Place of jurisdiction

In accordance with the principle of territoriality, the cantonal courts are responsible for those offences that have been committed within their geographical jurisdiction. This means that accused persons from other regions must in some cases appear before courts where a different language from their own is spoken.

This is where one of the strengths of military criminal procedure lies, as it recognises the place where the military unit belongs as normally having jurisdiction, irrespective of where the offence actually took place. If however by way of exception a member the armed forces is performing his duties in a unit that does not speak his language, the Armed Forces Attorney General may refer the case to a court where the appropriate language is spoken.

Initiation of proceedings

If a person is suspected of having committed a criminal offence and the matter cannot be dealt with through disciplinary proceedings, then a preliminary investigation has to be ordered. This has the aim of establishing whether a criminal offence has taken place. All the circumstances of the incident that could be of relevance to the question of whether proceedings should be initiated or not must be investigated.

If the individual requirements for a preliminary investigation are not fulfilled, then a preliminary gathering of evidence will be ordered. This is normally required if:

• evidence has to be obtained or more evidence is required, in particular where the perpetrator is unknown or the facts of the case are unclear or confused;
• there is uncertainty as to whether a criminal offence should be dealt with by disciplinary or military tribunal proceedings.

In cases of homicide, serious injury to military personnel or civilians as well as serious damage to property, a preliminary gathering of evidence must be ordered even if there is no indication that a criminal offence has been committed.
Military criminal proceedings are initiated on the orders of the battalion commander or course commander, and by the Armed Forces Attorney General in the case of offences committed while not on duty or of violations of international law. Should a commanding officer refuse to initiate court proceedings where such proceedings are required in the opinion of the military examining magistrate, then the Armed Forces Attorney General may issue the order to conduct an investigation instead of the commanding officer.

Mandatory defence

IIn the military criminal proceedings, a defence lawyer is permitted during the preliminary investigation, and is mandatory in the main proceedings.

Commonly the accused accepts the official defence agent that is appointed by the court. This lawyer is not part of the military tribunal system. Any lawyer who is authorised to practise in Switzerland may take on such a case. One special feature of military procedural law is that the official defence agent for the accused comes free of charge - irrespective of whether the accused has the means to pay his own legal costs.

Principle of immediacy

The files relating to the preliminary investigation conducted by the examining magistrate are not made available to the judges, who reach their verdict on the basis of the views they form in the course of the proceedings. This ensures that in the main proceedings a full hearing of the evidence will take place.

Summary penalty order procedure

Minor cases (maximum penalty of a custodial sentence of up to one month and/or a fine of up to CHF1,000.-) in which the facts of the case are undisputed can be dealt with by the Military Attorney (prosecutor) by means of a summary penalty order. This is a written judgement with a brief justification that imposes a penalty without the need to conduct the main proceedings. The convicted person or the Armed Forces Attorney General may however request that normally proceedings are held.

Appeals

Any case can be referred on appeal to a Military Court of Appeal. The highest judicial authority is held exclusively by the Military Supreme Court, which refers successful appeals back to the lower courts for a new judgement to be made.

Military tribunal --> military court of appeal --> Military Supreme Court

In addition, it is possible to appeal against detention orders to the president of the relevant military tribunal and to the Armed Forces Attorney General against other orders and official acts of the examining magistrate.
In respect of measures imposed by the courts that do not amount to actual judgements, e.g. a decision on compensation, the only opportunity for recourse is to the Military Supreme Court.

Panels of judges

All military tribunals sit as a panel of five judges: in addition to the president, who is a military justice officer, the panel comprises two officers and two NCOs / soldiers from the military unit to which the court pertains.

Specialist courts

In many of the cases that the military tribunals hear the special circumstances of military service play an important role. In addition to the president, who has normally served for a number of years in the armed forces, the courts are always made up of at least four judges, all of whom are in the military service, and this guarantees that an accused person will be judged by people who are familiar with the particular conditions of the service. The military tribunals are in this sense specialist courts.