Alleviating the Confusion: Swiss Criminal Procedures In Light of Civil Law Tradition

What people may not know is that Switzerland’s criminal procedures are very different from the United States. Switzerland operates under a “civil law tradition” while the United States operates under a “common law tradition” that came from the English common law because the original thirteen States of the United States were formerly British colonies. In contrast, the civil law has codes and the common law does not. Civil law countries provide legal codes that explain all matters that can be brought before the courts, the applicable procedure of criminal investigations, the punishment for crimes, and trial. Switzerland’s codes are the Swiss Criminal Code (SCC) and the Swiss Criminal Procedure Code (SCPC). Common law countries do not provide comprehensive codes, but rather rely on numerous statutes and precedence set by decisions of judges, which is called stare decisis.

A very good compare and contrast of the two legal systems can be found in Dr. Vivienne O’Connor’s publication “Common Law and Civil Law Traditions.”

Another contrast is that in common law countries, judicial proceedings are adversarial between the prosecutor and the defendant, with the judge merely serving as the referee. In civil law countries, the proceedings are not adversarial and the judges play an integral role in both the criminal investigation stage as well as the trial stage. Under Swiss law (Article 17, SCPC), as in most civil law countries, judges can conduct criminal investigations, in addition to the police and the prosecutor. In Switzerland, these judges are called investigating magistrates and have more expanded powers than the prosecutor or police. Once an investigating magistrate concludes the criminal investigation he/she can seek indictments, and then the evidence and interviews that were conducted would be turned over to another judge or set of judges who will preside over the criminal trial. Jury trial is a common law tradition and not civil law. There are no jury trials in civil law countries, which includes Switzerland.

According to Dr. O’Connor, “International treaties and conventions also are sources of law in civil law countries. Most civil law countries are ‘monist’ meaning that when the country ratifies a treaty, it automatically becomes part of domestic law. This means that a judge can automatically apply it and a party in court can rely on international law in proceedings. In some countries, the judge can declare a national law or provision to be invalid if it conflicts with an international treaty or convention that the country has ratified.”

The Swiss Criminal Code provides for the Federal Attorney General to conduct criminal investigations for war crimes, but their decisions are subject to review by the “objections authority” of the Swiss Federal Criminal Court if someone is objecting to “the procedural acts and decisions [of an investigating magistrate, prosecutor or police] not subject to appeal (Article 20, SCPC).” This was the role the objection chambers of the Swiss Federal Criminal Court held in the case of Mr. Kale Gumapac and the unnamed Swiss citizen who were alleging that war crimes were committed against them in the Hawaiian Islands.

Swiss Treaty

What is the significance of the Swiss Federal Criminal Court’s reciting of Gumapac’s invoking his rights as a Hawaiian subject under the 1864 Hawaiian-Swiss treaty, “which wasn’t cancelled”? At first, it may appear that the Court was merely reciting Gumapac’s position that the treaty wasn’t cancelled, but did Gumapac state or even imply that it was he who was stating that the treaty wasn’t cancelled, or was it the three-judge panel that made that conclusion. The Court in making specific reference to Gumapac’s amended complaint dated January 22, 2015, stated, “that, in addition, by way of a letter dated January 22, 2015, [Dr. Keanu] Sai, in the name of Kale Kepekaio Gumapac…contacted the office of the Federal Attorney General and requested that criminal proceedings against Josef Ackermann…, the former CEO of Deutsche Bank National Trust Company…be opened and in this connection invoked rights deriving from Art. 1 of the friendship treaty between the Swiss Confederation and the then Hawaiian Kingdom of July 20, 1864, which has not been cancelled.”

In order to determine whether it was Gumapac who made this statement or the Court we need to look at what was stated in the amended complaint.

