1Every person is presumed innocent until they have been found guilty by a legally enforceable judgment.
2Every accused person has the right to be notified as quickly and comprehensively as possible of the charge brought against them. They must be given the opportunity to assert their rights to a proper defence.
3Every convicted person has the right to have their conviction reviewed by a higher court, with the exception of cases in which the Federal Supreme Court sits at first instance.
Overview
Art. 32 Federal Constitution protects persons in criminal proceedings from unfair treatment. The article contains three important rights for all persons against whom criminal proceedings are conducted.
#What does the article regulate?
The provision guarantees three fundamental rights in criminal proceedings: First, every person is considered innocent until convicted by a final judgment (presumption of innocence). Second, every accused person has the right to be informed quickly and completely about the charges and to defend themselves. Third, every convicted person can have the judgment reviewed by a higher court.
#Who is affected?
The protection applies to all persons in Switzerland, regardless of nationality. This includes both ordinary criminal proceedings as well as similar proceedings such as competition law sanctions or tax criminal investigations. These rights may also be applicable in administrative proceedings where criminal-like sanctions are threatened.
#Legal consequences
The presumption of innocence means: The prosecution must prove guilt, not the accused person their innocence. In case of doubt, the decision must be made in favour of the accused person (in-dubio-pro-reo principle). The right to information obliges the authorities to communicate the charges clearly and comprehensibly. Violations of these rights can lead to the quashing of judgments or to prohibitions on the use of evidence.
#Example
Maria is accused of tax evasion. She is considered innocent until a final judgment is rendered. The authorities must inform her precisely of what she is accused of and what evidence exists. She has the right to a lawyer and can have all evidence examined. If she is convicted, she can challenge the judgment before a higher court.
Art. 32 BV — Criminal Proceedings
#Doctrine
#1. Legislative History
N. 1 The 1874 Federal Constitution contained no standalone provision on procedural guarantees in criminal proceedings. The Federal Supreme Court derived the presumption of innocence and the rights of the defence from the general principle of equality and the prohibition of arbitrariness under Art. 4 of the former Federal Constitution, later supplemented by Art. 6 para. 2 ECHR (in force for Switzerland since 1974) and Art. 14 para. 2 ICCPR. With the total revision of the Federal Constitution, these guarantees were codified and recognised as independent fundamental rights.
N. 2 The Federal Council based its dispatch on the new Federal Constitution on the assessment that criminal proceedings could «intervene particularly intrusively in the rights of the person concerned», and that specific constitutional guarantees were therefore required (BBl 1997 I 186). Art. 28 of the 1996 draft did not yet contain a corresponding provision; the three-paragraph structure — presumption of innocence, right to information and defence, right to review — was conceived as a codification of the applicable criminal law and convention law. The Federal Council deliberately chose the formulation «final conviction» instead of «legal proof of guilt» in order to define clearly the point at which the presumption ceases to apply (BBl 1997 I 187).
N. 3 According to the Federal Council, the right to a remedy under para. 3 is based on Art. 2 of the 7th Additional Protocol to the ECHR and Art. 14 para. 5 ICCPR (BBl 1997 I 188). The exception for the Federal Supreme Court sitting as the sole instance was deliberately retained; eliminating this exception would have required the establishment of a Federal Criminal Court of first instance, which the Federal Council considered premature at the time. During the parliamentary conciliation procedure, rapporteur Frick Bruno (Council of States) described the remaining divergence as «merely a drafting difference without any substantive significance»; both chambers approved the final vote version on 18 December 1998.
N. 4 With the entry into force of the Swiss Code of Criminal Procedure (CrimPC) on 1 January 2011, the guarantees of Art. 32 BV were given statutory expression, notably in Art. 10 CrimPC (presumption of innocence and assessment of evidence) and Art. 9 CrimPC (principle of accusation). The Federal Supreme Court held at an early stage that Art. 32 para. 1 BV had not introduced any substantive changes compared to the level of protection previously derived from Art. 4 of the former Federal Constitution (BGE 127 I 38 E. 2b).
