Reducing the penalty, instead of financial compensation, is an appropriate form of redress for unjustified detention.
Porchet v. Switzerland 7.11.2019 (no. 36391/16)
The case concerned the applicant’s pre-trial detention in a 48-hour police custody facility and his
By way of compensation for having unduly spent 16 days in an unsuitable facility, the applicant was
granted a reduction of eight days in his prison sentence on conviction. The Federal Court took the
view that this form of redress, rather than a monetary award, was fully consistent with Swiss law.
The Court found that the type of compensation complied with Article 5 § 5 (right to liberty and
security / right to compensation) of the European Convention on Human Rights and therefore that
the applicant could no longer claim to be a victim of a violation of that Article.
The applicant, Mathieu Porchet, is a Swiss national born in 1993. He lives in the canton of Vaud
(Switzerland). In 2013 he was remanded in custody. In 2015 he was sentenced to 35 months’
imprisonment, partly suspended, for endangering the lives of others and for driving a vehicle
without a licence.
In this case Mr Porchet complained that he had been remanded in custody for 18 days in a police
custody facility instead of the 48 hours allowed by law. To compensate for the 16 days of detention
in the cell reserved for police custody, the Criminal Court granted him an eight-day reduction in his
prison sentence when he was convicted. Mr Porchet challenged this decision, claiming financial
compensation rather than a reduction in sentence. His appeal was rejected.
THE DECISION OF THE COURT
Mr Porchet had challenged the decision of the Swiss authorities to give him a reduction in sentence
rather than financial compensation for a period of pre-trial detention in breach of the Convention.
The Court reiterated that the right to compensation under paragraph 5 of Article 5 had to stem from
a violation of one of the other paragraphs of that Article. In addition, it was engaged only where
compensation for such violation could not be claimed in the domestic courts.
In the present case, the Court noted that on 11 December 2013 the court supervising pre-trial
restrictive measures had acknowledged that the conditions in which Mr Porchet spent 16 days of his
pre-trial detention did not comply with the law. The criminal court had subsequently reduced
Mr Porchet’s prison sentence by eight days to compensate for the non-pecuniary damage he had
sustained as a result of being wrongly held in a police custody cell. That decision had been upheld by
the Federal Court, which had expressly analysed the matter under Article 5 of the Convention.
The Court had previously found that national authorities were entitled to grant compensation in the
form of a reduction in sentence, if this was done in an express and measurable manner, under
Articles 3 (prohibition of torture and inhuman or degrading treatment), 5 § 3 (right to liberty and
security) and 6 (right to a fair trial) of the Convention.
By analogy with the above, the Court noted that Mr Porchet’s reduction in sentence of eight days
corresponded to compensation for his 16 days of pre-trial detention in an unsuitable facility. The
illegality thus related solely to the nature of the premises in which he was held. It was precisely on
account of the illegality of part of his pre-trial detention that the Criminal Court had reduced the
sentence. In the Court’s view, the compensatory intention of that court’s decision and the
proportionality of that reduction in sentence had been clearly established.
The Federal Court had taken the view that this form of redress, a reduction in sentence rather than a
monetary award, was fully consistent with Swiss law.
Since the national authorities had acknowledged the violation in question and had then provided
reparation for the damage caused – comparable to just satisfaction under Article 41 of the
Convention – the Court found that the applicant could no longer claim to be a victim of a violation of
Article 5 § 5 of the Convention.
The application was thus declared inadmissible.