The temporary placement of a juvenile convicted of drug offences and theft in an open center to prevent him from committing new crimes did not violate his right to liberty and security
JUDGMENT
Reist v. Switzerland 27.10.2020 (app. no. 39246/15)
SUMMARY
The case concerned a provisional protective measure ordered against the applicant by the
prosecutor for juvenile offenders, pending the delivery of a judgment replacing an initial measure of
personal assistance which had proved unsuccessful.
The Court reiterated that deprivation of liberty under Article 5 § 1 (a) had to be based on a
“conviction” and there had to be a sufficient causal link between the initial conviction and the
prescribed measure. It noted that the summary penalty order of 18 March 2014 expressly
mentioned a provision of the Juvenile Offenders Act (section 13), providing for a protective measure
of personal assistance. Personal assistance being one of the protective measures available, the
prosecutor had been entitled to order the applicant’s provisional placement as a crisis management
solution.
The Court was thus of the view that there was a sufficient causal link between the initial summary
penalty order and the applicant’s provisional placement.
PROVISION
Article 5
PRINCIPAL FACTS
The applicant, Steve Reist, was born on 8 July 1996 and lives in Koppigen (Switzerland).
In March 2014, when he was a minor, Mr Reist was given a suspended sentence of five days’
imprisonment, with one year’s probation, for acts of theft, multiple counts of fraud and attempted
fraud, having caused the victim damage amounting to a total of 2,700 Swiss francs (CHF) or 2,562
euros (EUR), and also for the purchase, consumption and resale of at least 30 grams of cannabis. At
the same time, a protective measure was ordered by the prosecutor to induce Mr Reist to refrain
from using illegal substances and from committing further offences.
Noting the ineffectiveness of the protective measure on the youth, who continued to use drugs and
commit acts of theft, the prosecutor decided to apply for a replacement of the initial measure.
Pending the judgment amending the measure, the prosecutor ordered Mr Reist’s provisional
placement in an open institution, which was to begin in a secure environment for a maximum of
three months. He considered this provisional measure to be indispensable and proportionate in view
of the youth’s dangerous behaviour.
The applicant’s appeal to the Supreme Court of the Canton of Bern was rejected by a decision of
9 January 2015. Mr Reist then lodged an appeal with the Federal Court, seeking his immediate
release from the provisional placement. Before the Federal Court responded negatively to his request in a decision of 22 April 2015, he had already been released by the Cantonal Juvenile Court and had returned to live with his parents.
Relying on Article 5 (right to liberty and security) of the European Convention, the applicant alleged
that his provisional placement had been ordered without any legal basis.
THE DECISION OF THE COURT…
Article 5 § 1
The Court reiterated that deprivation of liberty under Article 5 § 1 (a) had to be based on a
“conviction” and there had to be a sufficient causal link between the initial conviction and the
prescribed measure.
In the present case the Court noted that the summary penalty order of 18 mars 2014, which had
become an enforceable judgment, contained a declaration of guilt in respect of a criminal offence
and imposed a sentence combined with a protective measure, consisting in placing the applicant in
an open facility but with an initial custodial phase for a maximum of three months.
As to whether there was a sufficient causal link between the initial summary penalty order and the
applicant’s provisional placement in an open facility – with an initial custodial phase up to three
months – the summary penalty order of 18 March 2014 expressly mentioned a provision of the
Juvenile Offenders Act (section 13), providing for a protective measure of personal assistance.
Personal assistance being one of the protective measures available, the prosecutor had been
entitled, under section 5 of that Act, to order the applicant’s provisional placement as a crisis
management solution.
The Court was thus of the view that there was a sufficient causal link between the initial summarypenalty order and the applicant’s provisional placement.
Accordingly the deprivation of liberty imposed on the applicant had been covered by Article 5 § 1 (a)
and was to be regarded as lawful detention.
There had therefore been no violation of Article 5 § 1 of the Convention.
