Kadusic v. Switzerland (European Court of Human Rights)

Information Note on the Court’s case-law 214
January 2018

Kadusic v. Switzerland43977/13

Judgment 9.1.2018 [Section III]

Article 5
Article 5-1-a
After conviction

Prison sentence belatedly replaced by psychiatric detention beyond initial duration, on the basis of outdated medical assessment and without transfer to suitable premises: violation

Article 5-1-e
Persons of unsound mind

Psychiatric detention of convicted prisoner beyond initial sentence, on the basis of outdated medical assessments and without transfer to adequate premises: violation

Article 7
Article 7-1
Heavier penalty

Prison sentence subsequently replaced by psychiatric detention: no violation

Article 4 of Protocol No. 7
Right not to be tried or punished twice

Prison sentence subsequently replaced by psychiatric detention by way of revision of initial sentencing judgment: no violation

Facts – In 2005 the applicant was sentenced to eight years’ imprisonment. In 2007 the sentence was upheld on appeal. In 2012, following revision of the judgment, the portion of the sentence still to be served was suspended and replaced by an “institutional therapeutic measure” in view of the applicant’s mental health problems. The applicant consistently refused to follow the psychiatric treatment provided for. He argued (i) that his continuing detention beyond the initial period of imprisonment imposed was unlawful; (ii) that a heavier penalty had been applied retroactively (in so far as the legal basis for the measure complained of was an Article of the Criminal Code that entered into force in 2007); and (iii) that the revision of the judgment had breached the ne bis in idem principle.


Article 5 § 1 of the Convention: The Court ruled out the application of Article 5 § 1 (c) at the outset, and also found sub-paragraphs (a) and (e) to be inapplicable for the following reasons.

The 2005 judgment convicting the applicant had not provided for any therapeutic measures, either in an institution or in the community. In so far as the 2012 judgment had replaced the original judgment, or at least suspended execution thereof, the applicant’s detention from 22 August 2012 had no longer been covered by the original judgment.

Under Swiss law, institutional therapeutic measures could be applied, by means of a revision of the original judgment, where relevant new facts had come to light. The Court was prepared in principle to accept that the proceedings for revision of the earlier judgment, in the course of which the measure complained of was imposed, could constitute a causal link between that measure and the original sentence. However, that causal link could eventually be severed if the person’s continued detention was based on grounds that were incompatible with the initial objectives. In order to ascertain whether the detention in question had been arbitrary, it was therefore necessary in this case to take account of factors that appeared to fall more within the scope of sub-paragraph (e).

Firstly, while the order of events and the considerable length of time that had elapsed were not in themselves decisive, the Court noted that the measure in question had been ordered more than seven years after the applicant’s initial conviction and only seven months before his planned release.

Secondly, the measure in question had been ordered by the Court of Appeal almost three years and eleven months after the first expert medical report establishing that the applicant had mental health problems, in 2008, and two years and two months after the additional report written in 2010. That gap in time appeared excessive (the more recent reply by the second expert to the Court of Appeal in 2012, a few months before the measure, concerning the more limited issue of the institutions that would be suitable for the applicant, was not relevant in that regard).

Thirdly, the second expert had referred in that reply to two prisons that had therapy services within the meaning of the relevant Article of the Criminal Code. However, the applicant had not been transferred there and instead had remained in his original place of detention. Hence, he was not being treated in an appropriate setting, despite the fact that domestic law actually stipulated that the measure was to be lifted if no suitable institution could be found. The fact that the applicant had refused to undergo any psychiatric treatment did not justify holding him in an inappropriate place of detention for years.

In sum, the measure complained of, which had been imposed only when the applicant was close to completing his original sentence and which remained in force to date, had been based on expert assessments that were not sufficiently recent and left the applicant, more than four and a half years after the expiry of his prison sentence, in an institution that was manifestly unsuited to his condition.

Hence, since it was incompatible with the aims of the original sentence, the applicant’s detention on the basis of the 2012 judgment could not be covered by sub-paragraph (a) of Article 5 § 1.

Since the criteria for the applicability of sub-paragraph (e) were similar, it too was inapplicable for essentially the same reasons.

Conclusion: violation (unanimously).

Article 7 of the Convention: In the present case the Federal Supreme Court had noted that, even assuming that institutional therapeutic measures were to be regarded as penalties, the measures provided for by the earlier legislation (in force at the time of the applicant’s offences) had been just as stringent as those under the new legislation (in force since 1 January 2007), since the competent court had even then been authorised to order psychiatric detention in the case of a convicted person who represented a serious danger to others.

The applicant had not provided any convincing reasons to doubt that finding, nor had he claimed that revision of the original decision would not have been possible under the earlier procedural provisions, laid down by cantonal law.

Conclusion: no violation (unanimously).

Article 4 of Protocol No. 7: Article 4 of Protocol No. 7 to the Convention expressly stated that it did not prevent the reopening of the case if “new or newly discovered” facts were liable to affect the outcome of the case.

The Federal Supreme Court had noted that the serious psychiatric illness from which the applicant suffered had already been present, but had not been diagnosed, at the time of the original judgment. Under the Criminal Code, a therapeutic measure could be ordered in such cases by means of revision of the original judgment.

There was no reason to doubt that the applicant’s mental illness had constituted a newly discovered fact, or that the revision of the judgment had been in accordance with the law and criminal procedure of the respondent State.

Conclusion: no violation (unanimously).

Article 41: EUR 20,000 in respect of non-pecuniary damage.

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