Facts
Parties and procedural history: The complainant [A.] was indicted by the Rheinfelden-Laufenburg Public Prosecutor’s Office for commercial and gang-related theft, criminal damage, attempted extortion, arson, trespass, disruption of public services and traffic disruptions, as well as other offences. During the pre-trial stage, in January 2024, he filed a first recusal motion against the lead public prosecutor Lea Jetzer, which was dismissed by the High Court of the Canton of Aargau in a decision dated 20 March 2024. On 14 July 2025, the Public Prosecutor’s Office filed an indictment against the complainant with the Rheinfelden District Court. On 13 November 2025, the complainant filed a second recusal motion against the same public prosecutor, which was referred by the District Court to the Appeals Chamber of the High Court and also dismissed in a decision dated 21 January 2026.
Appeal to the Federal Supreme Court: In an appeal dated 11 February 2026, the complainant sought the annulment of the High Court’s dismissive decision and a finding of bias on the part of the public prosecutor. In the alternative, he requested that the matter be remitted to the High Court for further clarification and that criminal proceedings be instituted against unknown persons for breach of seal. He also sought the production of the full case files and free legal assistance. In a supplemental submission dated 8 March 2026, he submitted new evidence, including a technical report on the deletion of the WhatsApp application on a co-defendant’s mobile phone.
Considerations
1. Admissibility of the appeal The appeal against the interlocutory decision on the recusal motion is admissible under Article 92(1) FSCA and Articles 78 et seq. FSCA. The formal requirements are met; in particular, the right to a hearing (Article 29(2) Cst.) was not violated, as the lower court was entitled to confine itself to the essential points. New evidence produced after the lower court’s decision constitutes true novae and is not admissible (Article 99(1) FSCA).
2. Grounds for recusal of public prosecutors The grounds for recusal of persons acting in criminal authorities are set out in Article 56 CrimPC. In addition to the enumerated grounds (e.g. personal interest, prior involvement), a person must recuse themselves if there is an objective appearance of bias, in particular in the case of friendship or enmity with a party (Article 56 lit. f CrimPC). The assessment of bias depends on the stage of the proceedings: during the pre-trial stage, the public prosecutor is obliged to act impartially; after indictment, the public prosecutor becomes a party and represents the prosecution, while remaining bound by the duty of objectivity. Incorrect procedural acts do not in themselves constitute grounds for recusal unless they are particularly gross or repeated to an extent equivalent to a serious breach of official duty.
3. No ground for recusal after indictment The lower court held that, since the outcome of the proceedings remained open after indictment, there was no ground for recusal. The Federal Supreme Court confirms that allegations against the public prosecutor—such as evidence manipulation, breach of seal or false accusation—may appear serious, but do not automatically give rise to recusal. The public prosecutor’s duty of objectivity as a party is reduced but not extinguished. Even if the allegations were true, they would not justify recusal, as they relate to acts in the pre-trial stage and the public prosecutor remains obliged to represent the prosecution appropriately after indictment. Although the lower court’s reasoning that grounds for recusal are effectively excluded after indictment is not entirely convincing, it does not lead to a different outcome.
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