Facts
The Federal Court had to rule on a constitutional complaint by X., who appealed against the dismissal of his request to change his official defense counsel in the criminal proceedings. X. had been sentenced to 10 years in prison for intentional homicide and violations of the Narcotics Act and had filed a request to change his official defense counsel because he no longer had confidence in his abilities.
The High Court of the Canton of Zurich had dismissed the request, whereupon X. filed a constitutional complaint. The Federal Court now had to decide whether it could consider the complaint.
The decision of the High Court was an interim decision that continued the proceedings against X. but did not conclude them. The Federal Court examined whether the decision was appealable under Art. 87 FJA.
Considerations
The Federal Court decided that the contested decision of the High Court regarding the approval of the change of official defense counsel was neither a decision on a question of jurisdiction nor on the recusal of the deciding authority and therefore was not a preliminary or interim decision within the meaning of Art. 87 para. 1 FJA.
The court stated that a non-reparable legal disadvantage had to be imminent in order to allow a constitutional complaint against an interim decision. Such a disadvantage was usually imminent through the refusal of free legal aid and representation, but not through the rejection of a request to change the free defense counsel in a criminal proceeding.
The court found that the fact that the defense counsel had lost the trust of his client made the defense more difficult, but not impossible, since it was still the duty of the defense counsel to…