1Die Gesetzgebung auf dem Gebiet des Strafrechts und des Strafprozessrechts ist Sache des Bundes.
2Für die Organisation der Gerichte, die Rechtsprechung in Strafsachen sowie den Straf- und Massnahmenvollzug sind die Kantone zuständig, soweit das Gesetz nichts anderes vorsieht.
3Der Bund kann Vorschriften zum Straf- und Massnahmenvollzug erlassen. Er kann den Kantonen Beiträge gewähren:
a.
für die Errichtung von Anstalten;
b.
für Verbesserungen im Straf- und Massnahmenvollzug;
c.
an Einrichtungen, die erzieherische Massnahmen an Kindern, Jugendlichen und jungen Erwachsenen vollziehen.
Art. 123 BV regulates the distribution of powers between the Confederation and the cantons in criminal law. The Confederation is responsible for legislation — it enacts the Criminal Code and the Code of Criminal Procedure (CCP). These apply uniformly throughout Switzerland.
The cantons organise the courts and conduct criminal proceedings. They build prisons and execute sentences. The Confederation may provide funding for new institutions and improvements in the execution of sentences.
Example from practice: Theft is punished under federal law (Art. 139 CC). The proceedings are conducted according to the CCP. However, charges are brought by the public prosecutor's office of the canton where the theft occurred. The cantonal court delivers the judgment. The sentence is served in a cantonal prison.
The cantons may only punish contraventions that are not regulated by federal law (Art. 335 CC). For example, Appenzell Ausserrhoden punishes naked hiking as a violation of morality and decency. This is permitted because federal law does not cover this act.
Police work before a criminal offence remains regulated by cantonal law. However, as soon as there is concrete suspicion of an offence, the CCP applies. The police may therefore monitor demonstrations under cantonal law. In the case of property damage, however, they must investigate according to the CCP.
This division has proven itself for 150 years. The Confederation ensures uniform rules. The cantons adapt enforcement to local needs. Three major enforcement concordats today coordinate cooperation between the cantons.
N. 1 The current division of powers between the Confederation and the cantons in criminal law goes back to the Federal Constitution of 1874. Art. 64 old BV transferred criminal law legislation to the Confederation, while the organisation of courts and criminal procedure remained with the cantons (BBl 1997 I 1, 370). The total revision of 1999 adopted this basic concept in Art. 123 BV, but extended federal jurisdiction to criminal procedural law and clarified powers in the enforcement of sentences and measures (BBl 1997 I 372).
N. 2 The extension to criminal procedural law was made with a view to the desired unification of criminal procedure. The constitutional revision thus created the basis for the later Swiss Criminal Procedure Code of 2007 (BBl 1997 I 372). For the enforcement area, a flexible solution was deliberately chosen: cantonal jurisdiction in principle with selective federal jurisdiction under para. 3.
N. 3 Art. 123 BV is the central jurisdictional norm for criminal law in the structure of the division of tasks between the Confederation and the cantons (Art. 42-135 BV). It is closely related to → Art. 122 BV (civil law) and forms the counterpart to the residual cantonal jurisdiction under → Art. 3 BV.
N. 4 The norm interacts with further constitutional provisions: → Art. 31 BV (deprivation of liberty) and → Art. 32 BV (criminal proceedings) set material limits. The justiciability of criminal law norms follows from → Art. 191 BV in conjunction with → Art. 191a-191c BV on federal criminal justice. For international cooperation in criminal matters, → Art. 54 BV applies.
N. 5Legislation in the field of criminal law (para. 1): Comprises core criminal law (Criminal Code) and federal ancillary criminal law. Federal jurisdiction extends only to criminal law protection of administrative provisions with a federal basis (Göksu, BSK BV, Art. 123 N. 8). The cantons retain misdemeanour criminal law under Art. 335 Criminal Code (BGE 138 IV 13 E. 5.1).
