­ures in the rul­ing abandon­ing pro­ceed­ings. It may or­der the for­feit­ure of prop­erty and as­sets.

³ Civil claims are not ad­dressed in the rul­ing abandon­ing pro­ceed­ings. A private claimant may take civil ac­tion after the rul­ing be­comes leg­ally bind­ing.

⁴ A leg­ally bind­ing rul­ing abandon­ing pro­ceed­ings is equi­val­ent to a fi­nal ver­dict of ac­quit­tal.

¹ The pub­lic pro­sec­utor shall give no­tice of the rul­ing abandon­ing pro­ceed­ings to:

a.

the parties;

b.

the vic­tim;

c.

the oth­er per­sons in­volved in the pro­ceed­ings af­fected by the rul­ing;

d.

any oth­er au­thor­it­ies des­ig­nated by the can­tons provided they have a right of ap­peal un­der Art­icle 398.

² The fore­go­ing is sub­ject to the ex­press waiver of any per­son in­volved in the pro­ceed­ings.

³ Art­icles 84–88 are oth­er­wise ap­plic­able mu­tatis mutandis.

¹ The Con­fed­er­a­tion and the can­tons may stip­u­late that the rul­ing abandon­ing pro­ceed­ings be ap­proved by the Of­fice of the Chief Can­ton­al Pro­sec­utor.

² The parties may con­test the rul­ing abandon­ing pro­ceed­ings with the court for Art­icle 393 ap­peals with­in 10 days.

³ If the rul­ing abandon­ing pro­ceed­ings in­cludes a de­cision on for­feit­ure, the de­cision may be re­jec­ted. The re­jec­tion pro­ced­ure is gov­erned by the pro­vi­sions on sum­mary pen­alty or­ders. A court de­cision shall be is­sued in the form of a de­cree or a rul­ing.²³⁹

¹ The pub­lic pro­sec­utor shall or­der the re­open­ing of pro­ceed­ings that have been aban­doned by a leg­ally-bind­ing rul­ing if it ob­tains new evid­ence or in­form­a­tion that:

a.

in­dic­ates that the ac­cused is guilty of a crim­in­al of­fence; and

b.

does not res­ult from the pre­vi­ous files.

² It shall give no­tice of the re­open­ing of pro­ceed­ings to the per­sons and au­thor­it­ies that pre­vi­ously re­ceived no­tice of the aban­don­ment.

¹ The pub­lic pro­sec­utor shall bring charges in the com­pet­ent court if, based on the res­ults of the in­vest­ig­a­tion, it re­gards the grounds for sus­pi­cion as suf­fi­cient and it is not com­pet­ent to is­sue a sum­mary pen­alty or­der.

² The bring­ing of charges is non-con­test­able.

¹ The in­dict­ment shall in­dic­ate:

a.

the place and the date;

b.

the pub­lic pro­sec­utor bring­ing the charges;

c.

the court com­pet­ent to hear the charges;

d.

the ac­cused and his or her de­fence law­yer;

e.

the per­son suf­fer­ing harm;

f.

as briefly but pre­cisely as pos­sible: the acts that the ac­cused is al­leged to have com­mit­ted with de­tails of the place of com­mis­sion, date, time, nature and con­sequences of their com­mis­sion;

g.

the of­fences that are in the opin­ion of the pub­lic pro­sec­utor con­sti­tuted by these acts with de­tails of the ap­plic­able stat­utory pro­vi­sions.

² The pub­lic pro­sec­utor may bring al­tern­at­ive charges or sec­ond­ary charges for the event that the main charges are dis­missed.

¹ The pub­lic pro­sec­utor shall provide the court with the fol­low­ing de­tails and make the fol­low­ing ap­plic­a­tions un­less they are already in­cluded in the in­dict­ment:

a.

the private claimant and any civil claims;

b.

the com­puls­ory meas­ures ordered;

c.

the seized prop­erty and as­sets;

d.

the costs in­curred in the in­vest­ig­a­tion;

e.

if deemed ne­ces­sary, its ap­plic­a­tion for pre­vent­ive de­ten­tion;

f.

its ap­plic­a­tions for sanc­tions or no­tice that these ap­plic­a­tions will be made at the tri­al;

g.

its ap­plic­a­tions for sub­sequent ju­di­cial de­cisions;

h.

its re­quest to re­ceive a sum­mons to the tri­al.

² If the pub­lic pro­sec­utor is not per­son­ally rep­res­en­ted in court, it may at­tach a fi­nal re­port to the in­dict­ment that ex­plains the cir­cum­stances of the case, which also con­tains com­ments on the as­sess­ment of evid­ence.

¹ The pub­lic pro­sec­utor shall im­me­di­ately serve the in­dict­ment to­geth­er with any fi­nal re­port:

a.

on the ac­cused, provided his or her where­abouts is known;

b.

on the private claimant;

c.

on the vic­tim;

d.

on the com­pet­ent court, to­geth­er with the files and the seized prop­erty and as­sets.

² If the pub­lic pro­sec­utor ap­plies for an or­der of pre­vent­ive de­ten­tion, when fil­ing the rel­ev­ant ap­plic­a­tion, it shall also serve a copy of the in­dict­ment on the com­puls­ory meas­ures court.

¹ On re­ceipt of the in­dict­ment, the pro­ceed­ings be­come pending be­fore the court.

² When the pro­ceed­ings be­come pending, au­thor­ity over the pro­ceed­ings passes to the court.

¹ The dir­ect­or of pro­ceed­ings shall ex­am­ine wheth­er:

a.

the in­dict­ment and the files have been presen­ted in the prop­er man­ner;

b.

the pro­ced­ur­al re­quire­ments are ful­filled;

c.

there are any pro­ced­ur­al im­ped­i­ments.

² If it is de­term­ined in this ex­am­in­a­tion or later in the pro­ceed­ings that a judg­ment can­not be is­sued at this time, the court shall sus­pend the pro­ceed­ings. If re­quired, it shall re­turn the in­dict­ment to the pub­lic pro­sec­utor for amend­ment or cor­rec­tion.

³ The court shall de­cide wheth­er a sus­pen­ded case re­mains pending be­fore it.

⁴ If it is per­man­ently im­possible to is­sue a judg­ment, the court shall aban­don the pro­ceed­ings after grant­ing the parties and oth­er third parties ad­versely af­fected by aban­don­ment the right to a fair hear­ing. Art­icle 320 ap­plies mu­tatis mutandis.

⁵ If the pro­ceed­ings are only aban­doned in re­la­tion to spe­cif­ic charges on the in­dict­ment aban­doned, the aban­don­ment or­der may be is­sued with the judg­ment.

¹ If the charges are to be con­sidered, the dir­ect­or of pro­ceed­ings shall im­me­di­ately is­sue the or­ders re­quired for the tri­al to be con­duc­ted.

² In the case of courts with a pan­el of judges, the dir­ect­or of pro­ceed­ings shall cir­cu­late the files.

³ The dir­ect­or of pro­ceed­ings shall in­form the vic­tim of his or her rights, un­less the pro­sec­u­tion au­thor­it­ies have already done so; Art­icle 305 ap­plies mu­tatis mutandis.

¹ The dir­ect­or of pro­ceed­ings shall de­cide on the evid­ence that may be taken at the tri­al. He or she shall no­ti­fy the parties of the com­pos­i­tion of the court and what evid­ence is to be presen­ted.

² The dir­ect­or of pro­ceed­ings shall at the same time set a dead­line with­in which the parties must sub­mit and jus­ti­fy re­quests for fur­ther evid­ence to be taken; when do­ing so, he or she shall no­ti­fy the parties of the po­ten­tial ef­fect on costs and com­pens­a­tion of delayed re­quests for fur­ther evid­ence to be taken. He or she shall set the same dead­line for the private claimants in or­der to quanti­fy and jus­ti­fy their civil claim.²⁴⁰

³ If the dir­ect­or of pro­ceed­ings re­jects a re­quest for fur­ther evid­ence to be taken, he or she shall no­ti­fy the parties of this and give a brief state­ment of the grounds. Re­jec­tion is non-con­test­able, but re­jec­ted re­quests for fur­ther evid­ence to be taken may be sub­mit­ted again at the tri­al.

⁴ The dir­ect­or of pro­ceed­ings shall fix a date, time and place for the tri­al and sum­mon the parties, to­geth­er with the wit­nesses, per­sons provid­ing in­form­a­tion and ex­pert wit­nesses who are to be ques­tioned.

⁵ He or she shall make a fi­nal de­cision on ap­plic­a­tions for post­pone­ment that are sub­mit­ted be­fore the start of the tri­al.

¹ The dir­ect­or of pro­ceed­ings may sum­mon the parties to a pre­lim­in­ary hear­ing in or­der to settle or­gan­isa­tion­al is­sues.

² The dir­ect­or of pro­ceed­ings may sum­mon the parties to dis­cuss a private set­tle­ment in ac­cord­ance with Art­icle 316.

³ If it is ex­pec­ted that it will not be pos­sible to take cer­tain evid­ence in the tri­al, the dir­ect­or of pro­ceed­ings may take that evid­ence pri­or to the tri­al, en­trust the task to a del­eg­ate of the court or in cases of ur­gency to the pub­lic pro­sec­utor, or ar­range for the evid­ence to be taken through mu­tu­al as­sist­ance pro­ced­ures. The parties shall be giv­en the op­por­tun­ity to par­ti­cip­ate if evid­ence is taken in this way.

¹ The court shall al­low the pub­lic pro­sec­utor the op­por­tun­ity to amend the charges if in its view the cir­cum­stances out­lined in the in­dict­ment could con­sti­tute a dif­fer­ent of­fence but the in­dict­ment does not meet the stat­utory re­quire­ments.

² If fur­ther of­fences by the ac­cused come to light dur­ing the main pro­ceed­ings, the court may per­mit the pub­lic pro­sec­utor to add charges to the in­dict­ment.

³ Ad­di­tions are not per­mit­ted if the pro­ceed­ings would be made un­duly com­plex or this would af­fect the jur­is­dic­tion of the court or if a case in­volves co-of­fend­ing or par­ti­cip­a­tion. In these cases, the pub­lic pro­sec­utor shall com­mence pre­lim­in­ary pro­ceed­ings.

⁴ The court may only base its judg­ment on a charge that has been amended or ad­ded to if the party rights of the ac­cused and the private claimant have been ob­served. If ne­ces­sary, it shall ad­journ the tri­al.

¹ If the court con­cludes that in pro­ceed­ings pending be­fore it a sen­tence or meas­ure must be con­sidered that ex­ceeds its com­pet­ence, it shall trans­fer the case at the latest fol­low­ing the party sub­mis­sions to the com­pet­ent court. This court shall con­duct its own pro­ced­ure for tak­ing evid­ence.

² The de­cision to trans­fer the case to an­oth­er court is non-con­test­able.

¹ The court shall sit for the en­tire dur­a­tion of the tri­al in the com­pos­i­tion re­quired by law and in the pres­ence of a clerk of court.

² If a judge be­comes un­able to at­tend dur­ing the tri­al, the en­tire tri­al shall be held again un­less the parties waive this re­quire­ment.

³ The dir­ect­or of pro­ceed­ings may or­der that from the out­set a sub­sti­tute mem­ber of the court par­ti­cip­ates in the hear­ing in or­der to re­place a mem­ber of the court if ne­ces­sary.

