Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
Switzerland’s Basic Military Manual (1987) states: “Only military tribunals can try prisoners. They shall provide the accused with all recognized means of defence.”
The manual also provides that an accused prisoner “shall have the possibility of expressing himself on the subject of the accusation of which he is charged”.
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
1. The parties have the right to be heard; in particular, they have the right:
a. to inspect case documents;
b. to participate in procedural acts;
c. to appoint a legal agent;
d. to comment on the case and on the proceedings;
e. to request that further evidence be taken.
2. The criminal justice authorities shall notify parties who are unaware of the law of their rights.
The Code further states: “At the start of the examination hearing, the person being questioned shall, in a language they can understand: … be informed in full of his rights and obligations.”
In 2007, in its third periodic report to the Human Rights Committee, Switzerland stated:
The rights of defence deriving from the right to a hearing require, in accordance with the principle of fair treatment, that the record of the case should specify how the evidence was obtained. Thus the Federal Court ruled in a decision of 13 November 2002 that verbatim records transcribing into German tapped telephone conversations conducted in a foreign language could be used only if the file showed who had made the recordings and by what means.
Switzerland also stated:
In Decision ATF 129 I 281 et seq.
, the Federal Court found that the right accorded to all persons charged with a criminal offence by article 2 of the seventh Additional Protocol to the European Convention on Human Rights and by article 14, paragraph 5, of the International Covenant [on Civil and Political Rights] to have his conviction reviewed by a higher court would be unacceptably voided of content if the necessary defence was limited to the proceedings in first instance and if a convicted person lacking the necessary resources had to take charge of the appeal proceedings himself, when representation by a lawyer would be essential for the effective exercise of his rights of defence. Where necessary defence is concerned, a defendant – or convicted person – whose poverty is recognized has, in principle, an unconditional right to free assistance, even in appeal proceedings which he initiates himself.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the  Geneva Conventions.
[footnotes in original omitted]