#2. Systematic Classification
N. 5 Art. 32 BV is a fundamental right within the meaning of Arts. 7–36 BV and lays down specific procedural guarantees for criminal proceedings. The provision is closely connected to other fundamental procedural rights: ↔ Art. 29 BV (general procedural guarantees, right to be heard), ↔ Art. 30 BV (judicial guarantees, fair trial), ↔ Art. 31 BV (deprivation of liberty). In relation to Art. 29 BV, Art. 32 BV is regarded as lex specialis for criminal proceedings (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 814 ff.).
N. 6 As a fundamental right enforceable against public authorities (→ Art. 35 BV), Art. 32 BV is primarily binding on the State. The guarantees operate mainly as defensive rights: they protect the accused person from State encroachment in the form of incorrect allocation of the burden of proof, lack of information, or denial of a remedy. Immediate third-party effect is rejected; however, the provision has an indirect effect on criminal procedure law (→ Art. 36 BV for restrictions).
N. 7 The Federal Supreme Court applies Art. 32 BV in parallel with Art. 6 paras. 2 and 3 ECHR and Art. 14 paras. 2 and 3 ICCPR; as a rule, the convention rights do not go further. The Federal Supreme Court's autonomous margin of interpretation vis-à-vis the Strasbourg case law is of practical importance in relation to the right to examine prosecution witnesses (Art. 6 para. 3 lit. d ECHR in relation to Art. 32 para. 2 BV) and the scope of the right to a remedy (Art. 2 of Protocol No. 7 ECHR in relation to Art. 32 para. 3 BV).
#3. Content of the Provision
3.1 Presumption of Innocence (Para. 1)
N. 8 Art. 32 para. 1 BV — «Every person is presumed innocent until convicted by a final judgment» — contains, according to well-established Federal Supreme Court case law, two dimensions: a burden of proof rule and an evidentiary rule (BGE 127 I 38 E. 2a; BGE 144 IV 345 E. 2.2.3).
N. 9 As a burden of proof rule, the presumption of innocence means that the prosecution bears the burden of proving the guilt of the accused; the accused is not required to prove their innocence. A judgment convicting the accused solely on the ground that they failed to prove their innocence violates Art. 32 para. 1 BV. The Federal Supreme Court reviews compliance with this burden of proof rule with full cognition (BGE 127 I 38 E. 2a).
N. 10 As an evidentiary rule (in dubio pro reo), the presumption of innocence prohibits the criminal court from convicting an accused if, viewed objectively, there are significant and irrepressible doubts as to their guilt. The rule is, however, temporally limited: it does not apply to the gathering and sifting of evidence — that process is governed by the principle of free assessment of evidence under Art. 10 para. 2 CrimPC — and becomes relevant only at the step from the evidentiary findings to the establishment of the facts (BGE 144 IV 345 E. 2.2.3.1–2.2.3.2; BGE 137 IV 219 E. 7.3).
N. 11 As an evidentiary rule, the in dubio principle does not, according to current Federal Supreme Court practice, go beyond the prohibition of arbitrariness (→ Art. 9 BV): only the disregarding of «manifestly significant» or «wholly irrepressible» doubts constitutes a violation; merely «substantial» doubts do not suffice (BGE 144 IV 345 E. 2.2.3.3; confirmed in BGE 127 I 38 E. 2a). The Federal Supreme Court reviews any violation as a question of law with full cognition insofar as the question is whether the court was required to entertain doubts.
N. 12 The presumption of innocence and the privilege against self-incrimination (nemo tenetur se ipsum accusare) are closely linked. The privilege against self-incrimination, which follows from Art. 32 BV in conjunction with Art. 6 ECHR and Art. 14 para. 3 lit. g ICCPR, protects the accused person from compelled self-incrimination. There is, however, no right to anonymity: the right to remain silent does not extend to the duty to disclose one's personal details (BGE 149 IV 9 E. 5.2.5).
N. 13 During the investigative stage, it is not the in dubio pro reo principle that applies, but rather the opposite principle of «in dubio pro duriore»: if criminal liability cannot be excluded with a high degree of probability, charges must be brought. Art. 32 para. 1 BV does not apply to the question of discontinuation of proceedings (BGE 137 IV 219 E. 7.3).
