The European Court of Human Rights (ECHR) has ruled that the Zurich police tactic of kettling around 500 people at Helvetiaplatz in Zurich on May 1, 2011, violated the fundamental rights to liberty and security.
Two male plaintiffs, who had been detained during the kettling, had unsuccessfully sued the police in Swiss courts. However, the success of their ECHR complaint against the high contracting party Switzerland now confirms the disproportionality of the police action. And, unfortunately, this ECHR ruling against Switzerland also confirms once more the hopelessly backward authoritarian-patriarchal views that still shape Swiss legal practice.
Deemed Illegal by the ECHR: No Admission to Helvetiaplatz on May 1, 2011 (Flickr)
Daniel Leupi of the Green Party was the ‘Stadtrat’ (city councilor) in charge of the police department in 2011, holding the executive responsibility during the time of the incident. Since 2013, Daniel Leupi has been heading the Finance Department of the City of Zurich.
On this ECHR ruling against Switzerland there is a report in Swiss national TV (state run, German language).
When Prosecutors Confuse Acquittal with Conviction
The creativity of Swiss lawyers isn’t just evident in their banking laws or attorney statutes, which have paved the way for international money laundering and tax fraud, and more, for decades. A recent farce from the Zurich Directorate of Justice shows how inventive they can be with newspeak.
The Zurich Directorate of Justice Being Trained in Newspeak.
According to internal communications from the Zurich-Sihl Prosecutor’s Office, a “judgment has been rendered against A.B.*”. Internal communication?
In reality, prosecutor Daniela Senn (MLaw) claimed in a 2023 notice that A.B. had submitted a “judgment rendered against her” as evidence in a complaint. Fact is that the judgment A.B. attached completely exonerated her. Not merely “in dubio pro reo”—the court unequivocally justified A.B.’s actions. The Limattal/Albis prosecutor’s office, which had charged A.B., had decided not to appeal. The private plaintiff also decided not to appeal the judgment.
In 2023, the case against A.B. dates back over 10 years. Her acquittal has been legally binding for over 10 years. It only became relevant evidence in 2023 because A.B. filed a defamation complaint against someone who falsely claimed in writing that A.B. had been convicted.
Prosecutor Daniela Senn quickly issued a non-indictment ruling, mainly arguing that the defamation was time-barred: the document containing the false claim that A.B. was convicted in 2010 had been written in 2017. The defamation was considered time-barred even though A.B. only became aware of the document in 2023, after it was circulated in 2022. Moreover, Daniela Senn misleadingly stated that A.B. had submitted a “judgment rendered against her” as evidence, while in fact, A.B. had submitted it precisely because it was an acquittal in her favor.
A.B. filed an appeal against Daniela Senn’s decision on legal grounds. She also filed a separate complaint with the senior prosecutor’s office, demanding an explanation for Senn’s error. In her non-indictment ruling, Daniela Senn confuses a conviction with an acquittal at the most crucial point of the procedure. Is it negligence? Intentional?
Newspeak of the Zurich Justice Directorate
Whether it was negligence or intentional, the senior prosecutor’s office can’t say. They delegated the response to A.B.’s complaint to Daniela Senn’s supervisor, Chief Prosecutor lic. iur. Daniel Kloiber. His response was evasive, arguing that the statement “a judgment has been rendered against a person” does not indicate whether it’s an acquittal or a conviction (sic). By definition, this is NEWSPEAK.
A.B. analyzed the issue using the GPT-4 language model. The conversation is publicly viewable (click link). The analysis concluded that Daniel Kloiber’s language comprehension was “unusual” and his statement that a judgment against a person doesn’t mean it’s a conviction was “misleading” and “problematic” in a legal context.
A.B. confronted the Zurich Directorate of Justice with these findings. The dismissive response from justice department officer Tassio Suter (MLaw): “In our view, there is nothing more to add to Daniel Kloiber’s letter.” He did not address Kloiber’s “misleading” and “problematic” statements, or Senn’s confusion at all. He simply dodged these questions.
