Dismissal of a recusal request against a substitute judge in a criminal case

Facts

The District Court of Zurich, 4th Division, found [A.] guilty of slander and insult with its judgment of 30 September 2021 and sentenced him to a conditional fine and a penalty. [A.] appealed against this judgment to the Higher Court of the Canton of Zurich. On 10 September 2022, [A.] filed a recusal request with the 3rd Criminal Chamber of the Higher Court against substitute district judge lic. iur. Sandro Clausen, who had participated as a single judge in the first-instance judgment of 30 September 2021.

[A.] requested that it be established that a ground for recusal within the meaning of Art. 56 lit. f CrimPC existed for substitute judge Clausen, and that he should have recused himself. If the ground for recusal was affirmed, the judgment of 30 September 2021 was to be fully annulled in accordance with Art. 60 CrimPC.

The Higher Court dismissed the recusal request. [A.] appeals to the Federal Court with a criminal complaint, requesting that the decision of the Higher Court be annulled, his recusal request against substitute judge Clausen be approved, and that it be established that a ground for recusal existed.

Considerations

The contested decision of the Higher Court does not conclude the ongoing criminal proceedings against the appellant in the second instance. It is a self-contained, cantonal final decision on a recusal request, against which a criminal complaint is admissible under Art. 92 Abs. 1 FSCA.

The appellant justified the recusal request before the lower court by stating that substitute judge Clausen had not reported to the prosecution authorities the baseless allegations made by private plaintiff [B.] during the main hearing on 23 September 2021, according to which the appellant had made murder threats against him and had hired a contract killer. The appellant had filed a criminal complaint against the private plaintiff on 29 September 2021 for false accusation, obstruction of justice, and slander.

The Federal Court came to the conclusion that the criticized conduct of the single judge in this situation does…