Gumapac, by his attorney-in-fact Dr. Sai, amended the original complaint dated December 7, 2014. The amended complaint states that Gumapac’s “initial complaint was based on universal jurisdiction, but in light of the fact that Josef Ackermann, who served as the Chief Executive Officer for Deutsche Bank when the war crimes were committed against [Gumapac], is a Swiss citizen, Mr. Gumapac is amending his complaint to include active personality jurisdiction and is invoking his rights as a Hawaiian subject under Article 1 of the 1864 Hawaiian-Swiss Treaty, which provides: “Hawaiians shall be received and treated in every canton of the Swiss Confederation, as regards their persons and their properties, on the same footing and in the same manner as now or may hereafter be treated, the citizens of other cantons.”

Active personality jurisdiction is when the accused is a Swiss citizen, and universal jurisdiction is where the alleged war crime was committed outside of Swiss territory by non-Swiss citizens against non-Swiss citizens.

The amended complaint then follows, “Therefore, according to Articles 118 and 119 of the Swiss Criminal Procedure Code (S-CPC), Mr. Gumapac is expressly declaring that he has suffered grave harm and respectfully demands that your office initiate an immediate investigation into the war crime of pillaging committed by Josef Ackermann being a Swiss citizen residing within the territory of the Swiss Confederation.” Gumapac made no statement that the treaty wasn’t cancelled, but rather was operating on the premise that the treaty remained binding on the Swiss authorities that were obligated to treat Gumapac in the same manner as Swiss citizens are treated in any of the cantons.

The question of whether or not a treaty has or has not been cancelled is a question of fact and not a question of law. The treaty itself will provide the process by which it can be terminated. For the Swiss treaty, Article VIII requires notice of intention to terminate by either of the contracting countries, and once the other country receives the notice of termination the treaty will terminate in 12 months. In the absence of any notice of termination, the “treaty will continue obligatory.”

Another way a treaty can be cancelled is if one of the countries that is a party to the treaty, ceases to exist as a country under international law. Without the existence of one of the parties there can be no treaty, because a treaty, by definition, is an agreement between two or more States. Therefore, if the Hawaiian Kingdom were annexed by the United States under international law, it would have consequently cancelled the Hawaiian-Swiss Treaty and replaced it with the U.S.-Swiss Treaty. This was specifically stated in the 1898 U.S. Congressional joint resolution of annexation, which read, “The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations.”

A joint resolution of Congress has no force and effect beyond U.S. territory and, as such, cannot have the power to cancel the treaty between Switzerland and the Hawaiian Kingdom. In other words, the only way to annex Hawai‘i and to cancel its treaty with Switzerland was for the United States to have a treaty with Hawai‘i that would have the effect of merging Hawai‘i into the United States. Only then would it have the effect of canceling the treaty with Switzerland. However, there is no treaty, but rather only a unilateral Congressional action.

When the Swiss Federal Criminal Court stated that the Hawaiian-Swiss treaty “wasn’t cancelled,” it was not a conclusion of law, but rather a conclusion of fact that supported Gumapac’s invoking of his rights under Article 1 of the treaty. In his report dated February 3, 2015, the Prosecutor, himself, also made the same conclusion regarding the status of the treaty. The report (German) (English translation) stated, “On January 22, 2015, Kale Kepekaio GUMAPAC confirmed in writing the accusations against Joseph ACKERMANN and in addition pointed out his rights stemming from Art. 1 of the friendship treaty between the SWISS CONFEDERATION and the then HAWAIIAN KING of July 20, 1864, which was never cancelled.”

Again this statement that the treaty was never cancelled was the Prosecutor’s conclusion and not Gumapac’s. Both the Prosecutor and the three-judge panel made the statement that the Hawaiian-Swiss Treaty wasn’t cancelled. Therefore, there is no dispute between the Swiss authorities and the war crime victims as to the treaty’s continued existence.

When the Court received the objection to the decision made by the Prosecutor on April 8, 2015, the President of the Objections Chamber ordered, by letter dated April 9, 2015, that the Prosecutor turn over all records of his investigation. The order stated, “In the matter mentioned above, a complaint against your decision not to engage of February 15, 2015 has been received at the Federal Criminal Court. You are requested to furnish the Federal Criminal Court right away with the records established in the abovementioned matter (including documents of receipt) with an index of the records.” This is a clear example of the civil law tradition where judges are involved in a criminal investigation. In common law countries such as the United States, there is no judicial oversight of a prosecutor’s decision to conduct a criminal investigation.

