UBC July 2024 - Justice System

Photo by Hédi Benyounes on Unsplash

Welcome back to July's UBC. All month long I'm going to be talking about cultural differences between Switzerland and the USA.

Today's topic is the (criminal)  justice system. 

Switzerland has a continental European legal system that is strongly characterized by codified law. The Swiss Criminal Code (StGB) forms the basis for criminal law.

The USA has a common law system based on precedents. Criminal law varies between states, in addition to federal laws.

Federal state vs. federal structure

Switzerland is a federal state with 26 cantons, each of which has its own laws and courts. However, federal law takes precedence over cantonal law.

The USA consists of 50 states with their own laws and courts. There is also a comprehensive system of federal laws and courts that operate in parallel with the state system.

Law enforcement authorities

Criminal prosecution in Switzerland is mainly carried out by cantonal police authorities. There is also a federal police force (Fedpol) that is responsible for certain offenses.

The US has numerous law enforcement agencies at various levels, including local police departments, state police departments, federal agencies such as the FBI, DEA, and ATF.

Legal proceedings

Criminal proceedings in Switzerland are often less adversarial (confrontational) and more inquisitorial, meaning that the judge plays a more active role in the investigation.

In the US, criminal proceedings are highly adversarial. The parties (prosecution and defense) have a greater role in presenting evidence and presenting the case, while the judge has more of a moderating role.

Jury

In Switzerland, there is no jury in court hearings, as is common in the USA or the UK. Instead, criminal and civil cases are decided by professional judges. The Swiss legal system provides for a different form of lay participation, namely in the form of so-called “lay judges” or “lay assessors”.

Lay judges are not lawyers, but citizens who decide on cases in certain courts together with professional judges. They bring the perspective of the general public into the decision-making process. These lay judges are mainly used in cantonal courts and in special cases, e.g. in commercial courts or juvenile courts.

Rights of the accused

In Switzerland, defendants have the right to a fair trial, access to an attorney, and the right to challenge prison conditions.

In the USA, the rights of the accused are comprehensively enshrined in constitutional law, including the right to a fair trial, the right to remain silent, the right to an attorney (Sixth Amendment) and the right not to be tried twice for the same crime (Double Jeopardy, Fifth Amendment).

Sentencing and penalties

Sentences in Switzerland are generally more lenient than in the USA. The death penalty has been abolished and life sentences are rare. There is a strong focus on rehabilitation.

The USA has very high incarceration rates compared to other countries. The death penalty is permitted in some states and life sentences without the possibility of parole are relatively common.

Prison system

Swiss prisons are known for humane conditions and a rehabilitative approach. The focus is on resocialization and reintegration into society. Which sounds nice on paper but means convicted murderers and rapists are walking free after a more than mild punishment. We have an absolutely ridiculous case that I may write about in a separate post.

Conditions in American prisons vary greatly. In many cases, conditions are harsher and the system is more punitive in nature.

Incarceration rates

There are considerable discrepancies in the prosecution and imprisonment policies of the two countries. While Switzerland has one of the lowest incarceration rates in the world at 0.081% of the population, the USA has one of the highest incarceration rates at around 0.639% of the population. Zero point something doesn't sound like much, but if you look at the number of people per 100,000 inhabitants, there are around 80 people in Switzerland compared to 640 in the USA. How many people live in your city? Exactly.

Public information

In the USA, there is great public and media interest in court hearings, especially in high-profile cases. Many states allow cameras in the courtroom to inform the public about court proceedings. Swiss laws attach great importance to the protection of personal rights and privacy. This restricts the media's ability to report on or broadcast ongoing proceedings. We often have to make do with pixelated photos or drawings of the accused, and we don't even know their names. Their names are often changed or abbreviated. 

Sometimes this leads to grotesque situations, such as this public manhunt after an armed robbery. Thanks to surveillance cameras, footage is available that could lead to the person's identification. Although it is a public manhunt, the perpetrator's face is pixelated. This is to give him the chance to turn himself in voluntarily. 

I'm sorry... This is not even an "alleged" robber, this is a criminal, end of story. No need to protect his privacy!!!

Recently, a district court sentenced a man to 17 years in prison for the murder of his wife, whom he drowned in the bathtub. 

In Switzerland, it is common for prisoners to be conditionally released after serving two thirds of their sentence. This is provided for in Swiss criminal law and depends on several factors, including the prisoner's behavior during their sentence, the risk of reoffending and the assessment of their chances of reintegration.

The case took place in 2022, which means that this individual could be free again as early as 2033. 

Traffic Court

In the USA, there are specialized traffic courts that deal exclusively with traffic violations. These courts are designed to handle cases efficiently and give citizens the opportunity to present their point of view. One example is the popular TV show “Caught in Providence” with the legendary and absolutely adorable Judge Frank Caprio. He is battling pancreatic cancer, and if you believe in prayers, please lift him up. He's one of the kindest people I have ever "met". 

The Swiss system is designed to be efficient and not to overburden courts with minor offences. Traffic violations are mostly handled through administrative procedures, without the need for a court hearing, which means you will receive a letter saying you were speeding so and so much, get a warning and a hefty fine. However, there is the possibility of contesting fines. This is usually done in writing, you will never stand before a judge for parking or speeding. 

And I've saved the trickiest for last... 

Guns...

The USA has a long history and tradition of gun ownership, dating back to the settlement of the country and the independence movement. Gun ownership is often associated with the right to self-defense and protection from state tyranny, and strong lobby groups such as the National Rifle Association (NRA) influence legislation and public opinion in favor of liberal gun laws.

Gun ownership in Switzerland is strongly linked to the militia army tradition. Many Swiss have military training and keep their service weapon (not the ammunition though) at home after their military service. There is a strong culture of responsibility and safety when handling weapons. Regular target practice and safety checks are common, and there is no strong gun lobby comparable to that in the USA. Public opinion and political measures tend to strictly regulate gun ownership.

In many US states, open or concealed carry of weapons is allowed, often without a special permit (Constitutional Carry). Automatic weapons are heavily regulated, but there is still legal ownership under strict conditions (NFA registration). There are certain zones where guns are prohibited, such as schools and government buildings, but this varies by state. Recently, however, the contrary is the case. Teachers in certain states like Texas, Florida or Utah are supposed to or at least strongly encouraged be armed in order to defend themselves and the students. 

In Switzerland, carrying guns in public is highly restricted and requires a special permit, which is difficult to obtain. The possession of fully automatic weapons is generally prohibited, with very few exceptions.There are strict regulations on the safe storage of weapons and ammunition, including the obligation to store weapons in a secured gun cabinet.

This was a rather theoretical kind of post. It gets more hands-on when we discuss a certain case that has Swiss people's blood boiling. Keep your eyes open!