Recusal of a Prosecutor (TF,7B_768/2024)
Recusal of a Prosecutor (TF, 7B_768/2024)
A. is under criminal investigation for various offenses. He is arrested, and on the same day, the Prosecutor submits a request for pre-trial detention to the Compulsory Measures Court.
The document contains the following passage:
"There is a risk of flight. Indeed, the accused has lived at a clandestine address to evade any unexpected checks and to give the appearance of a modest lifestyle. He could easily do the same abroad, where his brother lives or in the numerous properties his brother is said to have invested in. Furthermore, individuals of the Jewish faith have a right of return to Israel, a country where legal assistance is difficult."
A few days after being placed in pre-trial detention, A. requests the recusal of the Prosecutor. The request is denied by the Criminal Appeals Chamber, prompting A. to appeal to the Federal Tribunal (hereinafter: the FT).
A. argues that the Prosecutor has made his Jewish faith a factor in assessing his risk of flight, which he believes constitutes grounds for recusal under Article 56(f) of the Swiss Criminal Procedure Code (CPP).
This provision serves as a general clause covering all grounds for recusal not explicitly mentioned in Article 56(a) to (e) CPP.
The FT emphasizes that a nuanced interpretation of Article 56(f) CPP may be necessary when dealing with prosecution authorities, unlike letters (a) to (e), which apply uniformly to all judicial authorities.
Case law acknowledges that during investigations, prosecutors may take a stance against the accused and express their views while maintaining a certain degree of discretion in their inquiries.
A recusal request is justified if objective elements raise doubts about impartiality—isolated mistakes or errors are insufficient unless they involve serious or repeated misconduct.
The FT finds that the Prosecutor mentioned, in his assessment of A.'s risk of flight, the right of return for individuals of Jewish faith, without providing further details on the applicant’s personal convictions—only that he is Jewish.
The Prosecutor also failed to establish A.'s connections to the State of Israel. Even assuming that Israel's Law of Return would allow A. to seek refuge there, this does not justify concluding that he, a Swiss national, presents a flight risk to Israel based solely on his religious identity.
Thus, the Prosecutor gives the impression of treating the applicant differently due to his Jewish faith and of considering him a flight risk to Israel solely on that basis.