Professor of Criminal Law: How Switzerland Punishes Crime Without Destroying Lives (#23)

Episode Summary

Nora Markwalder, former prosecutor and professor of criminal law and criminology at the University of St. Gallen, joins me to unpack how Switzerland’s criminal justice system really works. Drawing on her deep experience across criminal procedure, white-collar crime, and criminology, Nora explains what happens from the moment a crime is investigated all the way to sentencing.

Expect to learn how Switzerland’s justice system compares to countries like France, Germany, and the U.S., why rehabilitation is prioritized over punishment, and how the controversial juvenile justice framework operates. Nora also discusses what life is like inside Swiss prisons, how criminal records affect future employment, and the ways Switzerland handles international and immigration-related legal cases. If you’re curious about Swiss law, justice philosophy, or crime trends, this conversation is packed with insights.

Meet Nora Markwalder

Nora Markwalder is a professor of criminal law and criminology at the University of St. Gallen and a former prosecutor. Her research spans homicide, domestic violence, white-collar crime, and criminal procedure, and she’s also the co-author of a widely used textbook on Swiss criminal law and co-editor of the Basler Kommentar Verwaltungsstrafrecht or Administrative criminal law. Through her work in both the courtroom and academia, Nora offers a unique perspective on the challenges, reforms, and philosophies shaping Switzerland’s justice system today.

Linkedin: linkedin.com/in/nora-markwalder-4277765b

Full Transcript

Mike: Nora, thank you very much for joining me.

Nora: Thank you for having me here.

Mike: Why did you choose criminal law as a profession?

Nora: Well, maybe it’s a bit of a family business because my, father worked as a coroner, like a little medicine specialist, and I was in contact always with this world. And I was also very interested as a, a young student, with the area of like profiling serial murders. So I really liked, that and was interested in.

So for me it was clear that I wanted to go into this fields and I already knew I wanted to do criminology and, for that [00:02:00] in Switzerland you can’t really study that, so you have to do studies before. So I decided to study law and that became this mix of criminal law and criminology that I’m currently doing.

Mike: Hmm? I was gonna ask you later, if you ever wrestle with, switching off from work, if you are dealing with crime and murder, but if you are someone who loved to get into that detail, perhaps the answer’s no.

Nora: Well, yes, I can already tell no, because I’m the kind of nerd who even likes to watch like crime TV shows and stuff at the end of my day. So basically, no, I, I have a hard time, you know, separating these like kind of work related, interests from private interests. It kind of grows into each other, I guess.

Mike: Hmm. Interesting. Wow, that guess you landed the perfect job.

Nora: Yeah, I think so.

Mike: So the Swiss legal system, can you explain to me, as someone who is [00:03:00] very unfamiliar with it, what the different phases of the Swiss criminal justice system are really from the beginning, from an investigation through to someone gets sentenced or, yeah, sentenced.

Nora: Yes, exactly. That’s kind of like the, the ending point. And at the beginning it just starts with a police investigation or basically the police, are, getting, you know, in contact with someone or, someone else is, you know, telling the police something happened. And then, there’s an investigation that is, the prosecutor actually who is the head of this investigation and the police is working with the prosecutor.

But, it’s a big difference between, the continental European law systems like we have in Switzerland or also in Germany, in Austria and all the surrounding countries and in the US or, common law countries, is that the prosecutor is actually, leading the investigation. But the goal is to just look for what happened, look for the truth.

So they investigate in [00:04:00] favor. Of, the, defendant as well as, against, so it’s kind of like a, more of a neutral viewpoint and something completely different from what we see when we watch, us, TV shows, American movies. But that’s the kind of the, the main role actually of this investigation is the prosecutor.

And then you of course have, the defense attorney. You have maybe some civil claimants that have, maybe also some interest. And then the prosecutor leads, this, affair, until, he or she decides, to, bring this, affair in front of a court. So, they try to charge or they decide to charge, someone.

And then it’s the court actually who, decides whether or not the person is guilty. And, then according to the verdict, you, maybe get sentenced to a prison sentence or some other sentence, like a fine, like a monetary penalty. So these are the different stages, but the stage of the prosecutor and the prosecution is actually the most important one [00:05:00] because most of the time, when there are some minor cases, the prosecution can decide whether or not, they want to punish, the person themselves, which means they can order, a penalty order, which is like a summary proceeding.

And most of the time, the cases in Switzerland, they get, resolved like that. So a lot of the cases don’t even go in front of a judge.

Mike: You said that the prosecutor looks at them both favorably and unfavorably, so very neutrally. Is that comparable? Of, in the US it would be, innocent until proven guilty . It is that, how are they looked at before they’re charged?

Nora: No, because that’s something that’s a rule. We actually also have, it’s the rule that the. Court is required to follow that. If you are not really, sure about, whether or not someone has done something, then you have to acquit. And, in case of doubt, you shouldn’t go any further. But, here it’s really the, the role of the prosecution is considered to be a completely different [00:06:00] one.

It’s not someone who is trying to convict a person. So the ultimate goal is actually a conviction. But it’s really someone who has to establish what happened and just right at the moment where, the prosecutor actually then brings the case to court, this role switches and, he or she becomes actually, the, like one party side where they have to defend the, the, their point of view and sense of that they think that the person is guilty.

But it’s a, it’s a completely different mindset actually from common law countries.

Mike: If the prosecutor isn’t trying to prove them guilty. And they are just trying to tell a story. What, how different then is the role of the defending lawyer?

