The court case of Wilson A. is that of a survivor of a brutal and racist police check which took place on 19.10.2009 in Zurich and which very quickly degenerated, with excessive use of violence by the three police officers involved. Wilson A. suffered massive injuries to his neck, spine, a knee and was choked by the officers for several minutes, so that he could not breathe. His friend is left with long-lasting and diagnosed post-traumatic stress disorder.
Wilson A. filed a complaint against the officers for "endangerment of life". This use of violence by the police has however been covered up by all judicial instances and the trial has now been delayed for almost 13 years. Requests for clarification and demands for justice have been systematically denied by the judiciary.
In the latest chapter of this story, at the beginning of October 2022 the Zurich Cantonal Parliament refused to waive the immunity of the presiding High Court judge i.e. to prevent any accusations of abuse of office, coercion, and favoritism. In this way the Cantonal Parliament, a political body, has made a legal judgement by refusing to enable criminal proceedings against the judge despite the fact that the chief public prosecutor’s office sees enough evidence of an offense to request criminal proceedings against the judge.
Since the case appears only before the Cantonal Court after much obstruction, dismissal orders and ineffective prosecution by the public prosecutor, it is likely that the accusations of violence against the police officers who were involved will become time-barred. Wilson A. and his supporters are nevertheless still determined to continue the process and, if necessary, take the case all the way to the European Court of Human Rights to obtain justice and to pave the way for future cases of racial profiling and racist police violence to be adequately punished.
Wilson A. and his friend B. were in the tram on their way home on the night of 19.10.2009, when a police patrol ordered them, without giving any justification, to get out of the tram for a police check. Their simple question on the reason for the check was answered with violence: Wilson A., who had undergone heart surgery, was lucky to survive the pepper spray attack, beatings, knee strikes and chokehold he was subjected to. He sustained multiple injuries and ended up in hospital while B. was permanently traumatized.
Wilson A. and his friend B. were on their way home in the early hours of the morning of 19.10.2009, after a cheerful evening in the Kaufleuten restaurant, when at the Werd stop they were suddenly pulled out of their conversation. Two police officers banged on the only just closed door and on the windows, the tram driver reopened the door for them and then drove off. The two police officers headed straight for the only two Black passengers and announced to them that they would carry out an identity check and that the two of them have to get off at the next station. When they asked why – for the umpteenth time – it is they that should be checked among all the white passengers, Wilson A. and his friend did not receive an answer. One of the officers made a radio call. Wilson A. was grabbed by the arm. He told them that he had had heart surgery and that they should not touch him; and that they would get off and undergo the police check. Legally, the two had nothing to fear. They had their IDs on them, were sober, and were carrying no alcohol and no other drugs, as the investigation would later confirm. And neither of them had the slightest desire to get into trouble with the police officers; they simply wanted to go home to their families. Then the tram pulled into the next stop; the ride took barely fifty seconds to cover the short distance between Werd and Wiedikon stops. The two would not get a chance to show their IDs anymore.
At the Wiedikon stop, a third officer was waiting – team leader Z., who had given the order for the operation. He had driven ahead in a vehicle and called for reinforcements to the spot. When Wilson A. eft the tram, officer X pepper sprayed him. The second officer pulled him forward, punched him in the abdomen and kicked him in the chest area where Wilson A.'s implanted defibrillator is located. The three officers continued to beat him with sticks on his upper body and legs, so that Wilson A – blinded and breathless – fell to the ground. Scared to death because of his fragile heart and the defibrillator in his chest, he screamed and tried to get back on his feet and to get free. The violence intensified. Wilson A., now half standing, was pepper sprayed again, directly in his face and eyes. Officer Y used insults like "Bloody African, go back to Africa!", gave him further knee jabs and strikes to the unprotected abdomen and chest area and pressed his thumb into Wilson A.’s left eye. Teamleader Z. put Wilson A. in a chokehold from behind, air and blood were squeezed out of him until he lay on his stomach semi-unconscious on the ground again, protecting the implanted defibrillator with his hands. While officer Y knelt on his back, team leader Z pulled his arms with brutal force first to the side, then to the back, and handcuffed them. Wilson A.'s respiratory distress from the chokehold became respiratory distress from the pressure on his back and chest. Painful entanglement and twisting of his legs resulted in a torn meniscus, which later required surgery.
Wilson A.'s friend, arms cuffed behind his back, was blocked from view a few feet away by Officer X Panicked and well aware of Wilson A.'s fragile heart, he screamed over and over, "Wilson, they will kill you!" Officer X silenced him by beating him with his baton. Reinforcements arrived, the two were loaded into a police vehicle and taken to the police station.
