Detention of a psychiatric patient in inappropriate conditions. Degrading treatment, and violation of personal freedom
JUDGMENT
I.L. v. Switzerland (no. 2) 20.02.2024 (app. no. 36609/16)
SUMMARY
The case concerned the lawfulness of the applicant’s detention as part of an institutional therapeutic
measure imposed on him, together with his detention conditions and the time taken to examine his
application for release.
The Court found that the applicant’s detention in solitary confinement in Thorberg, Lenzburg and
Bostadel Prisons from 27 July 2012 to 25 February 2016, particularly in the absence of adequate
therapeutic care, amounted to inhuman and degrading treatment within the meaning of Article 3 of
the Convention. It followed that there had been a violation of that Article.
The Court found that the deprivation of the applicant’s liberty from 27 July 2012 to 25 February 2016
had not been “lawful”, as he had not been held in an appropriate facility. There had thus been a
violation of Article 5 § 1 of Convention.
Lastly, the Court found that the application for release lodged by the applicant on 17 September
2014 had not been examined “speedily”, because of the complexity of the domestic proceedings.
Accordingly, there had been a violation of Article 5 § 4 of the Convention.
PROVISIONS
Article 3
Article 5 par. 1
Article 5 par. 4
Article 13
PRINCIPAL FACTS
The applicant, I.L., is a Swiss national who was born in 1988 and lives in Ostermundigen
(Switzerland).
On 7 June 2010 the applicant was sentenced to seven-and-a-half months’ imprisonment and a fine
for various violent offences. The District Court also ordered him to receive outpatient treatment.
The applicant served his sentence in Thun Prison.
On 8 July 2010 the Sentence and Measure Enforcement Division (Section de l’Application des Peines
et Mesures – “the SAPEM”) released the applicant on licence subject to a one-year probationary
period and a requirement to receive outpatient treatment.
After the applicant committed further acts of violence, the court ordered him to return to prison in a
decision of 10 September 2010.
A psychiatric assessment was conducted on 13 December 2010. It found that the applicant suffered
from mixed personality disorder with traits indicating an emotionally unstable and paranoid
personality. It also concluded that he consumed harmful amounts of alcohol and cannabis. The
expert thus recommended an institutional therapeutic measure on a transitional basis.
The applicant was released on 27 January 2011.
On 9 February 2011 the Bernese Jura-Seeland Regional Court sentenced the applicant to 11 months’
imprisonment, which it suspended pending completion of an institutional therapeutic measure
within the meaning of Article 59 of the Criminal Code. It also ordered that the applicant be detained
for safety reasons. On 24 June 2011 the Canton of Berne Supreme Court (“the Cantonal Supreme
Court”) increased the prison term to 14 months and, save some minor adjustments, upheld the firstinstance judgment. It also ordered that the applicant remain in detention for safety reasons.
Between August and September 2011 the SAPEM contacted several facilities in an attempt to place
the applicant for the institutional therapeutic measure. To that end, it ordered him to be admitted to
Thorberg Prison in a decision of 17 November 2011.
On 18 November 2011 the applicant was thus transferred to Thorberg Prison, where he stayed until
16 March 2015. Disciplinary action was taken against him several times during that period.
In a letter of 31 July 2012 the SAPEM asked the Zurich Cantonal Hospital’s Rheinau Forensic
Inpatient Care Centre to admit the applicant.
The Thorberg Prison Service issued a supervisory report on 28 September 2012, informing the
SAPEM that it was clearly not a suitable place for the court-ordered measure to be executed. It
recommended that the possibility of psychiatric medication be assessed and that the applicant be
transferred as quickly as possible to a mental health institution such as the Basle Forensic Psychiatry
Service or the Étoine Forensic Psychiatry Facility.
On 31 January 2013 the SAPEM, acting on the recommendation of the University of Berne’s
integrated forensic psychiatry service, requested a new psychiatric assessment of the applicant. The
two psychiatric experts appointed to that end noted in their report of 24 September 2013 that the
applicant suffered not only from mixed personality disorder with traits indicating an emotionally
unstable, dissocial, paranoid and narcissistic personality but also from schizotypal personality
disorder. They recommended that the institutional therapeutic measure be reapplied in a specialised
institution such as the Étoine facility or the Rheinau clinic.