⁴ If the court is hear­ing a case in­volving sexu­al of­fences, if so re­ques­ted by the vic­tim at least one of its mem­bers must be of the same gender as the vic­tim. Where the court com­prises one judge sit­ting alone, this rule need not be ap­plied if the case in­volves vic­tims of both genders.

¹ The ac­cused must at­tend the tri­al in per­son if:

a.

the case in­volves a felony or mis­de­mean­our; or

b.

the dir­ect­or of pro­ceed­ings or­ders a per­son­al ap­pear­ance.

² Duty de­fence law­yers and the man­dat­ory de­fence law­yers must at­tend the tri­al in per­son.

³ The dir­ect­or of pro­ceed­ings may dis­pense with the re­quire­ment for the ac­cused to at­tend in per­son at the ac­cused's re­quest if the ac­cused shows good cause and his or her pres­ence is not re­quired.

⁴ If the ac­cused fails to at­tend without be­ing ex­cused, the reg­u­la­tions on pro­ceed­ings in ab­sen­tia ap­ply.

⁵ If a duty de­fence law­yer or man­dat­ory de­fence law­yer fails to at­tend, the hear­ing shall be post­poned.

¹ The pub­lic pro­sec­utor may sub­mit writ­ten ap­plic­a­tions to the court or be rep­res­en­ted by a pro­sec­utor in court.

² It is neither bound by the leg­al as­sess­ment nor by the ap­plic­a­tions set out in the in­dict­ment.

³ If it re­quests a cus­todi­al sen­tence of more than one year or a cus­todi­al meas­ure, it must be rep­res­en­ted in court by a pro­sec­utor.

⁴ The dir­ect­or of pro­ceed­ings may re­quire the pub­lic pro­sec­utor to be rep­res­en­ted by a pro­sec­utor in oth­er cases if he or she re­gards it as ne­ces­sary.

⁵ If the pub­lic pro­sec­utor is not present at the tri­al, des­pite be­ing re­quired to be rep­res­en­ted, the tri­al shall be post­poned.

¹ The dir­ect­or of pro­ceed­ings may dis­pense with the re­quire­ments for a private claimant to at­tend at the claimant's re­quest if his or her pres­ence is not re­quired.

² A third party af­fected by an ap­plic­a­tion for for­feit­ure is not re­quired to ap­pear in per­son.

³ If a private claimant or a third party af­fected by an ap­plic­a­tion for for­feit­ure does not ap­pear in per­son, he or she may be rep­res­en­ted or sub­mit writ­ten ap­plic­a­tions.

¹ The dir­ect­or of pro­ceed­ings shall open the tri­al, an­nounce the com­pos­i­tion of the court and es­tab­lish wheth­er the per­sons summoned are present.

² The court and the parties may then raise pre­lim­in­ary is­sues in par­tic­u­lar re­lat­ing to:

a.

the com­pet­ence of the charge;

b.

pro­ced­ur­al re­quire­ments;

c.

pro­ced­ur­al im­ped­i­ments;

d.

the files and the evid­ence taken;

e.

the ad­mis­sion of the pub­lic to the hear­ing;

f.

the di­vi­sion of the hear­ing.

³ The court de­cides im­me­di­ately on the pre­lim­in­ary is­sues after grant­ing the parties present the right to a fair hear­ing.

⁴ If the parties raise sup­ple­ment­ary is­sues dur­ing the tri­al, the court shall deal with these in the same way as pre­lim­in­ary is­sues.

⁵ The court may ad­journ the tri­al at any time in or­der to deal with pre­lim­in­ary or sup­ple­ment­ary is­sues, and to add to or have the pub­lic pro­sec­utor add to the files or the evid­ence.

¹ The fact that any pre­lim­in­ary is­sues have been dealt with has the fol­low­ing con­sequences:

a.

the tri­al must be con­duc­ted to its com­ple­tion without un­ne­ces­sary in­ter­rup­tions;

b.

the charge may no longer be with­drawn and, sub­ject to Art­icle 333, may no longer be amended;

c.

parties re­quired to at­tend may only leave the ven­ue for the hear­ing with the con­sent of the court; if a party leaves the ven­ue for the hear­ing, the hear­ing shall nev­er­the­less con­tin­ue.

² After any pre­lim­in­ary is­sues have been dealt with, the dir­ect­or of pro­ceed­ings shall an­nounce the ap­plic­a­tions made by the pub­lic pro­sec­utor, un­less the parties dis­pense with this re­quire­ment.

¹ The dir­ect­or of pro­ceed­ings or a mem­ber of the court that they have ap­poin­ted shall con­duct the ex­am­in­a­tion hear­ings.

² The oth­er mem­bers of the court and the parties may re­quest the dir­ect­or of pro­ceed­ings to ask sup­ple­ment­ary ques­tions or re­quest their au­thor­isa­tion to ask them them­selves.

³ At the start of the be­gin­ning of the pro­ced­ure for tak­ing evid­ence, the dir­ect­or of pro­ceed­ings shall ques­tion the ac­cused in de­tail on his or her per­son­al cir­cum­stances, on the charge and on the res­ults of the pre­lim­in­ary pro­ceed­ings.

¹ At the re­quest of the ac­cused or the pub­lic pro­sec­utor or ex of­fi­cio, the tri­al may be di­vided in­to two parts; in this event, it may be stip­u­lated that:

a.

in the first part of the pro­ceed­ings, only the of­fence and the is­sue of the ac­cused's guilt will be con­sidered, and that in the second the con­sequences of con­vic­tion or ac­quit­tal shall be con­sidered; or

b.

in the first part of the pro­ceed­ings, only the of­fence will be con­sidered and in the second the is­sue of the ac­cused's guilt to­geth­er with the con­sequences of con­vic­tion or ac­quit­tal will be con­sidered.

^1bis The fol­low­ing are re­spons­ible for the de­cision:

a.

un­til the tri­al is opened: the dir­ect­or of pro­ceed­ings;

b.

after the tri­al is opened: the court.²⁴¹

^1ter If the dir­ect­or of pro­ceed­ings re­jects the re­quest for the tri­al to be di­vided in­to two parts, he or she shall no­ti­fy the parties of this and provide a brief state­ment of the grounds. The re­quest may be filed again at the tri­al.²⁴²

² The de­cision on the di­vi­sion of the tri­al is non-con­test­able.

³ In the event of the di­vi­sion of the pro­ceed­ings, the per­son­al cir­cum­stances of the ac­cused may only be con­sidered in the tri­al in the event of that the ac­cused is found guilty, un­less that the ac­cused's per­son­al cir­cum­stances are of sig­ni­fic­ance in as­sess­ing the ob­ject­ive facts of the case or the state of mind of the ac­cused.

⁴ The ver­dict shall be giv­en fol­low­ing the de­lib­er­a­tions, but it may only be con­tested in con­junc­tion with the en­tire judg­ment.

¹ The court shall take new evid­ence and add to evid­ence already taken that is in­com­plete.

² It shall take evid­ence again that was not taken in the prop­er man­ner in the pre­lim­in­ary pro­ceed­ings.

³ It shall take evid­ence again that was taken in the prop­er man­ner in the pre­lim­in­ary pro­ceed­ings if dir­ect know­ledge of the evid­ence ap­pears ne­ces­sary in or­der to reach a de­cision.

If the court in­tends to make an as­sess­ment of the leg­al as­pects of the case that dif­fers from that of pub­lic pro­sec­utor in the in­dict­ment, it shall give no­tice of this to the parties present and give them the op­por­tun­ity to com­ment.

Be­fore con­clud­ing the pro­ced­ure for tak­ing evid­ence, the court shall give the parties the op­por­tun­ity to sub­mit ad­di­tion­al re­quests for fur­ther evid­ence to be taken.

¹ On con­clu­sion of the pro­ced­ure for tak­ing evid­ence, the parties shall present and jus­ti­fy their ap­plic­a­tions. The parties shall make their sub­mis­sions in the fol­low­ing or­der:

a.

the pub­lic pro­sec­utor;

b.

the private claimant;

c.

third parties af­fected by an ap­plic­a­tion for for­feit­ure (Art. 69–73 SCC²⁴³);

d.

the ac­cused or his or her de­fence law­yer.

² The parties have the right to make a second party sub­mis­sion.

¹ The ac­cused is en­titled to have the last word on con­clu­sion of the party sub­mis­sions.

² The dir­ect­or of pro­ceed­ings shall then de­clare the party hear­ing closed.

¹ The court shall re­tire on con­clu­sion of the party hear­ing in or­der to de­lib­er­ate on the judg­ment in private.

² The clerk of court shall par­ti­cip­ate in an ad­vis­ory ca­pa­city.

If the court is not yet in a po­s­i­tion to is­sue a judg­ment in the case, it may de­cide to take ad­di­tion­al evid­ence and the re­open the party hear­ing.

¹ The court is bound by the facts of the case set out in the in­dict­ment but not by the leg­al as­sess­ment of the case therein.

² It shall take ac­count of the evid­ence taken in the pre­lim­in­ary pro­ceed­ings and main pro­ceed­ings.

¹ If the court is able to de­cide on the sub­stance of the charge, it shall reach a ver­dict, and a de­cision on the sanc­tions and oth­er con­sequences.

² It shall reach its de­cision on all points of the judg­ment by a simple ma­jor­ity. Each mem­ber is ob­liged to vote.

³ It shall give no­tice of its judg­ment in ac­cord­ance with the pro­vi­sions of Art­icle 84.

¹ If the ac­cused has ac­cep­ted re­spons­ib­il­ity for the of­fence in the pre­lim­in­ary pro­ceed­ings or if his or her re­spons­ib­il­ity has oth­er­wise been sat­is­fact­or­ily es­tab­lished, the pub­lic pro­sec­utor shall is­sue a sum­mary pen­alty or­der if, hav­ing taken ac­count of any sus­pen­ded sen­tence or pa­role or­der that must be re­voked, it re­gards any of the fol­low­ing sen­tences as ap­pro­pri­ate:

a.

a fine;

b.

a mon­et­ary pen­alty of no more than 180 daily pen­alty units;

c.²⁴⁴

…

d.

a cus­todi­al sen­tence of no more than 6 months.

² Any of these sen­tences may be com­bined with a meas­ure in ac­cord­ance with Art­icles 66 and 67e–73 SCC²⁴⁵.²⁴⁶

³ Sen­tences in ac­cord­ance with para­graph 1 let­ters b–d may be com­bined with each oth­er provided the total sen­tence im­posed cor­res­ponds to a cus­todi­al sen­tence of no more than 6 months. A fine may al­ways be com­bined with any an­oth­er sen­tence.

If it is an­ti­cip­ated that the sum­mary pen­alty or­der will in­volve cus­todi­al sen­tence that must be served im­me­di­ately, the pub­lic pro­sec­utor shall con­duct a hear­ing to ex­am­ine the ac­cused.

¹ The sum­mary pen­alty or­der con­tains:

a.

the name of the au­thor­ity is­su­ing the or­der;

b.

the name of the ac­cused;

c.

a de­scrip­tion of the act com­mit­ted by the ac­cused;

d.

the of­fence con­sti­tuted by the act;

e.

the sanc­tion;

f.

no­tice of the re­voc­a­tion of a sus­pen­ded sanc­tion or of pa­role with a brief state­ment of the reas­ons;

f^bis.²⁴⁸

the date on which any DNA pro­file cre­ated must be de­leted;

g.

the costs and com­pens­a­tion due;

h.

de­tails of any seized prop­erty or as­sets that are to be re­leased or for­feited;

i.

ref­er­ence to the pos­sib­il­ity of re­ject­ing the or­der and the con­sequences of fail­ing to re­ject the or­der;

j.

place and date of is­sue;

k.

the sig­na­ture of the per­son is­su­ing the or­der.

