CASE OF KADUSIC v. SWITZERLAND

THIRD SECTION

CASE OF KADUSIC v. SWITZERLAND

(Application no. 43977/13)

JUDGMENT

STRASBOURG

9 January 2018

FINAL

09/04/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kadusic v. Switzerland,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Branko Lubarda,
Luis López Guerra,
Helen Keller,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 7 March, 9 May and 12 December 2017,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 43977/13) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Mr Mihret Kadusic (“the applicant”), on 1 July 2013.

2. The applicant was represented by Ms S. Sutter-Jeker, a lawyer practising in Basle. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann.

3. The applicant alleged, in particular, that there had been an insufficient causal link between his criminal conviction, handed down at first instance on 27 May 2005 and upheld on appeal on 12 January 2007, and the institutional therapeutic measure subsequently ordered in respect of him, and that this amounted to a violation of Article 5 § 1 (a) of the Convention.

4. On 21 May 2015 the Government were given notice of the complaints under Article 5 § 1 and Article 7 of the Convention and Article 4 of Protocol No. 7 to the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and is currently detained in Bostadel Prison, in Menzingen.

6. In a judgment of 27 May 2005 the Criminal Court of the Canton of Basle Urban (“the Criminal Court”) found the applicant guilty, on account of acts committed between 2000 and 2004, of robbery, endangering life, assault with a dangerous object causing multiple bodily injuries, multiple acts of coercion, multiple offences of receiving stolen goods, and offences under federal legislation on drugs, road traffic and weapons. The Criminal Court sentenced him to eight years’ imprisonment, after deducting periods spent in pre-trial detention from 22 May to 25 June 2003 and from 3 May 2004 until the delivery of the judgment. In addition, the Criminal Court declared enforceable a twelve-month custodial sentence that had been suspended when handed down on 2 May 2001, for theft and attempted coercion. On 19 July 2005 the applicant was transferred to Bostadel Prison.

7. In a judgment of 12 January 2007 the Court of Appeal of the Canton of Basle Urban (“the Court of Appeal”) dismissed an appeal by the applicant, essentially upholding the first-instance judgment. In a judgment of 12 May 2007 the Federal Court dismissed a subsequent appeal by the applicant.

8. In a letter dated 4 July 2007, addressed to the intercantonal commission for the assessment of the dangerousness of offenders in the Cantons of Solothurn, Basle Urban and Basle Rural (“the intercantonal commission”), the applicant asked for the conditions of his sentence to be relaxed. The intercantonal commission submitted its report on 29 October 2007. It found that it was premature to grant any adjustments other than the opportunity to work in an outside environment, on the grounds that the applicant, who did not have a mental illness or a personality disorder, had not shown willingness to “come to terms with his criminal past”. The intercantonal commission thus concluded that the applicant was to be regarded as a danger to the public. It recommended an expert psychiatric assessment and vocational guidance measures, and acknowledged that the applicant could work in an outside environment but could not be granted any other adjustments of the conditions of his sentence, such as being able to spend the holidays with his father.

9. Acting on instructions from the Department of Justice of the Canton of Basle Urban, Dr R.A., a psychiatrist and psychotherapist, issued a psychiatric opinion on 24 September 2008 after examining the applicant in person, and diagnosed him as having moderate paranoid and narcissistic personality disorders (World Health Organization International Classification of Diseases – ICD-10), with full criminal responsibility. Dr R.A. found that these disorders had already been present at the time when the offences had been committed. He also noted that the applicant was not prepared to engage in self-reflection and to change his attitude, meaning that there would generally be a high risk of reoffending, and concluded that the prognosis was highly unfavourable.

10. On 15 October 2008 the governor of Bostadel Prison drew up a progress report on the applicant’s detention, in which he noted that there was a high risk that the applicant might escape and accordingly proposed that he be employed within the prison premises.

11. In a report dated 10 November 2008 the intercantonal commission found that the applicant represented a danger to the public, and recommended that no adjustments to the conditions of his sentence be ordered and that the appropriate court be asked to review whether the conditions for an (outpatient) therapeutic measure in conjunction with the sentence (vollzugsbegleitende therapeutische Massnahme) were satisfied (Article 63 of the Criminal Code). The intercantonal commission also recommended that should such a measure prove unsuccessful, consideration be given to converting the sentence into indefinite detention.

12. On 30 December 2008 the Department of Justice of the Canton of Basle Urban asked the Court of Appeal to ascertain whether, following its judgment of 12 January 2007, the conditions for ordering a therapeutic measure were satisfied. On 9 June 2009 the governor of Bostadel Prison issued a progress report on the applicant’s detention, in which he noted in particular that the applicant had refused any psychotherapy. In a judgment of 4 December 2009 the Court of Appeal held that there was no legal basis justifying a subsequent order for an outpatient therapeutic measure, but wondered whether it might be advisable to order institutional measures. To clarify this possibility, it proposed that an additional expert report be drawn up.

13. In a report dated 5 January 2010 the governor of Bostadel Prison noted in particular that the applicant had displayed good behaviour while working in an outside environment and that release on parole could therefore be envisaged, even if only for a limited period.

14. On 30 June 2010, in an additional report to the expert report of 24 September 2008, after examining the applicant in person, Professor A.E., a psychiatrist and psychotherapist, concluded that it was unlikely that an institutional therapeutic measure would serve any useful purpose, given that the applicant was not showing any motivation to change his attitude towards the offences he had committed and was incapable of developing empathy. She added that the applicant was not especially overawed, in emotional terms, by the sentence he was serving. However, she did not rule out all possibility of treatment, referring to some more promising therapeutic approaches.

15. On 7 July 2010, referring to the above-mentioned additional psychiatric report, the post-sentencing authority of the Canton of Basle Urban (“the post-sentencing authority”) asked the Court of Appeal to review whether, following its judgment of 12 January 2007, the conditions for ordering subsequent indefinite detention, or possibly an institutional therapeutic measure, were satisfied (Articles 64 and 59 of the Criminal Code respectively, taken together with Article 65; see paragraph 24 below). In submissions of 20 September 2010 the applicant asked the Court of Appeal to find that this was not the case.

16. On 17 December 2010 the governor and the sentence supervision officer of Bostadel Prison produced a report on the progress of the applicant’s detention, in which they noted that there was no obstacle to a gradual relaxation of the conditions of his sentence until his release on parole. In a letter dated 21 April 2011 to the Court of Appeal, they confirmed their findings of 17 December 2010.