The hospital report found bruises and contusions on Wilson A.'s neck, throat and jaw, a fracture of the right process of the 2nd lumbar vertebra, a thigh strain, a meniscus tear, abrasions and bruises on both knees, bruises on the wrists, eye inflammation due to the pepper spray as well as hemorrhage of the conjunctiva in the left eye, swelling and pressure pains in the area of the lower abdomen, kidneys, next to the spine, on both lateral abdominal regions, behind the posterior peritoneum and below the diaphragm, severe swelling and bruising in the area of the sternum and of A.'s pacemaker.
In contrast, the photos of the officers' injuries testify to their own use of force: in the case of team leader Z., a barely visible scratch on his left arm, with which he had Wilson A. in a chokehold, and a slight abrasion on his right knee. Officer Y had small light abrasions on both knees. How could Wilson A. have inflicted abrasions on the knees of the two officers? They occurred when they pressed him belly-down on the ground.
Nevertheless, the police officers file a criminal complaint against Wilson A. and his friend B. for violence and threats against public servants the very same night. For this purpose, all three of them wrote their “Wahrnehmungsberichte” or accounts of events at the police station at the same time, and in a coordinated manner, in which they foresightedly – in order to counter accusations of racial profiling – invented a reason for the police check. On the basis of a wanted person's description, they claimed to have assumed that Wilson A. could be the wanted criminal. However the document in question, which only found its way into the investigation’s files four months later, shows neither a high degree of similarity between the wanted man and Wilson A., nor could the officers prove that they had already seen the wanted person report before the check. Rather, the maneuver turned out to be an invented construct and a protective allegation, just like the accusation that Wilson A. resisted. What specific violence he is accused of having committed and what threats he is said to have made are still unclear. The proceedings eventually petered out, the charges pure intimidation.
While the three officers wrote their accounts of events, Wilson A. was taken into custody instead of being taken immediately to the hospital. The chief on duty at the police station wrote in the arrest report, "Has no injuries." A forensic doctor examined him briefly, found no drugs or alcohol in his blood or urine, but also mentioned no injuries in his report. However, in view of the injuries and the alarming heart murmurs, the on-call doctor ordered immediate admission to the emergency department of the University Hospital.
The medical report from the emergency admission described the above-mentioned injury patterns, but without addressing the causes of the injuries and the possible danger to life. Wilson A.'s lawyer ould subsequently request a forensic expert opinion to clarify these issues several times during the course of the court proceedings to no avail. On 09.12.2009, Wilson A.'s treating physician wrote the following note to Wilson A.'s lawyer on the basis of the medical report and Wilson A.'s descriptions:
Since the patient has had an artificial heart valve implanted, he will be dependent on oral anticoagulation, i.e. thinning of the blood, for the rest of his life. This results in a very high risk of serious, possibly life-threatening blood complications. In particular, strangulation and blows to the trunk, neck and head can lead to severe bleeding, especially intracerebral bleeding.
Furthermore, Mr. A. states having received blows on the thorax, especially also on the ICD pacemaker. Here, there is a potential risk for pacemaker dysfunction up to rupture of the implanted pacemaker cables, which can lead to the triggering of life-threatening shocks. The use of pepper spray is also particularly problematic in a serious cardiac patient such as Mr. A, as it can induce sympathetic activation and tachycardia, which in turn can lead to the triggering of shocks in an ICD wearer.
Overall, it remains to be said that any physical force can have life-threatening consequences in a serious cardiac patient such as our Mr. A, who takes anticoagulation medication and wears an ICD designation.
Finding legal representation for proceedings against police officers is fundamentally a difficult undertaking. Lawyers know from experience that the entire judicial apparatus protects the police and that it often involves lengthy proceedings in which their efforts are never adequately compensated. It takes a lot of experience to counter the dodges of the authorities who often do everything they can to avoid convicting officers. Wilson A. received almost a dozen refusals until he found a lawyer in Bruno Steiner who was willing to represent him.
On 23.12.2009, Steiner filed charges on behalf of Wilson A. for abuse of authority, assault, endangerment of life and failure to render assistance.
The prosecutor in charge of the "Special Investigations" department made every effort to protect the police officers from trial and conviction. Twice she tried to stop the proceedings. Although these attempts failed once before the Cantonal Court and once before the Federal Court, she continued to refrain from any serious evidence gathering, questioning, and investigations that could incriminate the police officers. The charges she finally formulated, against her will, were only unspecific abuse of authority and simple bodily harm instead of endangerment of life, abuse of authority, violation of the prohibition of discrimination (racial profiling), and false accusation (the complaint against Wilson A.). She rejected all requests for evidence by Wilson A.'s lawyer.