² The pub­lic pro­sec­utor may de­cide on the civil claims in the sum­mary pen­alty or­der pro­ced­ure provided the ac­cused has ac­cep­ted the claims or provided:

a.

the claims may be as­sessed without tak­ing fur­ther evid­ence; and

b.

the amount claimed does not ex­ceed 30 000 francs.²⁴⁹

³ Im­me­di­ate writ­ten no­tice of the sum­mary pen­alty or­der shall be giv­en to per­sons and au­thor­it­ies who are en­titled to re­ject the or­der.

¹ A writ­ten re­jec­tion of the sum­mary pen­alty or­der may be filed with the pub­lic pro­sec­utor with­in 10 days by:

a.

the ac­cused;

a^bis.²⁵⁰

the private claimants;

b.

oth­er af­fected per­sons;

c.

if so provided, the Of­fice of the At­tor­ney Gen­er­al of Switzer­land or of the can­ton in fed­er­al or can­ton­al pro­ceed­ings re­spect­ively.

^1bis A private claimant may not con­test the sanc­tion im­posed in a sum­mary pen­alty or­der.²⁵¹

² A re­jec­tion oth­er than that made by the ac­cused must be ac­com­pan­ied by a state­ment of grounds.

³ Un­less a val­id re­jec­tion is filed, the sum­mary pen­alty or­der be­comes a fi­nal judg­ment.

¹ If a re­jec­tion is filed, the pub­lic pro­sec­utor shall gath­er the ad­di­tion­al evid­ence re­quired to as­sess the re­jec­tion.

² If the per­son fil­ing the re­jec­tion fails to at­tend an ex­am­in­a­tion hear­ing without an ex­cuse des­pite be­ing served with a sum­mons, the re­jec­tion is deemed to have been with­drawn.

³ After tak­ing the evid­ence, the pub­lic pro­sec­utor shall de­cide to either:

a.

stand by the sum­mary pen­alty or­der;

b.

aban­don the pro­ceed­ings;

c.

is­sue a new sum­mary pen­alty or­der;

d.

bring charges in the court of first in­stance.

¹ If the pub­lic pro­sec­utor de­cides to stand by the sum­mary pen­alty or­der, it shall send the files im­me­di­ately to the court of first in­stance for the con­duct of the main pro­ceed­ings. The sum­mary pen­alty or­der con­sti­tutes the in­dict­ment.

² The court of first in­stance shall de­cide on the valid­ity of the sum­mary pen­alty or­der and its re­jec­tion.

³ The re­jec­tion may be with­drawn at any time pri­or to the con­clu­sion of the party sub­mis­sions.

⁴ If the per­son fil­ing the re­jec­tion fails to at­tend the tri­al without ex­cuse or be­ing rep­res­en­ted, the re­jec­tion is deemed to have been with­drawn.

⁵ If the sum­mary pen­alty or­der is in­val­id, the court shall re­voke it and refer the case back to the pub­lic pro­sec­utor for new pre­lim­in­ary pro­ceed­ings to be con­duc­ted.

⁶ If the re­jec­tion relates only to costs and com­pens­a­tion or oth­er in­cid­ent­al leg­al or­ders, so the court shall de­cide in writ­ten pro­ceed­ings, un­less the per­son fil­ing the re­jec­tion ex­pressly re­quests a hear­ing.

⁷ If sum­mary pen­alty or­ders have been is­sued to two or more per­sons in re­la­tion to the same act, Art­icle 392 ap­plies mu­tatis mutandis.

¹ The ad­min­is­trat­ive au­thor­it­ies ap­poin­ted to pro­sec­ute and ad­ju­dic­ate con­tra­ven­tions have the powers of the pub­lic pro­sec­utor.

² The pro­ced­ure is gov­erned mu­tatis mutandis by the reg­u­la­tions on the sum­mary pen­alty or­der pro­ced­ure.

³ If ele­ments of the con­tra­ven­tion have not been ful­filled, so the au­thor­ity re­spons­ible for pro­sec­ut­ing con­tra­ven­tions shall aban­don the pro­ceed­ings by is­su­ing a rul­ing with a brief state­ment of the reas­ons.

⁴ If in the view of the au­thor­ity re­spons­ible for pro­sec­ut­ing con­tra­ven­tions the facts of the case con­sti­tute a felony or mis­de­mean­our, it shall refer the case to the pub­lic pro­sec­utor.

¹ At any time pri­or to bring­ing charges, the ac­cused may re­quest the pub­lic pro­sec­utor to con­duct ac­cel­er­ated pro­ceed­ings provided the ac­cused ad­mits the mat­ters es­sen­tial to the leg­al ap­prais­al of the case and re­cog­nises, if only in prin­ciple, the civil claims.

² Ac­cel­er­ated pro­ceed­ings are not an op­tion in cases where the pub­lic pro­sec­utor re­quests a cus­todi­al sen­tence of more than five years.

¹ The de­cision of the pub­lic pro­sec­utor on wheth­er to con­duct ac­cel­er­ated pro­ceed­ings is fi­nal. The rul­ing need not con­tain a state­ment of reas­ons.

² The pub­lic pro­sec­utor shall no­ti­fy the parties that ac­cel­er­ated pro­ceed­ings are to be con­duc­ted and shall set the private claimant a time lim­it of 10 days to file civil claims and re­quest the re­im­burse­ment of costs in­curred in the pro­ceed­ings.

¹ The in­dict­ment shall con­tain:

a.

the de­tails re­quired in ac­cord­ance with Art­icles 325 and 326;

b.

de­tails of the sen­tence;

c.

de­tails of any meas­ures;

d.

in­struc­tions re­lated to the im­pos­i­tion of a sus­pen­ded sen­tence;

e.

the re­voc­a­tion of sus­pen­ded sen­tences or pa­role;

f.

the ar­range­ments made with re­gard to the civil claims filed by the private claimant;

g.

the de­tails on costs and com­pens­a­tion;

h.

no­tice to the parties that by con­sent­ing to the in­dict­ment, they waive their rights to or­din­ary pro­ceed­ings and their rights of ap­peal.

² The pub­lic pro­sec­utor shall serve the in­dict­ment on the parties. The parties must de­clare with­in ten days wheth­er they con­sent to the in­dict­ment or not. Con­sent is ir­re­voc­able.

³ If a private claimant fails to give writ­ten no­tice re­ject­ing the in­dict­ment with­in the dead­line set, he or she is deemed to have con­sen­ted to it.

⁴ If the parties con­sent, the pub­lic pro­sec­utor shall pass the in­dict­ment with the files to the court of first in­stance.

⁵ If any party re­jects the in­dict­ment, the pub­lic pro­sec­utor shall con­duct or­din­ary pre­lim­in­ary pro­ceed­ings.

¹ The court of first in­stance shall con­duct a tri­al.

² At the tri­al, the court shall ques­tion the ac­cused and es­tab­lish wheth­er:

a.

he or she ad­mits the mat­ters on which the charges are based; and

b.

this ad­mis­sion cor­res­ponds to the cir­cum­stances set out in the files.

³ If ne­ces­sary, the court shall also ques­tion oth­er parties present.

⁴ No pro­ced­ure for tak­ing evid­ence shall be con­duc­ted.

¹ The court shall be free to de­cide wheth­er:

a.

the con­duct of ac­cel­er­ated pro­ceed­ings is law­ful and reas­on­able;

b.

the in­dict­ment is con­sist­ent with the out­come of the tri­al and with the files; and

c.

the re­ques­ted sanc­tions are equit­able.

² If the re­quire­ments for a judg­ment in the ac­cel­er­ated pro­ceed­ings are ful­filled, the court shall is­sue a judg­ment that sets out the of­fences, sanc­tions and civil claims con­tained in the in­dict­ment, to­geth­er with a brief state­ment of reas­ons for the ful­fil­ment of the re­quire­ments for the ac­cel­er­ated pro­ceed­ings.

³ If the re­quire­ments for a judg­ment in the ac­cel­er­ated pro­ceed­ings are not ful­filled, the court shall re­turn the files to the pub­lic pro­sec­utor so that or­din­ary pre­lim­in­ary pro­ceed­ings may be con­duc­ted. The court shall give no­tice of its de­cision not to is­sue a judg­ment both or­ally and by is­su­ing writ­ten con­clu­sions. This de­cision is non-con­test­able.

⁴ Fol­low­ing a de­cision not to is­sue a judg­ment in ac­cel­er­ated pro­ceed­ings, state­ments made by the parties for the pur­pose of the ac­cel­er­ated pro­ceed­ings may not be used in any sub­sequent or­din­ary pro­ceed­ings.

⁵ The sole grounds for an Art­icle 398 ap­peal against a judg­ment in ac­cel­er­ated pro­ceed­ings are that a party did not con­sent to the in­dict­ment or that the judg­ment does not cor­res­pond to the in­dict­ment.

¹ The court that is­sued the first in­stance judg­ment shall also take any sep­ar­ate sub­sequent de­cisions del­eg­ated to a ju­di­cial au­thor­ity un­less the Con­fed­er­a­tion or can­tons provide oth­er­wise.

² If the pub­lic pro­sec­utor is­sued the de­cision in sum­mary pen­alty or­der pro­ceed­ings or the au­thor­ity re­spons­ible for pro­sec­ut­ing con­tra­ven­tions is­sued the de­cision in con­tra­ven­tion pro­ceed­ings, these au­thor­it­ies shall also take the sub­sequent de­cisions.

³ The Con­fed­er­a­tion and the can­tons shall spe­cify the au­thor­it­ies re­spons­ible for mak­ing sub­sequent de­cisions that are not made by the court.

¹ The com­pet­ent au­thor­ity shall be­gin pro­ceed­ings to is­sue a sub­sequent ju­di­cial de­cision ex of­fi­cio un­less fed­er­al law provides oth­er­wise. It shall sub­mit the rel­ev­ant files and its ap­plic­a­tion to the court.

² In all oth­er cases, the per­son con­victed or any oth­er en­titled per­sons may re­quest pro­ceed­ings be ini­ti­ated by fil­ing a writ­ten and jus­ti­fied ap­plic­a­tion.

³ The court shall ex­am­ine wheth­er the re­quire­ments for the sub­sequent ju­di­cial de­cision are ful­filled, and shall, if ne­ces­sary, add to the files or ar­range for fur­ther en­quir­ies to be car­ried out by the po­lice.

⁴ It shall give the per­sons and au­thor­it­ies con­cerned the op­por­tun­ity to com­ment on the in­ten­ded de­cision and to sub­mit ap­plic­a­tions.

⁵ The pro­ceed­ings be­fore the court (Art. 363 para. 1) shall oth­er­wise be gov­erned mu­tatis mutandis by the pro­vi­sions on the tri­al at first in­stance; Art­icle 390 ap­plies mu­tatis mutandis to the writ­ten pro­ced­ure.²⁵²

¹ The au­thor­ity re­spons­ible for ini­ti­at­ing the pro­ceed­ings to is­sue a sep­ar­ate de­cision ex of­fi­cio may or­der the ar­rest of the con­victed per­son if it is ser­i­ously to be ex­pec­ted that:

a.

the per­son will be ordered to serve a cus­todi­al sanc­tion; and

b.

the per­son:

1.

will at­tempt to evade serving the sanc­tion, or

2.

will com­mit a fur­ther felony or ser­i­ous mis­de­mean­our.