N. 14 The scope of Art. 32 para. 1 BV is not confined to ordinary criminal proceedings. The Federal Supreme Court applies the guarantee to all proceedings in which sanctions of a criminal or quasi-criminal nature are imposed. Accordingly, the guarantees of Art. 32 BV apply to cartel law sanctions under Art. 49a CartA, which, by reason of their deterrent effect and scale, are of a quasi-criminal nature (BGE 139 I 72 E. 2.2.2). The presumption of innocence concerns only factual doubts, not the interpretation of indeterminate legal concepts (BGE 139 I 72 E. 8.3.1).
3.2 Right to Information and Rights of the Defence (Para. 2)
N. 15 Art. 32 para. 2 sentence 1 BV guarantees every accused person the right to be informed «as quickly and comprehensively as possible» of the charges brought against them. This right to information is given concrete form by the principle of accusation (Arts. 9 and 325 CrimPC): the indictment defines the subject matter of the court proceedings (delimiting function) and enables the accused person to prepare their defence (information function). The court is bound by the facts described in the indictment (principle of immutability), but not by their legal characterisation (BGE 143 IV 63 E. 2.2).
N. 16 The indictment must describe the offences attributed to the accused with sufficient precision that the charges are adequately particularised in both their objective and subjective elements. The accused must not be at risk of being confronted with new accusations for the first time at the trial hearing (BGE 143 IV 63 E. 2.2; confirmed in BGE 141 IV 132 E. 3.4.1).
N. 17 Art. 32 para. 2 sentence 2 BV guarantees the accused person the right «to assert the defence rights to which they are entitled». These defence rights include in particular the right to confrontation (right to examine prosecution witnesses), which is given concrete form in Art. 6 para. 3 lit. d ECHR as a manifestation of the right to be heard (→ Art. 29 para. 2 BV). The Federal Supreme Court also derives the right to confrontation from Art. 32 para. 2 BV.
N. 18 The right to confrontation is absolute where the prosecution witness is the sole or decisive source of evidence: if a prosecution witness refuses to make any supplementary statement more than four years after their initial examination, and the court nonetheless bases its guilty verdict on that initial statement, there is a violation of Art. 32 para. 2 BV (BGE 131 I 476 E. 2.2 and 2.3.4). The right to confrontation has an «absolute character» to that extent, but in practice it is qualified where the testimony is not of decisive importance.
3.3 Right to a Remedy (Para. 3)
N. 19 Art. 32 para. 3 BV grants every convicted person the right «to have the judgment reviewed by a higher court» (double-instance principle in criminal proceedings). Excepted are cases in which the Federal Supreme Court judges as the sole instance — an exception that has little practical relevance following the establishment of the Federal Criminal Court (2004).
N. 20 The review guarantee protects the right to «a second pair of eyes»: the convicted individual is entitled to a substantive review of the guilty verdict by a higher authority. This right is enshrined in Art. 2 of Protocol No. 7 ECHR and Art. 14 para. 5 ICCPR, and is given concrete form in Switzerland by Art. 398 CrimPC (appeal). The guarantee under Art. 32 para. 3 BV obliges the legislature to provide an effective avenue of appeal; the procedural design is, however, a matter for the federal legislator (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2869 f.).
#4. Legal Consequences
N. 21 Violations of Art. 32 BV lead to different legal consequences depending on the stage of the proceedings. In pending criminal proceedings, a violation of the presumption of innocence may result in the quashing of a guilty verdict; a violation of the right to information may result in the inadmissibility of evidence or in the referral of the matter back for re-determination. The Federal Supreme Court reviews compliance with Art. 32 para. 1 BV as an evidentiary rule with full cognition on the question of law as to whether significant doubts ought to have been acknowledged (BGE 144 IV 345 E. 2.2.3.3).
N. 22 Incriminating witness testimony in relation to which the accused person was unable effectively to exercise the right to confrontation is in principle inadmissible where it constitutes the sole or decisive source of evidence (BGE 131 I 476 E. 2.3.4). Beyond this, the principle of in dubio pro reo applies as a consequence: if the court cannot rely on the testimony and no other evidentiary basis remains, the accused must be acquitted.
