A summons arrives. “As the accused”, or “to be heard”. Two questions arise almost at once. What are my rights before the person about to question me? And if the proceedings stop there, who pays for the lawyer I had to hire?
This page deals mainly with the second question. For preparing the interview itself (status, silence, the record, your phone), see Summoned by the police or the Public Prosecutor in Geneva: what to watch for during your interview.
The first answer turns on something many confuse: who is hearing you, and in what capacity.
Who hears you, and in what capacity
People picture a straight line, from the police to the prosecutor, whereas several scenarios must be distinguished.
First scenario: the police question you during their investigation phase (Art. 306 CrimPC), before any investigation is opened. The police officer gathers evidence, hears suspects, establishes the facts. This is the police interview in the strict sense.
Second scenario: the public prosecutor has opened an investigation (Art. 309 CrimPC) and hears you in that setting. A different authority, a different stage.
Even after the investigation has been opened, the prosecutor may instruct the police to question you, in which case you enjoy the same rights as before the prosecutor (Art. 312(2) CrimPC).
What does not change, whatever the authority
At the first interview as an accused, you must be told that proceedings are pending and for which offences, that you may refuse to make a statement, and that you may appoint a lawyer and ask for an interpreter, failing which the interview cannot be used (Art. 158 CrimPC). Your lawyer may attend a police interview and ask questions, although invoking that right does not entitle you to have the interview postponed (Art. 159 CrimPC).
These guarantees apply whenever you are questioned as an accused, including by the police, as soon as suspicions against you take shape. If you are heard as a person providing information, or as a witness, different rules apply.
Three ways the case can end
The case can end in your favour in three ways, which are worth telling apart because they are often confused.
The decision not to proceed (Art. 310 CrimPC). The prosecutor declines to take up the case, on the basis of the report or complaint: the elements of the offense are manifestly not met, or there is an impediment to proceeding. The investigation is never opened.
The abandonment of proceedings (Art. 319 et seq. CrimPC). This time an investigation was opened, but the prosecutor closes it without sending the case to trial.
The acquittal. Here it is the judge who decides, at the end of a trial.
In all three cases the same question arises, namely who bears the lawyer’s fees.
Compensation under Art. 429
Art. 429 CrimPC governs the question. The accused who is acquitted or whose proceedings are abandoned is entitled to compensation for the reasonable costs of exercising their procedural rights, first among them attorney’s fees.
A decision not to proceed is neither an abandonment nor an acquittal, but Art. 310(2) CrimPC makes the provisions on abandonment applicable, so that Art. 429 applies to it as well.
Since 1 January 2024, Art. 429(1)(a) CrimPC provides that lawyers’ tariffs may not distinguish between the compensation awarded and the fees due for private defence, so that compensation is no longer cut down to the reduced rate for court-appointed counsel. It is set at the rate the cantonal tariff allows for private defence, and any part of an agreed rate above that tariff remains payable by you. The authority examines the claim of its own motion but may require you to quantify and document it (Art. 429(2)). Where you instructed private counsel, the compensation for defence costs is owed exclusively to that lawyer, subject to the settlement of accounts with you (Art. 429(3)).
Neither automatic nor full
The right exists, but it can be reduced or refused if the accused unlawfully and culpably caused the proceedings to be opened or complicated their course, if the complainant must compensate them, or if the expenses are insignificant (Art. 430(1) CrimPC).
The authority must rule on the compensation in its final decision (ATF 144 IV 207, consid. 1.7). If it fails to do so, you must challenge the final decision within the time limit for appeal, failing which the question of compensation is settled with it (ATF 144 IV 207, consid. 1.8.2). The decision on costs also prejudges the one on compensation (consid. 1.8.2), so that if costs are charged to you, no compensation is awarded.
Beyond the lawyer’s fees: damage and moral harm
Art. 429 is not limited to fees. Two other heads of claim exist, and they sometimes weigh more.
Economic damage first (Art. 429(1)(b)). Where the accused is acquitted, in whole or in part, the State must repair the entire damage that bears an adequate causal link to the proceedings (ATF 142 IV 237, consid. 1.3.1). Concretely, the loss of a job caused by the proceedings enters the calculation. For a self-employed person or an executive, the loss of income may exceed the defence costs and should be quantified with the same care.
Moral harm next (Art. 429(1)(c)), reserved for particularly serious infringements of personality. Deprivation of liberty is the textbook case. The threshold is lower than one thinks: an apprehension followed by an arrest exceeding three hours in total may already open claims, and a deprivation of liberty of more than eighteen and a half hours grounds the right to compensation (ATF 146 IV 231). The amount follows no automatic scale: the judge sets the reparation case by case, according to the duration and intensity of the infringement. For an unjustified detention of short duration, the Federal Supreme Court considers an amount of 200 francs per day appropriate in the absence of particular circumstances, that rate serving only to set an order of magnitude (ATF 143 IV 339, consid. 3.1).
When a complainant is on the other side
A last point, and it changes the game in files where someone reported you. As long as it is the State that carries the prosecution, your defense costs are borne first and foremost by the State (Art. 429(1)). This logic holds as long as the State remains responsible for the prosecution (ATF 147 IV 47, consid. 4.2.4). Once the offense is one prosecuted only on complaint and a complainant drives the case, the burden may move toward them. If you prevail on the question of guilt, the private claimant may be ordered to compensate you, whereas a complainant who has not joined the proceedings as a party is liable only if they acted recklessly or with gross negligence (Art. 432(2) CrimPC). That provision leaves the court a discretion, so the point can be argued.
The gap between the fee note and the compensation awarded is argued in the reasoning, so that a detailed fee note, linking each item to a procedural step and to the complexity of the case, is the necessary support for the claim.
In practice
On receiving a summons, the first useful step is to identify the stage, by establishing who is summoning you and in what capacity. You should then insist on being informed of your rights and on the presence of counsel from the very first interview, and keep every document, as they support the compensation claim.
Legal basis and case law
Police investigation and opening of an investigation: Art. 306 and 309 CrimPC. Decision not to proceed: Art. 310 CrimPC. Abandonment of proceedings: Art. 319 et seq. CrimPC. Compensation of the accused: Art. 429 CrimPC. Charge to the complainant: Art. 432(2) CrimPC.
Federal Supreme Court decisions: ATF 144 IV 207 (the authority must rule on compensation in the final decision), ATF 142 IV 237 (reparation of economic damage), ATF 146 IV 231 (moral harm and deprivation of liberty), ATF 147 IV 47 (compensation of the accused borne by the State for offences prosecuted ex officio, in principle by the private claimant for offences prosecuted on complaint).
About the author
Matthias Traussnig is an attorney at the Geneva Bar and founder of Sentinel Legal. He holds the CAS in Digital Finance Law from the University of Geneva and practices criminal law, white-collar crime and technology law.
On this type of case
For a defense organized from the summons onward, see our page criminal defense lawyer in Geneva.
Sentinel Legal handles criminal defense matters in Geneva and French-speaking Switzerland. If you have received a summons, it matters to identify the stage and to assert your rights from the first interview. You can reach the firm on +41 22 512 76 00 or through the contact form.