On 7 November 2013 the SAPEM once again asked the Rheinau clinic to admit the applicant. The
clinic’s board replied on 20 May 2014 that it was willing to take the applicant but that at the relevant
time there were no available places and there was a waiting time of several months.
The applicant was transferred to Lenzburg Prison on 12 March 2015, where he stayed until 6 January
2016. During that time he was held in a high-security wing under the same system and conditions of
detention as in Thorberg Prison’s high-security “A” wing.
In a decision of 6 January 2016 the SAPEM ordered the applicant to be transferred to Bostadel Prison
and held there in solitary confinement in a high-security wing. The applicant remained in that facility
until 25 February 2016.
On 25 February 2016 the SAPEM ordered the applicant to be transferred to the Étoine facility for six
weeks. It considered that additional psychiatric treatment and another psychiatric assessment were
needed in the light of recent observations from Bostadel Prison, according to which the applicant
was displaying psychotic symptoms. That same day, upon the applicant’s arrival in the Étoine facility,
the doctors there ordered compulsory medication.
In the meantime, on 17 September 2014 the applicant, represented by his lawyer, had requested
that the therapeutic measure be lifted and that he be released. He had also complained on
23 October 2014 of a violation of the principle of speedy proceedings.
In a decision of 4 November 2014 the SAPEM had rejected the applicant’s request for release. The
applicant had then appealed against that decision to the Canton of Berne Department of Police and
Military Affairs (Direction de la Police et des Affaires Militaires – “the DPAM”). The DPAM had
dismissed that appeal on 19 March 2015. The applicant had then challenged the dismissal before the
Cantonal Supreme Court. He had also lodged an appeal with the Federal Supreme Court for denial of
justice and undue delay.
On 6 October 2015 the Cantonal Supreme Court had ordered the therapeutic measure to be lifted
and the applicant to be released if no place had become available at the Rheinau clinic or another
suitable facility by 29 February 2016 at the latest. The applicant had appealed against that decision
to the Federal Supreme Court.
After having joined that appeal to the above-mentioned appeal for undue delay and denial of justice,
the Federal Supreme Court had found against the applicant in a judgment of 29 December 2015.
The applicant was transferred to the Rheinau clinic on 19 May 2016.
On 20 June 2019 the applicant was granted release on licence, with regard to the institutional therapeutic measure, subject to a two-year probationary period.
THE DECISION OF THE COURT…
Article 3
The Court noted that the applicant had been held successively in Thorberg, Lenzburg and Bostadel
Prisons for the entire period from 18 November 2011 to 25 February 2016, that is, for four years,
three months and nine days. During that period, he had mainly been kept in those facilities’ highsecurity wings in solitary confinement. In total, the applicant had been detained in solitary confinement for three years, one month and 28 days. Based on the evidence available to the Court, no consideration had been given to the applicant’s mental illness when disciplinary action had been
taken against him.
The applicant’s therapeutic treatment had begun on 17 January 2012 in the form of individual
therapy sessions. These had been discontinued in September 2012. The absence of appropriate
treatment had become flagrant following the expert report of 24 September 2013 which, in the light
of an amended diagnosis, had recommended that the institutional therapeutic measure be reapplied
in a specialised institution such as the Étoine facility or the Rheinau clinic.
The Court observed that both the Federal Supreme Court and the Government had lent particular
weight to the fact that the applicant himself had refused the therapy sessions. The Court held,
however, that that refusal could not be decisive in view of the circumstances, that is, given that at
least from 27 July 2012 the applicant had been held in a facility unsuited to his declining mental
health. In addition, the Federal Supreme Court had itself acknowledged in its judgment of
29 December 2015 that, following the amended diagnosis of 24 September 2013, Thorberg Prison
could no longer be considered an appropriate place for the recommended treatment. It had further
recognised that a lack of available capacity had been the reason the applicant had not yet been
admitted to the Rheinau clinic.
