It is the most frequently received criminal document in Switzerland, and the most widely misunderstood. An envelope from the public prosecutor, a few pages, a sentence already fixed. The vast majority of Swiss criminal convictions are handed down this way, without a judge, without a hearing, without the convicted person having been heard other than by the police. And the mechanism rests on a single spring: if you do not react within ten days, the order becomes a final judgment (art. 354(3) CrimPC). The questions below are the ones I am asked every time. The answers are worth reading before the deadline starts to run.
What is a penalty order?
A conviction issued directly by the prosecutor, without a court, where the facts are admitted or considered established and the contemplated sentence stays within certain limits: a fine, a monetary penalty of up to 180 day-fines, or a custodial sentence of up to six months (art. 352 CrimPC). Six months of imprisonment, imposed by mail. The procedure is efficient for the State and formidable for the recipient: the prosecutor combines the roles of investigator and judge, and rules on the basis of a file that you have, in most cases, never seen.
What happens if I do nothing?
The order is treated as a judgment that has entered into force (art. 354(3) CrimPC). Concretely: the sentence becomes enforceable, the costs are due, and the conviction is entered in the criminal record under the ordinary rules, with everything that implies for a residence permit, an employment requiring a record extract, or travel to certain countries. I have seen executives discover years later, during a routine check, an entry stemming from an order they had never really read. At that stage, only revision remains, a narrow and rarely open path.
How is the ten-day deadline calculated?
From the day after notification, in principle by registered mail. The trap lies elsewhere: mail you do not collect is deemed notified seven days after the unsuccessful delivery attempt, if you had to expect a communication from the authorities (art. 85(4) CrimPC), typically because you were questioned by the police a few weeks earlier. Three weeks of summer holidays are enough: on your return, the collection notice has expired, the fiction has run, and so has the deadline. The order is final and you never opened it. If proceedings are pending against you, have your mail collected. Really.
My opposition may be late. Is it lost?
Not necessarily, and above all it is not for the prosecutor to decide. Only the court of first instance rules on the validity of the opposition, lateness included (art. 356(2) CrimPC); the public prosecutor must forward the file to it even if it considers the opposition inadmissible. So file it, setting out the circumstances, defective notification or impediment. And if the deadline was missed through no fault of yours, restoration remains conceivable: a reasoned request within 30 days from the end of the impediment, with the opposition attached (art. 94 CrimPC). A narrow path, but a real one.
How do I file an opposition?
In writing, with the public prosecutor that issued the order, within ten days (art. 354(1) CrimPC). That is all. As the accused, you do not have to give reasons for your opposition (art. 354(2) CrimPC): a one-sentence letter, dated and signed, sent by registered mail before midnight on the tenth day, is enough to preserve everything, provided it is handed to Swiss Post no later than the last day of the deadline (art. 91(2) CrimPC). No fax: the Federal Supreme Court holds it insufficient (ATF 142 IV 299). No plain email either, since electronic filing requires a qualified electronic signature (art. 110 para. 2 CrimPC). The unreasoned opposition has a strategic virtue: it preserves your rights without revealing anything of your defense, before you have even seen the file.
What does the opposition trigger?
The prosecutor must take the file back up and take the evidence necessary to rule on it (art. 355 CrimPC). You obtain what the order had denied you: access to the file, the ability to be heard, to have evidence taken, to negotiate. At the end, four paths: the prosecutor maintains the order and forwards it to the court, where it serves as the indictment (art. 356(1) CrimPC); it discontinues; it issues a new order; or it brings charges under the ordinary procedure. In a notable share of files, simply confronting the file with an outside eye leads to a discontinuance or a reclassification. The file behind a penalty order is often thinner than one imagines.
A summons arrives after my opposition. Can I ignore it?
Absolutely not. If you fail to appear at a hearing without excuse despite a summons, your opposition is deemed withdrawn (art. 355(2) CrimPC), and the order becomes final. The same mechanism applies before the court (art. 356(4) CrimPC). The Federal Supreme Court does interpret this fiction restrictively, in light of good faith: it presupposes that the person was aware of the consequences of their absence (ATF 140 IV 82). Still, pleading ignorance after the fact is a losing bet when the summons carried the warning. An opposition is defended to the end, or withdrawn cleanly.
The prosecutor issues a new order. Does my opposition still stand?
No, and this is the least known trap in the whole procedure. If the public prosecutor issues a new penalty order after your opposition, even slightly amended, you must file a fresh opposition against it, within a new ten-day deadline (ATF 145 IV 438). The initial opposition does not carry over. The Federal Supreme Court draws one exception: where the prosecutor merely corrects or supplements the original order, for instance its description of the facts, while keeping the same verdict and the same sentence, no new opposition is required. Any new verdict or new sentence, on the other hand, calls for a fresh opposition. When in doubt, oppose again.
Can the opposition make my situation worse?
Nothing guarantees it either way, and this must be said frankly. The court seised after opposition is not bound by the sentence fixed in the order; it may impose a heavier one, and the procedure generates costs. It is a factor to weigh coldly, file in hand. There is however a safety valve: the opposition may be withdrawn up to the close of pleadings (art. 356(3) CrimPC). In other words, filing an opposition within the deadline does not bind you definitively; failing to file one does.
Do I need a lawyer for ten days?
To post the opposition letter, no. To decide what comes next, yes, and quickly. Ten days is barely enough to obtain a consultation, not to review the file and build a strategy. The rational sequence: an immediate protective opposition, review of the file, then an informed decision, maintain, negotiate or withdraw. In fine, the opposition buys the one thing the penalty order denies you: time and a real debate.
Legal basis and case law
Penalty order procedure: art. 352 to 356 of the Swiss Criminal Procedure Code (CrimPC). Notification fiction: art. 85(4) CrimPC. Filing with Swiss Post: art. 91(2) CrimPC. Restoration of the deadline: art. 94 CrimPC.
Federal Supreme Court decisions: ATF 140 IV 82 (restrictive interpretation of the withdrawal fiction), ATF 142 IV 299 (written form of the opposition, fax insufficient), ATF 145 IV 438 (a new order requires a new opposition).
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, from the protective opposition to the trial hearing. If you have just received a penalty order, the deadline is already running: +41 22 512 76 00 or via the contact form.