The three-judge panel of the Federal Criminal Court’s Objection Chambers would not have restated the allegations of war crimes in its April 28, 2015 decision unless the alleged war crimes met the statutory definition of war crimes under Swiss law. If not, it would have been deemed frivolous in this preliminary stage of the investigation and the Swiss Criminal Court would have dispensed with the criminal investigation and make no mention of the allegations. Nowhere in the decision did the three-judge panel state or even imply that the Prosecutor’s decision was going to be upheld.

Even more stunning, the decision specifically named Josef Ackermann, former CEO of Deutsche Bank, and officials of the State of Hawai‘i—Governor Neil Abercrombie, Lieutenant Governor Shan Tsutsui, Director of Taxation Frederik Pablo, and Deputy Director of Taxation Joshua Wisch. Under the civil law tradition, the decision by the Objections Chamber of the Federal Criminal Court is a part of the criminal investigation stage of these proceedings.

For the purposes of Swiss law, a war crime is defined as an international armed conflict, as between two or more States, even when occupation of the other State takes place without any armed resistance. The Hawaiian Kingdom was occupied by the United States on August 12, 1898, when the United States was waging war in the Spanish colonies of the Philippines and Guam. This was very similar and analogous to the German occupation of Luxemburg from 1914-1918 as it was waging war against France during World War I. Both the American occupation of Hawai‘i and the German occupation of Luxemburg took place without armed resistance.

From the decision (German) (translation to English), it appeared that the three-judge panel was prevented from reversing the Prosecutor’s decision because of a technicality, which was failure to submit the objection to the Court within the 10-day period allowed by law. In this case, Swiss law (Article 20, SCPC) allows the objections authority of the Swiss Federal Supreme Court’s Criminal Law Section to accept an objection to a decision made by “courts of the first instance,” which, in this case, is the three-judge panel of the Swiss Federal Criminal Court. Again, here is another example under the civil law tradition of having another level of judges overseeing a criminal investigation.

On May 29, 2015, the Clerk’s office of the objections authority of the Swiss Supreme Court’s Criminal Law Section accepted the objection, and assigned it case number 6B_563/2015. The Clerk’s office stated that the proceedings are against the Federal Criminal Court, Objections Chamber, as well as the Office of the Swiss Federal Attorney General. It further stated, “Possible procedural orders, as far as necessary, will follow.”

16 thoughts on “Alleviating the Confusion: Swiss Criminal Procedures In Light of Civil Law Tradition

      • Aloha Diane and Pualani, at this moment the complainants have to provide a convincing arguement to the Swiss Supreme Court inorder to have them reverse the decision of the Federal Criminal Court Objection Chamber. If successful, the Court and Prosecutor can continue the investigation and ultimately the indictment process for the alleged criminals. The arguement here is not if the HK and the Treaty exists but wether in fairness and in justice the 10 day rule should be amended so the postmarked date of private couriers could be accepted as the filing date for those complainant(s) that have no access to the Swiss Postal system and no other choice but to use private couriers. This actually could set new precedent since the court case cited for the rule only addressed a person(s) filing with access to the Swiss postal system.

  1. lt appears to me that U.S. DeOccupation is inevitable. Compliance is mandatory under International Law and H/K Nations Law .