In conclusion, the Special Investigations Prosecutor’s Office did admit in writing that Daniela Senn’s phrasing was “unfortunate”. However, they denied any abuse of office by Daniela Senn, arguing that the records clearly showed that the judgment was an acquittal in favor of A.B. A.B. subsequently withdrew her latter complaint against Daniela Senn, which she had filed alongside her previous supervisory complaint.
What remains is a discussion about the quality or negligence within Zurich’s prosecution offices. Also remaining is a debate about the arrogance of certain lawyers. Lastly, a debate remains on whether there is room for NEWSPEAK in a democracy. In our opinion: absolutely NOT.
If supervisory complaints to the Public Prosecutor’s Office and the Department of Justice of the Canton of Zurich, as in the present case, are deflected, it is a sign that democratic control of the authorities is not working.
Currently, Ms Jacqueline Fehr of the Social Democratic Party is in charge of the Justice Directorate.
Update November 12, 2023:
A. B. contacted the Ombudsman's Office of the Canton of Zurich by email on October 11, 2023. She sent them the link to this article and asked about her experience with the Justice Department as described above: "How does the Ombudsman's Office of the Canton of Zurich view the procedure in the Canton of Zurich against errant public prosecutors when supervisory complaints apparently are no longer taken seriously and addressed?" On November 12, 2023, A. B. informed the Zurich Observer that she had not received a response from the Ombudsman's Office. The office is chaired by Mr Jurg Trachsel, a lawyer and member of the right-wing populist "Swiss People's Party" ("Schweizerische Volkspartei", SVP).
The Swiss “Beobachter” magazine reported in 2022 that since the introduction of the new Swiss Code of Criminal Procedure on January 1, 2011, about 90% of all criminal proceedings in Switzerland are now handled without a court trial through penalty orders.
In 2023, the Beobachter awarded the prize for the “sloppiest penalty order of the year” to the Limmattal/Albis public prosecutor’s office.
The Beobachter reported on several problems resulting from the new Swiss Code of Criminal Procedure. At least 20% of the penalty orders are withdrawn after initial release. On March 7, 2022, the Beobachter headlined: “We are looking for the worst order of the year 2022 – join in!”
Comment: At a glance, it is clear in which direction criminal proceedings, which are now only conducted by public prosecutors without judicial assessment, must go.
Much Ado About Nothing
Therefore, the outcry of the Beobachter, about 11 years after the introduction of the new Code of Criminal Procedure, is not surprising: The inherent problem of the new penalty system would have been foreseeable from the beginning.
In January 2023, the Beobachter named the “sloppiest penalty order” of the year 2022. A jury of three experts assembled by the Beobachter concluded that the Limmattal/Albis public prosecutor’s office of the canton of Zurich would be worthy of this negative award, due to a case that the Beobachter reported on April 1, 2022: “Two days in prison because the public prosecutor’s office was sloppy.”
The idea for this prize is based on the story of a man who spent 75 days in Swiss custody without knowing why: “The great power of the prosecutors.”
However, the Beobachter failed in their attempt to personally present the award to the head of the Limmattal/Albis public prosecutor’s office. In the report of January 26, 2023, “The Beobachter crowns the sloppiest penalty order of the year,” Lukas Lippert noted: “The reception was as frosty as the day. That prosecutor’s office refused on January 26 to accept the negative award for the worst order of the year. Beobachter editor-in-chief Dominique Strebel could not personally hand over the trophy.”
It is regrettable that the Beobachter is now almost the only editorial medium in Switzerland that still critically scrutinizes the police and judiciary. With the possible exception of the state-run Swiss television, all others conveniently look away. The mainstream journalists of the major publishing houses pick the raisins out of the cake of world events. They diligently leave the journalistic bone work in the uncomfortable environment of abuses of power by the state, the police, and the judiciary to whoever. As if there had never been human rights violations in Switzerland! In the Swiss Canton of Zurich, at least the Justice Commission of the Zurich Cantonal Council is now investigating the issue of abusive penalty orders. The question ist, whether that is enough.