² The pro­ced­ure is gov­erned by ana­logy by Art­icles 222–228.

³ The com­pet­ent au­thor­ity shall sub­mit the rel­ev­ant files and its ap­plic­a­tion to the court re­spons­ible for the sep­ar­ate sub­sequent de­cision as quickly as pos­sible.

¹ The dir­ect­or of pro­ceed­ings may or­der the ar­rest of the con­victed per­son sub­ject to the re­quire­ments of Art­icle 364apara­graph 1.

² It shall con­duct de­ten­tion pro­ceed­ings by ana­log­ous ap­plic­a­tion of Art­icle 224 and re­quest the com­puls­ory meas­ures court or the dir­ect­or of ap­pel­late pro­ceed­ings to or­der pre­vent­ive de­ten­tion. The pro­ced­ure is gov­erned by ana­logy by Art­icles 225 and 226.

³ If pre­vent­ive de­ten­tion has already been ordered, the pro­ced­ure is gov­erned by ana­logy by Art­icle 227.

⁴ Art­icles 222 and 230–233 also ap­ply by ana­logy.

¹ The court shall de­cide based on the files. It may also or­der a hear­ing.

² It shall is­sue its de­cision in writ­ing with a brief state­ment of reas­ons. If a hear­ing has been held, it shall make an im­me­di­ate or­al an­nounce­ment of its de­cision.

³ The court’s de­cision may be con­tested by fil­ing an Art­icle 398 ap­peal.²⁵⁵

¹ If an ac­cused who has been duly summoned fails to ap­pear be­fore the court of first in­stance, the court shall fix a new hear­ing and sum­mon the per­son again or ar­range for him or her to be brought be­fore the court. It shall take evid­ence where this can­not be delayed.

² If the ac­cused fails to ap­pear for the re-ar­ranged tri­al or if it is not pos­sible to bring him or her be­fore the court, the tri­al may be held in the ab­sence of the ac­cused. The court may also sus­pend the pro­ceed­ings.

³ If the ac­cused is suf­fer­ing from a vol­un­tar­ily in­duced un­fit­ness to plead or if he or she re­fuses to be brought from de­ten­tion to the tri­al, the court may con­duct pro­ceed­ings im­me­di­ately in ab­sen­tia.

⁴ Pro­ceed­ings in ab­sen­tia may only be held if:

a.

the ac­cused has pre­vi­ously had ad­equate op­por­tun­ity in the pro­ceed­ings to com­ment on the of­fences of which he or she is ac­cused

b.

suf­fi­cient evid­ence is avail­able to reach a judg­ment without the pres­ence of the ac­cused.

¹ The parties and the de­fence shall be per­mit­ted to make party sub­mis­sions.

² The court shall reach its judg­ment based on the evid­ence taken in the pre­lim­in­ary pro­ceed­ings and the main pro­ceed­ings.

³ On con­clu­sion of the party sub­mis­sions the court may is­sue a judg­ment or sus­pend the pro­ceed­ings un­til the ac­cused ap­pears in court in per­son.

⁴ Pro­ceed­ings in ab­sen­tia are oth­er­wise gov­erned by the pro­vi­sions on the main pro­ceed­ings at first in­stance.

¹ If it is pos­sible to serve the judg­ment in ab­sen­tia per­son­ally, the per­son con­victed shall be no­ti­fied that he or she has 10 days to make a writ­ten or or­al ap­plic­a­tion to the court that is­sued the judg­ment for it to re-as­sess the case.

² In the ap­plic­a­tion, the per­son con­victed must briefly ex­plain why he or she was un­able to ap­pear at the tri­al.

³ The court shall re­ject the ap­plic­a­tion if the per­son con­victed was duly summoned, but failed to ap­pear at the tri­al without ex­cuse.

¹ If it is prob­able that the re­quire­ments for a re-as­sess­ment will be met, the dir­ect­or of pro­ceed­ings shall fix a new tri­al. At this hear­ing, the court shall de­cide on the ap­plic­a­tion for re-as­sess­ment and shall if ap­plic­able reach a new judg­ment.

² The ap­peal courts shall sus­pend any ap­pel­late pro­ceed­ings raised by oth­er parties.

³ The dir­ect­or of pro­ceed­ings shall de­cide be­fore the tri­al on grant­ing sus­pens­ive ef­fect and on pre­vent­ive de­ten­tion.

⁴ If the con­victed per­son again fails to ap­pear for the tri­al, the judg­ment in ab­sen­tia shall re­main val­id.

⁵ The ap­plic­a­tion for re-as­sess­ment may be with­drawn at any time pri­or to the con­clu­sion of the party hear­ing sub­ject to the pay­ment of costs and com­pens­a­tion.

¹ The court shall is­sue a new judg­ment, which is sub­ject to the cus­tom­ary rights of ap­peal.

² When the new judg­ment be­comes leg­ally bind­ing, the judg­ment in ab­sen­tia, any ap­peal against the same and de­cisions already taken in the ap­pel­late pro­ceed­ings be­come void.

¹ With­in the ap­plic­able time lim­it, a per­son con­victed may file an Art­icle 398 ap­peal against the judg­ment in ab­sen­tia in ad­di­tion to or in­stead of the ap­plic­a­tion for re-as­sess­ment. The per­son con­victed must be no­ti­fied of this pos­sib­il­ity in ac­cord­ance with Art­icle 368 para­graph 1.

² An Art­icle 398 ap­peal shall only be con­sidered if the ap­plic­a­tion for re-as­sess­ment has been re­jec­ted.

¹ If it is not com­pet­ent to or­der a good be­ha­viour bond in terms of Art­icle 66 SCC²⁵⁶ in the course of the crim­in­al pro­ceed­ings against the ac­cused, sep­ar­ate pro­ceed­ings shall be held.

² If the ac­cused is in de­ten­tion due to a risk that he or she will com­mit a threatened felony or mis­de­mean­our or that he or she will com­mit that felony or mis­de­mean­our again, a good be­ha­viour bond or­der is not com­pet­ent.

³ The ap­plic­a­tion to be­gin sep­ar­ate pro­ceed­ings must be sub­mit­ted to the pub­lic pro­sec­utor in the place where the threat was made or the in­ten­tion was ex­pressed to com­mit the of­fence again.

¹ The pub­lic pro­sec­utor shall ques­tion the per­sons in­volved and then pass the files to the com­puls­ory meas­ures court. The court shall or­der the meas­ures men­tioned in Art­icle 66 SCC²⁵⁷. The per­son con­cerned may file an Art­icle 393 ap­peal against an or­der of de­ten­tion with the court for Art­icle 393 ap­peals.

² The per­son threatened has the same rights as a private claimant. He or she may where this is jus­ti­fied be re­quired to lodge se­cur­ity for the costs of the pro­ceed­ings and for com­pens­a­tion.

³ The per­son al­leged to have made the threat has the rights of an ac­cused.

⁴ Where money bail in ac­cord­ance with Art­icle 66 para­graph 3 SCC is for­feited to the state, a rul­ing there­on shall be is­sued in ap­plic­a­tion of Art­icle 240.

⁵ If a per­son threatens im­me­di­ate danger, the pub­lic pro­sec­utor may place this per­son pro­vi­sion­ally in de­ten­tion or take oth­er pro­tect­ive meas­ures. The pub­lic pro­sec­utor shall bring the per­son im­me­di­ately be­fore the com­pet­ent com­puls­ory meas­ures court; this court shall de­cide on wheth­er to or­der de­ten­tion.

¹ If an ac­cused is not leg­ally re­spons­ible be­cause of a men­tal dis­order and if the ap­plic­a­tion of Art­icle 19 para­graph 4 or 263 SCC²⁵⁸ is not an op­tion, the pub­lic pro­sec­utor shall make a writ­ten ap­plic­a­tion to the court of first in­stance for a meas­ure in ac­cord­ance with Art­icles 59–61, 63, 64, 67 or 67b or 67e SCC, without abandon­ing the pro­ceed­ings be­fore­hand due to the ac­cused not be­ing leg­ally re­spons­ible be­cause of a men­tal dis­order.²⁵⁹

² The court of first in­stance may in con­sid­er­a­tion of the ac­cused's state of health or to pro­tect the ac­cused's pri­vacy:

a.

con­duct the pro­ceed­ings in the ab­sence of the ac­cused;

b.

ex­clude the pub­lic from the pro­ceed­ings.

³ It shall give any private claimant the op­por­tun­ity to com­ment on the ap­plic­a­tion made by the pub­lic pro­sec­utor and on his or her civil claim.

⁴ The pro­vi­sions on the main pro­ceed­ings at first in­stance oth­er­wise ap­ply.

¹ The court shall or­der the meas­ures re­ques­ted or oth­er meas­ures if it is sat­is­fied that the ac­cused com­mit­ted the act but is not leg­ally re­spons­ible due to a men­tal dis­order and that meas­ure is re­quired. It shall de­cide on any civil claims at the same time.

² The or­der in re­spect of the meas­ure and the de­cision on the civil claims are is­sued in a judg­ment.

³ If the court is sat­is­fied that the ac­cused has the men­tal ca­pa­city to be leg­ally re­spons­ible or that he or she com­mit­ted the of­fences while lack­ing such men­tal ca­pa­city, it shall re­ject the ap­plic­a­tion made by the pub­lic pro­sec­utor. When this de­cision be­comes leg­ally bind­ing, the pre­lim­in­ary pro­ceed­ings against the ac­cused shall be con­tin­ued.

Sep­ar­ate for­feit­ure pro­ceed­ings are con­duc­ted if a de­cision must be made on the for­feit­ure of prop­erty or as­sets out­side of crim­in­al pro­ceed­ings.

¹ Prop­erty or as­sets that will prob­ably be for­feited in sep­ar­ate pro­ceed­ings shall be seized.

² If the re­quire­ments for for­feit­ure are ful­filled the pub­lic pro­sec­utor shall or­der their for­feit­ure in a for­feit­ure or­der; it shall give the per­son con­cerned the op­por­tun­ity to re­spond.

³ If the re­quire­ments are not ful­filled, it shall or­der the aban­don­ment of the pro­ceed­ings and re­turn the prop­erty or as­sets to the en­titled per­son.

⁴ The re­jec­tion pro­ced­ure is gov­erned by the pro­vi­sions on sum­mary pen­alty or­ders. Any de­cision made by the court shall be is­sued in the form of a judg­ment.²⁶⁰ The court’s de­cision may be con­tested by fil­ing an Art­icle 398 ap­peal.²⁶¹

The pub­lic pro­sec­utor or the court shall also de­cide on the ap­plic­a­tions made by the per­son suf­fer­ing harm for the for­feited prop­erty or as­sets to be used for his or her be­ne­fit. Art­icle 267 para­graphs 3–6 ap­plies mu­tatis mutandis.

Ap­pel­late pro­ceed­ings are gov­erned mu­tatis mutandis by the gen­er­al pro­vi­sions of this Code, un­less this Title provides oth­er­wise.

Where this Code provides that a de­cision is fi­nal or non-con­test­able, there is no ap­pel­late rem­edy in re­spect of that de­cision un­der this Code.

