Miranda warning – and that’s it?

01/06/2018

"You have the right to remain silent. Anything you say, can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford one, one will be appointed to you by the court. With these rights in mind, are you still willing to talk with me about the charges against you?"

 

Everyone who watches movies or reads legal thriller books has heard of this concept. It was developed in 1966 by the United States Supreme Court in Miranda v. Arizona. Most modern jurisdictions do know this concept and apply it. So does Switzerland. Art. 158 of the Swiss Criminal Procedure Code (“CrimPC”) states that the police and/or public prosecutor shall advise the accused in a language that he/she understands about his/her rights. Evidence obtained at an examination hearing conducted without the respective warning is inadmissible (Art. 158 Sect. 2 CrimPC).

 

But what often gets forgotten is that in Switzerland this warning does not only entail the right to remain silent and to have a lawyer but also the right to be informed at the beginning of the first interrogation about the fact that preliminary proceedings have been commenced and of the offences that are the subject of the proceedings. The Swiss Federal Court made clear that it is not sufficient just to mention legal paragraphs of the law or legal terms. The police/public prosecutor has to inform the accused of the concrete external circumstances (s. Decision of the Swiss Federal Court).

 

From my experience as a criminal defence lawyer the authorities do not fully comply with this requirement in many interrogations. Very often you just hear a very general description of the accusation. For example: “You are accused of having committed a fraud”. In a very recent decision the Swiss Federal Court had to rule a case in which this warning was not made at the beginning of the interrogation but during it after the accused had already made some statements. The High Court of Zurich was of the opinion that the interrogation was only partially inadmissible. It held that the statements, from the moment the warning was made, were admissible. The Swiss Federal Court ruled against this opinion (s. Cons. 5 of the Decision).

 

It held that the first interrogation, at which the warning is not made at all, was completely inadmissible. If the warning is made during an interrogation but not at the beginning, such interrogation is also inadmissible as a whole. However, the next interrogation will be admissible as the accused now knows from the previous interrogation what the accusations are. In my opinion this decision of the Swiss Federal Court is very positive and strengthens the rights of an accused. An experienced defence lawyer will spot infringements of this rule and will try to have such inadmissible evidence removed from the file.

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