From the Code of Criminal Procedure:
Art. 6 1. the criminal justice authorities shall clarify ex officio all facts significant for the assessment of the offense and the accused person. 2. they shall investigate the incriminating and exculpating circumstances with equal care.
In proceedings against police officers, the public prosecutor's so-called "Special Investigations" office becomes active. It has the task of providing the court with all the essential bases for assessing guilt and punishment. The public prosecutor's office has to present the court with a neutral and complete foundation of evidence on which the court's verdict can be based. Only once charges have been laid can there be a judgement; where the public prosecutor's office does not bring charges, no judgment can be made at trial. The preliminary proceedings thus largely determine the content of the judgement.
On 23.2.2010, the special public prosecutor was assigned the task by the Cantonal Court of opening criminal proceedings against the three police officers and conducting the preliminary investigation. Based on the criminal complaint filed by Wilson A. and his lawyer, the following charges, among others, were to be investigated: attempted grievous bodily harm and endangering life; abuse of authority and violation of the prohibition of discrimination (racial profiling); false accusation (the criminal complaint against Wilson A. for violence and threats).
Wilson A. was first questioned about the events of the crime 8 months after the incident. His friend and witness B. only after 13 months. Shouldn't the prosecutor have heard both of their accounts first, in order to know which criminal acts of the police officers involved should be investigated more closely and which detailed questions they should be asked? Is it usual in normal proceedings to question the perpetrator first and the victim only months later? In general, the prosecutor did not seem to be interested in the accounts of the victims; she did not even conduct the questioning herself, but commissioned a legal secretary to do so. The secretary dragged out the questioning for hours, treated Wilson A. like a defendant, repeated the same questions over and over again, and continued for so long that Wilson A. could not start his job as a chauffeur on time that day. He was given no access to the phone in the courthouse, arrived late at work, and was subsequently fired without notice.
While Wilson A. and his lawyer were not given the opportunity to participate in the interrogation of the officers in May 2010 – which is in itself against procedural law – the questioning of the victims took place in the presence of the police officers and their lawyers – a stressful and humiliating situation. In the case of B., the questioning led to retraumatization; he broke down and repeated over and over again, in tears, that he was convinced his friend was going to die.
Despite the multiple injury patterns on Wilson A., the prosecutor only charged the three police officers with simple assault. The request for a medical forensic expert opinion which could have provided information with regard to the use of the chokehold and the endangerment of life in particular, through among other things suffocation in the prone position and the shocks and blows in the area of the implanted pacemaker, was rejected without explanation. She also refused to question Wilson A.’s family doctor and attending cardiologist. Furthermore she refused to question the station chief regarding the physical and psychological condition of Wilson on arrival at the police station, the reinforcement team called in regarding the situation encountered (chokehold), and the wives of Wilson A. and of B. regarding their injuries and emotional condition immediately after the incident. Wilson A.’s testimony: "I couldn't breathe. He was pushing hard against my neck. I thought he was going to kill me. I almost didn't get any air. I couldn't breathe because of the pepper spray. Nevertheless, Mr. Z. pressed against my neck. I thought they wanted to kill me. As I was on the ground I was thinking about my wife and daughter. I couldn't breathe anymore." Team leader Z. denied having choked Wilson A. His two subordinates claimed not to have seen anything.
The second charge related, among other things, to the identity check: was it based on sufficient suspicion? Or was it a discriminatory act of racial profiling? "Police checks may not be carried out without cause, but there must be specific circumstances, such as conspicuous features with regard to persons, locations or circumstances, which call for appropriate police action." Here the circle closes with the case of Mohamed Wa Baile, because the quoted sentence comes from the judgment of the Cantonal Court, based on a Federal Court decision, in which it was determined that there was not sufficient basis for his police check in Zurich main station (VB.2020.00014, judgment of the Cantonal Court of Canton Zurich). But the legitimate question, of why they of all people were being controlled, was answered by the officers with beating and violence.
The wanted notice from the canton of Aargau, which the three officers mentioned in their "accounts of events" (with almost identical wording) as the reason for the control, would turn out to be a protective claim; team leader Z. can neither prove that he was already aware of this wanted notice at the time of the check, nor does the wanted French-speaking man "type North African" (quote wanted notice) resemble the two Black Africans. But the prosecutor did not pursue this inconsistency either. It would have been easy to check when Z. had accessed the reporting syste – whether before the operation or only later in the night when they formulated their accountss. The claimed wanted report did not come into the files until 6 years later, after repeated requests by lawyer Steiner. On the recommendation of his lawyer, team leader Z. had printed it out three weeks before his first interrogation, on14.04.2010. Subsequently he kept it privately instead of immediately putting it on file for the investigation. In this way he did not access the police internet for official reasons, but exclusively for his personal use in the context his defense, making him also guilty of violating official secrecy. In any case, the document had the defect that it did not contain any data about the date of access, which should have prompted the public prosecutor at least to demand this information afterwards.
