Facts

The appellant X. is accused of having infected several persons with HIV in the years 2001-2005 and thereby committed grievous bodily harm and the spreading of human diseases. Following a criminal complaint filed by his wife on 4 February 2010, the criminal proceedings were extended on 5 February 2010 to threats, attempted coercion and repeated assaults.

The Bern-Mittelland Custody Court III placed him in pre-trial detention on 11 February 2010 and partially released him on 15 March 2010 against substitute measures: a ban on entering the canton of Bern (lit. a), a daily reporting obligation to the cantonal police between 10:00 and 13:00 (lit. b), a no-contact order with his wife and other persons (lit. c), and medical-psychotherapeutic treatment (lit. d and e).

On 11 June 2010 the reporting obligation was relaxed (reporting by telephone from his home). On 31 August 2010 further applications for lifting were dismissed. On 12 January 2011 the Cantonal Coercive Measures Court relaxed the ban on entering the area, the reporting obligation and the no-contact order, so that the appellant could exercise a visitation right in Lausanne. The Bern Cantonal Court of Appeal confirmed this on 21 February 2011.

By criminal law appeal of 28 March 2011, X. requested the lifting of the substitute measures as well as free legal aid and appointment of counsel. The Federal Supreme Court partially upheld the appeal.

Main issues:

  • Strong suspicion of having committed the offence (Art. 221 para. 1 CrimPC)
  • Ground for detention of risk of collusion (Art. 221 para. 1 lit. b CrimPC)
  • Ground for detention of risk of execution (Art. 221 para. 2 CrimPC)
  • Proportionality of the substitute measures of residence restriction and reporting obligation (Art. 237 para. 2 lit. c and d CrimPC)

Considerations

The substitute measures restrict personal liberty (Art. 10 para. 2 Cst., Art. 31 Cst., Art. 5 ECHR). A restriction is only permissible if it has a legal basis, is justified by a public interest, is proportionate and respects the essence of the right (Art. 36 Cst.). Substitute measures, like pre-trial detention, presuppose a strong suspicion of the offence and a ground for detention (Art. 221 and Art. 237 para. 1 CrimPC). The application of the CrimPC is reviewed freely (Art. 95 lit. a FSCA); findings of fact may only be challenged for arbitrariness or violation of law (Art. 97 para. 1, Art. 105 para. 2 FSCA).

The strong suspicion of having committed the offence is affirmed. The custody court does not have to carry out an exhaustive assessment of the evidence, but must examine whether there are concrete grounds for suspicion that could with considerable probability satisfy the elements of the offence. In a statement-against-statement constellation, the principle 'in dubio pro reo' does not necessarily lead to an acquittal in detention proceedings; the assessment remains reserved to the adjudicating court.

The risk of collusion is affirmed. The offences are directed against the wife, whose statements are decisive, and it is likely that she will be questioned again at the main hearing (Art. 343 para. 3 CrimPC). The forensic-psychiatric expert opinion of 13 December 2010 as well as the repeated contact attempts despite the no-contact order establish concrete indications of a risk of influencing witnesses. The absence of prior convictions and the wife's relocation do not change this in any decisive way.

The risk of execution (Art. 221 para. 2 CrimPC) is, however, denied. A very unfavourable prognosis of reoffending with respect to a serious felony is required; preventive detention is excluded if the threat relates only to a misdemeanour within the meaning of Art. 10 para. 3 SCC. Threats (Art. 180 SCC) and coercion (Art. 181 SCC) are merely…