FPC, 03.02.2026, BB.2025.115-121, BB.2025.133-139
Facts
In 2012, the Office of the Attorney General of Switzerland (OAG) opened criminal proceedings for money laundering against B., then director of an institution, which were extended in 2013 to include charges of criminal mismanagement and money laundering against his wife, A. Following a suspension, the investigation resumed in March 2024. In September 2025, the federal prosecutor in charge, H., informed the parties of the imminent closure of the investigation. The accused and affected third parties (the applicants) filed two successive recusal requests against prosecutor H. in October and November 2025. They accused her, as well as her predecessors, of repeatedly refusing their offers of evidence, conducting the investigation in a biased manner, treating them unfairly compared to other proceedings and the complainant, and refusing to rule on a request to lift a seizure. The second request was motivated by the prosecutor's refusal to remove a closure decision resulting from mutual legal assistance proceedings from the file.
Legal Principles
The Appeals Chamber reiterates the principles governing the recusal of a criminal magistrate.
- Time limit for action (Art. 58 para. 1 CrimPC): A recusal request must be submitted "without delay" (generally 6-7 days) after becoming aware of the grounds, otherwise the right is forfeited. It is contrary to good faith to withhold grounds for recusal to invoke them later, for example, in the event of an unfavorable development in the proceedings.
- Overall assessment and "the straw that broke the camel's back": When an accumulation of incidents establishes an appearance of bias, a party may invoke past facts in support of a recent incident (the "straw that broke the camel's back"). However, this is only possible if the most recent incident itself constitutes an indication of partiality. This approach does not allow for the creation of a "private file" of errors to be used at a chosen opportune moment.
- Grounds for recusal (Art. 56 let. f CrimPC): The guarantee of an impartial tribunal (Art. 30 Cst. and 6 ECHR) also applies to prosecutors. Recusal is justified if objective circumstances create an appearance of bias and give rise to fears of partial conduct. A party's subjective impressions are not decisive.
- Distinction from ordinary appeals: The recusal procedure is not intended to challenge the manner in which an investigation is conducted. Procedural decisions, even if they prove to be erroneous (refusal to admit evidence, refusal to rule), do not in themselves establish a suspicion of partiality. Such decisions must be challenged through the appeals process (Art. 393 CrimPC). Only particularly serious or repeated errors that gravely violate a magistrate's duties can justify recusal.
Application to the specific case
The Court first examines the admissibility of the requests. It notes that the applicants delayed taking action regarding numerous grievances, admitting they waited "for the sake of peace." These grievances are therefore late and inadmissible. The Court only addresses the recent grounds: the notice of closure of the investigation and the refusal to remove a document from the file. On the merits, the Court rejects all arguments. The applicants' criticisms concern the conduct of the investigation, which falls under the prosecutor's authority (art. 61 let. a CrimPC). The fact that she considers the investigation complete after more than ten years and intends to close it is not a sign of bias, but a normal act of procedural management. Similarly, the refusal to admit certain evidence or to remove a document from the file are procedural decisions that must be challenged through the appeals process, not by a recusal request. The applicants are inappropriately attempting to use the recusal procedure as a substitute for ordinary appeals to challenge the strategic choices of the case management. The Court concludes that no objectively verifiable evidence suggests any bias on the part of the prosecutor.
Outcome
The Complaints Chamber joins the two recusal proceedings. It rejects the requests to the extent they are admissible and orders the applicants to pay court costs of CHF 3,000 jointly and severally.
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