N. 23 A violation of Art. 32 para. 3 BV occurs where cantonal law provides no avenue of appeal against criminal convictions, or where an existing avenue of appeal is factually inaccessible. The violation may be challenged by means of a criminal law appeal to the Federal Supreme Court (Art. 78 BGG). Constitutional procedural guarantees may be restricted by the principle of proportionality (→ Art. 36 BV), provided the core essence is preserved.
#5. Contested Issues
N. 24 The relationship between the presumption of innocence as an evidentiary rule and the general prohibition of arbitrariness (→ Art. 9 BV) is disputed. The Federal Supreme Court consistently holds that the in dubio principle as an evidentiary rule has «no significance beyond the prohibition of arbitrariness» (BGE 144 IV 345 E. 2.2.3.1; BGE 127 I 38 E. 2a). By contrast, Tophinke, in her dissertation (Das Grundrecht der Unschuldsvermutung, 2000, p. 348), argued that Art. 32 para. 1 BV, as a new «specific constitutional right», constitutes an independent standard of review requiring a free review of the assessment of evidence. The Federal Supreme Court explicitly rejected this position already in BGE 127 I 38 E. 2b. On the merits, the line between «wholly irrepressible» doubts (violation of Art. 32 BV) and merely «substantial» doubts (a permissible judicial evaluation free from arbitrariness) remains doctrinally uncertain.
N. 25 The demarcation between the gathering and the assessment of evidence in applying the in dubio principle is also controversial. The Federal Supreme Court in BGE 144 IV 345 E. 2.2.3.1 draws a clear two-stage distinction: the in dubio principle does not apply to the gathering and sifting of evidence or to the probative value of individual pieces of evidence; it takes effect only at the step from the evidentiary findings to the establishment of the facts. Verniory (ZStrR 2000, p. 401) and Müller (Grundsatz der freien Beweiswürdigung, 1992, p. 99) have provided theoretical support for this limitation, while Forster (ZStrR 1997, pp. 72 f.) and Nay (ZStrR 1996, p. 94) critically note that drawing this line remains practically difficult in circumstantial evidence proceedings.
N. 26 The question of the scope of review by the higher court under Art. 32 para. 3 BV remains open. The dispatch deliberately left the formulation open-ended (BBl 1997 I 188). Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 729) argue that the higher court must carry out at least a full review of the facts in order to give the guarantee practical effect. The applicable procedural law, through the appeal procedure under Art. 398 para. 2 CrimPC, in principle already provides a full review of the facts, so that the practical dispute is largely settled.
N. 27 The reach of Art. 32 BV in quasi-criminal sanction proceedings is also debated. The Federal Supreme Court applies the guarantee, on the basis of the «Engel criteria» of the ECtHR, to cartel law sanctions (Art. 49a CartA) (BGE 139 I 72 E. 2.2.2). It remains unclear whether the same extension applies to other administrative sanctions — such as minor road traffic penalties or administrative measures. Academic opinion is divided: Häfelin/Haller/Keller/Thurnherr (N 819 f.) favour a functional approach based on the severity of the sanction, while Rhinow/Schefer/Uebersax (N 2865) focus on the core sphere of criminal law.
#6. Practical Notes
N. 28 In criminal procedure practice, a complaint alleging a violation of Art. 32 para. 1 BV as an evidentiary rule has little prospect of success where the cantonal court has conducted a non-arbitrary assessment of the evidence. The Federal Supreme Court reviews factual findings only for manifest incorrectness (Art. 97 para. 1 BGG). In order to establish a violation of Art. 32 para. 1 BV, the complaining party must demonstrate that the court convicted despite the persistence of manifestly significant doubts.
N. 29 In relation to the right to confrontation (Art. 32 para. 2 BV), the decisive factor is whether the testimony of the prosecution witness is determinative of the guilty verdict. Counsel should apply at an early stage and in the proper form (in accordance with cantonal procedural law) for leave to examine the prosecution witness. If the application is rejected during the investigative proceedings, it must be renewed before the court; a failure to do so in a timely manner may result in the forfeiture of the right (BGE 131 I 476 E. 2.1). The right to confrontation also applies to the examination of minor victims as witnesses, but must be balanced against the protection of victims (Art. 8 ECHR).