17. In a judgment of 6 May 2011, after hearing evidence from Professor A.E. and the applicant’s representative that day, the Court of Appeal ordered the applicant’s subsequent indefinite detention under Article 65 § 2 of the Criminal Code, in its version in force since 1 January 2007. At the hearing that day, the applicant and his lawyer had had the opportunity to put questions to A.E.

18. In a judgment of 30 January 2012 the Federal Court partly upheld an appeal by the applicant against the Court of Appeal’s judgment of 6 May 2011, finding that the conditions for ordering subsequent indefinite detention were not satisfied. It noted that indefinite detention was an exceptional measure and could only be ordered with caution. It pointed out that in view of the significant restrictions this measure entailed for the person concerned, indefinite detention should be regarded as a last resort, and this applied a fortiori where it was ordered subsequently. It added that the indefinite detention of a young person who had received no previous treatment could only be justified if it was unlikely that within a period of approximately five years, therapy would lead to a significant reduction of the risk of reoffending.

In addition, the Federal Court noted that it was appropriate to consider whether an institutional therapeutic measure should be ordered. It found that it could not be ruled out that the applicant might respond favourably to psychological counselling. Accordingly, it quashed the judgment appealed against and remitted the case to the Court of Appeal for a fresh decision.

19. In a judgment of 22 August 2012 the Court of Appeal ordered an institutional therapeutic measure, in accordance with Article 65 § 1 of the Criminal Code, at the same time suspending the execution of the part of the sentence remaining to be served (“Der Restvollzug ... wird aufgeschoben ...”). Before giving judgment, the Court of Appeal had requested information from Professor A.E. In her reply dated 25 June 2012 she had affirmed, with reference to Article 59 § 3 of the Criminal Code, that in view of the type, severity and complexity of the applicant’s mental disorder, only an institutional measure was likely to meet his therapeutic needs to an adequate extent. She had also pointed out that the prisons in Thorberg (Canton of Berne) and Pöschwies (Canton of Zurich) had therapy departments (“Therapieabteilungen”) for the purposes of Article 59 § 3 of the Criminal Code and that this should be borne in mind.

20. According to the applicant, he should have completed his sentence on 19 March 2013, taking into account his pre-trial detention from 22 May to 25 June 2003 and from 3 May 2004 onwards (see paragraph 6 above).

21. In a judgment of 28 May 2013 the Federal Court dismissed an appeal by the applicant against the judgment of 22 August 2012, observing that the subsequent ordering of an institutional therapeutic measure was compatible with the Convention, from the standpoint of Articles 5 and 7 and of Article 4 of Protocol No. 7, and with federal law. More specifically, the Federal Court acknowledged that the law governing measures for offenders other than sentences (Articles 56-65 of the Criminal Code) applied retrospectively to criminal acts committed before the entry into force of the relevant law on 1 January 2007 (paragraph 2, sub-paragraph 1, of the transitional provisions of the 13 December 2002 amendment to the Criminal Code). The Federal Court left open the question of the application of the principle of non-retrospective application to institutional therapeutic measures ordered subsequently, pointing out that although such measures were to be regarded as a penalty within the meaning of Article 7 of the Convention, the fact that such a measure had been ordered subsequently in the applicant’s case had not resulted in a heavier penalty being imposed on him than the one applicable under the law in force when the criminal acts had been committed, seeing that the measures provided for under the former law (Article 43 of the Criminal Code, in force until 31 December 2006) had been at least as strict as those applicable under the new law; that being so, there had been no breach of the principle of non-retrospective application in the present case. Regarding Article 5 § 1 (a) of the Convention, the Federal Court noted that although a subsequent order for an institutional therapeutic measure was inherently at variance with the binding nature of the principal judgment, there had to be a sufficient causal link between the judgment and the measure for the subsequent detention ordered in the context of review proceedings to comply with that Convention provision. Such a link had been present in his case. With regard to the ne bis in idem principle, after noting that Article 4 § 2 of Protocol No. 7 to the Convention provided for a number of exceptions to that principle, the Federal Court observed that the review conducted in the present case for the purposes of ordering a subsequent institutional therapeutic measure on the basis of the applicant’s serious mental illness, which had already been present but had not been detected at the time of the initial judgment, did not constitute a second penalty in respect of him.

In response to the applicant’s argument that the expert medical opinions no longer reflected his current psychiatric condition, the Federal Court pointed out that the extremely detailed expert opinion of 24 September 2008 had been supplemented by the report of 30 June 2010 and corroborated by the expert’s oral statements at the hearing on 6 May 2011 concerning the diagnosis and the risk of reoffending. The Federal Court thus concluded that the expert opinions reflected the applicant’s current state of health.

22. Having been invited by the Court to provide information about the applicant’s current situation, the parties submitted observations on the matter. In a letter dated 26 May 2016 the applicant informed the Court that he was still in Bostadel Prison, and had been there since 19 July 2005 (see paragraph 6 above). He maintained that he was not receiving any treatment or therapy.

In a letter dated 31 May 2016 the Government confirmed that the applicant was still in Bostadel Prison. They added that the prison offered programmes, in the form of therapeutic services provided by the Forensic Institute of Central Switzerland (Forensisches Institut Zentralschweiz (forio)), aimed at treating disorders such as those affecting the applicant. The Government stated that he had categorically refused to undergo any (psychiatric) treatment whatsoever and had justified his refusal by referring to the proceedings pending before the Court.

Both parties appended reports by Bostadel Prison on the applicant’s behaviour. The reports indicated that his behaviour was decent and discreet, including in the context of his work assignments.

II. RELEVANT DOMESTIC LAW

23. The provisions of the former Criminal Code of 21 December 1937, as in force until 31 December 2006, were worded as follows:

Article 42 (Security measures: detention of habitual offenders)

“1.  The court may replace a sentence of imprisonment with indefinite detention if, after committing multiple intentional criminal offences for which he has been deprived of his liberty for a total of at least two years, whether as a result of sentences of imprisonment, or as a result of a vocational training measure or after having already been detained indefinitely as a habitual offender instead of serving custodial sentences, the offender, within a period of five years following his final release, commits a further intentional criminal offence indicating his criminal tendencies. If necessary, the court shall order an examination of the offender’s mental state.

2.  The detention shall take place in an open or secure facility, not including institutions for first offenders, prisons for minor offences, vocational training facilities or institutions for alcoholics.

