Police Custody in Switzerland: Your Rights Explained

The Concept of Police Custody in Swiss Law

The term "garde a vue" as used in French law does not formally exist in Swiss law. The Swiss CrimPC instead refers to apprehension (art. 215 CrimPC), provisional arrest (art. 217 CrimPC) and pre-trial detention (art. 220 et seq. CrimPC).

Apprehension by Police

Under art. 215 CrimPC, the police may briefly apprehend a person and hold them at the station to establish identity, for a summary interview, or to hand them over to a competent authority. This may not exceed a few hours and does not constitute a formal arrest.

Provisional Arrest

Art. 217 CrimPC authorises the police to provisionally arrest a person when there are serious grounds for suspicion of a felony or misdemeanour, or when there is a risk of flight, collusion or reoffending. Any person may provisionally arrest someone caught in the act (art. 218 CrimPC), but must immediately hand them over to the police.

Duration and Oversight

The police must promptly notify the competent public prosecutor (art. 219 para. 1 CrimPC). The arrested person must be interviewed without delay (art. 219 para. 3 CrimPC). If the prosecutor wishes to maintain detention, a request must be submitted to the compulsory measures court (CMC) within 48 hours (art. 224 para. 2 CrimPC).

The CMC holds a hearing (art. 225 CrimPC) and renders its decision within 48 hours (art. 226 para. 1 CrimPC). Initial pre-trial detention is limited to three months (art. 227 para. 1 CrimPC).

Rights of the Accused During Detention

Art. 158 CrimPC requires the authorities to inform the accused of their rights at the beginning of the first interview:

1. The right to be informed of the offence alleged (art. 158 para. 1 let. a CrimPC)
2. The right to silence (art. 158 para. 1 let. b CrimPC)
3. The right to a defence lawyer or court-appointed lawyer (art. 158 para. 1 let. c CrimPC)
4. The right to an interpreter if necessary (art. 158 para. 1 let. d CrimPC)

This information must be given in a language the accused understands. Any failure may render statements inadmissible (art. 158 para. 2 CrimPC).

Material Conditions of Detention

Art. 235 CrimPC governs detention execution. The accused must be treated with dignity. The Federal Supreme Court held in ATF 140 I 125 that conditions must comply with art. 3 ECHR. Undignified conditions may constitute grounds for release.

The Role of the Public Prosecutor

The public prosecutor directs proceedings (art. 16 CrimPC), decides on opening an investigation (art. 309 CrimPC), and must investigate both incriminating and exculpating circumstances (art. 6 para. 2 CrimPC).