Nora: Well, it is actually, still a very important role because as, in like, Anglo or common law countries, of course, if you already have some suspicion and the case is opened, the. [00:07:00] Prosecutors are also, a bit, let’s say, biased sometimes about, you know, how the case should go and whether or not someone could be, guilty.

So the defense attorney still has a very important role of, asking, other questions that might not have been asked. He or she can also ask for, new evidence that is gonna be collected. And in Switzerland, the evidence is gonna be collected by, the, the prosecutor or the police. So basically you don’t need an investigator something, but you can just ask for new evidence to be collected.

And in general, the prosecutor, agrees to do that. So, it’s, it’s a different role, but it’s still a very important role because. Even though we have this, rule of looking in all ways and, investigating in all directions, it’s still good that the defendant has someone to defend his interests and, to make sure that his interests are also considered

Mike: Is there ever a jury [00:08:00] in Swiss law?

Nora: not anymore. It used to be. Back in the days, 15 years ago, the criminal procedural law was cantonal. So it was not for the whole Switzerland, but just for the different cantons. And some cantons had a jury system like the Canton of Zurich, for instance, had one. But then, starting in 2011, the Swiss criminal procedural code, was entered into force and that was for all Switzerland.

And since then, there is no jury anymore.

Mike: Hmm. And how do, how was it decided whether a court, whether it’ll be taken up in federal Canton, or local court?

Nora: Usually it’s, always, in the cantons. So basically, every case that happens, for instance, if you are, you know, involved in a robbery in the canton of Zurich, then it’s the, instance, from where you committed the robbery that is, competent for your case. There are just a couple of exceptions where there’s [00:09:00] federal, competency like organized crime, some, company crime related things, explosives, some sort of things, that are on a federal level.

But usually it’s just the candidates that, are competent for, for the criminal or the execution of criminal law.

Mike: You said that there, there’s a lot of similarities between, other European countries. Are there any unique differences between Switzerland that stand out compared to Germany, France?

Nora: It not really regarding the system because the system is quite similar. Also, the role of the prosecutor is quite similar. What is different is that, there are very few cases in Switzerland now that are brought, in front of a court. It’s this possibility of a penalty or penal order, that is, very, very often applied in Switzerland.

And I think that’s not the case in other countries where they have a bit more cases that are brought in front of a court. And what’s also a bit different, at least regarding a system [00:10:00] like Germany is that our. Court, days are shorter. So the, if the case is in front of a court, usually even a bigger, white collar crime case maybe takes two, three days of, you know, deliberations and, hearings, et cetera, in front of the court.

And in Germany, for instance, that’s much longer because all the evidence has to be repeated. All the hearings have to be repeated in front of the court. So that’s also a bit of a different system, at least in regard to Germany. But otherwise, like the standards and the competencies, also the role of the prosecution, the police, et cetera, the court, it’s, it’s, more of a, a European thing, so to say.

Hmm.

Mike: Hmm. there any types of crimes that happen proportionally more in Switzerland than other countries?

Nora: Not that I know of.

Mike: That’s good.

Nora: Well actually one would say maybe, Ooh, why call a crime? You know, that’s maybe more, at least it’s not what we see in the statistics, but that’s a crime that is, very much in the [00:11:00] dark, often, where we have not a lot of information. And this of course, it’s a, it’s situational factor.

Obviously. If you have maybe a lot of, industry banks, et cetera, then maybe also a bit more of a opportunity to commit, some sort of crimes. But if we compare internationally, we are a very safe country. We do have very low crime rates, so it’s more like the opposite, that we have crimes that are not as often perpetrated in Switzerland as in other countries, but it’s in general.

Mike: I I looked up incarceration rates in different countries and so looking at the statistics, the from the World Prison Brief Incarceration rate per a hundred thousand people, I’m sure you’re familiar with the statistics, but Switzerland at 73. Germany at 67, so actually slightly lower. France 109, UK 1 32.

I threw Australia in there, of course, 1 58 and then the US a whopping 541,

Nora: Exactly. I mean, I think with the US no [00:12:00] one else can really,

Mike: Be number one at everything.

Nora: yes, it’s really the number one, I think even, higher than Russia and maybe China or so, yeah, the Swiss is really, Switzerland really has a very, very low incarceration rate because our system is not punitive at all, meaning that we don’t have high prison sentence that we usually foresee for, for offenses.

Our main penalty is actually a monetary sanction. So if you don’t kill anyone and do really a serious crime, like a robbery, or, maybe some really serious assault, then you usually, as a first time offender, you just get or just get, you get a monetary sanction. So that’s our. Prime or firsthand, punishment of choice.

And, the, prison sentence is really just either for very serious offenses or repeat offenders that really haven’t learned their lesson. So, that’s also the reason why we have so, a little people, [00:13:00] so few people in the prison system because we’re very selective. And when you look at the prison population, that’s really, a quite a, yeah.

Yeah, quite a, quite a heavy, charged population of really either serious offenders or repeat offenders.

Mike: Where, where is the line between when you’re no longer giving someone a monetary, penalty and you’re really okay? No. What You have to be in prison.

Nora: Well actually the monetary penalty is up, to 180 day, fines. So we have a system, the monetary penalty, that you have, like, the days that count for the seriousness of the offense. And then per day you have like an amount that you get charged and that’s based on your income. So it’s income related and the maximum you can get is like 180 days.

