Custody (Switzerland)

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In Switzerland, custody refers to the permanent imprisonment of dangerous criminals beyond the execution of the prison sentence. Custody is a measure and not a punishment, so it does not serve as atonement, but exclusively to protect the public. Their duration can therefore exceed the debt. It can also extend beyond the regular execution period of the life imprisonment . Custody is mainly regulated in Articles 59, 64 and 65 of the Criminal Code.

A distinction is made between inpatient therapeutic measures, detention and lifelong detention. The latter results from which came after a referendum on 8 February 2004 in force Article 123 a of the Swiss Federal Constitution be what a sexual or violent offenders who "considered extremely dangerous or are not treatable" is, "because of the high risk of relapse up to End of life to be kept ”, with no prospect of early release or imprisonment.

Types of custody

A distinction is made between three types of safekeeping:

  • the "small custody" in which the therapy is in the foreground
  • the orderly safekeeping in which the security is in the foreground
  • lifelong custody for “extremely dangerous” and “untreatable” offenders

It should be noted that in criminal law only ordinary and lifelong custody is referred to as such. Since the "small custody" has become commonplace, it is mentioned here for the sake of completeness.

Small custody

«If the offender is severely mentally disturbed, the court can order inpatient treatment if:
a. the perpetrator has committed a crime or misdemeanor related to his or her mental disorder; and
b. It is to be expected that this will counteract the risk of further acts related to his mental disorder. "

- Article 59 of the Swiss Criminal Code

“Small custody” refers to an inpatient therapeutic measure ordered by the court. While proper custody (see below) is an option for criminal offenses that result in a maximum sentence of at least 5 years, “small custody” is usually imposed together with a prison sentence of less than five years. The prison sentence is postponed in favor of the therapeutic measure. If there is no risk of escape, therapy can take place in an open facility. After five years, the measure can be extended for a maximum of five years.

Ordinary safekeeping

“The court orders custody if the perpetrator threatens murder, willful homicide, grievous bodily harm, rape, robbery, hostage-taking, arson, endangering life or any other with a maximum sentence of five years or more Has committed an act by which he has seriously impaired or intended to impair the physical, psychological or sexual integrity of another person and if: a. based on the personality traits of the perpetrator, the circumstances of the offense and his overall living conditions, it is to be expected seriously that he will commit further offenses of this type; or b. On the basis of a persistent or long-term psychological disorder of considerable severity with which the offense was connected, it is to be seriously expected that the perpetrator will commit further offenses of this type and the ordering of a measure under Article 59 does not promise success. "

- Article 64, paragraph 1 of the Swiss Criminal Code

Custody in accordance with Art. 64 Paragraph 1 StGB is pronounced by the court on the basis of personality disorders or psychological disorders of the perpetrator. The detention will be carried out after the sentence has been served. It is usually carried out in an enforcement agency or in a penal institution. The offender can be released from custody early if it is to be expected that he will prove himself in freedom. The first assessment takes place after the probationary period, which lasts two to five years. If the offender has not received a positive decision from the probation service by then , he will continue to be kept (Art. 64 a StGB). However, the court that held him / her checks annually whether the perpetrator can be released early from custody (Art. 64 b StGB).

Lifelong custody

The popular initiative “Lifelong custody for non-treatable, extremely dangerous sexual and violent offenders” (custody initiative), launched in response to the murder on Zollikerberg , was adopted in 2004. Since then, Article 123a BV provides:

1 If a sexual offender or violent criminal is considered extremely dangerous in the reports that are necessary for the court judgment and is classified as untreatable, he must be kept for the rest of his life because of the high risk of relapse. Early release and leave from prison are excluded.
2 New reports can only be drawn up if new, scientific findings show that the perpetrator can be cured and therefore no longer poses a threat to the public. If the custody should be canceled on the basis of this new expert opinion, the liability for a relapse of the perpetrator must be assumed by the authority that canceled the custody.
3 All expert opinions on the assessment of sexual offenders and violent criminals must be prepared by at least two independent, experienced experts, taking into account all the bases that are important for the assessment.

