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.