Facts
The complainant [A.] was arrested on 22 June 2022 and placed in pre-trial detention by order of the Compulsory Measures Court of the Zurich District on 25 June 2022. The appeal against this decision was dismissed by the Zurich Higher Court by decision of 26 July 2022. [A.] then filed a criminal appeal with the Federal Court and requested that the nullity of the Higher Court's decision and the Compulsory Measures Court's order be established and that he be released from pre-trial detention immediately.
The complainant formally complained of an inadmissible composition of the lower court and thus a violation of Art. 30 para. 1 Cst. and Art. 5 para. 1 lit. c, para. 3 and 4 in conjunction with Art. 6 para. 1 ECHR. He objected that the lower court did not render its decision with the originally determined and communicated court composition, but rather changed the original composition subsequently, notably due to the absence of a judge and a judge.
Considerations
The Federal Court dealt with the question of whether the appointment of a court clerk and a court clerk of the deciding chamber as substitute judges (in the same chamber) constitutes a violation of Art. 30 para. 1 Cst. and Art. 6 para. 1 ECHR. The court found that judicial independence is anchored in the Federal Constitution both as a fundamental right and as an institutional guarantee of the judicial authorities.
The court further found that the guarantee of an independent and impartial court can be affected by organizational circumstances. In this case, the court found that the formal hierarchy existing outside the court composition between the members of the lower court's court composition creates at least the appearance of an informal hierarchy within the court composition, which is likely to impair the internal judicial independence of the persons appointed as substitute judges.
The court therefore decided that the…