Why doesn't Switzerland use juries in trials?
Serving on a jury is a civic duty in many countries around the world, but in Switzerland this has not been the case for over a decade.
If you are one of those people feeling restless at the mere prospect of coming face to face with a criminal, rest assured that there is little chance of that happening inside a Swiss court.
On January 1st, 2011, the Federal Parliament adopted the unified Swiss Code of Criminal Procedure which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law.
This code, a single criminal procedure model, replaced the procedure codes previously set by Switzerland’s 26 cantons.
Prior to the unified code being enforced, the procedure models for the country’s cantons varied widely with some cantons observing the system of the examining magistrate (akin to the French legal system), while others took a page out of Germany’s legal book and appointed a prosecutor.
Switzerland’s new unified code follows the German prosecutor model, and thus, the examining magistrate, previously used in some cantons, has been abolished.
Though the code is now observed across the country and all criminal procedures are performed in the same way, the 26 cantons are still responsible for the organisation of the courts within their boundaries.
So, does this mean jury trials could still be performed?
Theoretically, yes. The cantons could – if they wish – provide for jury services.
But in practice, reviving jury trials isn't quite as easy as that.
The issue that the rules set out in the Swiss Code of Criminal Procedure are not compatible with jury trials.
The Swiss law provides that in every canton the court must base its findings on evidence presented in the preliminary procedure and not solely on evidential sources that are heard during the trial.
This very rule creates an issue for jury trials as it requires the court to be aware of the evidence prior to beginning the trial, but this contravenes the principle of immediacy (which requires that all evidence is presented in court in its most original form).
In short, jurors are not privy to the evidence prior to the start of the trial but would need to be if the new unified code is to be observed.
Additionally, the unified code’s segment on the conduct of the main hearing does not include special measures which are needed for jury trials to take place. The cantons themselves also cannot introduce or maintain any special provisions as the unified code is considered complete according to the Federal Council.
Lastly, the unified code includes a right to appeal where the losing party is able to have the decision reviewed by another independent judge or judges. This, however, is also not compatible with jury trials.
As a result of this conundrum, all of Switzerland’s cantons with a jury system – except Ticino - voted in favour of abolishing jury trials.
In a referendum from November 2010, however, Ticino’s residents voted in favour of keeping the jury system intact.
Can foreigners be summoned for jury duty in Ticino?
You may (rightfully) be wondering if Ticino’s vote means you could be summoned to appear before a court.
The legal system in Ticino is in fact slightly different from the other Swiss cantons - but must also comply with the regulations set out in the Swiss Code of Criminal Procedure.
Since Ticino voted against abolishing jury trials, the Grand Council of the Canton of Ticino decided that the jury should technically be appointed as lay judges – who are appointed by the cantonal parliament for a 10-year period - from the start of the proceedings and should be given access to the files.
This means that Ticino retains its jury trials today only in name, but not in practice.
Who was eligible for jury duty prior to the abolishment?
Prior to the abolishment of jury trials in Switzerland, only those over the age of 18, in possession of a Swiss passport and who applied to serve as a juror were eligible for jury duty.
Since serving as a juror would normally take up a lot of people’s time due to the seriousness of the crimes in question, the majority of Swiss people signing up for jury trials were pensioners.
Foreigners were not summoned for jury service unless they fulfilled the above criteria.
Comments
See Also
If you are one of those people feeling restless at the mere prospect of coming face to face with a criminal, rest assured that there is little chance of that happening inside a Swiss court.
On January 1st, 2011, the Federal Parliament adopted the unified Swiss Code of Criminal Procedure which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law.
This code, a single criminal procedure model, replaced the procedure codes previously set by Switzerland’s 26 cantons.
Prior to the unified code being enforced, the procedure models for the country’s cantons varied widely with some cantons observing the system of the examining magistrate (akin to the French legal system), while others took a page out of Germany’s legal book and appointed a prosecutor.
Switzerland’s new unified code follows the German prosecutor model, and thus, the examining magistrate, previously used in some cantons, has been abolished.
Though the code is now observed across the country and all criminal procedures are performed in the same way, the 26 cantons are still responsible for the organisation of the courts within their boundaries.
So, does this mean jury trials could still be performed?
Theoretically, yes. The cantons could – if they wish – provide for jury services.
But in practice, reviving jury trials isn't quite as easy as that.
The issue that the rules set out in the Swiss Code of Criminal Procedure are not compatible with jury trials.
The Swiss law provides that in every canton the court must base its findings on evidence presented in the preliminary procedure and not solely on evidential sources that are heard during the trial.
This very rule creates an issue for jury trials as it requires the court to be aware of the evidence prior to beginning the trial, but this contravenes the principle of immediacy (which requires that all evidence is presented in court in its most original form).
In short, jurors are not privy to the evidence prior to the start of the trial but would need to be if the new unified code is to be observed.
Additionally, the unified code’s segment on the conduct of the main hearing does not include special measures which are needed for jury trials to take place. The cantons themselves also cannot introduce or maintain any special provisions as the unified code is considered complete according to the Federal Council.
Lastly, the unified code includes a right to appeal where the losing party is able to have the decision reviewed by another independent judge or judges. This, however, is also not compatible with jury trials.
As a result of this conundrum, all of Switzerland’s cantons with a jury system – except Ticino - voted in favour of abolishing jury trials.
In a referendum from November 2010, however, Ticino’s residents voted in favour of keeping the jury system intact.
Can foreigners be summoned for jury duty in Ticino?
You may (rightfully) be wondering if Ticino’s vote means you could be summoned to appear before a court.
The legal system in Ticino is in fact slightly different from the other Swiss cantons - but must also comply with the regulations set out in the Swiss Code of Criminal Procedure.
Since Ticino voted against abolishing jury trials, the Grand Council of the Canton of Ticino decided that the jury should technically be appointed as lay judges – who are appointed by the cantonal parliament for a 10-year period - from the start of the proceedings and should be given access to the files.
This means that Ticino retains its jury trials today only in name, but not in practice.
Who was eligible for jury duty prior to the abolishment?
Prior to the abolishment of jury trials in Switzerland, only those over the age of 18, in possession of a Swiss passport and who applied to serve as a juror were eligible for jury duty.
Since serving as a juror would normally take up a lot of people’s time due to the seriousness of the crimes in question, the majority of Swiss people signing up for jury trials were pensioners.
Foreigners were not summoned for jury service unless they fulfilled the above criteria.
Join the conversation in our comments section below. Share your own views and experience and if you have a question or suggestion for our journalists then email us at [email protected].
Please keep comments civil, constructive and on topic – and make sure to read our terms of use before getting involved.
Please log in here to leave a comment.