Published on 28 February 2022
THIRD SECTION
Application no. 40516/19
Belkacem (Djemal) MEHENNI (ADDA)
against Switzerland
lodged on 23 July 2019
communicated on 10 February 2022
SUBJECT MATTER OF THE CASE
The application concerns the subsequent preventive detention (nachträgliche Verwahrung) of the applicant under Articles 65 § 2 and 64 of the Criminal Code. The Public Prosecution Office applied for, and the Lausanne Criminal Court ordered such detention after the applicant had served his sentence of seven years’ imprisonment following his conviction, in 2011, of attempted murder and aggravated assault. The Federal Court, by a judgment of 11 March 2019, dismissed the applicant’s appeal.
In the applicant’s submission, his subsequent preventive detention breached his right to liberty under Article 5 § 1 of the Convention and his right not to be punished twice under Article 4 of Protocol No. 7 to the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
(a) Did the applicant’s subsequent preventive detention fall within any of the sub-paragraphs (a) to (f) of Article 5 § 1?
In particular, having regard to the Court’s case-law (see notably W.A. v. Switzerland, no. 38958/16, §§ 32 et seq., 2 November 2021, and the cases cited therein), was there a sufficient causal connection between the applicant’s conviction and his subsequent preventive detention, for the purposes of Article 5 § 1 (a)?
Was that causal connection broken as the applicant was deprived of the necessary means, such as a suitable therapy, to demonstrate that he was no longer dangerous (compare, in this regard, Klinkenbuß v. Germany, no. 53157/11, § 47, 25 February 2016, and the cases cited therein)?
(b) Was the applicant’s detention “lawful” and ordered “in accordance with a procedure prescribed by law”, for the purposes of Article 5 § 1, in view of the fact that the Public Prosecution Office applied for, and the domestic courts ordered such detention under Articles 65 § 2 and 64 of the Criminal Code after the applicant had fully served his term of imprisonment imposed following his conviction in 2011? In particular, having regard to the Court’s case-law (see, inter alia, Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009 and the cases cited therein), was the national law sufficiently precise and foreseeable in its application, in order to avoid all risk of arbitrariness, so as to be compatible with the rule of law?
2. Has the applicant, by the order for his subsequent preventive detention given after he had fully served the sentence imposed following his conviction in 2011, been punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7?
If so, did the proceedings, having regard to the Court’s case-law (see, in particular, W.A. v. Switzerland, cited above, §§ 65 et seq. and the cases cited therein), fall within the exceptions envisaged by Article 4 § 2 of Protocol No. 7 in that there had been a “reopening” of the case “in accordance with the law and penal procedure of the State concerned”?