Private defence
Private defence
Criminal proceedings are clearly regulated throughout Switzerland by the Swiss Code of Criminal Procedure (CCP). The issue you are raising relates, on the one hand, to the fundamental principle that all participants in such proceedings have the right to be assisted by legal counsel and, on the other hand, to the right, or even the obligation, to have a private defence counsel.Generally speaking, article 127 of the Swiss Code of Criminal Procedure states that persons involved in criminal proceedings have the right to legal assistance, without this automatically requiring them to retain a lawyer. However, the legal counsel chosen must have certain qualities, and must be a trustworthy person with civil capacity and a good reputation. However, there are several exceptions to this principle: firstly, the defence of a person who has been charged with a criminal offence must be conducted by a lawyer, except where the proceedings concern a minor offence and cantonal law does not require the use of a lawyer in this type of case either. Secondly, although the accused is free to choose whether to defend himself or to appoint a lawyer or another type of private defence counsel where permitted by cantonal law, in certain circumstances the law imposes a mandatory defence, pursuant to articles 129 and 130 of the Code of Criminal Procedure. In particular, the presence of a private defence counsel is considered essential to represent the interests of the person concerned in the event of pre-trial detention, the threat of a significant custodial sentence or where the physical or mental state of the accused renders him or her incapable of defending his or her interests alone. The idea behind these legal cautions is to guarantee a genuine equality of arms between the judicial institutions and the accused, particularly when the offence or crime being prosecuted is serious and/or when its consequences cannot be taken lightly. In such cases, if the accused does not appoint a private defence counsel or does not have the means to do so, article 132 of the Code of Criminal Procedure provides that he or she will be provided with one ex officio.
