12 Nov Preventive detention of a mentally ill offender lead to a violation of Convention

In judgment in the case of  W.A.  v.  Switzerland (application no. 38958/16, 02.11.2021) the European Court of Human Rights held, unanimously, that there had been:

•  a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights, 
• a violation of Article 7 § 1 (no punishment without law) of the European Convention, and 
• a violation of Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the Convention.

The case concerned the ordering of preventive detention in respect of W.A. – a man who had serious psychiatric issues – after he had served a 20-year sentence for two homicides. W.A.  served his sentence until 2010,  when  he  was  detained  on  remand  following  a  prosecutorial application  to  have  him  placed  in  preventive  detention  under  new  amendments  to  the  Criminal Code. In 2013 his preventive detention was ordered by the Zürich District Court. The applicant complained about his preventive detention, claiming that he was being punished retrospectively, and that he had been punished twice for the same crimes.

The Court stated that “Conviction”, within the meaning of the Court’s case-law, referred to both the finding of an offence and the consequent imposition of a penalty. Only the judgment finding a person guilty of an offence meets the requirements of a “conviction” under Article 5 § 1 (a). The Court noted that unlike the applicant’s initial trial and judgment, the 2013 detention order had not met the Convention requirements of a stand-alone “conviction”. 

The Court furthermore found that the reopening procedure had not created a sufficient link between the initial conviction and the subsequent preventive detention. The original offences had not been re-examined and no new facts established in that procedure, only whether the applicant had met the requirements for preventive detention. This had amounted to a de facto additional punishment. 

Regarding the deprivation of liberty of persons suffering from mental disorders, the Court stated that the applicant was indeed a person “of unsound mind” for the purposes of Article 5 § 1 (e), but in order for his detention to be lawful, it would have been necessary to detain him in a suitable institution for mental health patients and not in an ordinary prison even if he was not amenable to treatment. There had been a violation of Article 5 § 1 of the Convention.

The Court affirmed that the detention order had amounted to a “heavier” penalty being imposed on the applicant. In particular, 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 convictions from the 1990s had become final. Moreover, under the new version of the Criminal Code, owing to the fact that the term of imprisonment imposed was now executed prior to a preventive detention order, the person concerned was liable to be detained for a longer period of time. There had accordingly been a violation of Article 7 § 1 of the.

References from the official website of the European Court of Human Rights