Quite apart from that, the prosecutor could have verified by a simple reconstruction of the position of the vehicle and the tram at the time of the "discovery" whether it was at all possible for the officers to recognize any alleged similarity between the wanted person and one of the two persons subjected to the police check. She also waived this. She rejected any requests for evidence by the lawyer, but not without asking the lawyer of the team leader what he thought about this … Since when is a defendant or his lawyer asked by the investigating authority for an opinion on the collection of evidence?
The prosecutor deliberately omitted or neglected everything else that could have shed light on the lack of credibility of the undoubtedly agreed upon "accounts of events" and statements of the three officers. Regarding the allegation that Wilson A and his friend B. had repeatedly and physically resisted an identity check in the tram ("violence and threats"), she neither asked further questions nor clarified whether there were any witnesses. It seems highly improbable that such a multiple, persistent and even physical refusal could have happened during the ride in the tram, which lasted barely 50 seconds, during which a radio call was issued and team leader Z. was also on the phone with the control center to call for reinforcements. Rather, Wilson A. pointed out his precarious state of health and the previous heart surgery and requested not to be touched. If the prosecutor had clarified all this thoroughly, she should have pressed charges against the officers for false accusation and violation of their professional duty to tell the truth. Lies are permitted in the case of defendants for their own exoneration, but not to incriminate others. In the same vein, law enforcement officials are not supposed to prevent a lie from being proven as such. The prosecutor, however, did just that, she not only inadequately investigated the case, but she also dismissed all requests for evidence by Wilson A. and his lawyer.
All in all, the public prosecutor not only failed in her responsibility to sufficiently investigate the facts of the case, but she also gave preferential treatment to the accused police officers and became an accomplice to their constructs and lies. If she is not to be accused of lack of competence, her behavior must be seen as a deliberate manipulation of the proceedings; for what the accused are not charged with, cannot be judged in court. The public prosecutor herself is thus suspected of committing an abuse of office and of clear bias.
On 06.12.2010, the public prosecutor made the first attempt to dismiss the proceedings against the officers, i.e. she wanted to acquit them herself without a judicial verdict. Contrary to the legal provisions, she did not inform Wilson A. and his lawyer in advance of her intention to dismiss the case and did not set a deadline for the submission of motions for evidence. On 11.01.2011, Wilson A. and lawyer Steiner filed an appeal and complaint about the denial of the basic right to participation and involvement to which they were entitled.
15 months pass …
On 12.04.2011, the Cantonal Court of Canton Zurich approved the appeal.
However, the public prosecutor did not resume proceedings, but only granted Wilson A. and his lawyer the right to ask questions during the subsequent three individual hearings for the officers involved, from the end of September to the beginning of December. At this stage the three officers refused to answer any questions. With the prosecutor, they had simply denied any inappropriate use of force, as they could rely on the fact that no critical follow-up questions or further evidence gathering would follow. But they did not want to submit to the possibly more detailed questioning by Wilson A.'s lawyer.
Without taking any further steps, the public prosecutor announced on 13.12.2011 the renewed closure of the case. This time she set a deadline for the submission of motions for evidence. In addition to a medical forensic report, lawyer Steiner requested, among other things, the examination of further witnesses and the questioning of the attending cardiologist and the family doctor.
Almost 13 months pass …
On 06.02.2012, the public prosecutor rejected all requests for evidence without giving a detailed and comprehensive explanation. Two days later, for the second time, she ordered the dismissal of the case against the officers. Wilson A. and his lawyer Steiner again filed a complaint against this.
15 months pass …
On 05.06.2013, the Cantonal Court rejected the appeal against the discontinuation order. In the meantime, Wilson A., with the help of lawyer Steiner, was still fighting for free legal representation, which the Cantonal Court denied on 15.05.2012, on the grounds that Wilson A. did not need legal representation as he could formulate his claims for compensation himself and that the public prosecutor investigated the case professionally and with commitment. The Federal Supreme Court confirms that free legal representation must be granted.
Finally, on 24.06.2014, Federal Supreme Court also overturned the decision of the Cantonal Court to dismiss the case and ruled that charges must be pressed, including for endangerment of life.
