Facts
On October 12, 2004, the Swiss Federal Prosecutor's Office initiated criminal investigations against X. and co-participants on suspicion of offenses against property. On November 25, 2004, X. was formally arrested by the Federal Prosecutor's Office. On November 26, 2004, the Federal Prosecutor's Office filed a request with the Federal Investigating Magistrate's Office for confirmation of detention or formal order of pretrial detention. By order dated November 28, 2004, the Federal Investigating Magistrate's Office confirmed the detention due to risk of collusion and flight. X. appealed against this on November 30, 2004 to the Federal Criminal Court, which dismissed the appeal on December 16, 2004. X. appealed against this decision to the Federal Supreme Court on January 12, 2005.
Considerations
The Federal Supreme Court examined whether the Federal Investigating Magistrate (Fed. IM) met the requirements of judicial independence under Article 31 paragraph 3 of the Federal Constitution and Article 5 paragraph 3 of the European Convention on Human Rights (ECHR). It concluded that the Fed. IM, as an independent judicial officer, was entitled to confirm the detention, as he is not subject to instructions from the prosecuting authority nor does he perform prosecution functions himself. The Fed. IM merely conducts the preliminary investigation and prepares a final report, on the basis of which the Federal Prosecutor's Office independently decides on bringing charges.
The Federal Supreme Court therefore dismissed the appeal, insofar as it entered into it. It held that the provisions of the…