#Legislative History
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.
#Systematic Classification
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.
#Elements of the Offence / Normative Content
N. 5 Legislation 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. The cantons retain misdemeanour criminal law under Art. 335 Criminal Code (BGE 138 IV 13 E. 5.1).
N. 6 Legislation 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. 7 Organisation 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. 8 Adjudication in criminal matters (para. 2): Criminal jurisdiction remains with the cantons, 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. 9 Enforcement 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).
#Legal Consequences
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).
#Points of Dispute
N. 13 Scope 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.
N. 14 Delimitation police law/criminal procedural law: It is disputed where preventive police action ends and criminal procedural action begins. Part of the literature draws 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. 15 Scope 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.
#Practice Notes
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.