¹ The pub­lic pro­sec­utor may seek an ap­pel­late rem­edy for the be­ne­fit or to the det­ri­ment of an ac­cused or a per­son con­victed.

² If the Con­fed­er­a­tion or can­tons provide for a chief pro­sec­utor or an at­tor­ney gen­er­al, they shall spe­cify which pub­lic pro­sec­utor is en­titled to seek an ap­pel­late rem­edy.

³ They shall spe­cify which au­thor­it­ies may seek an ap­pel­late rem­edy in con­tra­ven­tion pro­ceed­ings.

⁴ …²⁶²

Fed­er­al au­thor­it­ies may seek an ap­pel­late rem­edy in re­spect of can­ton­al de­cisions if fed­er­al law provides that they must be no­ti­fied of the de­cision.

¹ Any party with a le­git­im­ate in­terest in the quash­ing or amend­ment of a de­cision may seek an ap­pel­late rem­edy.

² A private claimant may not con­test a de­cision on a sanc­tion that has been im­posed.

³ In the event of the death of the ac­cused, the per­son con­victed or a private claimant the next-of-kin in terms of Art­icle 110 para­graph 1 SCC²⁶⁴ and in ac­cord­ance with their rank­ing un­der the law of suc­ces­sion may seek an ap­pel­late rem­edy or con­tin­ue the ap­pel­late pro­ceed­ings provided their le­git­im­ate in­terests are af­fected.

¹ The dir­ect­or of ap­pel­late pro­ceed­ings may re­quire the private claimant to lodge se­cur­ity with­in of a time lim­it to cov­er any costs and com­pens­a­tion. Art­icle 136 re­mains re­served.

² If the se­cur­ity is not paid in time, the ap­pel­late au­thor­ity shall not con­sider the ap­pel­late rem­edy.

The peri­od for re­quest­ing an ap­pel­late rem­edy be­gins:

a.

in the case of a judg­ment: with the han­dover or ser­vice of the con­clu­sions;

b.

in the case of oth­er de­cisions: with the ser­vice of the de­cision;

c.

in the case of a pro­ced­ur­al act not sub­ject to writ­ten no­tice: when the re­cip­i­ent is in­formed of it.

¹ If this Code re­quires that the ap­pel­late rem­edy be ac­com­pan­ied by a state­ment of the grounds, the per­son or the au­thor­ity seek­ing the ap­pel­late rem­edy must in­dic­ate pre­cisely:

a.

which points of the de­cision are con­tested;

b.

what grounds there are for reach­ing a dif­fer­ent de­cision;

c.

what evid­ence they wish to ad­duce in sup­port of the ap­pel­late rem­edy.

² If the sub­mis­sion fails to sat­is­fy these re­quire­ments, the ap­pel­late au­thor­ity shall re­turn the same and fix a short ad­di­tion­al peri­od with­in which it may be amended. If the sub­mis­sion still fails to sat­is­fy the re­quire­ments after this ad­di­tion­al peri­od, the ap­pel­late au­thor­ity shall not con­sider the ap­pel­late rem­edy.

³ The in­cor­rect des­ig­na­tion of an ap­pel­late rem­edy does not ad­versely af­fect its valid­ity.

¹ Any per­son with a right to seek an ap­pel­late rem­edy may waive this right by mak­ing a writ­ten or or­al de­clar­a­tion to the au­thor­ity is­su­ing the de­cision on re­ceiv­ing no­tice of the con­test­able de­cision.

² Any per­son who has re­ques­ted an ap­pel­late rem­edy may with­draw the same:

a.

in or­al pro­ceed­ings: be­fore the con­clu­sion of the party hear­ings;

b.

in writ­ten pro­ceed­ings: be­fore the con­clu­sion of the ex­change of sub­mis­sions and any amend­ments to the evid­ence or files.

³ Waiver and with­draw­al are fi­nal un­less the party has been in­duced to make his or her de­clar­a­tion by de­cep­tion, an of­fence or in­cor­rect of­fi­cial in­form­a­tion.

Ap­pel­late rem­ed­ies have no sus­pens­ive ef­fect, sub­ject to any pro­vi­sions of this Code that provide oth­er­wise or or­ders is­sued by the dir­ect­or of ap­pel­late pro­ceed­ings.

¹ The dir­ect­or of ap­pel­late pro­ceed­ings shall take the re­quired meas­ures dir­ect­ing pro­ceed­ings and in­ter­im meas­ures that can­not be delayed. He or she may in par­tic­u­lar:

a.

in­struct the pub­lic pro­sec­utor to take evid­ence where this can­not be delayed;

b.

or­der de­ten­tion;

c.

ap­point a duty de­fence law­yer.

² He or she shall de­cide not to con­sider the sub­stance of:

a.

clearly in­ad­miss­ible ap­pel­late rem­ed­ies;

b.

ap­pel­late rem­ed­ies that are clearly based on in­suf­fi­cient grounds;

c.

ap­pel­late rem­ed­ies that are quer­ulant or vex­a­tious.²⁶⁶

¹ The ap­pel­late pro­ceed­ings are based on the evid­ence that was taken in the pre­lim­in­ary pro­ceed­ings and in the main pro­ceed­ings be­fore the court of first in­stance.

² Evid­ence taken by the court of first in­stance shall only be taken again if:

a.

rules on evid­ence have been in­fringed;

b.

the evid­ence taken was in­com­plete;

c.

the files on the evid­ence taken ap­pear to be un­re­li­able.

³ The ap­pel­late au­thor­ity shall take the re­quired ad­di­tion­al evid­ence ex of­fi­cio or at the re­quest of a party.

¹ Any per­son who wishes to seek an ap­pel­late rem­edy for which this Code stip­u­lates a writ­ten pro­ced­ure must file the rel­ev­ant pe­ti­tion.

² If the ap­pel­late rem­edy is not ob­vi­ously in­ad­miss­ible or un­jus­ti­fied, the dir­ect­or of pro­ceed­ings shall send the pe­ti­tion to the oth­er parties and the lower court to ob­tain their re­sponse. If the pe­ti­tion can­not be sent to a party or if a party fails to re­spond, the pro­ceed­ings shall nev­er­the­less be con­tin­ued.

³ The ap­pel­late au­thor­ity shall if ne­ces­sary or­der a second ex­change of writ­ten sub­mis­sions.

⁴ It shall make its de­cision by way of cir­cu­la­tion or by de­lib­er­at­ing in cam­era based on the files and any ad­di­tion­al evid­ence taken.

⁵ It may or­der a hear­ing ex of­fi­cio at the re­quest of a party.

¹ In mak­ing its de­cision, the ap­pel­late au­thor­ity is not bound by:

a.

the grounds put for­ward by the parties;

b.

the ap­plic­a­tions made by the parties un­less it is con­sid­er­ing civil claims.

² It may not amend de­cisions to the pre­ju­dice of an ac­cused or per­son con­victed if the ap­peal was filed solely for that per­son's be­ne­fit. However, it may im­pose a more severe pen­alty where facts have come to light that the court of first in­stance could not have known.

³ It may not amend de­cisions on civil mat­ters to the pre­ju­dice of a private claimant if this is the only per­son to re­quest an ap­pel­late rem­edy.

¹ Where only cer­tain in­di­vidu­al sus­pects or per­son con­victed in the same pro­ceed­ings have re­ques­ted an ap­pel­late rem­edy and if this ap­pel­late rem­edy is gran­ted, the con­tested de­cision shall also be quashed or amended in fa­vour of the per­sons who did not re­quest an ap­pel­late rem­edy if:

a.

the ap­pel­late au­thor­ity as­sessed the facts of the case dif­fer­ently; and

b.

their con­sid­er­a­tions area also rel­ev­ant to the oth­er parties.

² Be­fore mak­ing their de­cision, the ap­pel­late au­thor­ity shall if ne­ces­sary hear the ac­cused or per­son con­victed who have not re­ques­ted an ap­pel­late rem­edy, the pub­lic pro­sec­utor and the private claimant.

¹ An ap­peal un­der this art­icle is ad­miss­ible against:

a.

the rul­ings and the pro­ced­ur­al acts of the po­lice, pub­lic pro­sec­utor and au­thor­it­ies re­spons­ible for pro­sec­ut­ing con­tra­ven­tions;

b.

the rul­ings, de­crees and pro­ced­ur­al acts of courts of first in­stance, with the ex­cep­tion of de­cisions dir­ect­ing pro­ceed­ings;

c.²⁶⁷

de­cisions of the com­puls­ory meas­ures court, un­less this Code provides that they are fi­nal.

² An Art­icle 393 ap­peal may con­test:

a.

an in­fringe­ment of the law, in­clud­ing ex­ceed­ing and ab­us­ing dis­cre­tion­ary powers, the deni­al of justice and un­jus­ti­fied delay;

b.

an in­com­plete or in­cor­rect as­sess­ment of the cir­cum­stances of the case;

c.

a de­cision that is in­equit­able.

An Art­icle 393 ap­peal is not per­mit­ted:

a.

if an Art­icle 398 ap­peal is ad­miss­ible;

b.

against the re­jec­tion of re­quests for fur­ther evid­ence to be taken by the pub­lic pro­sec­utor or the au­thor­ity re­spons­ible for pro­sec­ut­ing con­tra­ven­tions, if the ap­plic­a­tion may be filed again be­fore the court of first in­stance without leg­al dis­ad­vant­age.

If the court for Art­icle 393 ap­peals is a court with a pan­el of judges, the dir­ect­or of pro­ceed­ings shall de­cide on the ap­peal alone if it has the fol­low­ing sub­ject mat­ter:

a.

con­tra­ven­tions only;

b.

the fin­an­cial con­sequences of a de­cision where the amount in dis­pute is no more than 5000 francs.

¹ An Art­icle 393 ap­peal against de­cisions is­sued in writ­ing or or­ally must be filed with­in 10 days in writ­ing and with a state­ment of grounds with the court for Art­icle 393 ap­peals.

² There is no time lim­it for fil­ing an Art­icle 393 ap­peal al­leging a deni­al of justice or un­jus­ti­fied delay.

¹ An Art­icle 393 ap­peal shall be dealt with by writ­ten pro­ceed­ings.

² If the au­thor­ity up­holds the Art­icle 393 ap­peal, it shall make a new de­cision or quash the con­tested de­cision and refer the case back to the lower court for a new de­cision.

³ If it up­holds an Art­icle 393 ap­peal against a rul­ing abandon­ing pro­ceed­ings, it may is­sue in­struc­tions to the pub­lic pro­sec­utor or the au­thor­ity re­spons­ible for pro­sec­ut­ing con­tra­ven­tions on the con­tinu­ation of the pro­ceed­ings.

⁴ If it holds that there has been a deni­al of justice or un­jus­ti­fied delay, it may is­sue in­struc­tions to the au­thor­ity con­cerned and set time lim­its for its com­pli­ance.

⁵ The court for Art­icle 393 ap­peals shall de­cide with­in six months.²⁶⁸

¹ An ap­peal un­der this art­icle is per­mit­ted against judg­ments of courts of first in­stance that con­clude the pro­ceed­ings in their en­tirety or in part, and against in­di­vidu­al sub­sequent court de­cisions and in­di­vidu­al for­feit­ure de­cisions.²⁶⁹

² The court for Art­icle 398 ap­peals may re­view the judg­ment com­pre­hens­ively on all con­tested points.

