Topics: Defense Attorney, Mediator, Criminal Law, Criminal Justice, Criminal Defense, Swiss Legal System, Justice, Career Tips, Fachstelle für Sozialhilferecht, humanrights.ch, International Commission of Jurists, Anwaltskollektiv, University of Freiburg, FHNW, Advokatur Aussersihl.
Information about the person on Weblaw People: Dr. Stephan Bernard, LL.M.
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Good morning Mr. Bernard. You work as a defense attorney and mediator at  Advokatur Aussersihl  and are also a lecturer at the  University of Freiburg  and at the  FHNW. Could you please describe your career path, especially how you became a defense attorney?

I studied law enthusiastically and, to my and my surroundings' complete surprise, even though in 1995 philosophy and history were much closer to me. I went into practice, although I was sure during my studies that I would write a dissertation on legal history and had no interest in a conventional legal profession. I completed my dissertation only after turning 40 on a criminal procedural and legal philosophical topic, and after completely unplanned stations at the Bern Tenants' Association, the Zurich District Court, and as a substitute lawyer for a general practitioner, I became a self-employed lawyer at nearly 30 years old more by conscious recklessness than by intention. Initially also a general practitioner, over time criminal defense, family mediation, and knowledge transfer crystallized as my focus. I am definitely not the master plan type, but rather intuitive in life planning; the word career path doesn't seem to fit me either.

What does a typical workday look like for you?

I spend a little less than half of my time externally, in court, in hearings, or on prison visits. The slightly larger part of my time, I am in the office, talking on the phone with prosecutors, clients, police officers, opposing lawyers, clients' relatives, dealing with the flood of emails, discussing with my office colleagues, having meetings with clients, reading files or writing submissions and pleadings, doing my bookkeeping, and handling the other office work that every small business owner has. There is no typical workday: it is distributed differently each day.

What excites you most about working as a defense attorney?

I consider my profession to be socially relevant and meaningful. And I like the great freedom and variety of my daily routine.

As a defense attorney, you are often confronted with tragic fates. How do you cope with these psychological challenges?

For years, I have taken advantage of supervision with a psychologist. I have always worked part-time, today around 80%, because I have always cared for my children 50% of the time and also enjoy doing household chores; this gives me a good balance. I maintain a large circle of friends, mostly non-lawyers, read widely and a lot, meditate regularly, practice yoga, ski in winter, and go to the sauna.

You are involved in various organizations such as the Fachstelle für Sozialhilferecht ,  humanrights.ch, the International Commission of Jurists , and the Anwaltskollektiv  for better access to justice. Why are such initiatives necessary in a constitutional state like Switzerland?

Social groups with few socioeconomic resources not only have a difficult political position but also a legal one. The interests of tenants, employees, or consumers, who are also economically less privileged compared to landlords, employers, or companies, can still be somewhat bundled and represented politically and legally. Because their concerns affect a significant number of people who are relatively well-positioned in terms of economic, social, or cultural capital. There is no complete, fair balance of interests there either, but there are at least approaches to it.

The state of exception for the marginalized is thus systemically embedded in a socio-economically unequal society, even within a liberal legal state; legal protection therefore often fails precisely where it is most needed. - Dr. Stephan Bernard, LL.M.

The interests of asylum seekers, the involuntarily committed, social welfare recipients, the disabled, or prisoners are in an even more precarious position. These groups involve fewer affected individuals who – and this is crucial – generally have very limited socio-economic resources and little control over their entire way of living. As a result, they often stand alone on the margins because they can only hope for the solidarity of the majority society but cannot form a powerful lobby. It is almost an inevitable logic that these individuals have few advocates in politics and justice, find few lawyers, and thus are regularly denied access to justice. The state of exception for the marginalized is thus systemically embedded in a socio-economically unequal society, even within a liberal legal state; legal protection therefore often fails precisely where it is most needed.

The overload of the criminal justice system is also currently a topic of discussion. What changes do you think are necessary in the Swiss legal system to meet these diverse challenges?

Recently, legal circles and the public have repeatedly discussed the overload of the criminal justice system and quick operational solutions as a remedy. For conservative, punitive, or positivist-oriented professionals, the overload of the criminal justice system is seen as a given fact. They tend to call for an armament of the criminal justice system and the reduction of constitutional standards to increase efficiency. Liberal voices, who still ascribe a guiding significance to the principle of ultima ratio in criminal law and basic constitutional standards, place several big question marks on such hasty answers. They first question whether the criminal justice system is overloaded at all – or whether the discourse on overload primarily serves to arm the criminal justice system through the back door. Especially since even the Federal Council in a statement from November 15, 2023, explicitly noted that despite a significantly increased population, both the number of crimes known to the police and the number of convicted adults have been decreasing since 2014. They also point out that the organization of the criminal justice system is a cantonal competence and that there is no validated study valid across Switzerland on this topic yet. Moreover, liberal forces have been deeply concerned for decades that criminal law is no longer used only against massively harmful social acts but is seen as a supposed panacea for society.