  2. IMHO…
    Fact… This is the Hawaiian Kingdom
    Fact… America needs to go home
    Fact… War crimes list has started

    Mahalo to the acting government of the Hawaiian Kingdom
    4 its path to pono… E ala e

  3. The hard work lies ahead. It’s Governance. We need to define it. We can start by looking at our current government house today. Yes, that so called State Government of Hawaii Capitol Bldg in downtown Honolulu is the lighthouse of the Hawaiian Kingdom Aupuni. That is where our work needs to start. We all need to be doing our homework in studying the legislative districts and the people currently seated there to put them on notice that their days are numbered. The Hawaiian Kingdom aupuni will happen. We need to look at ourselves as H/K citizen/nationals and who amongst our people (intelligentsia,professionals etc.) are willing and capable to take the place of these seated legislators in conducting the business of our Restored H/K Nation. Yes, we do have the capacity to perform the work of our policy and procedures. We do not need the US proxy government to provide the Kuleana of our Restored H/K Nation’s business. their belligerent Occupation has come to an end. LLHK

    • Absolutely, we have so many people talented, educated, professionals, in all occupations and government positions…I am ready for the huli asap!

  4. I’ve touched on this subject in the past and everytime I see someone bring up the formation of a new government I feel the need to say it again. This is not saying that talking about a new government is wrong or premature, it’s about be proactive regarding public corruption before it starts.

    I agree with the comments above regarding the talented, educated professionals we have that could be the leaders for the Hawaiian Kingdom, but there definately needs to be things put in place to deter corruption, unlike the always forgiving american system.

    This is what I believe needs to be seriously looked at, once the Hawaiian Kingdom takes over. Most of us have been born, raised and educated under the american way of thinking and some politicians today will probably want to continue representing us as Hawaiian Subjects and run for office.

    These individuals along with anyone else wanting to run for office or hold an appointed position,will need to be reeducated under the Hawaiian Kingdoms Constitution. To be honest I still would have a hard time trusting them, especially some of those in office today who are of Kanaka Maoli Blood without mentioning names.

    My hope is that when the Hawaiian Kingdom regains its rightful authority from the United States and the State of Hawaii, we begin a process to amend the Constitution to address harsh penalties regarding elected officials and individuals appointed to government positions in the Hawaiian Kingdom Government .

    The American form of government allows government officials to prosper with so called kick backs and personal favor’s, from personal interest groups and big money corporations.

    The amendments that I feel should be put in place is to insure the integrity of any elected office or appointed position stay clean and honest. It should be laws with penalties so severe that individuals would seriously think twice about compromising the integrity of their position.

    Individuals running for elected office usually get involved because they want to make a difference and help their community, not get rich. Politicians today look at public office as a career and forget about the wanting to help their community after a while.

    This would be my hope to eliminate corruption in our Kingdom:

    There should be automatic prison time for anyone convicted of corruption while serving as an elected or appointed official.

    There should also be total confiscation of all assets to include property, money and real estate from anyone convicted for corruption while serving as an elected or appointed official.

    If it is found that a family member or any other acquaintance of a convicted elected or appointed official is guilty of hiding assets for the convicted elected or appointed official, they too will have their assets confiscated by the Kingdom. This would be the same for those who try to bribe, sway, coerce or threaten an elected or appointed official.

    The reason for the severe penalties is to eliminate the possibility of someone being convicted of corruption while in office and profitting from that corruption, serving prison time and coming out and living life on easy street with their ill gotten gains.

    Secondly an amendment clarifying that No Non Hawaiian can hold office hear in Hawaii. They should live in Hawaii for a minimum amount of years, to be agreed upon by the Hawaiian Kingdom Legislature, before holding office and must be a subject of the Kingdom Of Hawaii. (In this amendment Hawaiian would mean Nationality and not race.)

    My humble and simple remedy for Lying, Cheating, Greedy and Corrupt Elected or Appointed Officials.

    A Hui Hou

    • I do agree kuniole! When the H.K. Government is restored under the Executive Agreements, and Hawaii gets de-occupied that is after the 7-10 years of the U.S. military regime, I don’t ever want the H.K. to be another America, much less another U.S. State of Hawaii, which was born from treason–treason committed by our own citizens in 1893!

      But if one studies our laws, which I do every free time I have, I don’t think the H.K. is ever going to be another America! For example, under certain Articles of our Constitution, I have a feeling that they’ll barely be any corruption and greed. For instance,

      ARTICLE 13. The King conducts His Government for the common good; and not for the profit, honor, or private interest of any one man, family, or class of men among His subjects.

