Can we take into account the religion of a defendant to assess his risk of flight? The Criminal Appeals Chamber responds in the affirmative: it rejects the request for disqualification of a prosecutor. He considered that a Swiss defendant could benefit from the law of return to Israel because of his religion.
The defendant is accused of renting and subletting apartments to unregistered prostitutes, charging abusive prices, and hiding his earnings from the authorities. At the request of prosecutor Frédéric Scheidegger, he was placed in preventive detention.
The magistrate considers that there is a risk of flight: “The defendant lived at a clandestine address in Geneva itself to escape any unexpected control and to give the appearance of a modest lifestyle. That he could without difficulty do the same abroad, in Monaco where his brother lives or in the many places where the latter would have invested in real estate. That people of the Jewish religion also have a right of return to Israel, a country in which mutual assistance is difficult,” explains the prosecutor in the request for provisional arrest.
A decision deemed discriminatory
The defendant’s lawyer is scandalized: “The prosecutor had wanted to justify his deprivation of liberty on the grounds that he was of the Jewish faith. And this is unacceptable because it is contrary to our penal code, since in my opinion it constitutes an offense of discrimination, on the grounds of confession” insists Me Nicola Meier.
The prosecutor contests
The prosecutor refutes any discrimination: he recalls that the Public Prosecutor’s Office takes into account several criteria, including the nationality that a defendant could easily obtain from a third country. He adds: “That a State has decided, for its own reasons, to welcome people on the basis of a criterion of religion does not make the people in question ‘fleeing’ people but simply and objectively people who can, if necessary, settle in the State in question as in their homeland” estimates Frédéric Scheidegger.
“If you are Swiss and Jewish, you are more likely to end up in prison”
Preventive detention lasts one month, then the accused is released. He and his lawyer request the prosecutor’s recusal. The Criminal Appeals Chamber finds them wrong: it considers that the religion of the accused may represent a criterion which can, in certain circumstances, be taken into account in the assessment of the risk of flight.
“This judgment seems to validate the position of the Public Prosecutor’s Office which consists of saying that religion could be taken into consideration to assess a risk of flight. This means that if you are Swiss of Jewish faith, you are more likely to end up in prison than if you are Swiss atheist. Obviously it’s discriminatory,” protests Me Nicola Meier.
The defendant and his lawyer announce that they are appealing this ruling to the Federal Court.