3.  The detainee shall be required to perform any work assigned to him. After a period equivalent to half the sentence, but not less than two years, a detainee who has displayed good conduct may be employed outside the institution. In exceptional cases, this adjustment may be granted to other detainees if their condition so dictates.

4. The detainee shall remain in the institution for a period equivalent to two-thirds of the sentence, but no less than three years, after deduction of any period of detention on remand counting towards the sentence. The competent authority shall order conditional release for three years once the minimum period prescribed for such release has expired, if detention no longer appears necessary; it shall place the released person under supervision. In the event of a return to detention, the minimum period of the further detention shall generally be at least five years.

5. On a proposal by the competent authority, the court may in exceptional cases terminate the detention before the expiry of its minimum period if it is no longer justified and two-thirds of the duration of the sentence has elapsed.”

Article 43 (Measures concerning offenders with mental disorders)

“1. Where the mental state of an offender who, by reason of that state, has committed an act punishable by imprisonment under this Code requires medical treatment or special care intended to remove or reduce the risk that the offender might commit other such punishable acts, the court may order that he be sent to a hospital or an asylum. It may order outpatient treatment if the offender does not represent a danger to others.

If, on account of his mental state, the offender poses a severe threat to public safety and such a measure is necessary to prevent a danger to others, the court shall order his indefinite detention. The detention shall take place in an appropriate institution. The court shall deliver its judgment on the basis of an expert opinion concerning the offender’s physical and mental condition, and the necessity of detention, treatment or care.

2. In the case of indefinite detention or admission to a hospital or asylum, the court shall suspend the execution of a custodial sentence. Where outpatient treatment is ordered, the court may suspend the execution of the sentence if it is not compatible with the treatment. In such circumstances, it may order the convicted person to comply with rules of conduct in accordance with Article 41 § 2 and, if necessary, place him under court supervision.

3. Where treatment in an institution is ended owing to lack of success, the court shall decide whether and to what extent any suspended sentences are to be served. If outpatient treatment is deemed to be ineffective or to pose a danger to others and the offender’s mental state nevertheless requires special treatment or care, the court shall order the offender’s admission to a hospital or an asylum. Where treatment in an institution is unnecessary, the court shall decide whether and to what extent any suspended sentences are to be served. In place of such sentences, the court may order another security measure if the relevant conditions are satisfied.

4. The competent authority shall terminate the measure where its purpose has ceased to exist. If the reason for the measure has not entirely subsided, the competent authority may order release from the institution or from the treatment on a probationary basis. The released person may be placed under court supervision. The probation or supervision shall be discontinued if they are no longer justified. The competent authority shall forward its decision to the court prior to the release.

5. After hearing evidence from the medical officer, the court shall decide whether and to what extent any suspended sentences are to be served from the time of release from the institution or from the end of the treatment. It may discharge the sentence in full if there is cause to fear that the effects of the measure would be seriously undermined by completing the sentence. The duration of detention following the implementation of an institutional measure shall be counted towards the sentence that was suspended when the measure was ordered. When giving notice of its decision, the competent authority shall state whether it considers that the serving of the sentence would have a detrimental effect on the released person.”

24. The relevant provisions of the new Criminal Code, in force since 1 January 2007, are worded as follows:

Article 56 (Principles)

“1.  A measure shall be ordered if:

(a) a penalty alone is not sufficient to counter the risk of further offending by the offender;

(b) the offender needs treatment or public safety so requires; and

(c) the requirements of Articles 59-61, 63 or 64 are fulfilled.

2. The ordering of a measure presupposes that the resulting interference with the offender’s personality rights is not disproportionate in view of the likelihood and seriousness of further potential offences.

3. When ordering a measure under Articles 59-61, 63 and 64 or amending a sanction in accordance with Article 65, the court shall base its decision on an expert assessment. This shall include an opinion on:

(a) the necessity and the prospects of success of any treatment;

(b) the nature and likelihood of further potential offences; and

(c) the possible ways of implementing the measure.

4. If the offender has committed an offence within the meaning of Article 64 § 1, the assessment must be conducted by an expert who has neither treated the offender nor been responsible in any other way for his care.

4 bis. If consideration is given to ordering lifelong detention in accordance with Article 64 § 1 bis, the court shall base its decision on reports from at least two experienced experts who are independent of each other and who have neither treated the offender nor been responsible in any other way for his care.

5. In general, the court shall only order a measure if a suitable institution is available.

6. Where the requirements for a measure are no longer fulfilled, it shall be discontinued.”

Article 59 (Institutional therapeutic measures, treatment of mental disorders)

“1.  Where the offender is suffering from a serious mental disorder, the court may order institutional treatment subject to the following conditions:

(a)  the offender has committed a criminal offence linked to the disorder; and

(b) it is expected that the measure will deter the commission of further offences linked to the disorder.

2. Institutional treatment shall be provided in an appropriate psychiatric or therapeutic institution.

3. The treatment shall be provided in a secure facility if there is a risk of the offender absconding or committing further offences. It may also be provided in a penal institution in accordance with Article 76 § 2, to the extent that the necessary therapeutic treatment can be provided by qualified staff.

4. The deprivation of liberty associated with institutional treatment shall generally not exceed five years. If the requirements for conditional release are not satisfied after five years and it is expected that the continuation of the measure will deter the commission of further criminal offences linked to the offender’s mental disorder, the court may at the request of the executive authority order the extension of the measure for a maximum of five years at a time.”

Article 62c (Discontinuation of an institutional therapeutic measure)

“1. The measure shall be discontinued if:

(a)  its implementation or continuation appears to have no prospect of success;

(b) the maximum duration under Articles 60 and 61 has been reached and the requirements for conditional release are not satisfied; or

(c) there is no suitable institution, or no such institution exists any longer.

2. If the deprivation of liberty associated with the measure is for a shorter period than the suspended custodial sentence, the remainder of the sentence shall be served. If the requirements for suspension of a custodial sentence or for conditional release are satisfied, the execution of the remainder of the sentence shall be suspended.

3. The court may order a further measure in place of the execution of the sentence if it is to be expected that such a measure will deter the commission of further criminal offences linked to the offender’s condition.

4. If, on the discontinuation of a measure ordered on account of an offence referred to in Article 64 § 1, there is serious cause to fear that the offender might commit further similar offences, the court may order his indefinite detention at the request of the executive authority.