N. 6Legislation in the field of criminal procedural law (para. 1): Comprehensively regulated by federal law since 2011 through the Criminal Procedure Code. The delimitation from cantonal police jurisdiction is made according to the criterion of suspicion of an offence: preventive police activity without concrete suspicion of an offence remains cantonal (BGE 140 I 353 E. 4.2).
N. 7Organisation of courts (para. 2): Cantons determine court structure, jurisdiction and procedural processes within federal legal requirements. The Criminal Procedure Code only sets minimum standards (Art. 14 ff. Criminal Procedure Code). This also includes requirements for expert witnesses beyond federal law (BGE 140 IV 49 E. 2.3).
N. 8Adjudication in criminal matters (para. 2): Criminal jurisdiction remains with the cantons (Göksu, BSK BV, Art. 123 N. 17), except for federal criminal jurisdiction under Art. 23 ff. Criminal Procedure Code. Cantonal courts apply federal criminal law but are organised on a cantonal basis.
N. 9Enforcement of sentences and measures (para. 2 and 3): Dual jurisdiction — cantons carry out enforcement, the Confederation may issue framework regulations. The enforcement concordats (Northwest and Central Switzerland, Eastern Switzerland, Latin Switzerland) coordinate intercantonal standards (Baechtold/Weber/Hostettler, Strafvollzug, 3rd ed. 2016, § 2 N. 14).
N. 10 The federal jurisdiction under para. 1 is comprehensive and conclusive. Cantonal criminal law outside of Art. 335 Criminal Code is inadmissible. The Criminal Procedure Code applies uniformly in all cantons and supersedes deviating cantonal law (Art. 457 Criminal Procedure Code).
N. 11 Cantons must establish criminal courts and organise enforcement. They bear the costs (Art. 422 ff. Criminal Procedure Code) subject to federal contributions under para. 3. Intercantonal cooperation takes place through public law agreements under → Art. 48 BV.
N. 12 Federal contributions under para. 3 require corresponding legislation. The FDJP may grant contributions for institutions, enforcement improvements and juvenile measures based on Art. 377 ff. Criminal Code (FOJ Ordinance on Federal Contributions for the Enforcement of Sentences and Measures).
N. 13Scope of federal enforcement jurisdiction: The prevailing doctrine understands the jurisdiction under para. 3 extensively — the Confederation could undertake a complete system change to uniform federal enforcement law (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N 1113a; Rhinow/Schefer/Uebersax, Verfassungsrecht, N 2963). Göksu argues for a restrictive interpretation: para. 3 only permits selective interventions that must be justified by overriding federal interests (Göksu, BSK BV, Art. 123 N. 22).
N. 14Delimitation police law/criminal procedural law: It is disputed where preventive police action ends and criminal procedural action begins. Niggli/Heer/Wiprächtiger (BSK StPO, Einl. N. 45) draw the line at concrete suspicion of an offence. Riklin (StPO Kommentar, 2nd ed. 2014, Vorbem. N. 28) advocates for a functional understanding: measures with the purpose of criminal prosecution should always be assigned to the Criminal Procedure Code. The Federal Supreme Court follows the suspicion criterion (BGE 140 I 353 E. 4.2).
N. 15Scope of cantonal organisational autonomy: It is disputed how far federal legal requirements may determine cantonal court organisation. Lienhard/Kettiger (Justiz zwischen Management und Rechtsstaat, 2016, 184) emphasise the constitutionally guaranteed organisational sovereignty. Kiener (in: Verfassungsrecht der Schweiz, § 47 N. 34) sees this limited by mandatory procedural guarantees.
N. 16 When creating cantonal misdemeanour criminal law, Art. 335 Criminal Code must be observed: only insofar as no federal legal regulation exists. The delimitation is made according to the protected legal interest (Stratenwerth/Wohlers, AT I, § 3 N. 23).
N. 17 Cantonal police laws may regulate preventive measures without suspicion of an offence. As soon as concrete suspicion exists, the Criminal Procedure Code applies mandatorily. References to Criminal Procedure Code provisions are permissible (BGE 140 I 353 E. 4.4).