In the pre-trial proceedings, as already mentioned, the public prosecutor’s task is to investigate neutrally and to treat all parties in the proceedings equally and fairly. She may not favor one party to the detriment of another. However, as soon as charges are filed, her role changes and she has to represent the prosecution. Given her behavior during the pre-trial proceedings, the prosecutor in the Wilson A. case could not be expected to press charges against the officers, as she had so far omitted and refused to do anything that could actually clarify the events and incriminate the officers. Lawyer Steiner therefore asked her to voluntarily hand over the case and to declare herself to be biased. The prosecutor refused. Thus, on 29.08.2014, Steiner filed a motion with the Appeals Board of the Cantonal Court requesting that the prosecutor step aside. The Cantonal Court did not act on it, the request was said to have been filed too late. Steiner took the bias complaint to the Federal Supreme Court. The Federal Supreme Court rejected the bias complaint on 12.05.2015. It expressed confidence that everything had proceeded within the usual framework and that the public prosecutor would now certainly conclude the investigation swiftly and in a timely manner.
9 months pass …
On 05.02.2016, the public prosecutor pressed charges (unwillingly) and requested a conditional fine of 100 daily penalty units (dependent on salary) only for unspecific abuse of authority and simple assault. Contrary to the decision of the Federal Court, she simply removed the charges of racial profiling, excessive use of force, and life-threatening chokeholds from the case via a written note. In the meantime, nearly six and a half years had passed. The statute of limitations, which is seven years for simple assault, was imminent should this be the judge’s ruling, which the prosecutor probably expects.
A full seven years after the incident, the first hearing against the accused officers took place at the Zurich District Court. The public prosecutor was supposed to represent the prosecution in court, but she did not even appear at the first hearing. At the main hearing before the collegiate court in spring 2018, she pleaded for acquittal. The court followed her request, heard no further evidence and acquitted the officers on all charges. Wilson A. and his lawyer filed an appeal with the Cantonal Court.
On 21.11.2016, the trial took place in the District Court before a single judge. The public prosecutor did not represent the prosecution – she simply did not show up at the trial. After the first session, the district judge decided to interrupt the trial. He pointed out that, based on the doctor's report, life could very well have been in danger and that the public's interest in a comprehensive judicial assessment in the present case was high, especially in view of the fact that police officers were accused and the injured party was a Black person. Ultimately, he stated, the credibility of the judiciary and the guarantee of a fair trial are at stake. He referred the indictment back to the public prosecutor and instructed her to add endangerment of life to the indictment.
On 29.11.2016, the prosecutor complied with the instructions of the judge, however, she continued to refrain from obtaining any evidence, did not look into any aspect of unlawfulness of the police check and requested exactly the same sentence of 100 daily penalty units, which is in no way an fair sentence for the charges of attempted grievous bodily harm and endangerment of life. Once again, the district judge in charge did not play the game. Since he, as a single judge, could only pronounce prison sentences of up to one year and the upper limit for endangerment life is five years' imprisonment, he declared himself not competent and referred the case to a collegiate court. In doing so, this single judge behaved correctly and fairly, but at the same time passed the case on to others. The district judge presiding over the three-judge panel henceforth took charge of the proceedings.
Since the public prosecutor had once again proven that her objective ìwas that of an acquittal, Wilson A. and his lawyer once again asked her to recuse herself. She refused and referred the bias complaint to the district judge in charge of the proceedings, although it was not he but the Appeals Chamber of the High Court who would be responsible for this.
The presiding district judge considered himself competent, contrary to the legal provisions, and rejected the bias complaint. He said that the question of bias can be discussed, if at all, at the main hearing. The prospect of a fair trial faded.
Lawyer Steiner once again submitted motions for evidence to the District Court together with a list of questions: among other things, he demanded a medical report, the questioning of the attending cardiologist, an expert on irritants and an expert on instruction and training, as well as the records on team leader Z.'s wanted notice.
The presiding district judge rejected all requests for evidence, according to him they would provide no extra knowledge. How could he know this without taking notice of the contents of the documents and interviews?
Wilson A. and his lawyer were thus forced to file a complaint of bias against the presiding district judge as well. On 16.08.2017, the Cantonal Court decided that there was no evidence of bias. Due to time constraints it was not possible to appeal this decision at the Federal Supreme Court, and the proceedings had now lasted almost eight years.
For the main hearing, which was scheduled for16.04.2018, the presiding district judge requested special protective measures: he demanded a large police contingent of both uniformed and civilian personnel and a squad with one or two dogs … without any specific reason for such measures.