- Article 123a of the Swiss Federal Constitution

Article 123 a of the Federal Constitution was very controversial even before the vote. The following problems have been identified by lawyers, forensic psychiatrists, and human rights organizations:

  • that the definitive, indefinite custody is not compatible with the European Convention on Human Rights (ECHR); this on the basis of Article 3, which prohibits inhuman treatment, and Article 5, according to which every detainee can have the legality of his detention checked;
  • A review of the detention is only possible if in the meantime “new, scientific findings” have appeared on the therapeutic ability; According to the ECHR, however, it may be contrary to human rights if the prisoner cannot influence the chances of being released from prison himself
  • Since, according to the initiative text, early release is not possible, it was also criticized that the experts had to make a prognosis about the treatability of the offender for the entire remaining lifetime of the offender. Linked to this is the question of whether and in what way the expert may assess and take into account the future development of novel therapeutic options. The cantonal courts interpreted a predicted untreatability for the next 20 years in such a way that no change in the possibility of treatment could be expected for the rest of the life either, which, in the opinion of the Federal Court, is not supported by either the constitutional article or Article 64 of the Criminal Code;
  • the question of what “non-treatable” means: on the one hand, a criminal who does not show any mental illness cannot be treated from the outset and thus cannot be released from custody, and on the other hand, a criminal cannot be treated if there are no suitable treatment facilities. According to the “Safekeeping” working group of the FDJP , permanent non-treatment must be determined using “structural, closely and permanently linked to the personality of the perpetrator” criteria; A lack of rational confession, symptoms that can be influenced by medication, the unavailability of a therapy facility and the lack of motivation of the perpetrator to start therapy are not decisive.

Art. 64 Paragraph 1 bis StGB states:

«The court orders lifelong detention if the perpetrator has committed murder, intentional homicide, grievous bodily harm, robbery, rape, sexual assault, deprivation of liberty or kidnapping, hostage-taking, human trafficking , genocide or a violation of international law Has committed cases of armed conflict under Articles 108–113 of the Military Criminal Code. "

This catalog of criminal offenses that can lead to lifelong custody is exhaustive .

Custody in accordance with Art. 64 Paragraph 1 bis of the Criminal Code is issued if the perpetrator has impaired the physical, psychological or sexual integrity of another person particularly severely with the crime, if there is a risk that the perpetrator will relapse, or if the Perpetrator is classified as permanently untreatable. Custody begins after the sentence has been served and is usually carried out in an enforcement agency or in a penal institution.

In the case of lifelong custody under Article 64 paragraph 1 bis of the Criminal Code, the competent authority examines ex officio or upon request whether there are new scientific findings that suggest that the perpetrator can be treated in such a way that he no longer poses a danger to the public. If the competent authority comes to the conclusion that the perpetrator could be treated, it offers him treatment. This is done in a closed facility. If the treatment shows that the danger posed by the perpetrator has been reduced significantly and can be reduced to such an extent that he no longer poses a threat to the public, the court cancels lifelong detention and orders inpatient therapeutic measures. The court can conditionally release the offender from lifelong custody if he no longer poses a threat to the public as a result of old age, serious illness or for any other reason (Art. 64 c StGB).

In October 2010, a criminal was sentenced for the first time in Switzerland with the measure of lifelong detention. The judgment of the district court is final . So far (as of March 2018) every lifelong custody that has been reviewed by the federal court has been lifted.

See also

Web links

Individual evidence

  1. ↑ a b skmr.ch
  2. ↑ a b c Judgment 140 IV 1; Appeal against the judgment of the Higher Court of the Canton of Aargau on February 29, 2012 for murder and disturbance of the peace of the dead (Lucie murder case)
  3. ↑ Vera Bueller: Confusion about safekeeping. (PDF) In: The Swiss Observer . (21/2007):
  4. ↑ Lifelong custody ordered for the first time. In: Neue Zürcher Zeitung . Online October 7, 2010
  5. ↑ Lifelong safekeeping. ( Memento of the original from July 21, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Video contribution in 10vor10 from October 7, 2010 (3 minutes) @1@ 2Template: Webachiv / IABot / www.srf.ch
  6. ↑ Call girl killer is kept for life. In: Tages-Anzeiger / Newsnet of May 24, 2011.
  7. ↑ Sarah Jäggi: I just wanted peace and quiet. In: The time . No. 4/2016, January 21, 2016.
  8. ↑ «Too high hurdles for lifelong custody». In: 20 minutes. Retrieved October 16, 2017 .