But, that’s a very low number for everyone. Else and Swiss or people from, from the Swiss system. So that’s actually everything else. If you want, for instance, you think like that’s like a year, of, penalty or two years or [00:14:00] three years, then you don’t have this monetary penalty, anymore.

It’s just like a hundred a daily rates. And that’s a very few, but we do have in our panel, code. Quite a flexibility in every offense, in regard, to what, punishment is adequate. So the judge or the prosecutor has a very, a big amount of freedom to decide whether or not, for instance, for this robbery, maybe that was the very, very serious one.

Or maybe for this burglary, we, it’s enough to have like 120 days of monetary penalty. So basically, we have, in the statistics we see that around 95 to 98% of all criminal cases get resolved through, summary penalty order meaning by the prosecutor. So that shows you that we have very lenient, sentences and very few sentences where, or cases where you really have to, get a, a really a prison sentence. 

Mike: So is the daily [00:15:00] rate a fixed rate, so that’s essentially a percentage of your income? Is that fixed or that, can that also be variable?

Nora: It is variable, depending on, on your, your income. And usually it’s not only like, the income from your, day-to-day work, but it’s also, all the other revenues that you have. So if you like, are, maybe very rich and you don’t really work, but you have a lot of money, then it’s, it’s considered also, during the calculation of this daily rate.

And the idea behind this really that it should be socially just so that the, the monetary penalty actually kinda, hurts, everyone a bit the same, regardless of, of, their, their financial background.

Mike: How does Switzerland factor in or even prioritize rehabilitation? My understanding is Switzerland’s also quite good with really using rehabilitation as an outcome of crime?

Nora: Exactly. So it’s a priority. And that’s, also a bit visible, with this, very large application of the [00:16:00] monetary penalties, the fines because, we believe that this is, less intrusive and, less, damaging for someone’s reentry into society than a prison sentence. So what we wanted to do a couple of years back is really eliminate these short prison sentences, because it was supposed to be.

Somewhat bad for the rehabilitation of offenders. And the, the prison sentence really like to, we call it ul. So the last resort basically for someone. And if we can avoid, we, try not to sentence someone to prison or, maybe a conditional sentence where you just kind of get the warning that if you someone repeats, the offense, then you have to go to prison and, stay there.

So it’s, usually the system also with the monetary penalties is, is conditional in a sense that first time offenders, they get the warning like, okay, you are convicted, but, it’s, you don’t have to pay the fine or you don’t have to go to prison because, [00:17:00] it’s, it’s suspended. The prison sentence is suspended or the fine is suspended.

Mike: What, what forms did rehabilitation take?

Nora: Well in, in the sense that we try not to send people to prison. It’s like the first form. In the second is people who are in prison, try to be prepared to be released from prison. So, basically that means, educational programs in prison, also work, work possibilities. In prison, Swiss, prisoners are required to work.

So it’s an obligation, but actually everyone, kinda likes it because otherwise it’s very boring and you can earn money and, have something to do. So, but there’s this, this possibility of education and it’s also possibility of, of, therapy. A lot of the offenders that end in prison have committed serious offenses, and usually, there’s also some psychological trouble involved.

Mike: So they most, most of the time for serious offenders, like serious violent offenders, they do also have a therapeutic [00:18:00] measure, that they have to comply with. And this is also something that tries to eliminate, the risk of recidivism, that, can happen with these offenders. So it’s, it’s several ways of trying to think, while being in prison about what happens when they get out.

and when, when you say work that, so they’re doing jobs within the prison itself?

Nora: Yes, yes. Usually this is kind of work in the kitchen, or manual labor, where they, do some reparations maybe or some other manual labor. There are different ways, of doing work. It depends also on, on your, sentence and on the stage of your prison sentence. Maybe if you are an advanced stage and it’s not you, you don’t have to fear, that the people, are maybe dangerous.

You can also work outside the prison sometimes. So, there’s a lot of flexibility depending on, on the person.

Mike: Are there different level of security prisons?

Nora: Yes, there are. It’s, some of the standard prisons that are [00:19:00] really like, like higher security, meaning people can’t get out and there are some facilities where you have, like, people that can even work outside the prison, or, have their day in their normal jobs and then they go back, in the evening.

So there are different, modalities and different, ways. And according to your risk, it’s, you either are in the, in the regular, like high, security facility, or you are in the more flexible one.

Mike: What is the longest or the worst sentence someone can receive?

Nora: For the sentence, it’s lifelong imprisonment. We also do know that one. But it’s very restricted to, a limited number of offenses, such as, murder for instance. And some other, very selective offenses. What is more serious, I think is not really the prison, the sentence, but the measures that can accompany a prison sentence because, we have some measures, that like therapeutic [00:20:00] measures that can be prolonged, that can be added and, can make that, even though you have finished your prison sentence, you remain in prison because you’re still dangerous.

And that can be for some measures, that can be for life basically. So some of the offenders, even though they have finished their prison sentence, they don’t get out anymore and they stay in for life because they still consider it to be dangerous.

Mike: Ah, I see. And from your experience, is it realistic for someone to come outta prison with a permanent record and go ahead and get a job and resume their life?

Nora: Yes, yes. Because that’s also something that is completely different from the Anglo-Saxon countries. I don’t know how it is in Australia. I know just from the US where it’s very like discriminatory if you are having a record. And in Switzerland, actually, this is not really that common, that an employer is actually asking for your, criminal record.