N. 18 In the enforcement area, it is recommended to join a concordat. The minimum requirements follow from Art. 74 ff. Criminal Code and must be complied with (BGE 139 I 180 E. 2.3). For electronic monitoring, Art. 79b Criminal Code and the VOSTRA Ordinance apply.
#Cantonal Legislative Competence in Minor Offences Criminal Law
BGE 138 IV 13 of 17 November 2011
Gross violation of morals and decency in public (Art. 19 of the Criminal Law of the Canton of Appenzell A.Rh.), "naked hiking".
Central decision on the delimitation between federal and cantonal competences in criminal law.
«Legislation in the field of criminal law and criminal procedure law is a matter for the Confederation (Art. 123 para. 1 Cst.). The cantons retain legislative competence over minor offences criminal law insofar as it is not the subject of federal legislation (Art. 335 para. 1 SCC).»
#Preventive Police Activity vs. Criminal Procedure Law
BGE 140 I 353 of 1 October 2014
Police Act of the Canton of Zurich; covert preliminary investigation, chatroom surveillance.
Distinction between cantonal police competence and federal criminal procedure law.
«Competence of the cantons to regulate preventive police activity that is not linked to a suspicion of an offence and is not based on the Confederation's Criminal Procedure Code. [...] The cantonal provision (§ 32e PolG/ZH) refers to serious offences within the meaning of Art. 286 para. 2 CPC. For implementation, reference is made to Arts. 151 and 287-298 CPC.»
#Cantonal Competence in Criminal and Therapeutic Measure Enforcement
BGE 139 I 180 of 18 July 2013
Work obligation in criminal and therapeutic measure enforcement; independent of the prisoner's age.
Fundamental confirmation of cantonal enforcement competence under Art. 123 para. 2 Cst.
«According to Art. 123 para. 2 Cst., the cantons are responsible for the enforcement of criminal penalties and therapeutic measures, unless the law provides otherwise. While the basic principles are regulated in Arts. 74-92 SCC, cantonal legislation must implement these principles.»
BGE 140 IV 49 of 13 February 2014
Arts. 20 and 56 para. 3 SCC; expert person in criminal proceedings.
Cantonal authority to establish more extensive requirements for experts.
«Cantonal law may provide for more extensive provisions (e.g. forensic continuing education). [...] The lower instance considers that the cantons are authorised to establish requirements for experts or court experts.»
BGE 140 I 2 of 1 January 2014
Concordat on measures against violence at sporting events; abstract judicial review.
Confirmation of cantonal police competence alongside criminal law.
«The concordat constitutes specific police law. It is aimed at the particular phenomenon of violence at sporting events. [...] As special police law, the concordat stands alongside general police law, which applies independently of the concordat.»
BGE 137 I 31 of 13 October 2010
Concordat on measures against violence at sporting events.
Proportionality as a limit on cantonal police measures.
«The measures under the concordat (area ban, reporting requirement, police custody) are limited to violent behaviour that is concretely connected with the sporting event and the supporters of one of the teams.»
BGE 144 IV 240 of 14 June 2018
Art. 104 para. 2 CPC; other authority that may be granted party rights.
Delimitation of procedural competences between the Confederation and the cantons.
«The concept of authority under Art. 104 para. 2 CPC is to be understood in a restricted sense. It is not decisive whether the organisation is organised under public or private law.»
Judgment 6B_1033/2019 of 4 December 2019
Measures under SCC; cantonal implementation.
Confirmation of continuing cantonal competences under new criminal law.
Judgment 6B_1015/2019 of 4 December 2019
Criminal enforcement; cantonal organisational sovereignty.
Current case law on the delimitation between federal requirements and cantonal autonomy.
BGE 147 IV 433 of 18 August 2021
Scope of cantonal competence for "disputes concerning the enforcement of justice".
Latest clarification of the distribution of competences in the enforcement area.
«The competence of the single judge does not also cover the review of the revocation of an institutional therapeutic measure due to hopelessness under Art. 62c para. 1 lit. a SCC.»