5. If, on the discontinuation of the measure, the competent authority deems it appropriate to order an adult protection measure, it shall notify the adult protection authority.

6. Furthermore, the court may discontinue an institutional therapeutic measure before or during its implementation and order another institutional therapeutic measure in its place if it is to be expected that the new measure will have a significantly better chance of deterring the commission of further criminal offences linked to the offender’s condition.”

Article 62d (Consideration of release and discontinuation of the measure)

“1.  The competent authority shall consider, of its own motion or on request, whether the offender should be conditionally released from the implementation of the measure or whether the measure may be discontinued, and if so, when. It shall take a decision on the matter at least once a year, having first granted a hearing to the offender and obtained a report from the management of the institution responsible for implementation of the measure.

2. If the offender has committed an offence referred to in Article 64 § 1, the competent authority shall reach its decision on the basis of an independent expert opinion, after hearing a committee comprising representatives of the prosecution authorities, the executive authorities and the field of psychiatry. The expert and psychiatrists concerned must have neither treated the offender nor been responsible in any other way for his care.”

Article 64 (Indefinite detention: requirements and execution)

“1.  The court shall order indefinite detention if the offender has committed premeditated murder, intentional homicide, serious assault, rape, robbery, hostage-taking, arson, endangering life or any other offence carrying a maximum custodial sentence of at least five years by which he has caused or intended to cause serious harm to the physical, psychological or sexual integrity of another, and if:

(a) on account of the offender’s personality traits, the circumstances of the offence and his personal history, there is serious cause to fear that he might commit further similar offences; or

(b) on account of a serious chronic or recurrent mental disorder linked to the offence, there is serious cause to fear that the offender might commit further similar offences and a measure under Article 59 appears to have no prospect of success.

...”

Article 65 (Amendment of the sanction)

“1.  If, before or during the execution of a custodial sentence or of indefinite detention within the meaning of Article 64 § 1, an offender fulfils the requirements for an institutional therapeutic measure as provided for in Articles 59‑61, the court may order such a measure subsequently. The court with jurisdiction shall be the one that imposed the sentence or ordered the detention. The execution of the remainder of the sentence shall be suspended.

2. If, during the execution of a custodial sentence, new information or evidence comes to light to the effect that the offender satisfies the requirements for indefinite detention and that such requirements were already satisfied at the time of the conviction but could not have been known to the court, the court may order indefinite detention subsequently. Jurisdiction and procedure shall be determined by the rules on reopening proceedings.”

25. Paragraph 2 of the transitional provisions of the 13 December 2002 amendment to the Criminal Code, which came into force on 1 January 2007, provides as follows, in so far as relevant:

2: Imposition and execution of measures

“(1)  The provisions of the new law on measures (Articles 56-65) and on their execution (Article 90) shall also apply to the perpetrators of acts committed or tried before those provisions come into force. However:

(a) The subsequent ordering of indefinite detention under Article 65 § 2 shall be permitted only if such detention would also have been possible on the basis of Article 42 or Article 43 § 1, second sub-paragraph, of the former law;

(b) The detention of young adults in a vocational training institution (Article 100 bis in its version of 18 March 1971) and any measures applicable to young adults (Article 61) shall not exceed four years.

(2) Within twelve months of the entry into force of the new law, the court shall assess whether persons who have been detained under Article 42 or Article 43 § 1, second sub-paragraph, of the former law fulfil the requirements for a therapeutic measure (Articles 59-61 or 63 [of the new law]). If they do, the court shall impose the measure; if not, the detention shall be continued in accordance with the new law.”

26. Paragraph 189 of the former Code of Criminal Procedure of the Canton of Basle Urban, as in force at the material time, was worded as follows, in so far as relevant:

E. Reopening of proceedings – Conditions

“Criminal proceedings that have been concluded by means of an enforceable judgment shall be reopened:

...

(e)  where an acquitted person subsequently makes a credible confession, or where other circumstances or evidence unknown to the trial court appear likely to result in the person’s conviction or to give rise to a more severe punishment for a convicted person.

...”

27. The Swiss Code of Criminal Procedure of 5 October 2007 replaced the cantonal Codes of Criminal Procedure on 1 January 2011. Article 410 of the Code governs the admissibility of and grounds for a request to reopen proceedings:

“Anyone who is adversely affected by a legally binding final judgment, a summary penalty order, a subsequent judicial decision or a decision in separate proceedings concerning measures may request that the proceedings be reopened if:

(a)  new facts or evidence have emerged that were unknown to the lower authority and are likely to lead to an acquittal, a considerably reduced or more severe penalty for the convicted person or the conviction of an acquitted person;

(b) the decision is in flagrant contradiction with a subsequent criminal judgment relating to the same set of circumstances; or

(c) it has been established in other criminal proceedings that the outcome of the proceedings was influenced by a criminal offence, a conviction not being required as evidence; if it is not possible to conduct criminal proceedings, evidence may be adduced in another manner.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

28. The applicant alleged that his detention following the decision to order an institutional therapeutic measure was in breach of Article 5 § 1 of the Convention, which provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

...”

29. The Government contested that argument.

A. Admissibility

30. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

31. As regards the decision to order an institutional therapeutic measure (on the basis of Article 65 § 1 of the Criminal Code, in conjunction with Article 59), the applicant submitted that the requirement of an expectation that such a measure would deter the commission of further offences – one of the conditions laid down in Article 59 of the Criminal Code – had not been satisfied in his case, since the prospects of success of his treatment had been minimal. Accordingly, the measure in issue had not been taken “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention. In the expert psychiatric opinion of 24 September 2008, Dr R.A. had found that the applicant was not prepared to engage in self-reflection, that the risk of reoffending was generally high, and that the prognosis was therefore highly unfavourable. Subsequently, in the additional report of 30 June 2010, Professor A.E. had found that any institutional therapeutic measure was very likely to be unsuccessful.

The applicant submitted in conclusion that the prospects of success of any treatment were so minimal that they would not satisfy the requirements of Article 59 of the Criminal Code.

32. The applicant added that the measure in issue did not have any legal basis either in Article 5 § 1 (a) of the Convention, since there was no causal link between the detention and the criminal conviction, or in Article 5 § 1 (e) of the Convention. In relation to sub-paragraph (a), he noted that Article 5 of the Convention did not cover deprivation of liberty for purely preventive purposes, that is to say, to prevent potential dangers in future. In that connection, he explained that the initial judgment had not even envisaged an outpatient therapeutic measure to accompany the sentence. Regarding sub-paragraph (e), it was only applicable in the case of an actual mental disorder, the finding of an unfavourable prognosis being insufficient.

