Release of a district judge from official secrecy following a recusal request for alleged bribery; appeal dismissed

Facts

The appellant [A.] was a party to a tenancy dispute before the District Court [X.] (proceedings B.2021.10), in which District Judge [B.] acted as sole judge. By request dated 19 April 2021, the appellant demanded the judge's recusal. She relied on information from her acquaintance [C.] , who allegedly learned of it through an overheard telephone conversation of a neighbour. According to this, the judge had disadvantaged the appellant in an earlier proceeding and was susceptible to personal material or financial benefits.

On 7 May 2021 the judge recused herself on her own initiative and expressly rejected the allegations. On 30 June 2021 she applied to the Obergericht of the Canton of Thurgau for release from official secrecy so that a legal representative could examine the criminal relevance of the allegations of bribery and, if appropriate, file a criminal complaint.

By judgment of 15 July 2021, the Obergericht partially granted the application. It permitted the judge to submit the recusal request together with Annex 1 (letter from [C.] dated 11 April 2021) to a legal adviser and, where appropriate, to the criminal prosecution authorities; the application was otherwise dismissed.

By appeal in public law matters dated 12 September 2021, the appellant requested full dismissal of the release application, alternatively remittal, and subalternatively a finding that the release was unlawful. She also complained of a violation of the right to be heard due to an overly short, non-extendable period of ten days and the service of the decision on her former lawyer. The Federal Supreme Court granted suspensive effect to the appeal by order of 12 October 2021. The Obergericht and the respondent requested dismissal.

Considerations

Jurisdiction and admissibility: The Federal Supreme Court affirms its jurisdiction. The Obergericht of the Canton of Thurgau counts as a higher cantonal court within the meaning of Art. 86 para. 2 FSCA, as it is competent for the entire cantonal territory and is not hierarchically subordinate to any other cantonal authority. A higher court need not necessarily act as an appellate instance in public law matters, so the decision may be appealed directly to the Federal Supreme Court. The unsuccessful appellant is entitled to appeal (Art. 89 para. 1 FSCA). The subalternative request for a declaratory finding is not admissible, as there is no declaratory interest beyond the constitutive requests if the principal request is upheld (subsidiarity). Complaints concerning parallel civil proceedings and the disciplinary proceedings against the former legal representative are likewise inadmissible, as they lie outside the subject matter of the dispute, which is limited to the authorised release.

Facts and principle of complaints: Pursuant to Art. 95 let. a and Art. 105 para. 1 FSCA, only the violation of federal law is reviewed. The appellant's general complaints regarding the facts do not satisfy the qualified duty to raise and substantiate complaints, so the facts established by the lower court must be assumed.

Right to be heard: The right to be heard includes the right to make submissions within a reasonable period, where appropriate with the assistance of a legal representative. The period of ten days is reasonable: the release application comprises two pages, the facts were known to the appellant, the legal questions are not very complex, and the imminent deadline for the criminal complaint (Art. 31 SCC, 20 July 2021) could be taken into account. The appellant also submitted a detailed statement within the time limit. Service on the former legal representative was understandable and did not cause disadvantage; the erroneous naming of him as legal representative in the heading was an editorial oversight without legal consequence. There is no violation of the right to be heard.

Official secrecy (Art. 320 SCC): Secrets are non-public facts known only to a limited group of persons, in whose confidentiality the holder of the secret has a legitimate interest and a will to keep them confidential. The offence is a genuine special offence; Art. 320 SCC primarily protects public interests in the functioning of administration and the administration of justice, alongside the confidentiality interests of private persons. Release follows a balancing of interests and is in principle to be granted where the interest in disclosure outweighs the confidentiality interests (Art. 320 no. 2 SCC). Consent may be dispensed with where statutory reporting or notification duties or rights exist (Art. 14 SCC; Art. 302 para. 1 CrimPC; § 40 paras. 1 and 2 ZSRG/TG).

Omissions of the lower court and open questions: The lower court did not examine whether a statutory reporting right under Art. 302 CrimPC or § 40…