Admissibility of Appeal to the Cantonal Administrative Court against Orders in Criminal Enforcement and Measures

Facts

X. was sentenced by the District Court of Zurich on April 18, 2001 to two years' imprisonment for multiple arson and other offenses. The execution of the custodial sentence was suspended in favor of an inpatient measure. Over the years, there were several transfers and re-transfers to various clinics within the framework of the enforcement of measures. On November 21, 2007, the Office for Correctional Services of the Canton of Zurich ordered the renewed transfer of X. to the closed measure station of the Psychiatric Center Rheinau.

X. filed an appeal against this placement order with the Directorate of Justice and Home Affairs of the Canton of Zurich (JD). When the JD dismissed the appeal on April 1, 2008, X. appealed to the Administrative Court of the Canton of Zurich. However, on July 4, 2008, the Administrative Court did not enter into the appeal, as it did not consider itself competent at the time.

Considerations

The Federal Supreme Court notes that the Cantonal Administrative Court deviates from the clear wording of the Ordinance of the Governing Council and the meaning of the transitional provision pursuant to Art. 130 para. 1 and 4 BGG without giving valid reasons for doing so.

According to § 5 of the Ordinance of the Governing Council on the Adaptation of Cantonal Law to the Federal Supreme Court Act (VO BGG/ZH), the Cantonal Administrative Court is competent as the last cantonal legal remedy instance in disputes over criminal enforcement and…