Information Note on the Court’s case-law 256
November 2021
W.A. v. Switzerland - 38958/16
Judgment 2.11.2021 [Section III]
Article 5
Article 5-1
Lawful arrest or detention
No causal link between conviction for violent offences and subsequent preventive detention on account of mental condition and recidivism risk: violation
Article 7
Article 7-1
Heavier penalty
Retroactivity
Subsequent order for preventive detention amounting to retrospective imposition of a heavier penalty: violation
Article 4 of Protocol No. 7
Right not to be tried or punished twice
Limited reopening proceedings leading to subsequent preventive detention order not a reopening of the case for the purposes of Art 4 § 2 P7: violation
Facts – The applicant was convicted of several offences, including murder and intentional manslaughter, in a judgment of 1993 (amended in 1995) and served his sentence of twenty years’ imprisonment. In 2013, the proceedings against him were reopened and the applicant’s subsequent preventive detention was ordered, on account of a new analytic method by a psychiatric expert relating to his mental state and which concluded that there was a very high risk that he would commit further violent offences. The applicant remains in detention in prison.
Law – Article 5 § 1:
(a) Article 5 § 1 (a)
Only the judgment of 1993/1995, in which it had been established that the applicant was guilty, in particular, of having committed two capital offences, and was sentenced to twenty years’ imprisonment, could provide a basis for the applicant’s preventive detention for the purposes of Article 5 § 1 (a). By contrast, the order made by the domestic court in 2013, for the applicant’s subsequent detention, had not itself constituted a “conviction” as required under Article 5 § 1 (a) as it had not involved the establishment of a (new) offence and a finding of guilt thereof.
The sentencing court’s judgment of 1993/1995 and the judgment ordering the applicant’s subsequent detention in 2013 were linked as a result of the application of the rules on the reopening of proceedings. According to the Federal Court, the application of those rules had led to the order of subsequent preventive detention becoming part of the initial judgment of the sentencing court.
The court had to determine, in those circumstances, whether there had been a sufficient causal connection between the applicant’s “conviction” in 1993/1995 and his subsequent preventive detention.
The commission by the applicant of the capital offences he had been found guilty of in 1993/1995 had not been re-assessed or re-established in the reopened proceedings at issue. Nor had the term of 20 years’ imprisonment imposed in 1993/1995 – and which the applicant had fully served – been re-examined. In line with the requirements of domestic law, the domestic courts had only examined whether the requirements for an additional preventive detention of the applicant were met and had already been met at the time of his conviction without this having been known to the sentencing court. The Court considered that, in those circumstances, no fresh determination of a criminal charge in a new decision was made in the reopened proceedings at issue. The proceedings de facto amounted to the imposition of an additional sanction aimed at protecting society for an offence which the applicant had previously been convicted of, without there being new elements affecting the nature of the offence or the extent of the applicant’s guilt.
In those circumstances, the preventive detention had been incompatible with the aims of the applicant’s initial conviction. The Court therefore could not accept that the reopening procedure in question had created a causal link between the initial conviction and the subsequent preventive detention. As the applicant’s “conviction” in 1993/1995 had not comprised a preventive detention order, there had consequently been no causal link between that conviction and the applicant’s subsequent preventive detention, for the purposes of Article 5 § 1 (a) and his detention had thus not justified under that provision.
(b) Article 5 § 1 (e)
The Court agreed that the applicant was a person of “unsound mind” for the purposes of Article 5 § 1 (e). In the proceedings at issue, the domestic courts had established that the applicant suffered from a serious personality disorder and psychopathy and that, owing to that condition, there was a very high risk that he would commit further serious violent offences if released. However, the applicant had been detained in an ordinary prison and not in an institution suitable for the detention of mental health patients. His detention had thus not been lawful for the purposes of Article 5 § 1 (e).
Further, none of the other sub-paragraphs in Article 5 § 1 could serve to justify the applicant’s detention at issue.
Conclusion: violation (unanimously).
Article 7 § 1:
The applicant’s preventive detention, given notably its imposition by the criminal courts by reference to a conviction for a criminal offence, its characterisation as being similar to a penalty under domestic law and the fact that it had entailed deprivation of liberty of indefinite duration executed in prison, was to be classified as a “penalty” for the purposes of Article 7 § 1.
The Court then determined whether the applicant’s subsequent preventive detention had constituted a “heavier” penalty “than the one that was applicable at the time the criminal offence was committed”. At the time of the applicant’s offences, it had not been possible to place him in preventive detention by a retrospective order made after his conviction by the sentencing court in 1993/1995 had become final. The legal provision on which the applicant’s subsequent preventive detention had been based had only been inserted into the Criminal Code after the applicant’s offences had been committed. In addition, at the time of the applicant’s offences, preventive detention ordered in a sentencing court’s judgment had been executed prior to a term of imprisonment ordered in the same judgment. Once preventive detention had been terminated as the reasons for such detention no longer prevailed, the execution of the additional term of imprisonment had either equally ended or the duration of preventive detention had at least been deducted from the term of imprisonment which was still to be served. In contrast, under the amended version of the Criminal Code, a term of imprisonment was executed prior to a preventive detention order made in the same judgment and the person concerned was thus liable to be detained for a longer period of time.
Consequently, the subsequent order for the applicant’s preventive detention had amounted to a retrospective imposition of a heavier penalty.
Conclusion: violation (unanimously).
Article 4 of Protocol No. 7:
The Federal Court had found, that the subsequent preventive detention had been imposed following the reopening of the trial in exceptional circumstances, in accordance with the requirements of Article 4 § 2 of Protocol No. 7. However, the reopening at issue in the present case had not required any new elements affecting the nature of the offences committed by the applicant or the extent of his guilt and no fresh determination of a criminal charge in a new decision had been, or was to be, made. Accordingly, the applicant’s case had not been reopened for the purposes of Article 4 § 2 of Protocol No. 7.
Conclusion: violation (unanimously).
Article 41: EUR 40,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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