In addition, the judge denied Wilson A. the right to be heard by not offering him the opportunity to comment on an extensive diatribe by the defense counsel for team leader Z.
16-1.04.2018: After eight and a half years, the main hearing finally took place before the first instance. The public prosecutor should represent the prosecution against the officers. Instead, she behaved as if she was their chief defense lawyer and pleaded for full acquittal. The court was not bothered by this. On the contrary, it continued to reject all motions for evidence without further explanation, did not care about the obvious voids and omissions in the preliminary investigation, and did not subject either the statements of the officers or those of the two victims (Wilson A. and his friend B.) to serious analysis with regard to their credibility, completeness, and closeness to reality. The three officers were fully acquitted on the second day of the trial. On the following day, the District Court published a press release – contrary to custom and, what is more, containing completely false and tendentious allegations.
The written statement on the reasons for the verdict, which is normally expected within three months, arrived five and a half months later, on 01.10.2018. Lawyer Steiner filed an appeal.
In the meantime, the proceedings have lasted ten years. For health reasons, lawyer Steiner had to hand over his mandate to a new official legal representative, but continued to provide council to Wilson A, free of charge. The high court judge conducting the proceedings was not interested in fully granting the legal hearing of the victims' representation and, like his predecessor in the District Court, rejected any requests for evidence by the two lawyers. He also refused to hear the testimony of the two subordinate officers, whose acquittal became final after the appeal was withdrawn. Thus, the two officers could not be forced to give truthful information in court about the incidents, in particular about an ominous wanted notice, which was supposed to have been the reason for the police check on persons in the tram, or about the life-threatening chokehold, the occurrence of which the still accused group leader completely denied.
The denial of the right to be heard and the obvious bias of the high court judge conducting the proceedings prompts the new official legal representative of Wilson A., to file a bias complaint against the high court judge.
The persistence with which Wilson A.'s two lawyers demanded the right to a fair trial became, it seems, too much for the high high court judge. As a result, he virtually tried to eliminate Wilson A.'s legal representation. In full knowledge of the health impediments of lawyer Steiner and against Steiner's declared will, he transfered the full mandate to Steiner and dismissed the new official defense lawyer. Thus, Wilson A. would have been left without adequate legal representation at the main hearing, which was scheduled 22.11.2021. Only a doctor's certificate proving Steiner's inability to work prompted the high court judge to cancel the main hearing.
Due to this behavior, Wilson A. and his lawyer decided to file another bias complaint against the presiding high court judge, but also a criminal complaint for abuse of office, coercion, and favoritism. The complaint of bias was rejected by the parallel criminal division and is currently pending before the Federal Supreme Court. The criminal proceedings required a prior so-called enabling procedure before the Zurich Cantonal Parliament. In a decision dated 05.10.2022, the executive board of the Zurich Cantonal Parliament, acting on the recommendation of the judicial commission, refused to lift the immunity of the presiding high court judge. In doing so, it prevented a judicial investigation of his conduct of proceedings, acquitted him on its own authority and continued to assign him to Wilson A. as high judge.
12 months pass …
Since lawyer Steiner was struggling with health problems, lawyer Walder took over the mandate as legal representative of Wilson A. for the second instance; Steiner continued to give council free of charge as second lawyer.
On 11.11.2019, lawyer Walder revoked the appeal against the two subordinate officers*; as the person in charge, team leader Z. was to stand alone under indictment: he was in command, he put Wilson A. in mortal danger with his chokeholds. For the public prosecutor, the opportunity opened up for the two subordinate officers to be questioned as witnesses; they would then have to provide truthful information and would not be allowed to refuse to testify or lie.
The new head of proceedings at the Cantonal High Court refused to hear the two acquitted officers as witnesses. The evidence was clear and the questioning would not bring any further insights. He announced that the dismissal of the charges against the two would only take place at the appeal hearing – which means that they would formally remain in the proceedings and could not be forced to tell the truth about the violence.
The presiding high court judge also rejectd all other requests for evidence without the legally required justification: obtaining a medical forensic report, questioning additional experts, consulting the wanted register, and many more. The wall of silence and lies was maintained with the help of the presiding high court judge. His verdict was obviously already determined without a trial.
On 25.11.2019, lawyer Walder filed a bias complaint against the presiding high court judge for his apparent bias and partiality. If the two subordinate officers were not dismissed from the proceedings, they would continue to receive all correspondence and have access to the newly produced files. This instead of questioning them as witnesses. In this way, the presiding high judge conducting the proceedings placed himself under suspicion not only of bias, but also of abuse of office and violation of official secrets.
