Recusal requests against a prosecutor: forfeiture and overall assessment of the appearance of bias

Facts

The Public Prosecutor's Office of Basel-Landschaft, Main Division BM/OK, is conducting a large criminal proceeding on suspicion of aggravated offences against the Narcotics Act against [B.] , [C.] , [D.] and [A.] . The proceeding is conducted by Public Prosecutor Drazen Kondzic.

The accused [B.] (31 October 2019), [D.] (7 November 2019) and [C.] (8 November 2019) each filed a recusal request against Public Prosecutor Kondzic. On 4 November 2019, [A.] requested the recusal of Kondzic and additionally that of the Leading Public Prosecutor Urs Geier and the President of the Court Enrico Rosa at the Cantonal Court of Basel-Landschaft.

By decision of 2 April 2020, the Cantonal Court of Basel-Landschaft, Criminal Law Division, sitting in extraordinary composition, dismissed [A.] 's recusal request against Enrico Rosa, insofar as it was admissible. By decisions of 21 April 2020, it dismissed the requests of [B.] , [D.] and [A.] against Kondzic. It did not enter into the request of [A.] against Urs Geier nor into that of [C.] . The request of [C.] was deemed untimely; those of [B.] , [D.] and [A.] were assessed on the merits as unfounded or untimely, respectively.

[B.] , [C.] , [D.] and [A.] each lodged a criminal law appeal with the Federal Supreme Court and requested the annulment of the cantonal decisions and the recusal of Kondzic (and, in [A.] 's case, also of Geier). [A.] additionally challenged the dismissal of the request against Rosa, which gave rise to a separate proceeding (1B_248/2020). The main complaint was a violation of international, constitutional and federal recusal provisions. With the exception of [B.] , all accused requested legal aid and appointment of counsel. The Cantonal Court and the Public Prosecutor's Office requested dismissal.

As grounds for recusal, the appellants in particular asserted: prolonged solitary confinement, selective restrictions on access to the file, repeated violation of participation rights, intimidation of co-accused and witnesses, and, most recently, the scheduling of interrogations without regard to the availability of defence counsel, as a result of which their participation was prevented.

The Federal Supreme Court joined proceedings 1B_266/2020, 1B_270/2020 and 1B_276/2020, but did not join proceedings 1B_246/2020 and 1B_248/2020, since [A.] additionally disputed the recusal of further judicial persons.

Considerations

The contested decisions are final cantonal interlocutory decisions on recusal in criminal proceedings that can be challenged independently, against which a criminal law appeal under Art. 78 ff. and Art. 92 para. 1 FSCA is available. The appellants have standing as requesting parties (Art. 81 para. 1 FSCA). A violation of federal law may be raised (Art. 95 let. a FSCA), which is examined ex officio with free review (Art. 106 para. 1 FSCA).

The grounds for recusal of criminal authorities arise from Art. 56 CrimPC, which concretises Art. 6 No. 1 ECHR as well as Art. 29 para. 1 and Art. 30 para. 1 Cst. Under Art. 56 let. f CrimPC, a judicial person must recuse themselves if they could be biased for other reasons. According to the Federal Supreme Court's practice, bias of an investigating officer is not to be readily assumed; it requires objectively particularly gross or unusually frequent errors that constitute a serious breach of official duty and operate unilaterally to the detriment of one party. Premature prejudicial statements suffice only in justified individual cases, for example where the investigative leadership does not wish to change a challenged impermissible position. Clumsy statements establish a ground for recusal only in the case of a serious lapse towards a party.

Under the principle of good faith and the prohibition of abuse of rights, formal objections that could have been raised earlier may not be put forward only after an unfavourable outcome. This applies in principle also to recusal requests based on Art. 58 para. 1 CrimPC, under which requests must be filed without delay. However, where recusal requests are based on an overall assessment of unusually frequent errors, a tension arises: the persons concerned need not preventively challenge every single potential procedural defect. If it is not reasonably to be expected that a problematic conduct will lead to a duty of recusal, there is no obligation to file a request immediately; the conduct may later be raised together with newly arising circumstances, unless a pretextual ground is invoked in an abusive manner.

The chronologically last circumstance need not in itself substantively justify recusal. Rather, together with earlier acts, it forms the decisive factor that creates the appearance of bias. Actual unlawfulness or gross erroneousness of the conduct most recently challenged is not required; it suffices that this conduct appears in principle capable, together with earlier circumstances, of giving rise to the appearance of bias, and that the party could in good faith assume it had a sufficient basis for the request. All circumstances must be assessed as a whole.

In the cases of [B.] and [D.] , the Cantonal Court could not dismiss the request merely because the conduct most recently challenged was insufficient on its own. The…