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What are my rights and obligations in criminal proceedings?

It is a comprehensive topic

Most joints are smoked without the narcotics law coming into play. Nevertheless, tens of thousands of smokers are reported for hemp consumption every year. Those who deal with this possibility at an early stage have better cards if this unpleasant possibility becomes reality. Of course, it is tedious to deal with all the associated issues. But those who find themselves in criminal proceedings unprepared often make many mistakes - which can cost money and their clean reputation. And since every day we possess hash or weed is illegal, the hard facts should be dealt with.

Principle of presumption of innocence

In criminal proceedings, the principle of presumption of innocence applies, which means that until you are legally proven guilty, it is presumed that you are innocent. This is a human right protected by the European Convention on Human Rights. You must therefore be proven guilty by the investigating authorities. Circumstantial or circumstantial evidence is often sufficient to prove these circumstances. If you are not sure whether you want to testify, refuse to testify. In any case, don't make up stories - you will only make yourself untrustworthy and later your story, which may be true, will no longer be believed.

People control

The police are entitled to stop you to check your personal details. The officer must show you his ID card. If he only gives you a cursory glance, insist that he shows it to you again so that you can read and remember your name and rank. You must give your personal details correctly, otherwise you will be liable to prosecution (carry your identity card/passport/ID card). To clarify your identity, it is sufficient to give your surname, first name, date of birth and address. You are not obliged to make any further statements, because this is where the interrogation begins. Any statements you make now can (and will!) be used against you later. Do not resist physically, this is always futile and to your disadvantage.

Felting

If there is a suspicion of a criminal offense (e.g. possession of hashish), the police are entitled to frisk you, even against your will. Frisking includes searching clothes and handbags as well as examinations (e.g. taking blood samples, examining body orifices). In the case of physical examinations, you have the right to have a doctor present. As a woman, you can demand to be examined by a woman. In principle, frisking may not be performed in public. If you refuse, however, you must expect to be taken to the post.

Seizure

In case of suspicion of a criminal offense, all items that may serve to uncover the offense or with which an offense is to be committed may be seized. The consumption of narcotics such as hashish or weed, which is a punishable offense, is sufficient for their seizure. The identification documents can also be confiscated if the investigating bodies assume that you want to evade criminal proceedings by fleeing. However, without concrete accusations, they must return your identification documents to you after the inspection. The police will usually give you a receipt for confiscated material. If you do not receive this automatically, ask for it.

interrogation

At interrogation, your freedom of will must not be impaired. This means that you must not be abused or threatened. No interrogation may be made if you are overtired or completely stoned. You must also not be made to believe that other people have testified against you. If you are of the opinion that the interrogation was made under pressure, demand that this is recorded in the protocol or that a doctor is called if necessary. Always read the minutes carefully before signing them. Once signed, a statement can (and will, if possible) be used against you, even if it is not true. If you do not speak the language (Ticino, French-speaking Switzerland), ask for a translator. Now you have the right to a lawyer already at the first interrogation. However, in most cases you have to pay the costs yourself.

The police need a search warrant to search your home. Ask to see your badge and the search warrant before you let an officer into your home. The warrant must include the following items: Date, purpose of the investigation, name of the searching officer, description of the rooms to be searched, detailed description of any additional special containers to be opened. The house search must be done during the day and as gently as possible for those involved. Protest if the police proceed too briskly. Without a written order or at night, house searches are only possible if you are observed committing a crime or if there is imminent danger.

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Letters and court documents

It is in your best interest to receive letters and court documents because they set important legal and regulatory deadlines for you to protect your rights and list remedies. If you miss deadlines, you have accepted the orders. It is therefore very important to remember the deadlines as soon as you receive official mail and to clarify them during this time: Should I appeal against my fine (only possible within the deadline!) or rather pay it?

Preliminary arrest

The police can temporarily detain you for a maximum of 24 hours if there is a suspicion that you have committed a crime. If you have been caught smoking pot, admit it and can identify yourself, you will only be arrested as an exception. After the interrogation and recording of the protocol, the police should actually let you go again, unless you are suspected of dealing in hash or weed or brokering such products. If you are not released after the first interrogation, there must be a warrant for your arrest to order further detention. Sobering up may only be carried out for your own protection or for the protection of other persons (and would probably be disproportionate if you are merely stoned). Sobering up is permitted until the next morning, but for no longer than 48 hours.

Proportionality

The police are obliged to always use the most lenient measure. Handcuffs may only be applied if you are resisting arrest, attempting to flee, or appear dangerous, e.g., if you were carrying a weapon, assaulting someone, or endangering yourself. If you are detained on post for an extended period of time and have children or pets to care for, the police must notify your immediate family members to take over your duties. If they do not do so, you may request that the police notify the welfare authorities. The police may only take you to prison or to court if you have not complied with a summons to serve a prison sentence or a summons from the court, or if there is a request for you to be taken to court (e.g. if you are a fugitive). After initial clarification of the facts and verification of your personal data, the police should let you go again if you have not been ordered to be arrested.

Remand

If there is a request for pre-trial detention, you have the right to contact your lawyer. If you do not know any lawyer personally, you can call the lawyer's office. If your health condition (injuries, pain, illness, etc.) requires medical treatment, ask for a doctor. Also ask for a doctor's certificate if you want to derive rights from it later.

If you are placed in pre-trial detention, the juvenile lawyer (up to the age of 18) or the compulsory measures court (from the age of 18) must order detention within 48 hours. Pre-trial detention is only justified if there is sufficient suspicion of a criminal offense (no petty cases such as smoking pot, but e.g. suspicion of trafficking in cannabis products). In addition, there must be a risk of flight, a risk of collusion, a risk of execution or a risk of repetition. You can apply for release from prison at any time if you think that the above reasons no longer apply.

Further information can be found in the following book:

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Standard work on the subject of criminal investigation by “edition 8”, ISBN 978-3-85990-161-2. Read!

en/thc_recht/sh1415.txt · Last modified: 2022/03/26 16:23 (external edit)
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