Some of the employers, obviously if you [00:21:00] are in finance or if you are, dealing with children, et cetera, then yes. But for regular, I think manual labor, et cetera, it’s not really the standard that, employers asking for the criminal record. So the integration actually, and re rehabilitation of offenders, is also helped by this.

So, you don’t have restrictions in regard to work or housing or other, things. So, this is really quite helpful for the reintegration of offenders. Hmm.

Mike: I actually, I heard the term restorative justice recently where, and I didn’t know about this, but victims and offenders can sit and actually talk to each other to try to repair the, the harm that’s been done, and especially, I guess it’s more common in smaller cases. Is this common in Switzerland?

Nora: No, because our system is also repression. You know, it’s a state who is punishing you for, some, some wrongdoing. So this is a very, it’s [00:22:00] a, it’s a question of mentality. It’s actually interesting because Australia has a very big culture of, this reintegrated, way of doing justice, you know, but it’s more culturally also related to the originalist culture I heard.

So Australian researchers actually have, have done a, a great deal of work on that, but it’s very cultural. Dependent. And for Swiss culture, it’s still in our minds that there’s someone who has done something wrong that needs to be punished and the victim’s interests, are not really that important actually, even though, it’s.

They’re, you know, they’ve been wronged or they’ve been harmed, but the victim in a criminal procedure is often a bit neglected because it’s really state versus a defendant. And victim’s interests are a second. You know, come second and there are some, yeah, some researchers in Switzerland that try to push this agenda of restorative [00:23:00] justice.

They try to make the process a bit more inclusive also for victims’ interests. But it’s a project that is currently ongoing where they try to look where they could situate this, a type of, of kind of dealing or negotiating with, with all the, in the parties, to the process. And it’s a big, discussion whether that should be done during the, the proceeding or, after the verdict.

And that’s not quite clear where to put that.

Mike: Mm, so the victim really doesn’t have a big role to play during the whole process.

Nora: Not really. What the victim can do is, they can, participate in the process. They can ask for, damage you know, that, like money that, their damage covers. So like civil claims, at the same time, that’s kind of their role. But other than that, they can’t really ask for a high sentence that you can just ask that the, the offender gets punished and that their, damages [00:24:00] get covered.

But more than that, not the system doesn’t really care or is not really interested about, also the maybe psychological harm or maybe, the, yeah, maybe the negotiation also, between victims and offenders. So it’s really another focus.

Mike: Do, is there systems in place to prevent wrongful conviction? So new evidence comes out later and then all of a sudden you realize, oh, we’ve done something wrong. What happens in that situation in Switzerland?

Nora: There is a possibility, to reopen the case, but only in cases where you really, have some, new evidence coming up that wasn’t known before. And then you can reopen the case reevaluate the case and also, make, the verdict or the conviction go away. But it’s very rare and, at least from the cases we know.

And here also I think the dark figure, is probably much higher because of this proceeding that I’ve mentioned. [00:25:00] The, the summary penalty order. This is a proceeding where the prosecutor just, haven’t in most cases, hasn’t, haven’t even seen, the defendant. So they just get like the verdict sent at home.

It’s like a written proceeding. And a lot of people, they don’t really look at the verdict. They don’t really understand it maybe, and then they just do nothing. And if you do nothing, you get convicted. You know, it’s like a. Regular verdict. And there we know from research that the error, quote or the error proneness of this proceeding is actually higher than if you go in front of a court.

So, this is a bit, the risk of wrongful convictions comes in these types of constellations.

Mike: Now just thinking how complicated do the different languages make the

courtroom?

Nora: Yeah, I mean that’s, that’s a big issue. For the summary penalty, order proceeding, especially people who don’t know, the local language, you know, they don’t understand and legal, language like, legal German or legal French is [00:26:00] really complicated. I mean, even people with native, language skills are not able to understand what actually we are writing.

It’s a terrible thing and we, lawyers are terrible in writing so that everyone understands us. But, it’s really the, the language problem adds. But it’s, it’s very specific. I mean, it depends on the Canton, you know, like in the, in the Canton of Zurich or the Canton of Sallan, it’s clear that the official language is German, so you need to speak German.

And if you don’t speak the language, then you get a translator. So if you’re a defendant and, you are language skills aren’t good enough, then you are, you have, the right to have, a, a translator. So you don’t have like several languages spoken in one courtroom or at the prosecutor’s office because it’s clear from the beginning, which language is going to be used.

If you are in a, French speaking can, and obviously, the procedural language is French, or if you’re in the Canton of Tsin, Ticino, then it’s Italian. So it’s always clear what language [00:27:00] is spoken, and even on a federal level, it, it depends, what, area the case, is. Situated. It can either be like German speaking or French speaking, or also Italian speaking.

Mike: That’s it for part one of my episode with Nora, but be sure we are not done. Come back tomorrow for part two as there is much more to still unpack. Stay tuned.

I’m Mike Connors and this is how it ticks. Let’s pick up right where we left off with Nora Markwalder. Okay.

Have you seen the movie, the Anatomy of a Fall?

Nora: No, I haven’t, no.

Mike: no. It was a, it was a Swiss French production and it did very well. It was a murder based courtroom drama, and it was.

Nora: Oh, okay. I have to watch

that.

Mike: you’re, I’m curious. ’cause they, they jumped, they jumped languages throughout that film and I wondered how realistic that is.

