Facts
The Geneva Councillor of State is the subject of a criminal investigation for acceptance of benefits, after the Public Prosecutor's Office submitted a request for authorisation to prosecute to the Grand Council. In September 2018, the Council of State adopted organisational measures intended to avoid any suspicion of conflict of interest or interference in the criminal proceedings, which were conducted with the support of the General Inspectorate of Services and the criminal police. The magistrate temporarily gave up the presidency of the Council of State and lost hierarchical responsibility for the police in favour of his deputy, while retaining the department of security without the police or relations with the judiciary.
In November 2018, the Police Judicial Union and the Union of Police Corps Personnel asked for confirmation that the department of security no longer dealt with the file of the pension fund for police officers and penitentiary establishments (the SCC), which had adopted a new pension plan. They also requested the recusal of the magistrate in this file and referred to a complaint before the supervisory authority for foundations (ASFIP) implicating him for interference in the management of the fund. In January 2019, the Council of State confirmed the creation of a new department of economic development entrusted to the magistrate, while the department of security, employment and health was entrusted to another Councillor of State. On 17 April 2019, the Council of State recalled that heads of departments bear their responsibilities jointly within the college and that it could not be a question of depriving any of its members of their right to speak or vote.
By judgment of 29 October 2019, the Administrative Chamber of the Geneva Court of Justice dismissed the appeal of the two unions. It held that the reorganisation measures were intended to prevent a conflict of interest linked to the criminal proceedings, without establishing a general bias on the part of the magistrate. The SCC is an entity with legal personality, and neither the department nor its head has competence over the granting of benefits. The complaints to ASFIP, directed against the members of the SCC's committee and not against the magistrate, were dismissed. The magistrate's participation in files submitted to the college falls within his prerogatives, and no indication of bias exists for future arbitrations or negotiations concerning the SCC.
The appellants ask the Federal Supreme Court to order the recusal of the magistrate in any file concerning, directly or indirectly, the SCC, whether in plenary or in any other manner, and in the alternative to remit the case to the lower authority. The cantonal court waived its right to respond, and the Council of State concludes for dismissal.
Considerations
The public law appeal is admissible against a final decision of last cantonal instance (art. 82 let. a, 86 para. 1 let. d FSCA). The appellants, who were parties to the cantonal proceedings, have standing and an interest in the recusal (art. 89 para. 1 FSCA).
The appellants complain that the cantonal court's reasoning was insufficient and that the facts were incompletely established (art. 112 FSCA), in particular by omitting the circumstances of the reorganisation, the magistrate's erroneous information and the nature of the discussions on the pension plan. The Federal Supreme Court recalls that arbitrariness in the assessment of evidence requires an untenable assessment and that the appellant must demonstrate the relevance of the facts invoked (art. 106 para. 2 FSCA). The cantonal judgment does not detail the reasons for the reorganisation but refers to the press releases that set them out clearly; it therefore sufficiently sets out the relevant legal and factual reasons. The distinction between applying the law and negotiations on the pension plan is not relevant, as participation in such negotiations is not in itself capable of justifying recusal. The complaints to the supervisory authority did not formally target the magistrate, so their link to his intervention in the college is not established. The grievances concerning reasoning and the establishment of facts are dismissed.
On the merits, the appellants invoke impartiality arising from art. 29 para. 1 Cst. This right allows recusal to be requested where…