Facts
Dr. Alexandre Gelbert was co-accused in a federal preliminary investigation against Dr. Dieter Bührle and other persons for violation of the Federal Council's decree on war material. On April 30, 1969, his defence counsel requested the investigating judge to allow him to participate in the interrogation of the accused pursuant to Art. 118 sentence 1 CCP and to summon him. The investigating judge dismissed the request on May 5, 1969.
The defence counsel then filed a complaint on behalf of Dr. Gelbert against this order and requested to be allowed to participate in the interrogation of the accused by the investigating judge.
The investigating judge and the Federal Prosecutor's Office requested that the complaint be dismissed.
Considerations
The Indictment Chamber states that according to Art. 118 sentence 1 CCP, the investigating judge "may" allow the defence counsel to participate in the interrogation of the accused, provided that the investigation is not impaired. The decision on this matter lies within the discretion of the investigating judge, which, however, is not entirely free and unbound. The investigating judge may not reject the request of the accused to be interrogated in the presence of the defence counsel if there is no substantive objection to the participation of the defence counsel.
The Indictment Chamber further states that the Art. 214 et seq. CCP, which grant the parties a right to appeal against official acts of the investigating judge, do not exhaustively list the grounds for appeal. The appeal is justified if the contested order violates the law. However, the Indictment Chamber does not have the task of interfering with the discretion of the investigating judge and relieving him of the responsibility for conducting the investigation. It merely has to examine whether the investigating judge has obviously exceeded the limits of permissible…