American and Swiss systems

American and Swiss systems

"This week I read a report in the press about the Strauss-Kahn affair, in which it was explained that the American judicial system is "adversarial", unlike the Swiss system, which is "inquisitorial", thanks to the work of the investigating judges, who look for evidence both for and against the accused. On the contrary, I thought that the Swiss procedure had recently been modified to bring it into line with that in force in the USA...".

Andreas, Geneva

In an adversarial system, each party must prove the facts in support of its case, which is why in the USA it is the lawyers and their associates who conduct their own investigations and gather exculpatory evidence, so that the judge's task is more to arbitrate than to investigate.

In an inquisitorial system, on the other hand, a professional magistrate is specifically endowed with the powers to conduct his or her own incriminating and exculpatory investigations. In Geneva, before 1 January 2011, this task fell to the Examining Magistrate.

However, with the entry into force of the unified criminal procedure in Switzerland at the beginning of this year, the Examining Magistrate as it existed in certain French-speaking cantons has disappeared and has been replaced in a way by the Public Prosecutor. The latter's task can be divided into two phases. During the investigation, the Public Prosecutor's Office must be in a position to establish the facts and terminate the preliminary proceedings, using all the legal investigative means available to it in the search for the truth. The new Federal Code of Criminal Procedure stipulates, however, that these resources must be used in a manner that is both inculpatory and exculpatory. Once the investigation has been completed and the case has been brought before the court, the Public Prosecutor's Office becomes a party to the trial; it then represents the State and supports the charge against the accused by requesting a penalty for the offence for which he or she is being prosecuted. During the trial, given that the investigation phase has been completed, the Public Prosecutor's Office is not supposed to make an application for the prosecution and the defence, but only for the prosecution.

It is true that with the abolition of the investigating judge, Swiss criminal procedure has moved somewhat closer to the American adversarial system. However, given that the Public Prosecutor's Office must investigate the case both incriminating and exonerating, the inquisitorial nature of the Swiss system has been maintained by the federal legislature.