³ An Art­icle 398 ap­peal may con­test:

a.

an in­fringe­ment of the law, in­clud­ing ex­ceed­ing and ab­us­ing dis­cre­tion­ary powers, the deni­al of justice and un­jus­ti­fied delay;

b.

an in­com­plete or in­cor­rect as­sess­ment of the cir­cum­stances of the case;

c.

a de­cision that is in­equit­able.

⁴ Where the tri­al be­fore the court of first in­stance con­sidered con­tra­ven­tions only, the Art­icle 398 ap­peal may only claim that the judg­ment con­tains er­rors in law or that the as­sess­ment of the cir­cum­stances was clearly in­cor­rect or based on an in­fringe­ment of the law. New aver­ments and evid­ence may not be raised.

⁵ If the Art­icle 398 ap­peal is lim­ited to civil mat­ters, the first in­stance judg­ment shall only be re­viewed to the ex­tent per­mit­ted by the civil pro­ced­ure law ap­plic­able at the place of jur­is­dic­tion.

¹ No­tice of in­ten­tion to file an Art­icle 398 ap­peal must be giv­en in writ­ing or or­ally to the court of first in­stance with­in 10 days of the is­su­ing of the judg­ment.

² When it has drawn up the writ­ten judg­ment stat­ing the grounds, the court of first in­stance shall trans­mit the no­tice to­geth­er with the files to the court for Art­icle 398 ap­peals.

³ The party that has giv­en no­tice of in­ten­tion to ap­peal shall file a writ­ten Art­icle 398 ap­peal pe­ti­tion with the court for Art­icle 398 ap­peals with­in 20 days of re­ceiv­ing the writ­ten judg­ment stat­ing the grounds. In the pe­ti­tion, he or she must in­dic­ate:

a.

wheth­er he or she is con­test­ing the judg­ment in its en­tirety or only in part;

b.

which changes to the judg­ment is­sued by the court of first in­stance judg­ment it is re­quest­ing; and

c.

what re­quests for fur­ther evid­ence to be taken it is mak­ing.

⁴ If a per­son is only con­test­ing part of the judg­ment, he or she must in­dic­ate in the Art­icle 398 ap­peal pe­ti­tion which of the fol­low­ing parts the ap­peal is lim­ited to:

a.

the ver­dict, and which ver­dict if there is more than one of­fence;

b.

the sen­tence im­posed;

c.

the meas­ures ordered;

d.

the civil claim or in­di­vidu­al civil claims;

e.

the in­cid­ent­al ef­fects of the judg­ment;

f.

the award of costs, com­pens­a­tion or sat­is­fac­tion;

g.

the sub­sequent ju­di­cial de­cisions.

¹ If it is not clear from the Art­icle 398 ap­peal pe­ti­tion wheth­er the first in­stance judg­ment is be­ing con­tested in its en­tirety or only in part, the dir­ect­or of ap­peal pro­ceed­ings shall re­quest the party to cla­ri­fy the pe­ti­tion and set a time lim­it for that pur­pose.

² The dir­ect­or of pro­ceed­ings shall send a copy of the ap­peal pe­ti­tion to the oth­er parties im­me­di­ately.

³ With­in 20 days of re­ceipt of the ap­peal pe­ti­tion, the oth­er parties may:

a.

make a writ­ten ap­plic­a­tion for the dis­missal of the ap­peal without con­sid­er­ing its sub­stance; the ap­plic­a­tion con­tain with a state­ment of the grounds;

b.

de­clare their in­ten­tion to file a cross-ap­peal.

¹ Cross-ap­peals are gov­erned mu­tatis mutandis by Art­icle 399 para­graphs 3 and 4.

² They are not lim­ited to the scope of the main Art­icle 398 ap­peal, un­less it relates solely to the civil as­pect of the judg­ment.

³ If the main ap­peal is with­drawn or dis­missed without its sub­stance be­ing con­sidered, the cross-ap­peal also lapses.

An Art­icle 398 ap­peal has sus­pens­ive ef­fect with re­gard to the mat­ters con­tested.

¹ The court for Art­icle 398 ap­peals shall de­cide in writ­ten pro­ceed­ings wheth­er it should con­sider the sub­stance of the ap­peal where the dir­ect­or of pro­ceed­ings or a party claims:

a.

the no­tice of in­ten­tion to ap­peal or ap­peal pe­ti­tion was filed too late or is in­ad­miss­ible;

b.

the ap­peal is in­ad­miss­ible un­der Art­icle 398;

c.

pro­ced­ur­al re­quire­ments have not been ful­filled or there are pro­ced­ur­al im­ped­i­ments.

² It shall give the parties op­por­tun­ity to com­ment.

³ If it de­cides not to con­sider the sub­stance of the ap­peal, it shall give no­tice of its de­cision and the grounds there­for to the parties.

⁴ The dir­ect­or of pro­ceed­ings shall oth­er­wise and without any fur­ther form­al­it­ies make the re­quired ar­range­ments for con­duct­ing the ap­peal pro­ceed­ings.

¹ The court for Art­icle 398 ap­peals shall con­sider only the con­tested points in the first in­stance judg­ment.

² It may also con­sider points not con­tested for the be­ne­fit of the ac­cused in or­der to pre­vent an un­law­ful or un­fair de­cision from be­ing made.

¹ The or­al Art­icle 398 ap­peal hear­ing is gov­erned by the pro­vi­sions on the tri­al in first in­stance.

² If the ac­cused or the private claimant filed the ap­peal or cross-ap­peal, the dir­ect­or of pro­ceed­ings shall sum­mon him or her to the ap­peal hear­ing. In simple cases, he or she may, if re­ques­ted, be gran­ted dis­pens­a­tion not to at­tend and be per­mit­ted to sub­mit and jus­ti­fy their ap­plic­a­tions in writ­ing.

³ The dir­ect­or of pro­ceed­ings shall sum­mon the pub­lic pro­sec­utor to the hear­ing:

a.

in the cases men­tioned in Art­icle 337 para­graphs 3 and 4;

b.

if the pub­lic pro­sec­utor has filed the Art­icle 398 ap­peal or the cross- ap­peal.

⁴ If the pub­lic pro­sec­utor is not summoned, it may sub­mit writ­ten ap­plic­a­tions and a writ­ten state­ment of the grounds or ap­pear per­son­ally in court.

¹ The court for Art­icle 398 ap­peals may deal with the ap­peal in writ­ten pro­ceed­ings if:

a.

its de­cision relates solely to leg­al is­sues;

b.

only the civil as­pect is be­ing con­tested;

c.

the sub­ject mat­ter of the judg­ment of the court of first in­stance is a con­tra­ven­tion and the ap­peal does not re­quest a con­vic­tion for a felony or mis­de­mean­our;

d.

only an award of costs, com­pens­a­tion or sat­is­fac­tion is be­ing con­tested;

e.

only meas­ures un­der Art­icle 66–73 SCC²⁷⁰ are be­ing con­tested.

² With the con­sent the parties, the dir­ect­or of pro­ceed­ings may also or­der writ­ten pro­ceed­ings if:

a.

the pres­ence the ac­cused is not re­quired;

b.

the ap­peal relates to the de­cision of a judge sit­ting alone.

³ The dir­ect­or of pro­ceed­ings shall fix a time lim­it with­in which the party fil­ing the ap­peal must sub­mit a writ­ten state­ment of the grounds.

⁴ The sub­sequent pro­ceed­ings are gov­erned by Art­icle 390 para­graphs 2–4.

¹ The Art­icle 398 ap­peal or cross-ap­peal is deemed to have been with­drawn if the party that has filed it:

a.

fails without ex­cuse to at­tend or to ar­range to be rep­res­en­ted at the or­al ap­peal hear­ing;

b.

fails to file any writ­ten sub­mis­sions; or

c.

can­not be summoned.

² If the pub­lic pro­sec­utor or the private claimant has filed an Art­icle 398 ap­peal against the ver­dict or the sen­tence and the ac­cused fails without ex­cuse to at­tend the hear­ing, so pro­ceed­ings in ab­sen­tia shall be held.

³ If the private claimant has lim­ited his or her Art­icle 398 ap­peal to the civil as­pect and the ac­cused fails without ex­cuse to at­tend the hear­ing, the court for Art­icle 398 ap­peals shall de­cide as on the basis of the find­ings made in the tri­al be­fore the court of first in­stance and the oth­er files.

¹ If the court for Art­icle 398 ap­peals de­cides to con­sider the sub­stance of an Art­icle 398 ap­peal, it shall is­sue a new judg­ment which re­places the first in­stance judg­ment.

² The court for Art­icle 398 ap­peals shall de­cide with­in twelve months.²⁷¹

¹ If the pro­ceed­ings in the first in­stance were so ser­i­ously flawed that they can­not be rec­ti­fied by the Art­icle 398 ap­peal pro­ceed­ings, the court for Art­icle 398 ap­peals shall quash the con­tested judg­ment and re­mit the case to the court of first in­stance so that it may con­duct a re-tri­al and is­sue a new judg­ment.

² The court for Art­icle 398 ap­peals shall de­cide which pro­ced­ur­al acts must be re­peated or car­ried out.

³ The court of first in­stance is bound by the in­ter­pret­a­tion of law made by the court for Art­icle 398 ap­peals in the de­cree re­mit­ting the case and by the in­struc­tion is­sued in ac­cord­ance with para­graph 2.

¹ Any per­son who is ad­versely af­fected by a leg­ally bind­ing fi­nal judg­ment, a sum­mary pen­alty or­der, a sub­sequent ju­di­cial de­cision or a de­cision in sep­ar­ate pro­ceed­ings on meas­ures may re­quest a re­view of the case if:

a.

new cir­cum­stances that arose be­fore the de­cision or new evid­ence have come to light that are likely to lead to an ac­quit­tal, a con­sid­er­ably re­duced or more severe pen­alty for the con­victed per­son or the con­vic­tion of an ac­quit­ted per­son;

b.

the de­cision is ir­re­con­cil­ably con­tra­dict­ory to a sub­sequent crim­in­al judg­ment re­lat­ing to the same set of cir­cum­stances;

c.

it has been proven in oth­er crim­in­al pro­ceed­ings that the res­ult of pro­ceed­ings was in­flu­enced by a crim­in­al of­fence; a con­vic­tion is not re­quired; if it is not pos­sible to con­duct crim­in­al pro­ceed­ings, proof may be ad­duced in an­oth­er way.

² The re­view of a case due to a vi­ol­a­tion of the Con­ven­tion of 4 Novem­ber 1950²⁷² for the Pro­tec­tion of Hu­man Rights and Fun­da­ment­al Freedoms (ECHR) may be re­ques­ted if:

a.²⁷³

the European Court of Hu­man Rights has held in a fi­nal judg­ment (Art. 44 ECHR) that the ECHR or its Pro­to­cols have been vi­ol­ated or the case has been con­cluded by means of a friendly set­tle­ment (Art. 39 ECHR);

b.

the con­sequences the vi­ol­a­tion can­not be com­pensated for by the pay­ment of com­pens­a­tion; and

c.

the re­view of a case is ne­ces­sary in or­der to re­dress the vi­ol­a­tion.

³ The re­view of a case for the be­ne­fit of the per­son con­victed may also be re­ques­ted after the case be­comes time-barred.

⁴ Is the re­view of a case is lim­ited to civil claims, it shall be ad­miss­ible only if the civil pro­ced­ure law ap­plic­able at the place of jur­is­dic­tion would al­low a re­view of a case.