Or maybe it was just a flex of the actors.

Nora: Yeah. Well, usually on a federal level, it’s not in a courtroom, but, for everything else, if you are in a federal [00:28:00] level and you’re in a committee, everyone speaks their own language. So basically, if you’re in a committee with a, a, a French, professor, French speaking professor, and an Italian speaking, and a German speaking, then everyone speaks their native language.

But the other one responds in their native. So basically it’s a bit of a Babylonian, language, thing, but it works quite well. But in a courtroom, it’s really, decided and it’s precisely, good ahead. Which language is gonna be used? Hmm.

Mike: hmm. How do the bigger, criminal investigations happened, which are cross border? What’s a corporation like?

Nora: Oh, well, that’s always a bit, difficult to say, but it depends on, on, on, the, the case and also the countries. There are some countries where, the corporation is, is easier and others not. Usually, there are rules, to, to the corporation. Also, if some, foreign authorities wants information from someone from Switzerland, for instance, they have to go through the official [00:29:00] channels.

You know, so it’s, like the international, channels, where you can cooperate. So, usually I think that that works. Sometimes better. Sometimes less good, but it always depends a bit on, on, on the country. You want information from?

Mike: Hmm. Does Switzerland’s role as a. Neutral country ever play into this when you have, maybe international court cases and you, you might have criminals in Switzerland ’cause they’re not allowed in Europe. Is that ever used in law? The fact that it’s a neutral country?

Nora: Not really because there are quite. To, strict rules, when to cooperate and when not, and they, they’re all like requirements like that. The, offense has to be punishable in both countries, you know, so that you are just, helping out the other authorities if this is actually also a crime in your country.

So to, so to avoid some political, you know, cases that you help, when people are only prosecuted for political reasons. So the neutrality actually [00:30:00] is not really, a big player, I would say, but I’m not really the biggest specialist on these international corporation cases because that’s a very specific, area.

And, this always goes through the federal level. If someone wants to cooperate internationally, either you get information from a, a foreign authority, or the foreign authorities get wanting to have information from the Swiss.

Mike: Would if there was a foreigner in Switzerland, say a tourist, and they murdered someone in Switzerland and were arrested, are they, is their court case treated differently to a Swiss person doing that?

Nora: Not really, actually, it’s not supposed to because independently of, of, of where you’re coming from. What’s important is that you’ve committed a crime on Swiss grounds, on Swiss soil. That’s the, the point of attachment for us, you know, where the crime has been committed and where we are, competent to, to prosecute.

So, basically, it’s not really relevant, whether or not you are a foreign citizen or you are a Swiss [00:31:00] citizen. We have a lot of foreign citizens in, in, in, in Switzerland. I think it’s almost 30% right now. So we have a lot of foreigners also in the criminal justice system. And they, at least in, in the ideal world, they should not be treated differently, at least not from the legal system.

The only difference is a bit when you are, arrested, then there is the question of whether or not you, will get detained, you know. Like, preventive detention during the case, and the foreigners are, a bit more likely to be, detained because, there’s, one reason for this preventive detention is the, risk of, flight, you know, being a fugitive.

And that’s obviously much higher for, foreign nationals because they can go back to their, original countries, countries of origin and, therefore, once you are back, like for instance, if you go back to Australia, they, Australia wouldn’t you know, trade or send you back for this proceeding.

So you could, yeah, you could go away and, leave Switzerland and then [00:32:00] the Swiss, justice system couldn’t, prosecute you anymore.

Mike: And if you were prosecuted as a foreigner, would it always be to a Swiss prison or is there some sort of conversion where you could get sentenced to a prison in the country of origin of that person? I.

Nora: I think there is a possibility, because well, the sentence is done by a Swiss, court, of course. And, the regular cases that you get, your sentence, in Switzerland, you have to, you know, get the punishment and remain in prison in Switzerland. But I think it’s a, it’s a possibility that you can, go, back to your home country and be sentenced there or be in prison there.

But I, I don’t have the numbers in habit. I think it’s quite rare.

Mike: mm Okay. Because I, I imagine the Swiss taxpayer doesn’t love the idea of paying for the rehabilitation of a foreigner who’s committed a murder in Switzerland.

Nora: Yes. But, you know, the, the criminal justice system is, is a highly, expensive, thing anyways, [00:33:00] so, everyone who gets in there and then of, of course also to, to prison. But what happens most of the time is also that once, you are done with your prison sentence, you get, exposed from Switzerland, which is also a measure.

So basically, we quite like to export our problems once, the sentence is, is finished and then these people have to leave. So, and then it’s not the, the problem of the taxpayer anymore. But yes, it’s, it is, a lot of money. Our prisons are expensive, but that’s quite, inevitable actually, because the criminal justice system is a, is an expensive one. 

Mike: now I want to ask you about, juveniles. My understanding is, people under the age of 18 tried in a completely different system to people over the age of 18 . How does that work and how does it different from, adults?

Nora: It’s really completely different because with the juveniles, the idea behind this really that they are still, you know, quite, young, they can still be changed. They can still be [00:34:00] educated. So the system, the, juvenile justice systems really based on education, on measures, on therapy, on reintegration.

So you almost have no way of punishment. There are some minor punishments, but you know, not really, prison sentences, under, under the age of, of, of 15, and then all the just short ones. So it’s really based on how to help and, educate and better the juvenile rather than to punish him or her. And that’s the main focus and it’s.