The Court further noted that, just a few days after a doctor’s assessment on 25 November 2015, the
applicant’s mental health had declined and required the urgent administration of compulsory
medication. It could not therefore be said that holding the applicant in solitary confinement without
suitable therapeutic care had had no negative impact on his mental health. That observation was
corroborated by the findings of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT), which had warned of the potentially detrimental
effects of solitary confinement on the mental health of high-security detainees in Swiss prisons.
Lastly, the Court observed that the applicant’s health had begun to stabilise and then to improve in
August 2016, just months after he had started receiving the necessary therapeutic care at the Étoine
facility and the Rheinau clinic. That improvement had enabled his release on licence in June 2019.
The Court thus found that the applicant’s detention in solitary confinement from 27 July 2012 to
25 February 2016 in prisons unable to provide him with appropriate care, combined with the
disciplinary action taken against him and occasionally involving the use of handcuffs, must have
exacerbated the suffering caused by his mental illness and amounted to inhuman and degrading
treatment within the meaning of Article 3 of the Convention. It followed that there had been a
violation of that Article.
Article 3 taken alone and in conjunction with Article 13
The Court noted that section 66(1) of the Canton of Berne’s law on the enforcement of sentences
and measures, as in force at the relevant time, had provided that anyone subject to compulsory
medication had been able to lodge a written appeal against the measure with the DPAM within ten
days of the decision. The Court therefore held that there had been a domestic remedy enabling the
applicant to challenge the compulsory medication order, and that he had had access to that remedy
at the relevant time.
It followed that the applicant’s complaint under Article 3 of the Convention about his compulsory
medication had to be rejected for non-exhaustion of domestic remedies and thus declared
inadmissible. In the light of that finding, the Court also considered the complaint under Article 13 of
the Convention manifestly ill-founded.
Article 5 § 1
The Court observed that the applicant had been placed in Thorberg Prison following the SAPEM’s
unsuccessful attempts to secure him a place in a specialised psychiatric institution. Furthermore, his
therapeutic care at Thorberg Prison, where he had been transferred on 18 November 2011, had
begun in January 2012 in the form of individual therapy sessions. That treatment had been
discontinued on 27 July 2012 and had not resumed until February 2016.
The Court noted that the domestic authorities had not been inactive with regard to the situation.
However, despite the steps taken by the SAPEM from 31 July 2012 onwards, the fact remained that
the applicant had continued to be held in facilities unable to provide him with suitable treatment.
Both the doctors and the prison services involved had pointed that issue out on several occasions. It
had only been on 25 February 2016, following a decline in his mental health, that the applicant had
been transferred to the Étoine facility, where he had received appropriate therapeutic care and
medication.
It followed that from 27 July 2012 to 25 February 2016 – that is, for three years and seven months –
the applicant had been held in facilities that had been unable to provide him with a suitable medical
environment for his mental health or with genuine therapeutic measures to prepare him for
potential release.
The Court found that the deprivation of the applicant’s liberty from 27 July 2012 to 25 February 2016
had not been “lawful”, as he had not been held in an appropriate facility. There had thus been a
violation of Article 5 § 1 of Convention.
Article 5 § 4
The Court noted in the present case that most of the delay in the proceedings had been attributable
to the requirement under the law of the Canton of Berne for the applicant to appeal first to the
SAPEM and the DPAM – neither of which, moreover, afforded the guarantees of a “tribunal” within
the meaning of the Convention. The Court reiterated that the complexity of domestic proceedings
was no justification for procedural delay, because the Convention imposed a duty on Contracting
States to organise their judicial systems in such a way that their courts could meet its requirements,
particularly to hear a case within a reasonable time.
The Court found that the application for release lodged by the applicant on 17 September 2014 had
not been examined “speedily”. Accordingly, there had been a violation of Article 5 § 4 of the
Convention.
Just satisfaction (Article 41)
The Court held that Switzerland was to pay the applicant 32,500 euros (EUR) in respect of
non-pecuniary damage and EUR 8,000 in respect of costs and expenses.
