Facts
The Juvenile Prosecutor's Office of Nidwalden brought charges against X. for attempted murder. The Cantonal Court of Nidwalden sentenced X. to an unconditional custodial sentence of two years, with credit for 96 days of pre-trial detention and 302 days of inpatient observation. X. appealed against this judgment.
The Higher Court of the Canton of Nidwalden acquitted X. of the charge of attempted murder and sentenced him to an unconditional custodial sentence of 12 months for threat. It determined that the custodial sentence had been fully served through the pre-trial detention and inpatient observation, and compensated X. for 33 days of excess detention.
The Juvenile Prosecutor's Office filed a criminal appeal against this judgment.
Considerations
The Federal Supreme Court states that the inpatient observation must be appropriately credited against the sentence in accordance with Article 29 paragraph 2 sentence 1 of the Swiss Juvenile Criminal Procedure Code (JStPO). The legislator intended to take into account the fact that inpatient observation encompasses a broad range of enforcement, ranging from observation similar to pre-trial detention to very open observation.
Inpatient observation that is equivalent in terms of intensity of deprivation of liberty to pre-trial detention or the execution of the custodial sentence must therefore be fully credited against the sentence. Less restrictive forms of enforcement are not to be credited one-to-one (i.e. 100%), but at a lower percentage. Even the mildest…