THIRD SECTION
CASE OF W.A. v. SWITZERLAND
(Application no. 38958/16)
 
 
JUDGMENT
Art 5 § 1 • Lawful detention • No causal link between conviction for violent offences and subsequent preventive detention on account of applicant’s mental health condition and recidivism risk • Preventive detention in ordinary prison not justified by applicant being of “unsound mind”
Art 7 § 1 • Subsequent order for preventive detention amounting to retrospective imposition of a heavier penalty
Art 4 P7 • 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

 
STRASBOURG
2 November 2021
 
FINAL
 
02/02/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of W.A. v. Switzerland,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Georgios A. Serghides,
 Dmitry Dedov,
 Darian Pavli,
 Anja Seibert-Fohr,
 Andreas Zünd,
 Frédéric Krenc, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 38958/16) 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 W.A. (“the applicant”), on 28 June 2016;
the decision to give notice of the application to the Swiss Government (“the Government”);
the decision not to have the applicant’s name disclosed;
the parties’ observations;
Having deliberated in private on 5 October 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the subsequent preventive detention (nachträgliche Verwahrung) of the applicant after he had served his sentence of twenty years’ imprisonment following his conviction notably of murder and intentional manslaughter. In the applicant’s submission, this detention breached his right to liberty under Article 5 § 1 of the Convention, the prohibition on retrospective punishment under Article 7 § 1 of the Convention and the right not to be punished twice under Article 4 § 1 of Protocol No. 7 to the Convention. THE FACTS
2. The applicant was born in 1960 and is currently detained in Regensdorf Prison. He was represented by Mr L. Erni, a lawyer practising in Zurich. 3. The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s conviction AND SENTENCE AND THE REOPENING OF THE PROCEEDINGS
5. By a judgment of 6/12 May 1993, as amended on 4 July 1995 following a remittal, the Zurich Jury Court (Geschworenengericht) convicted the applicant, inter alia, of murder and of intentional manslaughter and sentenced him to twenty years’ imprisonment. The court found that the applicant had murdered a man in a particularly violent manner in 1983. Owing to his personality disorder and his alcohol intoxication, as diagnosed by psychiatric expert G., his capacity to appreciate the wrongfulness of the act had been substantially diminished. Furthermore, in 1990, the applicant, acting again with substantially diminished criminal responsibility, had induced his then partner to strangle an acquaintance in their flat; no reason for the offence could be established. He had subsequently dismembered the woman’s corpse. 6. The court further decided not to order the applicant’s preventive detention under Article 43 § 1, sub-paragraph 2, of the Criminal Code (see paragraph 20 below). Having regard to the fact that preventive detention in practice rarely lasted more than five years, it considered that the aim of protecting society from the applicant, who was very dangerous as a result of his abnormal mental state which the expert had considered difficult to treat, could be better attained by the execution of a long term of imprisonment. 7. The applicant served his sentence until 8 October 2010. Thereafter, he was placed in detention on remand pending a decision on the Public Prosecution Office’s application lodged in 2009 for the applicant’s subsequent preventive detention under Article 65 § 2 of the Criminal Code, which had entered into force in 2007 (see paragraph 23 below). 8. On 2 March 2012 the Federal Court, contrary to the lower courts, found that there were new facts permitting a reopening of the proceedings to the detriment of the applicant under Article 65 § 2 of the Criminal Code. A new report issued in May 2009 by psychiatric expert P., using new analytic methods which had not yet existed in the 1990s, had concluded that the applicant had not been addicted to alcohol at the time of his offences, but had suffered from a dissocial personality disorder and from psychopathy, which could not be treated and led to a very high risk that the applicant would commit further violent offences. These new facts had not, and could not have been, known to the Jury Court when convicting the applicant. The proceedings were subsequently reopened. The proceedings at issue