Three months later, the chief judge of another penal chamber of the High Court rejected the bias complaint against his colleague. According to him, the fact that the acquitted police officers had not been released from the proceedings was legal. The fact that all motions for evidence had been rejected, too. Lawyer Steiner's comment on this:
The high court judges know each other, work together, have their offices next to each other and operate the same coffee machine. They come from the few political parties that are allowed to provide high court judges at all, take part in the caucus outings and represent their very specific, common professional interests, especially when they assume that they could find themselves in similar situations.
One can look into the density of the relationships and connections as much as one likes. The colleagues responsible for the decision in the chambers, which are separated only administratively, spend more hours at the court than in their own families. There is a rigid esprit de corps, an unforgiving pressure to conform, which hardly anyone can escape. To affirm a bias would be understood as collegial perfidy. It is a sham to try to understand the assignment to different chambers as a criterion for possible impartiality.
In the following months, the lawyers Steiner and Walder submitted further motions for evidence together with extensive lists of questions, which were also rejected by the presiding high court judge: According to him, no new findings were to be expected, the evidence was clear – the perspective of the affected persons and their legal representatives were denied a hearing.
On 14.04.2021, lawyer Steiner submitted a number of questions to the senior judge presiding over the proceedings regarding the conduct of the22.11.2021 appeal trial; including whether there would be a speaking time restriction and whether subordinate officers X and Y, whose acquittal had actually been final since November 2019, could be questioned.
Instead of answering the questions, the presiding high court judge asks Steiner and Walder on 30.04.2021, to decide which of them now wanted to represent Wilson A. (Walder was the mandatory legal representative; Steiner had withdrawn for health reasons and was assisting free of charge). It is the right of every defendant and also of every victim of violence to be represented by more than one lawyer if necessary. Wilson A. was not asked for his opinion.
01.06.2021: Steiner repeated to the presiding high court judge that he could notaccept the mandate because of his health circumstances (chemotherapy; hearing loss); Walder remained mandatory legal representative, he, Steiner would support free of charge and take over a small part of the representation in court. Lawyer Walder fully confirmed this factual situation to the presiding high court judge.
On 13.07.2021, the presiding high court judge conducting the proceedings reacted in a surprising and unbelievable way: He ordered that lawyer Walder be dismissed as official representative and that Steiner take over the mandate free of charge – against Walder's will and in the knowledge that Steiner neither wanted nor was able to take over the full mandate for health reasons.
In the following months, the presiding high court judge attempted to definitively eliminate Wilson A.'s right to legal representation. He asked the dismissed lawyer Walder to submit his plea notes in order to send them to a possible new official mandatory representative. Walder submited the plea notes with the contents redacted. Subsequently, the presiding high court judge demanded from Wilson A., with a non-extendable deadline of 5 days (including a weekend), that he should name a new official mandatory representative; if he did not do so it was assumed that he definitively waived an official legal representative.
The confirmation of Wilson A. that he still wanted lawyer Walder as his mandatory legal representative and that Steiner supported him free of charge is subsequently ignored by the presiding high court judge at least three times. Again and again he put Wilson A. under pressure with five-day deadlines to name a new legal representative; otherwise a waiver is assumed.
On19.10.2021, the presiding high court judge ruled that no official representative was available for Wilson A.; that no specific person had been named who could take the mandate; Wilson A. would therefore have waived his right to official legal representation. He summoned Wilson A. without legal representation to the appeal hearing on November 22.
Steiner considered the conduct of the presiding high court judge to be an abuse of office and coercion and on 13.11, he asked him to step aside due to obvious hostility and bias. The presiding high court judge immediately rejected the bias complaint concerning himself by order (three days later, on 16.11.2021) and simply refused to refer it to the Appeals Board. In the same order, he rejected the request for postponement of the hearing and declared Steiner – against his express will due to health problems – as Wilson's representative; but not without imposing on him a speaking time limit of two hours for his plea.
Wilson A. then reported the presiding high court judge, with Steiner's support, to the Chief Public Prosecutor's Office of Canton Zurich for abuse of office, possibly coercion, and favoritism. For these proceedings – but not for the main trial – Steiner officially took over again the representation of Wilson A. For criminal proceedings against the high court judge to actually be initiated, the
Zurich Cantonal Parliament would first have to lift his immunity.
