A summons arrives. “As the accused”, or “to be heard”. The tone is administrative, the effect rarely so. 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?
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. The police, then the prosecutor. The reality is more segmented.
First scenario: the police question you during their investigation phase (art. 306 CrimPC), before any investigation is opened. The inspector gathers traces, 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. The file has shifted.
There remains a situation that changes everything: heard as a person providing information, or as a witness, the regime differs.
Three ways the case can end
Suppose it turns in your favour. Three exits, and it is worth telling them apart, because they are often confused.
The decision not to proceed (art. 310 CrimPC). The prosecutor refuses to enter into the matter, on the basis of the report or complaint: the elements of the offence are manifestly not met, or there is an impediment to proceeding. The investigation is never opened.
The discontinuance (art. 319 et seq. CrimPC). This time, an investigation had indeed been opened, then the prosecutor closes it without sending it to trial.
The acquittal. Here it is the judge who decides, at the end of a trial.
Three exit doors, one same question behind them: who bears the lawyer’s fees?
The compensation under art. 429
It is art. 429 CrimPC that answers. The accused who is acquitted or benefits from a discontinuance is entitled to compensation for the reasonable costs of exercising their procedural rights, first among them attorney’s fees.
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.
A trap, a procedural one. The authority must rule on the compensation in its final decision (ATF 144 IV 207, consid. 1.7). If it omits to do so, nothing is lost, but you must react through an appeal. And beware: the decision on costs prejudges the one on compensation (consid. 1.8.2). Costs charged to you, no compensation.
Beyond the lawyer’s fees: damage and moral harm
It is often forgotten, but art. 429 is not limited to fees. Two other heads 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. 3.3). Concretely, the loss of a job caused by the proceedings enters the calculation. For a self-employed person or an executive, that is often where the real harm lies, far ahead of the lawyer’s bill.
Moral harm next (art. 429(1)(c)), reserved for serious infringements. 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 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. An order of magnitude of about 200 francs per day is frequently cited for short detentions, but it is a benchmark, not a rule.
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 on the front line at its charge (art. 429(1)). This logic holds as long as the State remains responsible for the prosecution (TF 6B_582/2020). As soon as one shifts to an offence prosecuted upon complaint and a complainant drives it, the burden may move toward them: if you prevail, the complainant may be ordered to compensate you (art. 432(2) CrimPC). It is not automatic, the rule is discretionary. But the angle exists, and it can be argued.
An example speaks better than a principle. In a recent file closed by a discontinuance, the fee note reached nearly 18,000 francs; the authority first sought to reduce the compensation to the cantonal scale, well below. It took demonstrating, with supporting documents, that the complexity of the file justified the time spent, in order to obtain coverage close to the real figure. The gap between what is billed and what is awarded is won there, in the reasoning.
In practice
On receiving a summons, the first useful reflex is not to panic, it is to place the stage: who is summoning you, and in what capacity. The rest follows. Assert the information and the presence of counsel from the very first interview. And keep every document: they build 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. Discontinuance: 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), TF 6B_582/2020 (charge of costs as long as the State carries the prosecution).
About the author
Matthias Traussnig is an attorney at the Geneva Bar and founder of Sentinel Legal. Holder of the CAS in Digital Finance Law from the University of Geneva, he practises criminal law, economic crime and technology law.
On this type of case
Sentinel Legal acts in criminal defense in Geneva and French-speaking Switzerland. If you have received a summons, situating the stage and asserting your rights from the first interview is decisive: +41 22 512 76 00 or via the contact form.