You can oppose a criminal court order

You can oppose a criminal court order

"I read an article about criminal orders being issued for trespassing against people who fail to comply with bans on entering Swiss supermarkets. I am outraged by this procedure. Doesn't Article 6 of the ECHR state that everyone is entitled to a fair hearing by an impartial tribunal, which is not the case when a criminal order is made?

Gilles

Article 186 of the Criminal Code (CP) makes trespassing a criminal offence if three cumulative conditions are met: entry into a dwelling, unlawful entry and entry against the will of the entitled party. Case law interprets the concept of dwelling broadly and considers that commercial premises are included.

There is a kind of implicit authorisation to enter a shop during opening hours. In the case of a private home or dwelling, the presumption is obviously the opposite! However, although shops are "public" places, since they are accessible to everyone, they remain private establishments. They are therefore free to prohibit certain individuals from entering if they compromise order or security, at least as long as such prohibitions do not contravene other legal provisions, such as art. 261bis of the Criminal Code prohibiting racial discrimination.

Supermarkets and other supermarkets tend to ban people caught stealing from their shelves, and may lodge a complaint for trespass against anyone who enters their premises without respecting the ban. The Public Prosecutor hearing the case may issue a criminal order if the situation is appropriate, i.e. if the facts are clear, if the penalty is less than 6 months' imprisonment and if no referral for trial is requested by the person to whom the order is addressed or by the complainant.

The advantage of the ordonnance pénale lies in the speed of the procedure leading up to its pronouncement. It does not require the intervention of a Judge, unless the defendant objects. In that case, it will be up to the Criminal Court to decide the case. As a result, the guarantee of access to a judge established by art. 6 of the European Convention on Human Rights and art. 29a of the Swiss Constitution has been respected.