33. Lastly, the applicant argued that the initial psychiatric opinion of 24 September 2008 was out of date and that the additional opinion of 30 June 2010 related solely to whether it would be appropriate to order an institutional therapeutic measure. There had been no proper diagnosis, or any assessment of the danger he posed. In that connection, he noted that he had been only 22 years old when the main offence had been committed on 3 May 2004. There had been positive progress during his almost ten years in prison, as should have been acknowledged in a more recent expert opinion.

(b) The Government

34. The Government submitted that all the conditions laid down in Article 59 § 1 of the Criminal Code were satisfied. In particular, the applicant’s mental disorder had been diagnosed, the national authorities had established that the offences he had committed were linked to the disorder and this had not been contested in any way. Regarding the prospects of success of treatment, they noted that Article 59 § 1 (b) of the Criminal Code did not specify a required level of probability or a time frame for achieving success. According to judicial decisions at federal level, an outlook beyond five years was acceptable. Lastly, the prospect of treatability (Therapierbarkeit) had been acknowledged by the Federal Court on the basis of expert medical opinion.

35. The Government further stated that in its judgment of 30 January 2012 the Federal Court had found that it could not be ruled out that the applicant might respond favourably to psychological treatment and that there might therefore be a chance of reducing the risk of reoffending. Thus, the ordering of indefinite detention by the Court of Appeal on 6 May 2011 had not been compatible with the law, and the lower court should have considered the possibility of an institutional therapeutic measure.

36. The Government alleged that the order for a therapeutic measure had resulted from a revision of the initial judgment following the discovery of new facts that had not been known (and could not have been known) to the lower court at the time of the conviction. In that connection, Article 65 of the Criminal Code explicitly referred to a review of the initial judgment in the light of newly discovered evidence that had existed at the time of its delivery (reformatio in peius). The fact that the therapeutic measure had been ordered in the context of proceedings for the review of a previous decision constituted a sufficient causal link between the conviction and the measure. This factor, moreover, meant that a distinction could be drawn between cases against Germany concerning preventive detention (Sicherungsverwahrung) and the present case, where the mental disorder had already existed at the time of the initial judgment.

37. As to whether the psychiatric opinion of 24 September 2008 was still valid and relevant, the Government stated that it had been complemented by the opinion of 30 June 2010, which had not only been based on the 2008 opinion but had also taken into account various relevant views expressed in the meantime and a medical examination of the applicant by Professor A.E. Subsequently, the latter expert had given evidence on 6 May 2011 to the Court of Appeal before it had given judgment. The Government also pointed out that the applicant and his lawyer had been present in court and had had the opportunity to put questions to A.E. Lastly, in the context of the proceedings leading to the Court of Appeal’s judgment of 22 August 2012, the president of that court had again sought the opinion of A.E.

2. The Court’s assessment

(a) Summary of the relevant principles

38. Sub-paragraphs (a) to (f) of Article 5 § 1 of the Convention contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds. However, the applicability of one ground does not necessarily preclude that of another; a deprivation of liberty may, depending on the circumstances, be justified under one or more sub-paragraphs (see M. v. Germany, no. 19359/04, § 86, ECHR 2009; Silva Rocha v. Portugal, 15 November 1996, § 27, Reports of Judgments and Decisions 1996‑V; and Morsink v. the Netherlands, no. 48865/99, § 62, 11 May 2004).

39. “Conviction”, for the purposes of Article 5 § 1 (a), has to be understood as signifying both a finding of guilt after it has been established that there has been an offence, and the imposition of a penalty or other measure involving deprivation of liberty (see Guzzardi v. Italy, 6 November 1980, § 100, Series A no. 39; Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50; and M. v. Germany, cited above, § 87). Sub-paragraph (a) of Article 5 § 1 does not mean that the measure must simply follow the conviction in point of time, but that there must be a sufficient causal link.

40. Nevertheless, the causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release, or to re-detain, was based on grounds that were inconsistent with the objectives of the initial decision (by a sentencing court) or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and hence incompatible with Article 5 (see M. v. Germany, cited above, § 88; Van Droogenbroeck, cited above, § 40; Eriksen v. Norway, 27 May 1997, § 78, Reports 1997‑III; and Weeks v. the United Kingdom, 2 March 1987, § 49, Series A no. 114).

41. Under sub-paragraph (c) of Article 5 § 1 of the Convention, detention of a person may be justified “when it is reasonably considered necessary to prevent his committing an offence”. Such a measure does not form part of a policy of general prevention directed against an individual but is simply designed to prevent a concrete and specific offence (see M. v. Germany, cited above, §§ 89 and 102).

42. As regards the detention of mentally disordered persons for the purposes of Article 5 § 1 (e), an individual cannot be considered to be of “unsound mind” and deprived of his or her liberty unless the following three minimum conditions are satisfied: firstly, he or she must reliably be shown to be of unsound mind; secondly, the disorder must be of a kind or degree warranting detention; and thirdly, the validity of continued detention depends upon the persistence of such a disorder (see, among other authorities, Winterwerp v. the Netherlands, 24 October 1979, §§ 37, Series A no. 33; Varbanov v. Bulgaria, no. 31365/96, § 45, ECHR 2000-X; and Shtukaturov v. Russia, no. 44009/05, § 114, ECHR 2008).

43. In this connection, no deprivation of liberty of a person considered to be of unsound mind may be deemed in conformity with Article 5 of the Convention if it has been ordered without the opinion of a medical expert having been sought. Any other approach falls short of the required protection against arbitrariness (see Filip v. Romania, no. 41124/02, § 57, 14 December 2006, and Cristian Teodorescu v. Romania, no. 22883/05, § 67, 19 June 2012). As regards the qualifications of the medical expert, the Court considers in general that the national authorities are better placed than itself to evaluate them (see, mutatis mutandis, Sabeva v. Bulgaria, no. 44290/07, § 58, 10 June 2010; Witek v. Poland, no. 13453/07, § 46, 21 December 2010; and Biziuk v. Poland (no. 2), no. 24580/06, § 47, 17 January 2012). However, it has previously observed, in certain specific cases, and in particular where the detained person had no history of mental disorders, that it was indispensable for the assessment to be carried out by a psychiatric expert (see Luberti v. Italy, 23 February 1984, § 29, Series A no. 75; C.B. v. Romania, no. 21207/03, § 56, 20 April 2010; and Ťupa v. the Czech Republic, no. 39822/07, § 47, 26 May 2011).