¹ Ap­plic­a­tions for the re­view of a case must be sub­mit­ted to the court for Art­icle 398 ap­peals in writ­ing and in­clude a state­ment of the grounds. The ap­plic­a­tion must in­dic­ate and sub­stan­ti­ate the grounds for the re­view.

² Ap­plic­a­tions in terms of Art­icle 410 para­graph 1 let­ter b and 2 must be filed with­in 90 days of re­ceiv­ing no­tice of the de­cision con­cerned. In oth­er cases, ap­plic­a­tions for the re­view of a case are not sub­ject to a time lim­it.

¹ The court for Art­icle 398 ap­peals shall con­duct a pre­lim­in­ary ex­am­in­a­tion of the ap­plic­a­tion for a re­view in writ­ten pro­ceed­ings.

² If the ap­plic­a­tion is clearly in ad­miss­ible or un­jus­ti­fied or if an ap­plic­a­tion on the same grounds has already been made and re­jec­ted, the court shall not con­sider the sub­stance of the case.

³ The court shall oth­er­wise re­quest the oth­er parties and the lower court to com­ment in writ­ing.

⁴ It shall de­cide on the re­quired ad­di­tions to the evid­ence and files as well as on in­ter­im meas­ures, un­less this is the re­spons­ib­il­ity of the dir­ect­or of pro­ceed­ings in ac­cord­ance with Art­icle 388.

¹ If the court for Art­icle 398 ap­peals re­jects the grounds for a re­view put for­ward, it shall dis­miss the ap­plic­a­tion for a re­view and can­cel any in­ter­im meas­ures.

² If the court ac­cepts the grounds for a re­view put for­ward, it shall quash the con­tested de­cision in its en­tirety or in part and:

a.

re­mit the case to the au­thor­ity that it des­ig­nates for re­con­sid­er­a­tion and a new judg­ment; or

b.

make a new de­cision it­self, provided the state of the files so per­mits.

³ In the event that it re­mits the case, it shall de­cide on the ex­tent to which the grounds for a re­view ac­cep­ted nul­li­fy the leg­al­ity and en­force­ab­il­ity of the con­tested de­cision and at what stage the pro­ceed­ings should be re­sumed.

⁴ It may or­der the ac­cused to be placed tem­por­ar­ily or to re­main in pre­vent­ive de­ten­tion, if the rel­ev­ant re­quire­ments are ful­filled.

¹ If the court for Art­icle 398 ap­peals has re­mit­ted the case to the pub­lic pro­sec­utor, the pub­lic pro­sec­utor shall de­cide wheth­er to raise a new pro­sec­u­tion, to is­sue a sum­mary pen­alty or­der or to aban­don the pro­ceed­ings.

² If it has re­mit­ted the case to a court, the court shall take any ad­di­tion­al evid­ence re­quired and, fol­low­ing a tri­al, shall is­sue a new judg­ment.

¹ If the new de­cision im­poses a high­er sen­tence on the ac­cused, the por­tion of the ori­gin­al sen­tence already served shall be taken in­to ac­count.

² If the ac­cused is ac­quit­ted or a more le­ni­ent sen­tence is im­posed or if the pro­ceed­ings are aban­doned, any fines or mon­et­ary pen­al­ties that have been over­paid shall be re­fun­ded. Claims made by the ac­cused for com­pens­a­tion or sat­is­fac­tion are gov­erned by Art­icle 436 para­graph 4.

³ If a con­vic­tion is over­turned and an ac­quit­tal im­posed, the ac­cused or, fol­low­ing his or her death, his or her next-of-kin may de­mand that the new de­cision be pub­lished.

The pro­vi­sions of this Title ap­ply to all pro­ced­ures un­der this Code.

In the event of fail­ure to com­ply with pro­ced­ur­al re­quire­ments or any oth­er form of pro­ced­ur­al de­fault, the crim­in­al justice au­thor­ity may re­quire the party re­spons­ible for the de­fault to pay pro­ced­ur­al costs and com­pens­a­tion re­gard­less of the out­come of the pro­ceed­ings.

¹ If more than one per­son is li­able to pay costs, the costs shall be im­posed pro­por­tion­ately.

² Where two or more per­sons are jointly re­spons­ible for costs be­ing in­curred, the crim­in­al justice au­thor­ity may or­der that the per­sons con­cerned be held jointly and sev­er­ally li­able to pay the costs.

³ It may re­quire third parties in ac­cord­ance with the civil law prin­ciples of li­ab­il­ity to bear the costs jointly and sev­er­ally with the ac­cused.

If the pro­ceed­ings are aban­doned or res­ult in an ac­quit­tal be­cause the ac­cused is not leg­ally re­spons­ible due to a men­tal dis­order, the costs may be im­posed on the ac­cused if this ap­pears reas­on­able in all the cir­cum­stances.

The Con­fed­er­a­tion or the can­ton may take leg­al ac­tion against per­sons who wil­fully or through gross neg­li­gence lead it to in­cur costs by:

a.

caus­ing pro­ceed­ings to be in­sti­tuted;

b.

make the pro­ceed­ings con­sid­er­ably more com­plic­ated;

c.

bring­ing about a de­cision that is over­turned in re­view pro­ceed­ings.

¹ The crim­in­al justice au­thor­ity shall de­cide who is to bear any costs in the fi­nal judg­ment.

² It may make an ad­vance de­cision in:

a.

in­ter­im de­cisions;

b.

de­cisions on the par­tial aban­don­ment of the pro­ceed­ings;

c.

de­cisions on ap­peals against in­ter­im and aban­don­ment de­cisions.

¹ The pro­ced­ur­al costs com­prise the charges that cov­er fees and out­lays in a spe­cif­ic crim­in­al case.

² Out­lays are in par­tic­u­lar:

a.

the cost of the duty de­fence law­yer and leg­al aid rep­res­ent­at­ive;

b.

the cost of trans­la­tions;

c.

the cost of ex­pert re­ports;

d.

the cost in­curred by in­volving oth­er au­thor­it­ies;

e.

post­age, tele­phone and sim­il­ar ex­penses.

¹ The pro­ced­ur­al costs shall be borne by the Con­fed­er­a­tion or the can­ton that con­ducts the pro­ceed­ings, un­less oth­er­wise provided in this Code.

² and ³ …²⁷⁴

¹ The Con­fed­er­a­tion and the can­tons shall is­sue reg­u­la­tions on the cal­cu­la­tion of pro­ced­ur­al costs and shall stip­u­late the fees.

² They may stip­u­late flat-rate fees for simple cases that also cov­er the out­lays.

The crim­in­al justice au­thor­ity may de­fer its claim to pro­ced­ur­al costs or, tak­ing ac­count of the fin­an­cial cir­cum­stances of the per­son li­able to pay, re­duce or re­mit the sum due.

¹ The ac­cused shall bear the pro­ced­ur­al costs if he or she is con­victed. Ex­emp­ted there­from are the costs of the duty de­fence law­yer; Art­icle 135 para­graph 4 is re­served.

² If the pro­ceed­ings are aban­doned or the ac­cused ac­quit­ted, all or part of the pro­ced­ur­al costs may be im­posed on the ac­cused if he or she has un­law­fully or culp­ably caused the pro­ceed­ings to be ini­ti­ated or has ob­struc­ted their con­duct.

³ The ac­cused shall not bear the pro­ced­ur­al costs that:

a.

the Con­fed­er­a­tion or the can­ton has in­curred through un­ne­ces­sary or flawed pro­ced­ur­al acts;

b.

are in­curred for trans­la­tions that were ne­ces­sary be­cause the ac­cused speaks a for­eign lan­guage.

⁴ The ac­cused shall bear the costs of the private claimant's leg­al aid rep­res­ent­at­ive only if he or she has the fin­an­cial means to do so.

⁵ The pro­vi­sions of this Art­icle ap­ply mu­tatis mutandis to parties to sep­ar­ate meas­ures pro­ced­ures if they are un­suc­cess­ful.

¹ The private claimant may be ordered to pay pro­ced­ur­al costs in­curred as a res­ult of his or her ap­plic­a­tions on civil mat­ters if:

a.

the pro­ceed­ings are aban­doned or the ac­cused is ac­quit­ted;

b.

the private claimant with­draws the civil claim be­fore the con­clu­sion of the tri­al be­fore the court of first in­stance;

c.

the civil pro­ceed­ings are dis­missed or re­mit­ted to the civil courts.

² In the case of of­fences pro­sec­uted only on com­plaint, pro­ced­ur­al costs may be im­posed on the com­plain­ant where he or she has wil­fully or through gross neg­li­gence brought about the pro­ceed­ings or has ob­struc­ted their con­duct, or on the private claimant where:

a.

the pro­ceed­ings are aban­doned or the ac­cused is ac­quit­ted; and

b.

the ac­cused is not li­able to pay costs in terms of Art­icle 426 para­graph 2.

³ If the com­plain­ant with­draws the crim­in­al com­plaint as part of a set­tle­ment ar­ranged by the pub­lic pro­sec­utor, the Con­fed­er­a­tion or the can­ton shall nor­mally bear the pro­ced­ur­al costs.

⁴ An agree­ment between the com­plain­ant and the ac­cused on who is to bear the costs in the event that the crim­in­al com­plaint is with­drawn re­quires the ap­prov­al of the au­thor­ity that or­ders the case to be aban­doned. The agree­ment may not pre­ju­dice the Con­fed­er­a­tion or the can­ton.

¹ The costs of the ap­pel­late pro­ceed­ings are borne by the parties ac­cord­ing to wheth­er they are suc­cess­ful or not. An ap­pel­lant is also re­garded as un­suc­cess­ful if the ap­peal is dis­missed without its sub­stance be­ing con­sidered or if the ap­peal is with­drawn.

² Where an ap­pel­lant se­cures a more fa­vour­able de­cision, he or she may be ordered to pay costs if:

a.

the ap­peal is suc­cess­ful due to cir­cum­stances that be­came ap­par­ent for the first time in the ap­pel­late pro­ceed­ings; or

b.

only minor changes are made to the con­tested de­cision.

³ If the ap­pel­late au­thor­ity it­self is­sues a new de­cision, it shall also re­view the rul­ing on costs is­sued by the lower court.

⁴ If it quashes a de­cision and re­mits the case to the lower for a new de­cision, the Con­fed­er­a­tion or the can­ton shall bear the costs of the ap­pel­late pro­ceed­ings, if the ap­pel­late au­thor­ity so de­cides, those of the lower court.

⁵ If an ap­plic­a­tion for a re­view is ap­proved, the crim­in­al justice au­thor­ity that must sub­sequently deal with the case shall de­cide at its dis­cre­tion on the costs of the first pro­ceed­ings.

¹ If the ac­cused is wholly or partly ac­quit­ted or if the pro­ceed­ings against the ac­cused are aban­doned, he or she is en­titled to:

a.²⁷⁵

com­pens­a­tion in ac­cord­ance with the table of leg­al fees for ex­pendit­ure in­curred in the ap­pro­pri­ate ex­er­cise of his or her pro­ced­ur­al rights, whereby the com­pens­a­tion awar­ded shall cor­res­pond to the fee in the table of leg­al fees for a private de­fence;

b.

com­pens­a­tion for the fin­an­cial losses that he or she in­curs due to the re­quired par­ti­cip­a­tion in the crim­in­al pro­ceed­ings;

c.

sat­is­fac­tion for par­tic­u­larly ser­i­ous vi­ol­a­tions of his or her per­son­al cir­cum­stances, in par­tic­u­lar due to depriva­tion of liberty.