Upon closer examination, Switzerland does not suffer from a formalistic criminal procedure, decreasing security, or insufficient resources in criminal justice, but primarily from the fact that far too many problems are addressed through criminal law. This approach proves to be dysfunctional for a reasonable, balanced solution to these problems. If, therefore, the criminal justice system were actually overloaded, which is currently simply not established, it would primarily be because criminal law has been misappropriated for about 30 years measured against the liberal principle of ultima ratio. To illustrate this with examples: From a liberal perspective, criminal law is not suitable as a central instrument for migration and substance control. Prosecuting often only allegedly unjustified social insurance benefits is in no reasonable relation to the potential harm. And the increasing reinterpretation of reactive criminal law into preventive criminal law is problematic in terms of the principles of the rule of law; an enclave of the state of exception is effectively looming here. The guiding principle of this internationally observed criminal policy is – as the renowned legal sociologist Loïc Wacquant meticulously deduces in "Punishing the Poor" – no longer the combination of crime and punishment, but the regulation of social insecurity and the disciplining of the less privileged.

By returning to traditional liberal principles, the criminal justice system could finally focus exclusively on effectively harmful crime and thus its core business. The current staff and infrastructure are long sufficient for this; any further discussion of overload would be completely obsolete. Instead of quickly responding to the alleged overload of the criminal justice system with operational reinforcement, the debate should start with the fundamental question of what kind of society we actually want to live in.

The more unequal a society is in terms of actual power dynamics and resource distribution, the harsher the criminal justice measures. - Dr. Stephan Bernard, LL.M.

It is worth recalling the extensive international meta-study by Richard G. Wilkinson/Kate Pickett, "The Spirit Level: Why Equality Makes Societies Stronger," which empirically demonstrated: The more unequal a society is in terms of actual power dynamics and resource distribution, the harsher the criminal justice measures. At the same time, advantages for the privileged seep into the criminal justice system. Unequal societies spend more on justice and corrections and less on education and social welfare. In unequal societies, the risk of being punished is more closely linked to social class and ethnicity. In more egalitarian societies, there is also less fear of crime, distrust, and a punitive attitude. Thus, stringent criminal law and societal inequality correlate just as liberal criminal law does with a more egalitarian society.

All this should give us pause: Every premature punitive ramp-up of the criminal justice system and every reduction of rule-of-law principles in the name of efficiency ultimately contributes to moving us further away from the fundamental normative promise of modernity of a liberal, egalitarian, democratic society—and simultaneously contributes to the expansion of a post-democratic, authoritarian executive state. Overall, because of this clear political trend, criminal law has already moved far away from fundamental postulates of justice, fairness, legal security, and equal treatment regardless of social class and origin for about 30 years. It is, therefore, in a serious legitimacy crisis from a legal philosophical perspective. The excessively preventive criminal law, from the ordering of preventive detention to secure and therapeutic residential measures, is far too unlimited. There is a lack of fundamental legal bases that affected individuals can effectively invoke, leading to significant legal uncertainty with long-term deprivations of liberty. The striking unequal treatment of foreign nationals in criminal law (deportation, imprisonment for minor crimes, significantly more pre-trial detention, etc.), as well as through punitive administrative law (administrative detention, restrictions, etc.), is another fundamental violation of actual equal treatment. Furthermore, there are numerous statutory provisions that, in combination with legal practice, lead to significant unequal treatment based on origin and social class. For example, the number of imprisonments under substitute liberty penalties for the less affluent; the scarcely comprehensively examined relief possibilities in the entire substantive and procedural criminal law for economically and socially privileged individuals; the problem of penal order proceedings concerning the lack of control by courts and the defense, and their devastating effects especially for the educationally disadvantaged and economically less privileged; origin and class-dependent unequal treatments from the ordering of pre-trial detention through the treatment in criminal investigation to the criminal judgments. Therefore, if one measures criminal law by its actual legal effects, whether the dealings of the blind goddess Justitia with those affected are truly irrespective of origin and social class, much is currently amiss.

In summary: We have severe issues around criminal law that concern human rights, rule-of-law, and democratic fundamental concerns. We should address these first instead of engaging in an agitated discourse about a potentially operationally overloaded criminal justice system that cannot even rely on solidly raised, validated studies.

Now onto another aspect of your career. What motivated you to work as a family mediator alongside your role as a criminal defense lawyer?

I see a whole different (often typically middle-class) audience with different concerns there. I am there to balance, mediate, and not primarily to act in a legal capacity. And I work with a psychotherapist in co-mediation, and we learn a lot from each other. All this gives me a good professional balance to criminal defense and also leads to surprising changes as a criminal defense lawyer. The activity as a mediator thus enriches my professional practice overall and also contributes to personal development.

What advice would you like to give to aspiring criminal defense lawyers?

I believe it is crucial to find your own path. Paternalistic advice is therefore almost self-contradictory. In my view, the most important prerequisites for the profession are the courage to trust oneself and to dare something, as well as the readiness to consistently stand up for the entrusted interests of others. If both are truly present deep inside, all the rest are negligible technical details that can easily be learned.

Thank you for the fascinating insights into your work and into Swiss criminal law. We wish you all the best in your continued endeavors!

_{Translated by AI}