Without a sentence in jail
Lorik * is desperate. He's in jail, but doesn't know why. Nobody explained it to him. His fellow prisoners try to calm him down: That is normal in Switzerland. There are some among them who have felt the same way. Lorik has never seen an interpreter, lawyer, public prosecutor, let alone a judge. There was no interrogation on the occasion of which he was accused of a crime or his rights were explained to him. He only received the enforcement order: He had been sentenced to a fine which, for lack of payment, had been converted into a prison term. However, Lorik is neither aware of a penalty order, nor has he ever received a request for payment or a payment slip. He is literally in jail without judgment.
Lorik's story is not an isolated incident. In Switzerland it happens regularly that people are transferred to prison without knowing why. This is possible because the public prosecutor's office can impose unconditional imprisonment sentences of up to 6 months as well as fines that are converted into a prison sentence without payment. Penal orders can, however, be declared legally binding and thus enforceable even without actual knowledge of the person concerned: Orders and decisions that cannot be handed over by registered post or as court documents and are not picked up from the post office within the seven-day collection period apply on the last day of this period as delivered. The so-called delivery fiction is used, for example, if a registered mail item is not picked up or a registered mail is returned because the addressee no longer lives at the address written. As soon as the penalty order is deemed to have been served, a 10-day objection period begins. If it passes unused, the penalty order becomes an enforceable judgment.
The Federal Supreme Court places high demands on the application of the delivery fictions, which the public prosecutor's offices do not always adhere to. The necessary efforts include inquiries at the last known address, the residents' registers, neighbors, relatives or the migration office. The Federal Supreme Court does not allow a substitute delivery to the last known address, nor does it release the public prosecutor's office from the obligation to search for an address if a wrong address has been intentionally given.
So far there has not been a single case before the federal court in which the efforts of a public prosecutor to serve a penalty order in question were qualified as sufficient. So they are not enough for Lorik either: After he raises an objection with the support of a lawyer, he is immediately released from prison.
Cases like that of Lorik usually go unnoticed, as those affected neither know their rights nor have legal counsel on their side. Most of the time, no one finds out about their fate, even though it involves the violation of basic human rights. According to Article 31 Paragraph 2 of the Federal Constitution and Article 5 Number 2 of the European Convention on Human Rights, a person who is deprived of their liberty must be informed immediately in a language they understand about the reasons for imprisonment and their rights. Prisoners must have the opportunity to have their deprivation of liberty examined by a court within a short period of time (Art. 5 No. 4 ECHR). If the delivery of a penalty order is only fictitious - i.e. the person concerned never actually gets to see the penalty order - they neither know the reason for the deprivation of liberty nor their legal remedies.
Cases of penal execution without legally binding penal orders are (still) largely unknown. It is incumbent on the public prosecutor to take action ex officio and to end this practice, which is hostile to fundamental rights, to review already issued penal orders and, if necessary, to serve them again in accordance with the law.
* Name changed