² The crim­in­al justice au­thor­ity shall ex­am­ine the claim ex of­fi­cio. It may re­quire the ac­cused to quanti­fy and sub­stan­ti­ate the claim.

³ If the ac­cused has ap­poin­ted a de­fence law­yer of his or her choice, the de­fence law­yer shall have an ex­clus­ive right to the com­pens­a­tion un­der para­graph 1 let­ter a, sub­ject to any ac­counts to be settled with the cli­ent. The de­fence law­yer may con­test the de­cision on com­pens­a­tion us­ing the ap­pel­late rem­edy ad­miss­ible against the fi­nal de­cision.²⁷⁶

¹ The crim­in­al justice au­thor­ity may re­duce the com­pens­a­tion or sat­is­fac­tion or re­fuse to pay if:

a.

the ac­cused has un­law­fully and culp­ably brought about the pro­ceed­ings or has ob­struc­ted their con­duct;

b.

the private claimant is re­quired to pay com­pens­a­tion to the ac­cused; or

c.

the ac­cused's ex­pendit­ure is neg­li­gible.

² In the ap­pel­late pro­ceed­ings, com­pens­a­tion and sat­is­fac­tion may be fur­ther re­duced if the re­quire­ments of Art­icle 428 para­graph 2 are ful­filled.

¹ If com­puls­ory meas­ures have been ap­plied to the ac­cused un­law­fully, the crim­in­al justice au­thor­ity shall award the ac­cused ap­pro­pri­ate com­pens­a­tion and sat­is­fac­tion.

² There is a right to com­pens­a­tion and sat­is­fac­tion in re­la­tion to re­mand and pre­vent­ive de­ten­tion if the per­mit­ted peri­od of de­ten­tion is ex­ceeded and the ex­cess­ive depriva­tion of liberty can­not be not ac­coun­ted for in sanc­tions im­posed in re­spect of oth­er of­fences.

³ The right un­der para­graph 2 ceases to ap­ply if the ac­cused:

a.

is sen­tenced to a mon­et­ary pen­alty, com­munity ser­vice or a fine and the equi­val­ent al­tern­at­ive cus­todi­al sen­tence would not be sub­stan­tially short­er than the time spent on re­mand or in pre­vent­ive de­ten­tion;

b.

re­ceives a sus­pen­ded cus­todi­al sen­tence the length of which ex­ceeds the time spent on re­mand or in pre­vent­ive de­ten­tion.

¹ The ac­cused, if ac­quit­ted, is en­titled to ap­pro­pri­ate com­pens­a­tion from the private claimant in re­spect of ex­pendit­ure in­curred in re­la­tion to the civil claim.

² If the ac­cused is ac­quit­ted of an of­fence pro­sec­uted only on com­plaint, the com­plain­ant may be re­quired to com­pensate the ac­cused for ex­pendit­ure in­curred in the prop­er ex­er­cise of his or her pro­ced­ur­al rights, provided the com­plain­ant has brought about the pro­ceed­ings wil­fully or through gross neg­li­gence or has ob­struc­ted their con­duct.

¹ The private claimant is en­titled to ap­pro­pri­ate com­pens­a­tion from the ac­cused for costs in­curred in the pro­ceed­ings if:

a.

the claim is suc­cess­ful; or

b.

the ac­cused is li­able to pay costs in terms of Art­icle 426 para­graph 2.

² The private claimant must sub­mit his or her com­pens­a­tion claim to the crim­in­al justice au­thor­ity, and quanti­fy and sub­stan­ti­ate the same. If he or she fails to ful­fil this ob­lig­a­tion, the crim­in­al justice au­thor­ity shall not con­sider the claim

¹ Third parties have the right to ap­pro­pri­ate com­pens­a­tion for losses that are not oth­er­wise covered and to sat­is­fac­tion if they have in­curred losses as a res­ult of pro­ced­ur­al acts or in provid­ing sup­port to the crim­in­al justice au­thor­it­ies. Art­icle 433 para­graph 2 ap­plies mu­tatis mutandis.

² A de­cision shall be made on the claims in the fi­nal judg­ment. In clear cases, the pub­lic pro­sec­utor may is­sue a de­cision in the pre­lim­in­ary pro­ceed­ings.

Claims for com­pens­a­tion and sat­is­fac­tion against the Con­fed­er­a­tion or the can­ton must be filed with­in 10 years of the date on which the de­cision be­comes leg­ally bind­ing.

¹ Claims for com­pens­a­tion and sat­is­fac­tion in ap­pel­late pro­ceed­ings are gov­erned by Art­icles 429–434.

² Where the ac­cused is neither fully nor partly ac­quit­ted and the pro­ceed­ings are not aban­doned but the ac­cused is suc­cess­ful on oth­er points, he or she is en­titled to ap­pro­pri­ate com­pens­a­tion for his or her ex­pendit­ure.

³ If the ap­pel­late au­thor­ity quashes a de­cision in ac­cord­ance with Art­icle 409, the parties are en­titled to ap­pro­pri­ate com­pens­a­tion for their ex­pendit­ure in the ap­pel­late pro­ceed­ings and that part of the pro­ceed­ings be­fore the court of first in­stance that re­lated to the quashed de­cision.

⁴ An ac­cused who is ac­quit­ted or re­ceives a re­duced sen­tence fol­low­ing a re­view of the case is en­titled to ap­pro­pri­ate com­pens­a­tion for his or her ex­pendit­ure in the re­view pro­ceed­ings. He or she is also en­titled to sat­is­fac­tion and com­pens­a­tion for time spent in cus­tody, provided this depriva­tion of liberty can­not be not ac­coun­ted for in sanc­tions im­posed in re­spect of oth­er of­fences.

¹ Judg­ments and oth­er de­cisions con­clud­ing pro­ceed­ings against which an ap­pel­late rem­edy may be re­ques­ted un­der this Code be­come leg­ally bind­ing when:

a.

the peri­od for re­ques­ted ap­pel­late rem­edy has ex­pired and no re­quest has been made;

b.

the en­titled per­son de­clares that he or she is waiv­ing his or her right to an ap­pel­late rem­edy or with­draw­ing an ap­pel­late rem­edy already re­ques­ted;

c.

the ap­pel­late au­thor­ity de­cides not to con­sider the sub­stance of the ap­pel­late rem­edy or to re­ject it.

² The de­cision be­comes leg­ally bind­ing with ret­ro­spect­ive ef­fect from the day on which the de­cision was is­sued.

³ De­cisions that are not sub­ject to the right to an ap­pel­late rem­edy un­der this Code be­come leg­ally bind­ing on be­ing is­sued.

¹ The crim­in­al justice au­thor­ity that has is­sued a de­cision shall note the date on which it be­comes leg­ally bind­ing in the files or in the judg­ment.

² If the parties have been no­ti­fied that an ap­pel­late rem­edy has been re­ques­ted, they shall also be no­ti­fied of the date on which the judg­ment be­comes leg­ally bind­ing.

³ If there is a dis­pute over wheth­er or when a de­cision has be­come leg­ally bind­ing, the au­thor­ity that has is­sued the de­cision shall rule on the mat­ter.

⁴ An Art­icle 393 ap­peal may be filed against the rul­ing on the leg­ally bind­ing ef­fect of the de­cision.

¹ The Con­fed­er­a­tion and the can­tons shall de­term­ine the au­thor­it­ies re­spons­ible for the ex­e­cu­tion of sen­tences and meas­ures as well as the rel­ev­ant pro­ced­ure; spe­cial reg­u­la­tions in this Code and in the SCC²⁷⁸ are re­served.

² The ex­ec­ut­ive au­thor­ity shall is­sue an ex­e­cu­tion or­der.

³ Leg­ally-bind­ing cus­todi­al sen­tences and cus­todi­al meas­ures must be ex­ecuted im­me­di­ately:

a.

if there is a risk of ab­scond­ing;

b.

if there is a ser­i­ous risk to the pub­lic; or

c.

if there is no guar­an­tee that the pur­pose of the meas­ure will oth­er­wise be ful­filled.

⁴ In or­der to im­ple­ment the ex­e­cu­tion or­der, the ex­ec­ut­ive au­thor­ity may ar­rest the per­son con­victed, is­sue a war­rant for his or her ar­rest or re­quest his or her ex­tra­di­tion.

¹ The ex­ec­ut­ive au­thor­ity may place the per­son con­victed in pre­vent­ive de­ten­tion to en­sure that the sen­tence or the meas­ure is ex­ecuted, provided any one of the re­quire­ments in Art­icle 439 para­graph 3 is met.²⁷⁹

² It shall sub­mit the case with­in 5 days of the per­son's de­ten­tion:

a.

to the court that im­posed the sen­tence or meas­ure that is to be ex­ecuted;

b.

in the case of sum­mary pen­alty or­ders, to the com­puls­ory meas­ures court at the place where the pub­lic pro­sec­utor is­sued the sum­mary pen­alty or­der.

³ The court shall de­cide on wheth­er the per­son con­victed re­mains in de­ten­tion un­til the com­mence­ment of the sen­tence or meas­ure.²⁸⁰

⁴ The court that ordered pre­vent­ive de­ten­tion has jur­is­dic­tion over ap­plic­a­tions for re­lease from de­ten­tion.²⁸¹

¹ Sen­tences that are time-barred may not be en­forced.

² The ex­ec­ut­ive au­thor­ity shall veri­fy ex of­fi­cio wheth­er the sen­tence is time barred.

³ The per­son con­victed may con­test the planned ex­e­cu­tion of a time-barred sen­tence or meas­ure be­fore the court for Art­icle 393 ap­peals of the can­ton of ex­e­cu­tion. This au­thor­ity shall also de­cide on wheth­er the Art­icle 393 ap­peal has sus­pens­ive ef­fect.

⁴ If the per­son con­victed is made to serve a time-barred cus­todi­al sanc­tion, he or she shall be en­titled to com­pens­a­tion and sat­is­fac­tion in ana­log­ous ap­plic­a­tion of Art­icle 431.

¹ Pro­ced­ur­al costs, mon­et­ary pen­al­ties, fines and oth­er fin­an­cial pay­ments to be made in con­nec­tion with crim­in­al pro­ceed­ings shall be col­lec­ted in ac­cord­ance with the pro­vi­sions of the DEBA²⁸².

² Claims in re­spect of pro­ced­ur­al costs must be filed with­in 10 years of the date on which the de­cision on costs be­comes leg­ally bind­ing. De­fault in­terest amounts to 5 per cent.

³ The Con­fed­er­a­tion and the can­tons shall de­term­ine the au­thor­it­ies that col­lect fin­an­cial pay­ments.

⁴ The crim­in­al justice au­thor­it­ies may set off their claims in re­spect of pro­ced­ur­al costs against the claims to com­pens­a­tion of the party li­able to pay arising from the same crim­in­al pro­ceed­ings and against seized as­sets.

In­so­far as the judg­ment relates to civil claims, it shall be en­forced in ac­cord­ance with the civil pro­ced­ure law ap­plic­able at the place of ex­e­cu­tion and the DEBA²⁸³.

The Con­fed­er­a­tion and the can­tons shall de­term­ine the au­thor­it­ies that must is­sue of­fi­cial no­tices.