44. Furthermore, the medical assessment must be sufficiently recent to enable the competent authorities to assess the clinical condition of the person concerned at the time when the lawfulness of the detention is examined. In Herz v. Germany (no. 44672/98, § 50, 12 June 2003), for example, the Court found that a psychiatric assessment dating back a year and a half was not sufficient by itself to justify deprivation of liberty (see also, mutatis mutandis, H.W. v. Germany, no. 17167/11, § 114, 19 September 2013).

45. Lastly, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will only be “lawful” for the purposes of Article 5 § 1 of the Convention if effected in a hospital, clinic or other appropriate institution (see Aerts v. Belgium, 30 July 1998, § 46, Reports 1998‑V; Hutchison Reid v. the United Kingdom, no. 50272/99, § 49, ECHR 2003‑IV; Haidn v. Germany, no. 6587/04, § 78, 13 January 2011; and O.H. v. Germany, no. 4646/08, 24 November 2011).

(b) Application of the above principles

46. In the light of the above principles, the Court must determine whether, during his detention after 22 August 2012 – when the Court of Appeal ordered the institutional therapeutic measure and suspended the portion of his sentence remaining to be served – the applicant was deprived of his liberty in accordance with one or more of sub-paragraphs (a) to (f) of Article 5 § 1 of the Convention. It notes at the outset that the measure in issue cannot be treated as constituting deprivation of liberty under sub-paragraph (c) of Article 5 § 1.

47. The Court considers that the present case is particular in that the Swiss authorities, in the course of proceedings in which the rules on review of a criminal judgment were applied by analogy (Article 65 § 2 of the Criminal Code), ordered the applicant to undergo an institutional therapeutic measure that had not been envisaged in the initial judgment. The measure in question was ordered in accordance with Article 59 of the Criminal Code, which provides for the imposition of measures of this kind on offenders with serious mental disorders.

48. The Court therefore finds it appropriate to examine whether this measure was justified under Article 5 § 1, first of all from the standpoint of sub-paragraph (a). It must therefore ascertain firstly whether the measure was taken “after conviction” of the applicant, in other words whether there was a sufficient causal link between the applicant’s conviction of 27 May 2005, upheld on 12 January 2007, and the impugned measure, which was ordered by the Court of Appeal on 22 August 2012.

49. In this connection, the Court notes that the Criminal Court sentenced the applicant to eight years’ imprisonment in a judgment of 27 May 2005, that following the judgment he was transferred to Bostadel Prison to serve his sentence (see paragraph 6 above) and that the judgment did not indicate any therapeutic measure, whether as an outpatient or in an institution. It observes that the parties agreed on this issue and that the prison sentence was due to be completed in March 2013. The Court thus concludes that, in so far as the judgment of 22 August 2012 replaced the original judgment, or at least suspended its execution, the applicant’s detention from 22 August 2012 was no longer covered by the original judgment.

50. The Court is in principle prepared to accept, as the Government maintained, that the order for an institutional measure amounted to a correction of the original judgment following the discovery of relevant new circumstances and that the fact that the measure was ordered in the context of proceedings for the review of a penalty imposed in a previous judgment may constitute a causal link between the initial conviction and the measure in issue, as required by the relevant case-law of the Court concerning sub-paragraph (a) of Article 5 § 1.

51. At the same time, the Court reiterates that the causal link required by sub-paragraph (a) might nevertheless eventually be broken if a position were reached in which a decision not to release, or to re-detain, was based on grounds that were inconsistent with the objectives of the initial decision or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and hence incompatible with Article 5 (see M. v. Germany, cited above, § 88, and also paragraph 40 above, with further references).

52. The Court notes that Swiss law is particular in that it allows institutional therapeutic measures to be ordered on the basis of proceedings to which the rules on review of a judgment (Article 65 § 2 of the Criminal Code) are applicable, where it becomes apparent that the original judgment should be amended further to the discovery of a relevant new fact. It therefore considers it appropriate, in determining whether the deprivation of liberty was arbitrary, to take into account factors that might appear to fall more within the scope of sub-paragraph (e) in its analysis of whether the measure was justified from the standpoint of sub-paragraph (a) of Article 5 § 1.

53. Turning to the present case, the Court observes that the measure in issue was ordered in a judgment of 22 August 2012, more than seven years after the applicant’s initial conviction (27 May 2005) and only seven months before he was due to be released in March 2013. Although the chronological order of events and the considerable period that elapsed between the applicant’s initial conviction and the imposition of the measure are not in themselves decisive in determining whether there has been a violation of Article 5 in the present case, they are nevertheless indications to be taken into account in the Court’s assessment of all the relevant circumstances.

54. Next, the Court observes that Dr R.A., a psychiatrist and psychotherapist, issued a psychiatric opinion on 24 September 2008 after examining the applicant in person, and diagnosed him as having moderate paranoid and narcissistic personality disorders (according to the World Health Organization International Classification of Diseases – ICD-10), with full criminal responsibility (see paragraph 9 above), and that those findings were subsequently confirmed in an additional report by Professor A.E. dated 30 June 2010, also drawn up after an examination of the applicant. Lastly, before delivering its judgment on 22 August 2012, the Court of Appeal had submitted an information request to Professor A.E. In her reply of 25 June 2012 she had stated that in view of the type, severity and complexity of the applicant’s mental disorder, only an institutional measure was likely to meet his therapeutic needs to an adequate extent. The Court observes that the question put to the expert was limited in scope, relating in particular to the institutions that would be appropriate for the applicant.

55. In view of the above considerations, significance must be attached to the psychiatric opinion issued by Dr R.A. on 24 September 2008 and the additional report by Professor A.E. dated 30 June 2010. However, as the measure in issue was ordered by the Court of Appeal on 22 August 2012, nearly two years and two months after the additional report was drawn up and nearly three years and eleven months after Professor R.A.’s opinion was issued, the Court finds that the delays involved were excessive (see, for example, Herz, cited above, § 50, and Yaikov v. Russia, no. 39317/05, § 64, 18 June 2015, in both of which the Court found a period of a year and a half excessive).

