Admissibility of the appeal against a decision not to proceed of the Appeals Chamber of the Federal Criminal Court in a revision procedure

Facts

The accused Jerôme Valcke filed requests for recusal against Federal Prosecutor Michael Lauber and other members of the so-called FIFA Task Force with the Appeals Chamber of the Federal Criminal Court (BStGer). The Appeals Chamber partially upheld the requests for recusal and ordered the recusal of Federal Prosecutor Lauber and two other judicial officers. Against this decision, Federal Prosecutor Lauber and the Office of the Attorney General (BA) filed a revision and subsequent request for recusal with the Appeals Chamber of the BStGer, which was rejected. Thereupon, Federal Prosecutor Lauber and the BA lodged a criminal appeal with the Federal Court.

The Federal Court must examine whether the appeal against the decision not to proceed of the Appeals Chamber of the BStGer is admissible and whether the lower court rightly did not proceed with the revision and subsequent request for recusal.

Considerations

The Federal Court examines the admissibility requirements of the appeal ex officio and with free cognition. The appeal is admissible against decisions of the Appeals Chamber of the BStGer. The lower court rightly applied the provisions of Art. 410 para. 1 (in conjunction with Art. 60 para. 3) CrimPC regarding revision and not those of Art. 121-128 FSCA.

According to Art. 410 para. 1 CrimPC, revision can only be requested by someone who is aggrieved by a final judgment, a penal order, a subsequent judicial decision, or a decision in independent proceedings. In the present case, no such material proceedings were conducted, let alone completed with final effect. The decision on recusal BB.2018.190+198 is a non-final ruling in the preliminary proceedings.

Art. 60 para. 3 CrimPC (revision…