N. 30 The principle of accusation (Art. 32 para. 2 BV) requires the indictment to particularise the accused facts in terms of place and time as well as the subjective elements of the offence. Inaccuracies in the indictment as to the place of the offence constitute a violation only where the accused person has lost the opportunity to mount an effective defence (BGE 143 IV 63 E. 2.3). Missing legal qualifications do not constitute a violation, as the court itself is responsible for the legal characterisation.
N. 31 In quasi-criminal administrative sanction proceedings, the grounds of appeal should always include a complaint as to the applicability of Art. 32 BV and Art. 6 ECHR, where the sanction is close to criminal law by reason of its amount or deterrent character. In such proceedings, the in dubio pro reo principle may be invoked in relation to questions of fact — but not in relation to questions of law (interpretation of indeterminate legal concepts) (BGE 139 I 72 E. 8.3.1). The court must exercise full cognition over both fact and law in such proceedings (BGE 139 I 72 E. 4.5).
N. 32 The restriction of the guarantees under Art. 32 BV is governed by → Art. 36 BV. The core essence must be preserved in all circumstances (Art. 36 para. 4 BV). With regard to para. 1 (presumption of innocence) and para. 2 (rights of the defence), statutory reversals of the burden of proof and presumptions of a constituent element of an offence are permissible only insofar as they are proportionate and the accused person is able to adduce evidence to the contrary. Para. 3 (right to a remedy) permits only the exception expressly provided for in the provision.
Case Law
#I. Presumption of Innocence (Paragraph 1)
#1. Foundations of the Presumption of Innocence
BGE 127 I 38 (14 January 2000) The Federal Supreme Court defines the presumption of innocence as a fundamental principle of fair proceedings. The presumption of innocence obliges the prosecution to bear the burden of proof and protects the accused from premature attributions of guilt.
«According to the principle 'in dubio pro reo' enshrined in Art. 32 para. 1 Cst. and in Art. 6 no. 2 ECHR, it must be presumed that a person accused of a criminal offence is innocent until guilt is proven by law. As a rule of burden of proof, the maxim means that it is for the prosecution to prove the guilt of the accused, and not for the latter to prove his innocence.»
#2. Assessment of Evidence and the In-dubio Principle
BGE 144 IV 345 (23 May 2018) The Federal Supreme Court clarifies the relationship between free assessment of evidence and the presumption of innocence. The decisive factor is the distinction between evidence collection and assessment of evidence in applying the in-dubio principle.
«The principle of free assessment of evidence leaves no room for application of the rule in dubio pro reo to the collection and examination of evidence. The presumption of innocence only comes into play at a later stage. Only the disregard of obviously significant doubts can constitute a violation of the in-dubio principle.»
BGE 129 I 49 (8 February 2002) The Federal Supreme Court specifies the requirements for psychological credibility assessments. The presumption of innocence requires methodologically sound assessment of evidence in witness testimony.
«Professional standards exist for determining the truthfulness of children's witness testimony in cases of suspected sexual child abuse. Methodological requirements for psychological credibility assessment of witness testimony must be strictly observed.»
#3. Presumption of Innocence in Social Insurance Law
BGE 138 V 74 (19 December 2011) The Federal Supreme Court applies the presumption of innocence to social insurance proceedings. In cases of reimbursement of unlawfully received benefits, the constitutional requirements for assessment of evidence apply.
«The constitutional requirements for assessment of evidence must also be observed in social insurance law when it concerns the reimbursement of unlawfully received benefits and a longer criminal limitation period applies.»
#4. Application to Criminal-law-like Proceedings
BGE 139 I 72 (29 June 2012) The Federal Supreme Court extends the guarantees of Art. 32 Cst. to competition law sanctions. Competition law sanctions under Art. 49a CartA have a criminal or criminal-law-like character.
«Competition law sanctions under Art. 49a CartA have a criminal or criminal-law-like character. The guarantees of Art. 6 and 7 ECHR as well as Art. 30 and 32 Cst. are applicable to such sanctions.»
#II. Right to Information and Defence Rights (Paragraph 2)
#1. Right to Information about Charges
BGE 143 IV 63 (21 December 2016) The Federal Supreme Court defines the requirements for the indictment. The indictment must clearly delineate the subject matter of the court proceedings (delimitation function).
