The confinement of a detainee to a security wing for preventive protection of third parties and without legislative provision violates the right to freedom (Article 5 § 1 of the ECHR)
JUDGMENT
Τ.Β. v. Switzerland 30.04.2019 (no. 1760/15)
SUMMARY
The case concerns the applicant’s “placement for assistance purposes” in the period from April 2014
to April 2015. The Court observed that the applicant had been placed in the security wing of the prison solely on
the ground that he represented a danger for others. It noted that the Federal Council had explained that the protection of third parties could constitute an additional factor for an assessment of the situation but that it was not decisive by itself. The Federal Court had, moreover, expressly emphasised in its leading decision that any deprivation of liberty “for assistance purposes” on the sole ground of endangering others was not prescribed by
law and did not constitute a valid ground for such placement. The Court concluded that the
applicant had thus been imprisoned without a legal basis and purely by way of preventive detention
in the prison.
PROVISION
Article 5 § 1
PRINCIPAL FACTS
The applicant, Mr T.B., is a Swiss national who was born in 1990. He was held in Lenzburg prison
(Switzerland), an institution for the execution of sentences and other penal measures.
In November 2011 T.B. was sentenced to four years’ imprisonment for premeditated murder,
aggravated rape and aggravated sexual constraint, for killing a prostitute in a particularly heinous
manner, after raping her twice. The Juvenile Court supplemented his sentence with a protection
measure, in the form of placement in a specialised closed centre with treatment for mental
disorders. In May 2012 the public prosecutor for minors sought his placement with medical
treatment, when he reached 22, in a closed and secure institution.
On 20 June 2012 the district office ordered T.B.’s placement in accordance with the first paragraph
of Article 397a of the Civil Code in security wing II of Lenzburg prison. On 5 September 2012 the
Federal Court dismissed at last instance the applicant’s civil-law appeal against that decision and on
22 November 2013 the Federal Court confirmed that new Article 426 of the Civil Code constituted a
sufficient legal basis for his placement “for assistance purposes”. T.B. again applied for his release.
In a judgment of 8 July 2014, the Federal Court pointed out that it had ruled in its leading decision
that the conditions of former Article 397a of the Civil Code were met in the present case and took
the view that T.B. represented a high risk for others. Moreover, the Federal Court decided that it could not depart from its judgment of 22 November 2013 in which it had ruled that new Article 426 of the Civil Code provided a sufficient legal basis for placement “for assistance purposes”.
On 18 August 2015, and after spending three years in security wing II, the applicant was transferred
to the prison’s general unit for the execution of sentences. The placement was extended several
times and, on 11 June 2018, the Family Court, in extending the placement until the end of
September 2018, decided that after that date T.B. would be placed in external accommodation,
which was the case as of 28 September 2018.
THE DECISION OF THE COURT
Article 5 § 1
The Court observed that T.B. had been placed “for assistance purposes”, namely psychiatric
treatment, in the security wing of the prison for the sole reason that he represented a danger for
others.
It noted that, according to the case-law of the Federal Court, the conditions of placement “for
assistance purposes” were governed by the Civil Code. Under Article 426 of that Code – as under
former Article 397a – such placement was pronounced when the person suffered from mental
disorders that required personal assistance or treatment that could only be provided in a specialised
institution.
The Court observed that the concerns about personal assistance and security considerations were
somehow intertwined in the second paragraph of Article 426 of the Civil Code, which required the
authority to take into account the burden that the person concerned represented for his or her
relatives or for third parties, while ensuring the protection of others. In this connection, the Court
noted that the Federal Council had clarified the scope of the relevant provision in that the protection
of third parties could now constitute an additional element in the assessment of the situation but
that it was “not decisive on its own”. The mere need to protect society from the person concerned
could not justify placement “for assistance purposes”. The Court also noted that the Federal Court
had expressly emphasised in its leading decision that deprivation of liberty “for assistance purposes”
solely on the grounds of endangering others was not prescribed by law and did not constitute a valid
reason for such placement. It followed that the second paragraph of Article 426 of the Civil Code
could not justify the applicant’s detention by way of legal basis.
These elements sufficed for the Court to find that the applicant had been held in the prison without
a legal basis and purely by way of preventive detention.
In conclusion, the Court took the view that the applicant’s placement “for assistance purposes”
during the period from April 2014 to April 2015 in the prison’s security wing had not been
implemented lawfully. It followed that there was no need to address the question whether the
institution where he had been held was suitable.
There had thus been a violation of Article 5 § 1.
Just satisfaction (Article 41)
The Court held that Switzerland was to pay the applicant 25,000 euros (EUR) in respect of nonpecuniary damage and EUR 7,000 in respect of costs and expenses(echrcaselaw.com editing).