Well, it’s not particular in Switzerland because like Germany and other, countries have this focus as well. But what’s really particular in Switzerland is also that it really stops with 18. You know, it’s like you can’t be, if you commit a murder, you should commit it while you’re still, under the age of 18.

Because once you really, the day you turn 18, you will get a really long prison sentence, but before the maximum [00:35:00] prison sentence is four years. So even if you commit the most heinous crime, it won’t be possible to have a longer prison sentence than that. But, there are some other like measures where you can also be, sentenced to a therapeutic measure that can go on maybe for a bit longer, but it’s a really, short, like a sharp cut between 18, and older and below 18.

Mike: Hmm. Are some of the outcomes , for juveniles, but also adults, things like, rehabilitation due to drugs, alcohol, you mentioned therapy as an option that people have in prison. Are there other things which get prescribed to people outside of prison, like therapy, like addiction , treatment, as well.

Nora: Yes, actually, they, they’re both, they can be, either done in prison or outside prison. So it’s like, depending on the measure that you get, if you get the, a prison sentence, usually an unconditional one, an uns suspended one, then you are in prison and you usually have the therapy in prison.

But some, a lot of people, [00:36:00] they just get, suspended sentences and they get the measure, right next to the sentence. So they actually have to go maybe see a doctor or like a, a drug addiction therapy. And this is also something that can, you can do while you are still like roaming around freely.

Mike: Do you, do you have access to statistics in terms of crime rates over the last, say 10, 20 years? Are, are they generally going up or down in Switzerland,

Nora: Well, it depends a bit, but, in general it’s, more of a, a downward trend, for a lot of offenses in the last couple years. We had some upward trends again, but, really as a general trend, it was more going down. But it was also, the, these overall crime trends, they’re very much influenced by, mass, offenses such as burglary and theft.

You know, so if you look at the different offenses specifically, you can see that some, especially with the juveniles now, that the violent crimes are, getting a bit. [00:37:00] Higher again. So they are increasing. But for homicides for instance, we have had a quite a drastic decrease in the last 30 years.

So they have declined quite, significantly, at least homicides against men for men to men. Intimate partner homicides are quite stable throughout, the years and, even decades. Yeah.

Mike: I mean it’s, it’s impressive. It’s also mind boggling ’cause it seems like. Especially in many other places in Europe, crime is going ballistic or at least that’s the impression that I get. And you read news about France and Germany. Why is it so stable? Do you think it’s a just it’s a stable economy and everybody has their needs met and therefore feels less likely to commit a crime?

Nora: It, it certainly has to do with, with, with wealth, you know, with, maybe better, social services. Education, et cetera. But I’m not quite so sure whether other countries have had some really, high increases, because at least [00:38:00] I’ve, I’ve done comparative work on homicide and, the trends in homicide were the same for the surrounding countries.

We’ve done a comparative work and we’ve seen that in the Netherlands, in Sweden in, in Finland, all these countries, homicide rates were, decreasing as well. So, I’m not quite sure whether I, I think that the overall general trend has been in the last 30 years that the crime has declined.

But it was an overall trend. It was in the US and he was, in Europe and he was, also in Australia, I think, but maybe not in, in Africa and Latin America, but at least in Western European countries and in the US and Canada as well. So maybe. Now it’s always a bit fluctuating and some, offenses increase, some not.

But overall, I don’t think it’s really been worse than it’s been before.

Mike: Okay. That’s good to know. Interesting. Do you, do you deal with organized crime very much. Have you seen, is there a lot of organized crime in the courtroom in Switzerland?

Nora: Very few. So this is a very rare, [00:39:00] constellation because, well, some argue and say, well, we don’t get

them because, they’re, they’re too smart or we don’t, catch the, the organized crime. But it’s also very difficult to, to do research on it. They’re not really good numbers, or estimates about the activity of, for instance, organized crime groups like the Mafia.

And there are different organized crime groups, you know, some always think of, of mafia structures or like Italian mafia. Some have other mafias in mind, but there are some, some like, motorcycle gangs and stuff like that. So it’s quite diverse and it’s not a common really definition. The criminal code has a definition of organized crime, but it’s, quite difficult to apply.

And I’m sure there are activities, but I. I can’t really tell you, and we don’t really have numbers about how big these activities are.

Mike: Hmm. What about drug related crimes? Are they changing? I mean, I guess it, I know that the nineties, there was a heroin epidemic in Zurich. How has that changed in the last 30 years?

Nora: [00:40:00] That has quite changed because, you’re right. In the nineties there was this open drug scene in Switzerland, in general in Zurich. And the, this open drug consumption area that was, right next or behind, the, the, the train station. And it was everyone. It attracted, drug addicts from all over Switzerland.

It was a mess. And, in the nineties they decided, to close this, area down. And that had made really, disappear, like this attraction, of Zurich for, for this drug addict. And what was also, what they did, the authorities, it’s not only closed the area down, but also try to help these people with, substitution like methadone programs drug substitution programs other help.

So they really tried to tackle the problem by the root and that had really at least had an impact on, various, crime or drug related crimes such as also thefts, robberies, but also homicides related to crime, to, to [00:41:00] drug addiction or drug trading. They, they have gone down as well.

So it’s really had a, a positive impact on, on, crime rates, that they have tried to tackle this, this, problem by the roots.