«According to the principle of accusation, the indictment determines the subject matter of the court proceedings (delimitation function; Art. 9 and Art. 325 CrimPC; Art. 29 para. 2 and Art. 32 para. 2 Cst.; Art. 6 no. 1 and no. 3 lit. a and b ECHR). The court is bound by the facts presented in the indictment (immutability principle), but not by their legal assessment by the prosecution.»
#2. Right of Confrontation
BGE 131 I 476 (11 October 2005) The Federal Supreme Court strengthens the right to question prosecution witnesses. The right to question the prosecution witness is absolute if the testimony is decisive for the conviction.
«The right to be able to put questions to the prosecution witness is absolute if the testimony is decisive for the conviction. This right is violated if the witness refuses to make any supplementary statement more than four years after the first questioning and the court nevertheless relies on the first, evidentially decisive statement.»
#3. Freedom from Self-incrimination
BGE 149 IV 9 (17 February 2022) The Federal Supreme Court clarifies the scope of application of the privilege against self-incrimination. The principle «nemo tenetur se ipsum accusare» does not justify the refusal to provide personal details.
«The principle can neither be understood as a basis for a right to anonymity nor can it justify the refusal to disclose personal details. However, the general scope of application of the privilege against self-incrimination remains undisputed.»
#4. Right to Official Defence
BGE 141 I 124 (2 March 2015) The Federal Supreme Court deals with compensation issues for official defence. Official defence fulfils a state function and is subject to special constitutional requirements.
«Official defence fulfils a state function and does not fall within the scope of application of Art. 27 Cst. It is covered by constitutional procedural guarantees that provide for appropriate compensation.»
#III. Right to Review by a Higher Instance (Paragraph 3)
#1. Principle of Multiple Instances
BGE 137 IV 219 (11 July 2011) The Federal Supreme Court confirms the constitutional right to review of criminal judgments. The right to review by a higher instance is a fundamental procedural right.
«Every convicted person has the constitutional right to have the judgment reviewed by a higher court. This right is only limited in the exceptional cases provided for by law.»
#2. Exceptions when the Federal Supreme Court Acts as Sole Instance
BGE 134 IV 36 (24 October 2007) The Federal Supreme Court explains its position as sole instance in certain proceedings. The exception to Art. 32 para. 3 Cst. only applies to expressly provided Federal Supreme Court proceedings as sole instance.
«The public prosecutor has the right to appeal in criminal matters under Art. 81 para. 1 lit. b FSCA. In cases where the Federal Supreme Court acts as sole instance, the right to review by a higher instance is systematically excluded.»
#3. Procedural Guarantees in Detention Decisions
BGE 133 I 270 (14 September 2007) The Federal Supreme Court defines special requirements for criminal procedural detention. The statutory suspension of time limits for appeals generally does not apply in detention cases.
«The statutory suspension of time limits for appeals to the Federal Supreme Court does not apply in cases concerning criminal procedural detention. This case law takes into account the particular urgency of detention decisions.»
#IV. Scope of Protection and Application
#1. Application to Special Types of Proceedings
BGE 148 IV 205 (24 March 2022) The Federal Supreme Court applies Art. 32 Cst. to covert investigations. Evidence exclusion rules may apply in case of violations of procedural guarantees.
«The admissibility of evidence obtained in the course of a covert investigation generally presupposes that the procedural guarantees, including freedom from self-incrimination, have been observed.»
#2. Relationship to Cantonal Procedural Provisions
BGE 134 I 140 (21 March 2008) The Federal Supreme Court deals with protective measures against domestic violence. Cantonal procedural provisions must be compatible with federal constitutional procedural guarantees.
«When reviewing measures under cantonal protection from violence law, the procedural guarantees of Art. 32 Cst. must be observed. This applies in particular to the right to be heard and fair conduct of proceedings.»
#3. International Aspects
BGE 144 II 427 (21 November 2018) The Federal Supreme Court deals with tax criminal investigation proceedings. Administrative assistance investigation proceedings are subject to the same procedural guarantees as ordinary criminal proceedings.
«The administrative assistance investigation proceedings under Art. 190 ff. FDTA and Art. 19-50 TCrimO are subject to general procedural guarantees. The presumption of innocence and defence rights must also be observed in tax criminal proceedings.»