Life-long detention: Interpretation of the concept of permanent non-treatability under Art. 64 para. 1bis lit. c SCC

Facts

Parties and instances:

The appellant X. was convicted by the District Court of Baden on 29 February 2012 of murdering A.O. and sentenced to life imprisonment with ordinary detention ordered under Art. 64 para. 1 SCC. Life-long detention under Art. 64 para. 1bis SCC was denied as permanent non-treatability for the next 40 to 50 years could not be established.

The cantonal public prosecutor’s office and the family members of the victim (B.O., C.O., D.O., E.O.) appealed against this judgment. On 18 October 2012, the Higher Court of the Canton of Aargau again convicted X. of murder and disturbance of the peace of the dead and confirmed the life sentence. In contrast to the District Court, the Higher Court found that the conditions for life-long detention under Art. 64 para. 1bis SCC were met and ordered it.

X. then filed an appeal in criminal matters with the Federal Supreme Court and sought the annulment of the life-long detention. In the alternative, he requested that the matter be referred back to the lower court for reassessment. He also applied for free legal aid and representation.

Subject of dispute:

The appellant contested solely the imposition of life-long detention. He argued that the lower court had violated Art. 64 para. 1bis lit. c SCC by assuming permanent non-treatability already on the basis of a prognostic non-treatability of 20 years. In his view, lifelong non-treatability was required. He also alleged that the lower court had arbitrarily assessed the expert opinions, as these only ruled out non-treatability for a period of 10 to 15 years.

The lower court, however, justified the life-long detention on the grounds that X. had committed an offence under Art. 64 para. 1bis SCC that involved a particularly serious impairment of the victim’s physical integrity (Art. 64 para. 1bis lit. a SCC). Moreover, there was a high degree of risk of reoffending (Art. 64 para. 1bis lit. b SCC). Permanent non-treatability (Art. 64 para. 1bis lit. c SCC) was established as the experts predicted non-treatability for at least 20 years. The lower court relied on two psychiatric expert opinions (University Psychiatric Clinics Basel, 10 March 2011; Psychiatric Services Thurgau, 24 June 2011).

The Federal Supreme Court thus had to rule on the interpretation of the concept of permanent non-treatability under Art. 64 para. 1bis lit. c SCC and examine whether lifelong or merely time-limited non-treatability was required.

Considerations

1. Interpretation of the concept of permanent non-treatability:

The Federal Supreme Court first examined the interpretation of the term “permanently non-treatable” under Art. 64 para. 1bis lit. c SCC. Both the German and French and Italian versions of the legislation use wording that suggests unchanging, lifelong non-treatability (e.g. “dauerhaft nicht therapierbar”, “durablement non amendable”, “durevolmente refrattario alla terapia”). The wording of the provision thus points to a chronic, definitive treatment resistance that exists forever. The phrase “because treatment is unlikely to succeed in the long term” further underscores this finding, as it indicates a lack of changeability in the condition.

2. Historical and teleological interpretation:

The legislative materials on the introduction of Art. 64 para. 1bis SCC in 2007 confirm this interpretation. The “Detention” working group and the Federal Council understood “permanently non-treatable” to mean a condition that is structurally linked to the offender’s personality and unchangeable. The legislative debates showed that the term was deliberately understood as “lifelong non-treatability”, even though the practical feasibility of such prognoses was critically discussed due to the difficulty of making such assessments. The materials emphasise that only offenders who pose permanently high, insufficiently reducible risks to public safety are to be covered.