6th Chapter: strike
Article 56 reasons
strike enters a person acting in a criminal authority on strike if they: a.
has a personal interest in the matter;
b. in a different position, particularly as a member of the authority, as the legal counsel of a party, as an expert or expert witness, a witness or witnesses, in the same case was active;
c. with a party, its counsel or a person who worked in the same case as a member of the lower court, married, in a registered partnership lives or maintains a de facto union;
d. is related by blood or with a party in a straight line or in the collateral line up to and including the third degree;
e. with the counsel of a party or a person than to the same thing Member the lower court acted in a straight line or in the collateral line up to and including the second degree is related by blood or;
f. any other reason, could be biased in particular because of friendship or enmity with any party or their counsel.
Article 56, acting under the term recusal reasons one hand, the literature in the process commonly referred to as Exclusion criteria designated (which includes this letter b - e.), (Lit here this includes the a and f.) On the other grounds for the so-called together. The difference is that the exclusion in the affected judicial person generally exclude from the exercise of their duties in a particular case. The official concerned has made of himself to step into the strike, even if no such request made by a party. In contrast, the reasons for refusal of the official concerned has only gone on strike then, when he was challenged by a party successfully (see Message, FF 2006, p. 1148 and BGE 126 III 249 ). The exclusion are objective in nature and are due to the (outer) position of the official concerned (prior involvement or legitimate, similar to marriage or family relationship to the litigants). In contrast, the reasons for rejection shod the "internal independence" of the officials concerned and are of a relative nature.
The right to reject a judicial officer or exclude is part of the constitutional right to an independent and impartial judge (Article 6 para. 1 of the ECHR and Article 30 paragraph 1 BV).
lit.a: in addition to the item c - e referred to cases where there is a special relationship between the judicial officers and a party, one can in criminal proceedings is hard to imagine a constellation, where a member of a criminal authority in the matter has a personal interest. This would be in in practice hardly ever occurring constellations of the case, is involved in which a judge or prosecutor in on the offense to be assessed (whether as participants or victims). Thus, for example by the fact that a judge in a rape is committed process for feminist concerns, no bias can be derived (BGE 118 Ia 282 ).
item b normalized on strike because of prior involvement. A judicial officer may then be biased if, in the same case in another position already was active. The different functions that in lit. b mentioned are merely examples and not exhaustive. For this reason, there is a strike rich and casuistic law. Accordingly, there is such an impermissible prior involvement in the following cases:
- was a judge in the same case previously worked as a prosecutor and carried out investigative actions (Schmid, Criminal Law, 4th A., p. 44 f, Rz 134 with further examples.)
- judging the judges have previously ruled on the admission charge (BGE 114 Ia 50 )
- is prohibited in general, the dual role of judge and magistrate (BGE 113 Ia 72 )
- incompatibility of the function as a judge with the function as a prosecutor ( decision of the ECHR v. 23.10.1990, Jutta Huber v. Switzerland )
not generally unlawful prior involvement lies in the following constellations:
- Judges , in the same case already as a judge officiated ( BGE 117 Ia 182 )
- Law Lords, in the same case already decided earlier in the case ( BGE 113 Ia 62 )
- Judges, after rejection by the appellate court again ( 113 Ia 407 )
judges - also no prior knowledge of the unlawful Judge who precipitated earlier concerning the same facts, a verdict against an accomplice ( BGE 115 Ia 34 )
- the speaker who drew up before the trial a written ruling request is no prior knowledge (ZR 86 No. 87)
- not even the president of a collegiate court, after an initial summary viewing the affected applicants recommended the withdrawal of the appeal ( SOG 2000 No. 31 )
ref f: After constant case law requires a judge or other judicial officer, that he is disqualified can be rejected, not to be biased in fact. It is sufficient that circumstances Present are able to justify the appearance of bias and the risk of bias objectively (BGE 115 Ia 180 ). Is not sufficient merely the subjective perception of a party, the officer was biased. Thus, for example a judge is not forbidden to be active politically in his spare time and to express their commitment to political issues. A judge is biased but then when he started on a process to a specific event and expressed the appreciation that he had to consider after (BGE 108 Ia 48 ).
0 comments:
Post a Comment