56. The Court further notes that in a message of 25 June 2012 Professor A.E. indicated that Thorberg and Pöschwies Prisons had therapy departments (Therapieabteilungen) for the purposes of Article 59 § 3 of the Criminal Code and that this should be borne in mind. However, in his application lodged on 1 July 2013 the applicant stated that he was being held in Bostadel Prison in Menzingen. He later informed the Court, in a letter dated 26 May 2016, that he was still in Bostadel Prison. The Government did not dispute this, and nor did they indicate that the applicant had subsequently been transferred to either of the institutions mentioned by the professor.

57. Accordingly, bearing in mind Article 62 (c) of the Criminal Code, which requires that the measure in question should in principle be discontinued if there is no suitable institution, or no such institution exists any longer (see paragraph 24 above), the Court concludes that the applicant is not being treated in an environment suited to his mental disorder. It further considers that the applicant’s refusal to undergo any psychiatric treatment cannot justify his detention in an inappropriate facility for years.

58. Having regard to the foregoing, the Court concludes that the measure complained of, which was ordered only when the original sentence was close to completion and which remains in force to date, was not based on sufficiently recent expert assessments and that, more than four and a half years after the expiry of his prison sentence (in March 2013), the applicant is still being held in an institution that is clearly unsuited to his disorders. Accordingly, his detention following the judgment of 22 August 2012 was incompatible with the aims of his initial conviction.

59. Essentially for the same reasons, the respondent Government cannot rely on sub-paragraph (e) of Article 5 § 1, for which the applicability requirements are similar, as explained above (see paragraphs 42-45 above).

60. There has therefore been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

61. The applicant complained of a breach of Article 7 of the Convention, which provides:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

62. The Government contested that argument.

A. Admissibility

63. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

64. The applicant observed that he had been convicted of offences committed prior to 2007. He added that Article 65 of the Criminal Code concerning institutional therapeutic measures had come into force on 1 January 2007 and accordingly could not be applied without breaching the principle nullum crimen, nulla poena sine lege and the principle of non-retrospective legislation. In his submission, paragraph 2 of the transitional provisions of the 13 December 2002 amendment to the Criminal Code was not compatible with the overriding fundamental principles (übergeordnete Grundprinzipien) and could not therefore affect that finding.

(b) The Government

65. The Government submitted in reply that the institutional therapeutic measure had been ordered following a review of the judgment to the applicant’s detriment. In such circumstances, Article 65 § 2 of the Criminal Code referred to the rules applicable to the reopening of proceedings, namely – prior to the entry into force of the unified Code of Criminal Procedure on 1 January 2011 – the relevant provisions of the cantonal Codes of Criminal Procedure. They inferred from this that paragraph 2, sub-paragraph (1), of the transitional provisions of the 13 December 2002 amendment to the Criminal Code, in conjunction with Article 65 § 2 of the same Code, “thus provided for the retrospective application of a specific ground for reopening proceedings”. The case of a review to the convicted person’s detriment was governed by Article 189 § 1 (e) of the former Code of Criminal Procedure of the Canton of Basle Urban. In accordance with that provision, criminal proceedings that had been concluded by means of an “enforceable” judgment were to be reopened where, among other situations, circumstances or evidence unknown to the trial court appeared likely to result in an acquitted person’s conviction or to give rise to a more severe punishment for a convicted person. The Government further submitted that the substantive law in force at the time had provided for institutional therapeutic measures, in particular under Article 43 § 1, second sub-paragraph, of the former Criminal Code, and noted that that provision allowed the indefinite detention of a convicted person who, “on account of his mental state”, “pose[d] a severe threat to public safety”, on condition that “such a measure [was] necessary to prevent a danger to others”. Accordingly, by deciding to impose an institutional therapeutic measure, the Court of Appeal had not ordered a heavier penalty than the one that would already have been possible and acceptable at the time of the criminal courts’ decisions. In conclusion, there had been no violation of Article 7 of the Convention, regardless of whether such a measure, like the indefinite detention provided for in Article 65 § 2 of the Criminal Code, constituted a “penalty” within the meaning of Article 7 of the Convention.

2. The Court’s assessment

(a) Relevant principles

66. The guarantee enshrined in Article 7 of the Convention, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 66, ECHR 2013 (extracts); Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010; S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335‑B; C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335‑C; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, § 50, ECHR 2001‑II; Kafkaris v. Cyprus [GC], no. 21906/04, § 137, ECHR 2008; and M. v. Germany, cited above, § 117).

67. Article 7 of the Convention embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). While it prohibits in particular the retrospective application of the criminal law to an accused’s disadvantage (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A) or the extension of the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see Kononov, cited above, § 185; Maktouf and Damjanović, cited above, § 66; Uttley v. the United Kingdom (dec.), no. 36946/03, 29 November 2005; Achour v. France [GC], no. 67335/01, § 41, ECHR 2006-IV; and M. v. Germany, cited above, § 118).

68. When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which implies qualitative requirements, including those of accessibility and foreseeability (see Kononov, cited above, § 185; Maktouf and Damjanović, cited above, § 66; Cantoni v. France, 15 November 1996, § 29, Reports 1996-V; Coëme and Others v. Belgium, nos. 32492/96 and 4 others, § 145, ECHR 2000‑VII; and Achour, cited above, § 42). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence in question carries (see Achour, cited above, § 41, and Kafkaris, cited above, § 140). An individual must know from the wording of the relevant provision, and if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable and what penalty will be imposed for the act committed and/or omission (see Cantoni, cited above, § 29; Uttley, cited above; Kafkaris, cited above, § 140; and M. v. Germany, cited above, § 119).

69. The concept of “penalty” in Article 7 of the Convention is autonomous in scope. To render the protection afforded by this Article effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307-A; Jamil v. France, 8 June 1995, § 30, Series A no. 317-B; and Uttley, cited above). The wording of the second sentence of Article 7 § 1 of the Convention indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence”. Other relevant factors are the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity (see Welch, cited above, § 28; Jamil, cited above, § 31; Adamson v. the United Kingdom (dec.), no. 42293/98, 26 January 1999; Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006-XV; and Kafkaris, cited above, § 142). The severity of the measure is not, however, in itself decisive, since, for instance, many non-penal measures of a preventive nature may have a substantial impact on the person concerned (see Welch, cited above, § 32; Van der Velden, cited above; and M. v. Germany, cited above, § 120).

