Recusal request against a prosecutor: forfeiture and overall assessment of the conduct of the investigation leadership

Facts

The Public Prosecutor's Office of Basel-Landschaft, Main Division BM/OK, is conducting a major criminal proceeding on suspicion of aggravated offences against the Narcotics Act against [B.] , [C.] , [D.] and [A.] . The investigation is led 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. [A.] requested on 4 November 2019 the recusal of Kondzic, in addition to that of the Chief Public Prosecutor Urs Geier and the President of the Cantonal Court of Basel-Landschaft, Enrico Rosa.

The Cantonal Court of Basel-Landschaft, Criminal Law Division, by decision of 2 April 2020 dismissed the recusal request against 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 against Geier or the request of [C.] . The reasons given were that the request of [C.] was untimely and that the remaining requests were unfounded on the merits or untimely.

Against these decisions, [B.] (1B_266/2020), [C.] (1B_270/2020), [D.] (1B_276/2020) and [A.] (1B_246/2020) lodged appeals in criminal matters with the Federal Supreme Court. [A.] additionally challenged the dismissal of the request against Rosa (1B_248/2020). The appellants essentially complained of a violation of the recusal provisions under international, constitutional and federal law. With the exception of [B.] , all applied for free legal aid and appointment of counsel. The Cantonal Court and the Public Prosecutor's Office requested dismissal.

The central question was whether the Cantonal Court was barred from examining the recusal requests on grounds of untimeliness, because the conduct invoked lay too far in the past, or because the most recently asserted circumstance was not sufficient on its own.

Considerations

Proceedings 1B_266/2020, 1B_270/2020 and 1B_276/2020 concern solely the recusal of Public Prosecutor Kondzic and are consolidated. [A.] 's proceeding additionally concerns the recusal of Geier and Rosa and therefore cannot be consolidated (1B_246/2020 and 1B_248/2020 remain separate). The contested decisions are final cantonal interlocutory decisions that may be challenged independently (Art. 78 ff., Art. 92 para. 1 FSCA). The appellants have standing (Art. 81 para. 1 FSCA), and the complaint of a violation of federal law is admissible (Art. 95 lit. a FSCA).

The grounds for recusal of criminal authorities follow from Art. 56 CrimPC, which concretises Art. 6 para. 1 ECHR as well as Art. 29 para. 1 and Art. 30 para. 1 Cst. Under Art. 56 lit. f CrimPC, a judicial person must be recused if other grounds could give rise to bias. Bias of an investigation leader is not to be assumed lightly; it requires particularly gross or unusually frequent errors which, on an overall assessment, amount to a serious breach of official duty and operate one-sidedly to the detriment of a party. Available legal remedies must first be exhausted. Preliminary prejudicial statements generally do not give rise to bias, and clumsy statements only where there is a serious lapse towards the party.

Under the principle of good faith and the prohibition of abuse of rights, formal objections may not be raised late. Recusal requests must be made without delay under Art. 58 para. 1 CrimPC. Where gross procedural errors which by themselves give rise to a duty of recusal are involved, action must be taken promptly. By contrast, where unusually frequent errors are assessed as a whole, there is no obligation to challenge each individual defect as a precaution. An earlier circumstance may be asserted again together with circumstances that arose later, unless a pretextual ground is invoked abusively. It suffices that the circumstances appear prima facie capable, together, of creating the appearance of bias.

The most recent circumstance need not by itself substantively justify recusal. It is precisely the overall conduct that forms the factual variant in which conduct that is insufficient on its own, together with earlier acts, creates the appearance of bias. It suffices that the party may in good faith assume a sufficient basis.

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