Mike: Hmm. It seems once again, that principle of rehabilitation, although it must be a, a difficult thing to digest, if you are the family member of someone who’s been murdered and the treatment is rehabilitation, when you’d probably just want punishment, that must be something which, doesn’t sit right with some relatives of victims.

Nora: Sure. And in the case of, like, these really serious crimes, the re like the vengeance or retribution aspect of the punishment is, is also there because of the long prison sentence. So, it’s clear that they have to go to prison and they have to, sit there and wait until, the time is over, you know?

So what is more, maybe a bit problematic from the victim [00:42:00] side is when you see that someone who has maybe committed an assault, maybe some serious forms of assault just gets like a monetary penalty. You know, that’s more. Difficult to understand from the victim point because finally, and then a suspended sentence.

So basically people don’t even have to pay something or go to prison. It’s just suspended. That’s something that in the, in the population and from the victim side, is sometimes not very well perceived. And also leads to a lot of discussion about, to, the leniency, of, the system and that we were too lenient, that we’re not tough on crime, and that it’s really not also disrespectful towards the victims.

Mike: That the offenders basically walk free. So this is more like the problem there. That’s also the suspended sentences that get applied quite a lot.

is the way that, people are prosecuted, is that there because of a public vote? What role does the public have in this in terms of deciding how people are prosecuted?[00:43:00]

Nora: Yeah, that’s actually quite a, a good question because there is, the, the public plays a role, especially when it comes to, the, the sentence, the possibility of the, of, of length of sentence. And there is a lot of. Political initiatives that try to amend and change the criminal code. And that’s why we have a lot of things in our criminal code that are, because of, of a popular vote.

So, for instance, like, the, possibility of, lifelong, it’s not. Lifelong imprisonment. It’s not punishment. It’s just like this, imprisonment after the punishment if you are dangerous. So this is an initiative that happened in Switzerland or some other initiatives. For instance, the expulsion of foreigners was also something that was required by, a popular vote so that, criminal foreigners get exposed from Switzerland.

So you have a lot of these things that are in the criminal code. Also the interdiction or the prohibition of, convicted [00:44:00] sexual offenders to work with children. So if you’ve been convicted of a offense, sexual offense against children, then you’re not allowed to work with children anymore. Sounds logical.

But that’s something that has been, exactly, introduced by a popular vote. So, there is an, an exchange, and that’s why it’s also like a corrective, if you, have maybe, an excess or, or, or things that the, the population doesn’t understand, then, there is a chance that it gets, it goes to a popular vote.

Mike: I mean, at least it’s progressive in the sense that conversations can be had. I mean, I can imagine in a lot of countries, at least very conservative ones, the idea of talking about whether to allow previously charged sex offenders to work with children again, would be a conversation you couldn’t even have.

So it sounds, at least in that sense, it’s progressive enough to have these conversations.

Nora: Yes. And, and it’s also actually quite a good thing to have these conversations. It’s obviously, you, you always get a, [00:45:00] a, a majority that says, yeah, we have to punish, a bit more. We have to do this more. So the tendencies is clear, is going to be more restrictive be, be more punitive. But, I think it’s good for the system to have this conversation that also the population, or at least the ones there are allowed to vote, which is, as I’ve mentioned before, with 30% of, foreign nationals.

It’s not really. All of the population, but at least the ones that get to vote can have this conversation about the usefulness of higher sentences or, maybe also, the, possibility of doing something else. So it, the, the conversation is such, is actually a good thing, but unfortunately, it’s often a conversation about how can we make the system harsher and punish more, because that’s, that’s always a bit easier from a political point of view to defend this, type of, position.

Mike: From your view, what would you like to see changed?

Nora: Well, where shall I start now? No, actually, I, [00:46:00] I, I, I think, there are some, some things that, that could, be, be changed. I especially am critical in regard to the summary penalty order system because I think it’s getting applied a bit too extensively, although I’m well aware that these are economic restraints as well.

The criminal justice system is overburdened. We, have a lot of cases that come in and have to be treated, but the summary penalty order procedure is, a bit critical because, there is no exchange with the defendant. There is no explanation of what happened and people get convicted. Although they don’t have an idea, what is going on, and that’s not the sense of a conviction either.

You have to know what you’ve done wrong. You have to understand what this procedure is for and what you’ve done. And I would. Like to see, a bit more, of these summary penalty order procedures, being done with an exchange, with the defendant, with a hearing, maybe with an explanation also what’s going on in order to make it [00:47:00] more efficient.

But, yeah, I’m well aware that all the prosecutors, and that, are, doing these types of, procedures. They’re like, ah, we don’t have, it, it must be fast and, and, and efficient. And of course that’s something that’s always a bit of a problem, the criminal justice system. Not enough time, not enough money.

Mike: Hmm. And is it like, it’s depicted in films where you have these, big fancy law firms who are very, very expensive. And then you also have the underpaid, overworked , lawyers working for the state. And often the small guy gets assigned the state worker, and then the big guy gets the big expensive lawyer.

Nora: Actually not that much because, at least from my time as a defense, attorney, we had, an association. It still exists, where, they get called and these when, a case happens where you need like a public defender. But, these were like regular lawyers. They were very, well, it depended a bit what your luck was, but there were some very, very good experienced defense attorneys, that usually [00:48:00] worked for, also big firms that were also doing this work.

