The imposition of temporary detention pending a decision to extend a therapeutic measure despite the absence of a relevant provision violated the right to liberty and security. Proportional provisions are not permitted in respect of temporary detention.


I.L. v. Switzerland 3.12.2019  (no.  72939/16)

see here  


Temporary detention, legal provision and restrictions.

The applicant was sentenced to 14 months in prison and to therapeutic treatment. The execution of the prison sentence was suspended due to monitoring of the therapeutic measure. Five years after the implementation of the measure in question, the competent judicial authority requested its extension, and in the intervening period of 13 June to 13 September 2019, the applicant was temporarily detained.

The Court found that there was no explicit legislative provision in Swiss criminal law for this type of detention, nor sufficient national case law in this respect. Given the seriousness of the infringement of the applicant’s personal freedom and the need for a rigorous interpretation of the requirements governing lawful detention, proportionate application or referral to another provision cannot be tolerated.

The ECtHR also held that federal law did not meet the “legality” criteria for the purposes of Article 5 § 1, and therefore the applicant’s detention between 13 June and 13 September 2016 infringed his right to personal liberty and security.


Article 5 par. 1


The applicant, I.L., is a Swiss national who was born in 1988.

On 24 June 2011 the Supreme Court of the Canton of Berne upheld a judgment by the Regional
Court of Jura Bernese-Seeland, which had sentenced I.L. to 14 months’ imprisonment and to an
institutional treatment measure. Execution of the prison term was suspended pending completion of
that measure. This judgment became final.

Under Article 59 of the Swiss Criminal Code, an institutional treatment measure cannot exceed five
years; however, if the conditions for release on licence are not met after five years, the judge may,
at the request of the executing authority, order an extension of the measure for a maximum period
of five years on each renewal.

On 24 May 2016 the division with responsibility for the application of sentences and measures at the
Canton of Berne’s judicial execution office asked the Regional Court of Jura Bernese-Seeland to
order a five-year extension of the institutional treatment measure.

Pending that decision, the regional court with responsibility for coercive measures ordered that I.L.
be detained for reasons of public safety between 13 June 2016 and 23 September 2016. The
applicant appealed against that decision, arguing that it had no legal basis, but his appeal was
unsuccessful. At last instance, the Federal Supreme Court held that, in accordance with its settled
case-law, the provisions of the Code of Criminal Procedure on pre-trial detention were applicable by
analogy to the present case.

On 20 June 2019 I.L. was released on licence with a two-year probationary period.


Article 5 § 1 (right to liberty and security)

The Court noted that the decision ordering detention on public safety grounds (from 13 June to
13 September 2016) would not have been necessary if the judgment extending the institutional
measure had been delivered in time, that is, before expiry of the five-year period set by Article 59 of
the Criminal Code. In practice, however, it was not always possible to comply with this deadline; for
example, a psychiatric assessment could take additional time depending on the complexity of a
specific case. Thus, as in the present case, there could be a lapse of time between the expiry of the
five-year period and the entry into force of the judgment extending the measure. During that period,
the prisoner remained in detention, especially where serious grounds existed for believing that he
would commit a new crime or serious offence and a custodial measure would be re-imposed.

The Court noted that it was undisputed that in Swiss criminal law there was no explicit legal basis for
this type of detention. The Government alleged that the Federal Supreme Court had settled case-law
which compensated for the lack of specific legislative provisions. However, the judgments to which
they referred did not concern the same situation. With regard to the Code of Criminal Procedure
(which entered into force on 1 January 2011), there was only one leading judgment that was
applicable to the situation in the present case. Under the Court’s case-law, a single precedent could
not form a sufficiently precise legal basis. It could not therefore be described as consistent case-law.
Moreover, the Federal Supreme Court had itself stated in numerous judgments that clear rules ought to be enacted in the area of detention on public safety grounds in cases involving separate
subsequent judicial decisions.

In consequence, having regard to the seriousness of the interference with the applicant’s personal
liberty and the need for a strict interpretation of the requirements underpinning lawful detention,
the application by analogy or by referral to a substantive provision could not be tolerated. The
federal legislation did not therefore fulfil the criteria of a “law” for the purposes of Article 5 § 1 (right
to liberty and security) and the applicant’s detention between 13 June and 13 September 2016 had
not been compatible with that Article. It followed that there had been a violation.

The court noted, however, that the Swiss Parliament was now anxious to fill this legislative void and
that preparatory work to that effect was being conducted.

Just satisfaction (Article 41)

The Court held that Switzerland was to pay I.L. 25,000 euros (EUR) in respect of non-pecuniary
damage and EUR 4,000 in respect of costs and expenses


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