9. In the reopened proceedings, on 15 August 2013 the Zurich District Court ordered the applicant’s subsequent preventive detention under Article 65 § 2 read in conjunction with Article 64 § 1 (b) of the Criminal Code and section 2 § 1 (a) of the transitional provisions of the 13 December 2002 amendment to the Criminal Code read in conjunction with 43 § 1, sub-paragraph 2, of the previous version of the Criminal Code (see paragraphs 20-21 and 23-24 below). 10. Having regard to a new report drawn up by psychiatric expert R. in June 2013, as well as the report drawn up by expert P. in 2009 (see paragraph 8 above), it found that the requirements for the preventive detention of the applicant had been met at the time of the applicant’s conviction in 1993 and were also currently met. The applicant, who had committed two capital offences, had suffered and was still suffering from a serious mental disorder, notably a serious dissocial personality disorder and psychopathy. There was a very high risk that the applicant would commit further serious violent offences owing to that disorder if released. A psychiatric treatment under Article 59 of the Criminal Code (see paragraphs 19 and 21 below) had little, if any, prospects of success. 11. After the Zurich Court of Appeal had dismissed the applicant’s appeal on 16 July 2014, the Federal Court, on 16 December 2015, equally dismissed the applicant’s further appeal. 12. As for the compliance of the retrospective application of measures such as the order for a person’s subsequent preventive detention under Article 65 § 2 of the Criminal Code with Article 7 § 1 of the Convention the Federal Court found that the prohibition on retrospective punishment applied to orders for preventive detention under Articles 64-65 of the Criminal Code. It argued that the order of preventive detention and the imposition of a penalty were similar both in their punishing effect and in their execution. Accordingly, the principle of “nulla poena sine lege” laid down in Article 1 of the Criminal Code (see paragraph 19 below) expressly covered both penalties and measures. 13. Consequently, the retrospective application of preventive detention measures to perpetrators who committed an offence, or were sentenced, prior to the entry into force of the new provisions of the Criminal Code in 2007 was only permitted if the new law was not stricter than the law applicable at the time of the offence. However, Article 65 § 2 read in conjunction with Article 64 § 1 and 64a § 1 of the Criminal Code did not lay down a heavier sanction as regards the order for, and the release from, preventive detention than the law applicable at the time of the offence. 14. Furthermore, Article 65 § 2 of the Criminal Code permitted a reopening of the proceedings to the convicted person’s detriment. Likewise, Article 443 § 2 of the Canton of Zurich’s Code of Criminal Procedure (see paragraph 26 below) which had been applicable at the time of the applicant’s conviction, interpreted correctly (and other than the Court of Appeal had done), had permitted a reopening of the proceedings to the convicted person’s detriment if there were new facts or evidence. It was irrelevant that the Zurich Supreme Court (see paragraph 27 below), as well as the doctrine, had interpreted Article 443 § 2 of that Code as not applying to convicted persons, but only to acquitted ones. It had thus been possible already under the old law to quash a final judgment to the convicted person’s detriment owing to new considerable facts and evidence and to amend the judgment by the order of subsequent preventive detention. It was uncontested that both at the time of the applicant’s conviction and at present, the conditions for the applicant’s preventive detention (Article 43 § 1, sub-paragraph 2, of the previous version of the Criminal Code and Article 64 of its current version) were met. Therefore, the subsequent order of preventive detention did not constitute a heavier penalty than the one applicable at the time of the offence. 15. For the same reasons, Article 4 of Protocol No. 7, enshrining the ne bis in idem principle, had not been breached. The requirements for a reopening of the case under Article 4 § 2 of Protocol No. 7 had been met. There were new facts which the sentencing court had not known and could not have known at the time and which showed that the requirements for preventive detention under Article 43 § 1 of the old version of the Criminal Code and Article 64 of its new version had been met already at the time of the conviction. There was no double punishment for the same offences as the initial judgment of the sentencing court had been quashed following the reopening of the proceedings. 16. The order for the applicant’s preventive detention further had not violated Article 5 § 1 of the Convention. It had been justified under sub‑paragraph (a) of that provision as detention “after conviction”. The reopening of the proceedings owing to new facts with the aim to impose a heavier sanction led to the finality of the initial judgment being set aside. By applying the rules on reopening proceedings (Article 410 of the Swiss Code of Criminal Procedure, see paragraph 25 below), the imposition of subsequent preventive detention became part of the initial judgment and thus had a sufficient causal connection with the criminal conviction contained therein. 