So it was more like, it’s, it’s, it’s well seen to do that. So it’s actually not that you have this, caseworker that has like a hundred other cases and just has like 10 hours for you. The state also pays you per hour. So basically you can do all the necessary work. You can’t do excessively whatever you want, but usually, you can do your, job, you can, you know, do all the things necessary and you get paid by the hour. There are also some, maybe not experienced ones, but, you can also have some really good defense, attorneys. But on the other hand, money is also, of course, an, an issue. If you are, rich, then you can of course, choose also which, lawyer you want to work with.

Yeah.

Mike: Hmm. Are there any current debates or controversial issues in Swiss criminal law which you think might change in the next 2, 3, 4 y years?

Nora: Well, there’s a controversial debate or this, on the juveniles, because right now [00:49:00] there is no possibility to lock up a juvenile longer than just, well, these short periods of time you have, they have to be released. And there are some very rare cases of highly dangerous juveniles, some of them that have committed a homicide and where, you know, that they should not be released anymore.

So this is something that. Is debated right now whether or not there should be a possibility of also locking up, indefinitely or eternally, these, these types of, of juveniles. This is something that is, is right now going on and something that should be discussed but hasn’t been much discussed is the whole digitalization of the criminal justice system, especially, the, procedural law.

It’s, it’s not very digital yet, you know, with all the data involved, et cetera. It’s been made for like physical evidence and, and, and physical steps, et cetera. And this is a big debate it’s gonna come up, is how to make our procedural code more, fit for, the digital area. I think.

Mike: Hmm. [00:50:00] Speaking of digital error, how much is large language models going to revolutionize being a lawyer?

Nora: Well, a couple of months ago I would’ve said, yeah, maybe not that much, but I’m not so sure anymore. Because some of my colleagues have also tried, you know, to do some, legal work. Here. Also some law like lawyers work and, these models start to become increasingly good. The problem is still that, most of the literature is behind a paywall, so they don’t have access to it.

And the Swiss market is quite a small one, so you don’t have a lot of training, data yet, but as soon as you have it, and some of the bigger law firms, they already have some smart systems internally for their, documents and files. As soon as you, you, this gets more, in, in publicly, accessible, then it’ll, it’ll revolutionize I think the whole, profession as well.

What’s still very important though, if you are working as a lawyer, especially as a, as a criminal defense attorney, is, the, the [00:51:00] personal contact with the, defendant, also the trust, that’s something also very important and tactical. Questions. And that’s something that probably large language models can’t really help you with yet because it’s not written down somewhere.

It’s dependent on your experience and on the special case and maybe on the constellation that you find. And that’s something that, these large language models can’t really replace, but for all knowledge based, and legal, like legal, knowledge based, areas, I think they’ll they’ll change the game.

Mike: I mean, lawyers are the ones famously in university who have just the world’s largest stack of textbooks that have to go through and memorize and gee, if all they get is a, if they get a laptop instead, my God, what a difference It must be.

Nora: Exactly. I think that’ll change also the way we have to educate, lawyers. You know, learning by heart’s not gonna be a top priority anymore.

Mike: Mm. And God, that’s gotta be a good thing, right? That that can’t be the favorite part of the job.

Nora: It’s [00:52:00] not, but on the other hand, it’s good to have an overview, you know? And ha have, have it present. You can’t just look everything up. And if you have a client in front of you and you, they ask a question and then you say, oh, wait, I have to look it up, then it’s not really a good thing. So that’s also, you have to have a good overview on all the different problems.

And that means learning by heart was part of, of yeah. Of your education basically.

Mike: hmm. So, coming to the end of the conversation, I just wanted to ask you, what are you working on at the moment which excites you?

Nora: My homicide research basically, but that’s more like the criminological side, but it’s also a legal side because right now I’m preparing a paper on how, femicides, you know, the killing of women, are getting, sentenced, you know, because we have a database on all homicide cases and we filtered out, the femicide cases and right now I’m looking at that and see whether or not they get sentenced, like the offenders get sentenced with higher, prison sentences or lower.

So that’s something I’m quite interested in. And, otherwise, yeah, I [00:53:00] have too many projects and too little time. So I basically trying to fit everything in, during the semester where I have also to teach. But this is like one area that I’m really excited

Mike: Hmm. On that femicide thing, do you think the punishment for the killing of women would increase in the recent times with this Me Too movement? With the feminist movement and the more conscious move towards female rights, is that also do you think, linked to more penalties of murder of women?

Nora: Well, that’s what I’m trying to find out then. But, yes, because one hypothesis could be that, this, public, awareness also raises awareness for maybe, the, yeah, the seriousness of these offenses. But I don’t think so because at the end it’s always a, a, a judge and the court who is, looking at very, a, a lot of individual, aspects of, the offender, but also of the [00:54:00] offense or the circumstances, et cetera.

And I’m not quite sure whether, these media coverage now have an influence, so much on the, on the individual judges who actually have to judge the case. I, I, my hypothesis is that I won’t find any kind of increase in, these punishments over the last couple years, but we’ll have a look at it.

Mike: Interesting. Is there anything else that I didn’t ask you about that is worth mentioning

Nora: No, because you’ve probably, managed to ask me, almost all areas of criminal law and criminology in one hour. That’s, quite,

Mike: and you answered without taking a break? I’m very impressed.

Nora: Well, I’m trying to,

Mike: Well, Nora, this has been a very interesting conversation for me. Thank you very much for your time.

Nora: well, it was a pleasure. Thanks for having me on your podcast.

Mike: Okay. I’ll speak to you later.

Nora: Bye,