Article 57
disclosure requirement in respect of a person engaged in a criminal authorities before a strike due, it shall inform the person, this time with the process line.
Article 58 of the recusal request of a party
1 Will allow a party to the strike of engaged in a criminal authority person, so she has to make the process line without delay an appropriate request once it has the strike basic knowledge, which are on strike the facts establishing credible to make.
2 The affected person takes the position request.
Article 59 decision
1 When a recusal ground in accordance with Article 56 paragraph a or f made or opposed to work in a penal authority person to a recusal request of a party which is supported Article 56 letter b-e, then decide, without
further proof procedure and final:
a. the prosecution if the police are involved;
b. the Appeals Board, if the prosecutor, the authorities or the criminal offense of first instance courts are concerned;
c. the appellate court if the Appeals Board or individual members of the Court of Appeal are concerned;
d. the Federal Court if the entire appeals court is concerned. 2 The decision was made
writing and must be justified.
3 shall exercise until the decision the person serve on more.
4 If approved the application, so go the legal costs paid by the federal or the canton. Is rejected or it was obvious later or vandalized, the costs are borne by the requesting the person.
Article 60 episodes of the violation of strike rules
an official act, has been involved in where a recusal person required to be canceled and to be repeated if this is a party within 5 days required after receiving the decision on the strike note. 2
evidence that can not be raised again, may the penalty authority . Consider 3 If
discovered the reason for the first strike after the procedure, the provisions on the appeal.
Article 57 requires members of the criminal authorities, any Austandsgründe the process line in due time. When such notice is deemed to still be on time is not further defined.
probably thinks the same as Article 57 Article 58th In this latter provision, the parties, which want to strike pleas, urged to do so after having regard to the recusal appeal without delay. This corresponds to the current federal court practice.
in time for the purposes of Article 57 means so without delay, after the Member of the penal authority a possible strike against the basic knowledge to get, but in any case before making (with this note) further procedural steps.
Article 58 does not respond to the question of the consequences of a late application must strike. In BGE 118 Ia 282 it considered the Federal Court be permitted to consider a belated recusal as forfeited, not as actual exclusion would be invoked. This is probably also the one day CHStPO term validity of the case.
Article 59 governs the procedure for assessment of recusal. In this regard a distinction between rejection reasons (Lit. a and f) and exclusion reasons (lit. b - e). About grounds for refusal shall, in each case, the gem. lit. a competent authority to decide ff, even if the member of the criminal authority considers himself to be compromised. This is to prevent that a member of a criminal authority of convenience goes on strike lightly (see Message, FF 2006, p. 1149). With the exclusion reasons, however, the competent authority to decide is if the officials resisted.
Ref a - d call the decision to the competent authorities. It is noteworthy that according to lit. decide the prosecution of a recusal against the police. This is A result that is shown by the CHStPO the police is considered explicitly as a penal authority, and entrusted the prosecution to lead the criminal investigation and as such supervisory authority of the police. It remains to who is to decide within the prosecutor's office. Logically, this will be for the criminal investigation in that case prosecutor.
The decision on recusal is final. Until the decision of the official concerned shall exercise his office continues. This is to prevent that the process can be delayed by unauthorized recusal.
Article 60: Amthsandlungen, which were made despite recusal reasons, are only at the request of a party to repeat. This is my opinion, as far as grounds for exclusion are concerned, wrong. Official acts, which undertakes a member of a criminal authority having a reason for exclusion and in violation of the disclosure requirement under Article 57 are, quite simply void. It should also Article 60 CHStPO change anything (see BGE 118 Ia 282 ).
Another concession to the validity of the method of action makes Section 2: evidence that can not be raised (for example, the re-examination of a witness since deceased), may be considered, even if a party sought to be repeated. This can also just my opinion regarding rejection reasons applicable, not in exclusion reasons.
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