Undeterred by all this, the presiding high court judge planned to hold the appeal hearing before the high court on 22.11.2021. The two acquitted officers X and Y could not have been questioned as witnesses. The prosecutor would have again pleaded for acquittal, contrary to her duty to represent the prosecution. Wilson A.'s official legal representative had been dismissed. Lawyer Steiner would have been forced against his will to give the entire plea, with a speaking time limit of two hours, even though it takes more than two hours to present to the court that the opportunity for a fair trial has been obstructed at all levels that have been gone through so far. Given the situation, lawyer Steiner felt compelled to disclose more of his personal life than he would have liked and to submit a doctor's certificate showing his inability to work due to chemotherapy from 15.11 to 08.12, 2021.
This medical certificate leads the presiding high court judge to cancel the 22.11.2021 hearing.
As of this point, two proceedings against the presiding high court judge were running in parallel: a bias complaint and a criminal complaint for abuse of office, coercion and favoritism. According to cantonal law, the criminal charges can only be prosecuted if the Cantonal Parliament waives the high court judge's immunity by a so-called enabling decision. By refusing to lift the immunity, the Cantonal Parliament would prevent a judicial assessment of whether the high court judge has acted in a criminal manner. This contradicts the separation of powers as well as the Federal Constitution and the European Convention on Human Rights.
On 13.11 and 17.11.2021, lawyer Steiner filed a motion on behalf of Wilson A. for a declaration of bias by the presiding high court judge, which he justified in detail based on his previous conduct and the course of the proceedings to date.
It took seven months for the decision to be made: Criminal Division II of the High Court saw no signs of bias on the part of the presiding high court judge and rejected the request for bias on 15.06.2022. Wilson A. was ordered to pay the costs of the proceedings.
Steiner refered the decision to the Federal Court and, if necessary, will take it to the European Court of Human Rights.
The criminal complaint against the presiding high court judge was referred to the Office of the Public Prosecutor of the Zurich Canton on January 28, 2022. One month later, the chief public prosecutor informs the judicial commission of the Cantonal Parliament that he is not competent and that he has no objection to an empowerment procedure (lifting of the immunity of the presiding high court judge).
Thus, the assessment of the jurisdiction of the high court judge was delegated to the political authorities. This corresponds to a cantonal law on the enabling procedure, the purpose of which is to "protect state officials from malicious prosecution." This law contradicts the Constitution and the European Convention on Human Rights, especially since it abrogates the separation of powers in the event that the waiver of immunity is rejected. The Cantonal Parliament, if it did not waive immunity, would pronounce a legal judgment, de facto acquitting the high court judge.
A parliamentary decision not to allow the waiver of the high court judge's immunity would also contradict the Code of Criminal Procedure (Article 310), according to which a criminal investigation can only be waived if a complaint is manifestly unfounded. This would certainly not be the case here.
On 28.03.2022, lawyer Steiner requested a legal hearing and access to the dossier on behalf of Wilson A. from the Judicial Commission. The Judicial Commission refused him twice, even after Steiner made clear once again in May 2022 that the Commission was thus violating the Federal Constitution and the European Convention on Human Rights.
In August 2022, the Alliance Against Racial Profiling also wrote a letter to the management of the Cantonal Parliament, asking the Judicial Commission to allow an investigation and to give Wilson A. the opportunity to present his case.
On 05.10.2022, the executive board of the Zurich Cantonal Parliament announced its decision not to lift the immunity of the presiding high court judge, i.e. not to allow a criminal investigation. Thus, a political authority rendered a legal sentence acquitting the judge from the outset – although the chief public prosecutor saw reason to believe a criminal offense had been committed and had requested that immunity be lifted so that criminal proceedings could be conducted against the judge. In doing so, the executive board of the Zurich Cantonal Parliament invoked a passage from a Federal Supreme Court decision according to which "in the area of state activity, criminal proceedings may also be waived for considerations outside of criminal law – such as reasons of expediency and considerations of state policy".
Sources: Court records; reports by lawyer Steiner
L'Alliance contre le profilage raciste dépend des dons pour son travail de protection contre la discrimination structurelle. Nous vous remercions pour tout soutien !
Nom du compte : Alliance contre le profilage racistel
Numéro de compte : 15-272391-5
IBAN : CH17 0900 0000 1527 2391 5
BIC : POFICHBEXXX
Adresse postale : Klusstrasse 28 – CH 8032 Zurich
Vous pouvez verser la cotisation de membre sur le compte postal avec la mention "cotisation de membre". La cotisation annuelle pour les membres individuels est facultative, chaque membre individuel décide lui-même du montant. La cotisation annuelle pour les membres collectifs est d'au moins 100.– CHF par an.
Nous ne faisons pas de travail de conseil. Le "Réseau de centres de conseil pour les victimes du racisme" est un réseau de 26 centres spécialisés de toute la Suisse qui proposent des consultations en cas de discrimination de caractère raciste.