70. Both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty”. Consequently, where the nature and purpose of a measure relates to the remission of a sentence or a change in a regime for early release, the measure does not form an integral part of the “penalty” within the meaning of Article 7 of the Convention (see, inter alia, Hogben v. the United Kingdom, no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231; Grava v. Italy, no. 43522/98, § 51, 10 July 2003; and Kafkaris, cited above, § 142). However, the distinction between the two is perhaps not always clear in practice (see Kafkaris, cited above, § 142; Monne v. France (dec.), no. 39420/06, 1 April 2008; and M. v. Germany, cited above, § 121).

(b) Application of the above principles in the present case

(i) Whether a heavier penalty was applied retrospectively

71. The Court takes note of the applicant’s assertion that he was convicted of offences committed prior to 2007 and that the measure forming the subject of the present application was based on Article 65 of the Criminal Code, which came into force on 1 January 2007. It must therefore determine whether, for those reasons, a heavier penalty was applied retrospectively, as the applicant maintained.

72. The Court observes that in the period between 2000 and 2004, when the applicant committed the offences leading to his conviction in 2005, the competent court could have ordered “measures concerning offenders with mental disorders”, in particular on the basis of Article 43 § 1, second sub-paragraph, of the Criminal Code as in force at that time. That provision allowed the indefinite detention of a convicted person who, “on account of his mental state”, “pose[d] a severe threat to public safety”, on condition that “such a measure [was] necessary to prevent a danger to others”.

73. The Federal Court found that, even if institutional therapeutic measures were to be regarded as a penalty within the meaning of Article 7 of the Convention, the subsequent ordering of such a measure in the applicant’s specific case had not entailed a heavier penalty for him than the one applicable under the law in force at the time he had committed the criminal acts, seeing that the measures provided for by the former law (Article 43 of the Criminal Code, in force until 31 December 2006) had been at least as strict as those applicable under the new law, meaning that there had been no breach of the principle of non-retrospective application in his case (see paragraph 21 above).

74. The Government contended that by ordering an institutional therapeutic measure, the Court of Appeal had not imposed a heavier penalty than the one that would already have been applicable at the time of the criminal courts’ decisions.

75. The Court observes that the applicant did not provide any convincing reasons to cast doubt on that assertion. Nor did he maintain that a review of the original decision would not have been possible under the former legislation, which at the time was formed by cantonal law. The Court therefore concludes that there was no retrospective application of a heavier penalty.

76. Having regard to the foregoing, there has been no violation of Article 7 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION

77. The applicant also complained that he had been punished twice. He relied in that regard on Article 4 of Protocol No. 7 to the Convention, which provides:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this article shall be made under Article 15 of the Convention.”

78. The Government contested that argument.

A. Admissibility

79. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

80. The applicant submitted that he had completed his sentence in spring 2013 and that the measure subsequently imposed on him amounted to a double punishment. His behaviour in prison had been positive and the measure in question had been ordered only a short time before his prison sentence had been due to be completed, factors which made his situation even more serious. He thus contended that there had been a violation of Article 4 of Protocol No. 7 to the Convention.

81. Essentially for the same reasons as relied on by the domestic authorities, the Government submitted that paragraph 2 of Article 4 of Protocol No. 7 to the Convention was applicable. In the applicant’s case, the psychiatric opinions issued in 2008 and 2010, which had been drawn up while he was serving his sentence, had revealed a new fact, namely that the applicant had a serious mental disorder, which had already been present at the time of the decisions in the criminal proceedings but had not been and could not have been known to the criminal courts.

2. The Court’s assessment

82. The Court reiterates that Article 4 of Protocol No. 7 to the Convention guarantees that no one is to be tried or punished in criminal proceedings for an offence of which he or she has already been finally convicted or acquitted (see Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014 (extracts); Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 58, ECHR 2009; and Nikitin v. Russia, no. 50178/99, § 35, ECHR 2004‑VIII). The legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the ne bis in idem principle under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see Storbråten v. Norway (dec.), no. 12277/04, 1 February 2007, with further references). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Sergey Zolotukhin, cited above, § 52).

83. The Court observes that in the applicant’s case, the Federal Court found that the reopening of the proceedings for the purpose of ordering a subsequent institutional therapeutic measure on the basis of his serious psychiatric illness which had already been present, but had not been diagnosed, at the time of the original judgment did not constitute a second penalty for him.

84. The Court reiterates that, in accordance with the second paragraph of Article 4 of Protocol No. 7 to the Convention, the first paragraph of that Article does not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

85. In the circumstances of the present case, the domestic authorities held that the new findings as to the applicant’s mental condition constituted a newly discovered fact and on that basis varied the original judgment, applying by analogy the rules on the reopening of proceedings (Article 65 § 2 of the Criminal Code). The Court observes that the applicant did not explain how the reopening of the proceedings had not been “in accordance with the law and penal procedure of the State concerned”. Moreover, no indications to that effect can be found in the material available to the Court.

86. In view of the foregoing, there has been no violation of Article 4 of Protocol No. 7 to the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

87. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

88. The applicant stated that he should have been released on 19 March 2013 and submitted that with effect from that date, he was entitled to an award of 300 Swiss francs per day in respect of the pecuniary damage he had sustained. He did not make a claim in respect of pecuniary damage.

89. The Government submitted that the amount claimed was excessive and that a sum of 4,000 euros (EUR) would be appropriate.

90. The Court considers that the finding of a violation of Article 5 § 1 of the Convention does not afford redress for the non-pecuniary damage sustained by the applicant. It considers it appropriate to award him EUR 20,000 under that head.

B. Costs and expenses

91. The applicant also claimed EUR 24,861.85 in respect of the costs and expenses incurred before the domestic courts and before the Court.

92. The Government submitted that the amount claimed was excessive. In their view, an award of EUR 5,000 would be appropriate to cover costs and expenses incurred in the domestic proceedings and before the Court.

93. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the documents in its possession and to its case-law, the Court, noting that the applicant’s lawyer did not see fit to comment on the detailed observations submitted by the Government on the merits of the application, considers it reasonable to award the applicant the sum of EUR 12,000, covering all costs and expenses incurred in the domestic proceedings and before the Court.

C. Default interest

94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there has been no violation of Article 7 of the Convention;

4. Holds that there has been no violation of Article 4 of Protocol No. 7 to the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which this judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in French, and notified in writing on 9 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen Phillips Helena Jäderblom
RegistrarPresident

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