EGV-SZ 2001 - Kanton Schwyz

A. 5.1
The Court notes at the outset that it has not been claimed that, contrary
to Article 5 § 3 of the Convention, the Investigating Office of the Canton
of Schwyz, which ordered the applicant’s detention on remand, was entitled
to intervene in the subsequent criminal proceedings as a representative
of the prosecuting authority (see the Huber case cited above.) In
any event, according to Section 37 § 1 of the Judicial Organisation Act
of the Canton of Schwyz, it is the Public Prosecutor’s Office which will
raise the charges at the trial before the court.
Rather, the applicant complains that during the investigations the Public
Prosecutor’s Office of the Canton of Schwyz may interfere with the
functions of the Investigating Office.
According to the Court’s case-law, the “officer authorised by law to
exercise judicial power” within the meaning of Article 5 § 3 of the Convention
is not identical with the “judge” stated in that provision, and may
indeed be competent to carry out other duties, in addition to deciding on
detention. Nevertheless, this office must satisfy certain conditions, inter
alia, as to the independence of the executive (see the Schiesser v. Switzerland
judgment of 4 December 1979, Series A no. 34, pp. 13–14, § 31;
the Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A,
p. 11, § 20).
In the present case the Court notes that status and functions of the Investigating
Office are laid down in detail, on the one hand, in the Code of
Criminal Procedure which in Section 26 lists the grounds for detention on
remand and in Section 27 provides, inter alia, that the investigating judge
shall be competent to impose such detention. On the other hand, the Judicial
Organisation Act of the Canton of Schwyz provides in § 42 that the
Government of the Canton of Schwyz shall elect the investigating judges,
and in Section 45 that the Public Prosecutor’s Office will supervise the Investigating
Office. Section 44 § 2 states that the Investigating Office shall
be competent for conducting the investigations.
In the Court’s opinion, these provisions demonstrate that, as in the
Schiesser case cited above, while the Public Prosecutor’s Office may issue
directives and undertake a general supervision, the Investigating Office
will decide independently in a particular case when imposing detention on
remand. Indeed, in the present case the applicant was brought before the
investigating judge within one day, and there is no indication that the Investigating
Office obtained instructions in respect of the imposition of his
detention on remand.
This complaint is manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention and must be rejected under Article 35 § 4 of the
Convention.
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