The ECHR judgment of 09 January 2018 in the case of Kadusic v. Switzerland (application No. 43977/13).
In 2013, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Switzerland.
In the case, the applicant successfully complained about the substitution of a sentencing sentence for a criminal case in the form of deprivation of liberty for detention in a psychiatric hospital for a period exceeding the term of imprisonment specified in the sentence, the replacement of the type of punishment on the basis of a medical examination conducted in violation terms, and without his transfer to a proper medical institution.
CIRCUMSTANCES OF THE CASE
In 2005, the applicant was sentenced to eight years in prison. In 2007, the court of second instance left the verdict unchanged. In 2012, after reviewing the sentence, the execution of the remaining sentence was suspended and replaced with "therapeutic measures in the hospital" because of the mental health problems the applicant had. The applicant repeatedly refused to undergo the prescribed psychiatric treatment. He argued that (i) his detention outside the sentencing period was unlawful, (ii) that retrospectively a more severe penalty was imposed (to the extent that the legal basis for the application of the measure complained was the Penal Code enacted in 2007), and that (iii) the revision of the verdict violated the principle of ne bis in idem.
Ne bis in idem (lat.) - prohibition of repeated punishment for the same crime.
ISSUES OF LAW
Concerning compliance with Article 4 of Protocol No. 7 to the Convention. Article 4 of Protocol No. 7 to the Convention expressly affirms that it does not prevent the resumption of the case, "if new or newly discovered" circumstances may affect the outcome of the case.
The Federal Supreme Court noted that the serious mental illness suffered by the applicant had already occurred, but had not been diagnosed at the time of the first verdict in the case. In accordance with the Criminal Code in such cases, a therapeutic measure can be appointed by reviewing the original court decision.
There was no reason to doubt that the applicant's mental illness was a newly discovered circumstance or that the review of the sentence was in accordance with Swiss law and criminal procedure law.
Concerning compliance with article 5, paragraph 1, of the Convention. First of all, the European Court excluded the application of Article 5 § 1 (c) of the Convention, and also found it inadmissible to examine on the merits the complaint on violation of Article 5 § 1 (a) and (e) of the Convention on the following grounds.
In 2005, the conviction of the applicant's case did not mention the need for any therapeutic measures either in-patient or out-patient. To the extent that the sentence of 2012 replaced the initial sentence or at least suspended it, the provisions of the original sentence were no longer applicable to the applicant's detention in the correctional institution from 22 August 2012.
According to Swiss law, therapeutic treatment in the hospital could be applied by reviewing the original sentence if new circumstances arose. The Court was prepared in principle to accept that the proceedings to review the initial sentence in which the measure complained of could have been the cause linking that measure and the original sentence. However, this link could eventually be interrupted if the continued detention of a person was due to grounds incompatible with the original purposes of the sentence. Therefore, in order to verify whether the complained deprivation of liberty was arbitrary, in the present case it is necessary to take into account the factors that seem to fall within the scope of Article 5 § 1 (e) of the Convention.
First, although the order of events and the considerable time that had passed were not in themselves decisive elements, the Court noted that the measure in question was appointed almost seven years after the first verdict in the applicant's case and seven months before the planned completion of the applicant's sentence.
Secondly, the measure in question was appointed by the court of second instance almost three years and 11 months after the first medical report was drawn up in 2008, which indicated that the applicant had mental health problems and two years and two months after drawing up an additional report in 2010. This period appears to be excessive (a later response of the second expert for the second instance court in 2012, a few months before the appointment of the measure concerning the limited issue of suitable institutions for the applicant, did not matter in this respect).
Third, in his response, the second expert indicated two correctional facilities that could provide therapeutic treatment within the meaning of the relevant article of the Penal Code. However, the applicant was not transferred to these places, but left in the original correctional facility. Thus, the applicant was not treated in appropriate conditions, despite the fact that the legislation of the respondent State implied that if a suitable institution could not be found, the application of the measure should have been discontinued. The fact that the applicant refused to undergo any psychiatric treatment did not justify his detention in an institution that was not adapted to him for several years.
As a result, the measure complained of, which was applied when the applicant was due to complete the sentence on the first verdict soon and which is still valid, was based on insufficiently timely expert assessments and led to the fact that the applicant was kept for more than four half years after the expiration of the sentence sentenced to him by the verdict in the institution, which obviously did not correspond to his state of health.
Accordingly, since the applicant's deprivation of liberty on the basis of the 2012 sentence was incompatible with the purposes of the initial sentence, the provisions of Article 5 § 1 (a) of the Convention could not be applied to him.
Concerning compliance with Article 7 of the Convention. In the present case, the Swiss Federal Court noted that, even if it were to be presumed that therapeutic treatment in a hospital could be regarded as a punishment provided for by the law earlier in effect (at the time when the applicant committed unlawful acts), the measure was as strict as that established by the new legislation (which came into force on January 1, 2007), since even then the competent court had the right to issue a resolution on placing a convict in a psychiatric hospital who represented A serious threat to the safety of others.
The applicant did not provide convincing reasons that could cast doubt on this finding, nor did he argue that a review of the original sentence would be impossible in accordance with the previously valid cantonal law provisions.
In the case of the requirement of subparagraph "a" of paragraph 1 of Article 5 of the Convention were not violated (unanimously).
The requirements of Article 7 of the Convention were not violated (unanimously).
In application of Article 41 of the Convention, the Court awarded the applicant EUR 20,000 in respect of non-pecuniary damage.