Repeal of the decision of the Higher Court of the Canton of Aargau regarding representation by a guardian

Facts

The complainants, [X.] and lawyer [R.] , have appealed against the decision of the Higher Court of the Canton of Aargau, Chamber for Guardianship Affairs as a second-instance guardianship supervisory authority, of July 30, 2007. The decision concerns the repeal of a representation by a guardian that had been established for [X.] , an asylum seeker with unknown residence.

[X.] had authorized lawyer [R.] on September 10, 2004, to pursue any claims in criminal and civil proceedings. After his asylum application was rejected, [X.] was expelled from Switzerland. Lawyer [R.] asserted victim support claims for [X.] and requested the guardianship authority [V.] to grant [X.] a power of attorney to represent the victim support claims or to appoint a representative guardian.

The guardianship authority granted the request and appointed lawyer [R.] as representative guardian. However, the presidency of the higher court chamber for guardianship affairs repealed the decision of the guardianship authority and instructed it to immediately repeal the representation by a guardian without replacement.

Lawyer [R.] filed a complaint against the repeal of the representation by a guardian and requested that the Chamber for Guardianship Affairs decide on the complaint in a new composition. The Higher Court rejected the requests for rejection and confirmed the supervisory order of the presidency.

Considerations

The Federal Court repealed the decision of the Higher Court and referred the matter back to the Higher Court for re-evaluation. The court found that the requests for rejection by the complainants against the chamber president and the court clerk due to prior involvement should have been approved.

The Federal Court found that the guardianship authorities and the supervisory authorities according to Art. 361 para. 1 CC are the guardianship authority and the supervisory authority. The supervisory authority has the task of monitoring the activity of the lower guardianship authorities.

The court found that the cantons according to Art. 361 para. 2 CC determine the guardianship authorities and regulate the jurisdiction of these instances. The regulation of grounds for recusal is generally a matter for the cantons, but they must observe the superior law in doing so.

The Federal Court found that prior involvement is a ground for recusal that aims to prevent a judge who has already participated in a matter from later…