      ARTICLE 23. It shall not be lawful for any member of the Royal Family of Hawaii who may by Law succeed to the Throne, to contract Marriage without the consent of the Reigning Sovereign. Every Marriage so contracted shall be void, and the person so contracting a Marriage, may, by the Proclamation of the Reigning Sovereign, be declared to have forfeited His or Her right to the Throne, and after such Proclamation, the Right of Succession shall vest in the next Heir as though such offender were Dead.

      ARTICLE 25. No person shall ever sit upon the Throne, who has been convicted of any infamous crime, or who is insane, or an idiot.

      ARTICLE 53. The Legislative Assembly may punish its own members for disorderly behavior.

      ARTICLE 57. The King appoints the Nobles, who shall hold their appointments during life, subject to the provisions of Article 53; but their number shall not exceed twenty.

      ARTICLE 58. No person shall be appointed a Noble who shall not have attained the age of twenty-one years and resided in the Kingdom five years.

      ARTICLE 61. The following persons shall be eligible for representatives of the people, namely: Every male subject, or denizen of the Kingdom, who shall have arrived at the full age of twenty-five years, who shall know how to read and write; who shall understand accounts, and who shall have resided in the Kingdom for at least one year immediately preceding his election; provided always, that no person who is insane, or an idiot, or who shall at any time have been convicted of theft, bribery, perjury, forgery, embezzlement, polygamy, or other high crime or misdemeanor, shall ever hold seat as Representative of the people.

      Although, yes kuniole, maybe there should be some laws introduce to punish government officials who are engaged in corruption. But if one studies the laws of the H.K., it sounds like a very good structured society already. In fact it’s always been that way!

      I’ll give you another example: Under the H.K. Civil Code, TITLE 2, CHAPTER V, The Privy Council of State, who’s purpose is to honestly advice the monarch to the best of his knowledge and discretion, for the monarch’s honor and the good of the public without partiality through friendship, love, reward, fear, or favor. And if I’m also understanding this correctly, the Privy Counselor’s duties is to also observe the monarch to avoid corruption.

      Personally, I don’t ever want those laws to be abolished. Maybe some need to be modernized such as cattle on the roads needs to be replaced with automobiles and there should be automobile laws and all. But other than that, I don’t ever want most laws to change. Especially the punishments listed in the Penal Code of the H.K.

      Hope this helps

      • Mahalo Iolani for your manao, I agree with all of the Article’s that cited, but as you mentioned some of these may need to be tweaked in order to eliminate the loop holes that may come up in the future once the Hawaiian Kingdom is up and running.

        Great information, I enjoy reading the input from informed bloggers such as yourself.

        A Hui Hou

    • I agree with you completely. I think a lot of your concerns are addressed under the last lawful constitution and civil and penal codes. There definitely will be things that you mentioned above, that will need to be voted on.
      Government for the “common good” will severely limit corporate meddling.
      The Hawaiian laws also appear to hold people accountable. One example is the desecration of burials. Everyone involved becomes liable: whoever ordered the desecration, who dug the hole and to took the remains. I think it is under the term “sepultura”
      I agree with your thinking.

  5. aloha iolani you are right we are still here . AS NOBLE. to Kamehameha da great and we are here to do the right thing to protect this part of the world for that our king gave us that vetted right to do so .And to live happy by taking care of life!!!! my na i noa pala’aina kaniela nae’ole na’auao on maui take care love u all

  6. Aloha again Pualani and diane, I also wanted to add that the Swiss have provided progressive and aggresive legislation for the investigation and prosecution of war a crimes because they consider war crimes to be heinous crimes against humanity. It would be a total contradiction in rationale for the Court to give impunity to war criminals based on a technicality of a rule that can be easily addressed in the interest of justice.
    I pray that the claimants prevail inorder for the investigation to continue and result with indictments for these criminals.
    Once these defendant(s) are indicted, under civil law tradition and Swiss Criminal procedures, if they refuse or fail to appear for their hearing they still can be tried Absentee and convicted.
    Hope this helps.

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