17. It could therefore remain open whether the applicant’s preventive detention could also be based on sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”. In any event, medical expertise had confirmed that the applicant suffered from a serious mental disorder as a result of which he posed a very high risk to the life and limb of others. In view of the seriousness of the applicant’s illness and the risk he posed his detention was necessary. 18. As regards the conditions of the applicant’s detention, the applicant kept being detained in Pöschwies Prison in Regensdorf after having served his term of imprisonment. He had neither completed any therapy while he served his prison sentence as he had continuously refused any therapeutic measures nor does he appear to have undergone therapy afterwards. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Provisions of the Criminal Code
19. Under Article 1 of the Criminal Code, a penalty (Strafe) or a measure (Massnahme) may only be imposed for an act which the law expressly defines as an offence. Penalties comprise prison sentences and fines (see Articles 34 et seq. of the Criminal Code) whereas measures notably comprise institutional therapeutic treatment (see Articles 59 et seq. of the Criminal Code) and preventive detention (see Articles 64 et seq. of the Criminal Code). 20. The relevant provision on preventive detention of the former Criminal Code of 21 December 1937, as in force at the time of the applicant’s offences and conviction and until 31 December 2006, was worded as follows:
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 preventive 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 preventive detention, treatment or care. 2. If the court orders (...) preventive detention, it suspends the execution of a term of imprisonment imposed. ... 4. The competent authority decides to lift the measure if the ground for ordering it ceased to exist. ... 5. The court decides (...) whether and in how far penalties which were suspended at the moment of discharge from an institution (...) shall still be executed. ... The duration of a deprivation of liberty by the execution of the measure in an institution is to be deducted from the length of a term of imprisonment which had been suspended when the measure had been ordered. ...”
21. On 1 January 2007 an amended version of the Criminal Code entered into force. The relevant provisions on preventive detention provide as follows:
Article 64 (Preventive detention: requirements and execution)
“1. The court shall order preventive 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. ... 2. The execution of a term of imprisonment precedes preventive detention. ...”
22. Article 64a § 1 of the amended Criminal Code provides that the offender is to be released from preventive detention and probation is to be granted once it can be expected that he or she will not commit further offences warranting preventive detention on release. Under Article  64b § 1 (a) of the Criminal Code, the competent authority examines, either on request or ex officio, at least once per year, and for the first time after two years, if and when the offender can be released from preventive detention under Article 64a § 1. 23. Furthermore, Article 65 was newly introduced into the Criminal Code on 1 January 2007 and provides:
Article 65 (Amendment of the sanction)
“1. If, before or during the execution of a custodial sentence or of preventive detention within the meaning of Article 64 § 1, an offender fulfils the requirements for an institutional therapeutic treatment, the court may order such a measure subsequently. The court with jurisdiction shall be the one that imposed the sentence or ordered the preventive detention. The execution of the remainder of the sentence shall be suspended. 2. If, during the execution of a custodial sentence, new facts or evidence come to light to the effect that the offender satisfies the requirements for preventive 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 preventive detention subsequently. Jurisdiction and procedure shall be determined by the rules on reopening of proceedings.”
24. Section 2 of the transitional provisions of the 13 December 2002 amendment to the Criminal Code, which entered into force on 1 January 2007, in so far as relevant, provides as follows:
“2. Imposition and execution of measures
(1)  The provisions of the new law on measures (Articles 56-65) and on their execution (...) shall also apply to the perpetrators of acts committed or tried before those provisions come into force. However:
(a)  The subsequent ordering of preventive 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; ...”
Provisions of the Code of Criminal Procedure
25. The Swiss Code of Criminal Procedure of 5 October 2007 replaced the cantonal Codes of Criminal Procedure on 1 January 2011. The relevant provision of the Swiss Code governing the admissibility of, and grounds for, a request to reopen proceedings provides:

Article of the Convention at issue: Article 4
Outcome: violation