Facts
The appellant X. was expelled from a public house by a publican on 27 August 2009 at 21:15 following an altercation with waitresses. Immediately afterwards, X. engaged the motorist A. in a dispute while crossing a pedestrian crossing. When the following motorist B. intervened and pushed X. away, X. felt something at his neck, instinctively stepped back and only then noticed that X. was holding a pocket knife in his hand. The public prosecutor’s office of the Canton of Basel-Stadt charged X. with attempted premeditated homicide.
The Criminal Court of Basel-Stadt convicted X. on 13 April 2010 of endangering life, simple assault with a dangerous object, multiple coercion and multiple consumption of narcotics to a custodial sentence of five years. The Appellate Court of the Canton of Basel-Stadt confirmed this judgment on 20 December 2011 in both the conviction and sentencing aspects and additionally ordered detention of X. pursuant to Art. 64 para. 1 lit. b SCC.
X. filed an appeal in criminal matters with the Federal Supreme Court, seeking annulment of the higher court judgment, confirmation of the five-year custodial sentence, dispensation from detention and free legal aid. The Federal Supreme Court dismissed the appeal.
Considerations
The Federal Supreme Court examined in its judgment the requirements for ordering detention under Art. 64 para. 1 SCC and in particular the requirement of a severe impairment of the physical, mental or sexual integrity of another person as an independent criterion alongside the catalogue offence or the general clause. Detention constitutes one of the most severe interventions in the personal rights of an offender and may only be imposed under qualified conditions as a last resort.
The Court emphasised that the criterion of severe impairment applies both to catalogue offences and to offences under the general clause (catch-all provision). By introducing this criterion, the legislator sought to ensure that detention is only ordered in the case of particularly serious offences that result in or are intended to result in severe impairment of the victim’s integrity. This serves to uphold the principle of proportionality and excludes purely material damage as the triggering offence.
In assessing severe impairment, an objective standard must be applied. The Court referred to the legislative materials, which show that the legislator intended to restrict detention to offences that result in severe physical, mental or sexual harm. This applies regardless of whether the offence is a catalogue offence or an offence under the…