W.A. v. Switzerland (Application no. 38958/16)

A selection of key paragraphs can be found below the judgement.


43.  The Court observes that in the present case, the commission by the applicant of the capital offences he had been found guilty of in 1993/1995 has not been re-assessed or re-established in the reopened proceedings at issue. Nor has the term of 20 years’ imprisonment imposed in 1993/1995 –and which the applicant has fully served – been re-examined. In line with the requirements of Article 65 § 2 of the Criminal Code, the domestic courts only examined whether the requirements for an additional preventive detention of the applicant were met and had already been met at the time of his conviction without this having been known to the sentencing court.

44.  The Court considers that in these circumstances, no fresh determination of a criminal charge in a new decision is made in the reopened proceedings at issue. The proceedings de facto amount to the imposition of an additional sanction aimed at protecting society for an offence which the applicant has previously been convicted of, without there being new elements affecting the nature of the offence or the extent of the applicant’s guilt (compare also the facts at issue in the Court’s Grand Chamber judgment in Ilnseher, cited above, § 144).

45.  In these circumstances, the preventive detention was incompatible with the aims of the applicant’s initial conviction. The Court therefore cannot accept that the reopening procedure in question created a causal link between the initial conviction and the subsequent preventive detention. As the applicant’s “conviction” in 1993/1995 did not comprise a preventive detention order, there was consequently no causal link between that conviction and the applicant’s subsequent preventive detention, for the purposes of Article 5 § 1 (a) and his detention was thus not justified under that provision.

46.  As to whether the applicant’s subsequent preventive detention could be justified under Article 5 § 1 (e), the Court agrees with the Government that the applicant was a person “of unsound mind” for the purposes of that provision. It notes, in particular, that in the proceedings at issue, the domestic courts established that the applicant suffered from a serious personality disorder and psychopathy and that, owing to that condition, there was a very high risk that he would commit further serious violent offences if released (see paragraph 10 above). However, preventive detention is usually executed in a similar manner as a term of imprisonment (compare paragraph 12 above) and the applicant has indeed been detained in an ordinary prison. Therefore, the applicant has not been detained in an institution suitable for the detention of mental health patients. The Court recalls that the placement of a person detained as a mental health patient in an appropriate institution for such patients is required even if the condition of the person concerned proved not to be amenable to treatment (see paragraph 37 above). The applicant’s detention was thus not “lawful” for the purposes of Article 5 § 1 (e).

47.  The Court further takes the view – and this is uncontested by the parties – that none of the other sub-paragraphs of Article 5 § 1 can serve to justify the applicant’s detention at issue.

48.  There has accordingly been a violation of Article 5 § 1 of the Convention.


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