Facts
On 3 December 1998, the Criminal Court of the Echallens District convicted X., born in 1941, of rape, sexual coercion, grievous bodily harm and pornography to a custodial sentence of twelve years, with deduction of five hundred and fourteen days of pre-trial detention. X. was also ordered to pay moral damages of 40,000 francs to each of his two victims, A.Y. and B.Y., born in 1971 and 1972. An appeal judgment of 12 April 1999 by the Criminal Cassation Division of the Vaud Cantonal Court acquitted X. of the charge of pornography and reduced the sentence to eleven and a half years of imprisonment. The Federal Supreme Court dismissed X.’s appeal on 1 December 1999.
Between summer 1985 and spring 1990, X. committed multiple sexual and physical acts of violence against the two daughters of his partner, A.Y. and B.Y., including acts of filmed and edited pornography. These acts caused serious mental disturbances in the victims. A first psychiatric assessment in 1997 diagnosed a mild depressive episode with somatic syndrome, personality disorders and sexual preference disorders, without excluding a risk of recidivism in a similar context. The experts considered outpatient treatment possible and that internment was not necessary.
X. has been incarcerated since 8 July 1997 at the Etablissements de AviA Plaine de l’Orbe (EPO). In 2007, while serving his sentence, the Correctional Court of the AviA Broye and North Vaud District convicted him of pornography to ten months of imprisonment and ordered outpatient treatment in the form of psychotherapeutic sessions. This conviction followed the discovery of 3,545 sexually explicit files on his computer, 30% of which were pornographic montages using photos of his victims. A new psychiatric assessment in 2005 diagnosed multiple sexual preference disorders and narcissistic personality disorder, concluding that the risk of recidivism was considerable and that internment was necessary.
In 2008, the management of the EPO issued a negative preliminary opinion on X.’s conditional release, highlighting his major dangerousness and the lack of therapeutic prospects. The Penal Enforcement Judges’ Panel refused conditional release and recommended examining the possibility of internment under Art. 65 para. 2 SCC. On 10 February 2009, the Vaud Office of Penal Enforcement filed a request with the Vaud Public Prosecutor’s Office to initiate a revision procedure. On 24 February 2009, the Public Prosecutor’s Office applied for revision of the 1998 judgment.
By judgment of 15 June 2009, the Civil and Criminal Revision Chamber of the Vaud Cantonal Court granted the revision request and referred the case to the Correctional Court of the AviA Côte District. The Federal Supreme Court declared X.’s appeal against this decision inadmissible on 28 July 2009. On 29 September 2009, the Correctional Court of AviA Côte ordered X.’s internment after ordering a new psychiatric assessment, which concluded that the risk of recidivism was “moderate to high” (50 to 75%) and that internment was necessary. The Vaud Criminal Cassation Division upheld this judgment on 3 November 2009.
X. filed a criminal appeal with the Federal Supreme Court against the judgment of 3 November 2009 and the incidental decision of 15 June 2009, arguing that the revision request was inadmissible and that posterior internment should not have been ordered. The Vaud Public Prosecutor’s Office requested dismissal of the appeal, while the Vaud Criminal Cassation Division and the Civil and Criminal Revision Chamber referred to their judgment.
Considerations
The Federal Supreme Court examined the admissibility of the revision request filed by the Vaud Public Prosecutor’s Office under Art. 65 para. 2 SCC. It first dismissed X.’s argument that the request was late, noting that the Vaud procedure does not provide for a time limit for filing a revision request. It also emphasised that Art. 65 para. 2 SCC does not set any time limit for ordering internment, but requires that new facts and evidence appear during the execution of the custodial sentence. Since the revision request was filed on 24 February 2009, while X. was still serving his overall sentence of twelve years and four months (resulting from the combination of sentences), it was admissible on this point.
The Federal Supreme Court then examined X.’s argument that the limitation period for the criminal action had expired, making posterior internment impossible. It recalled that Art. 97 para. 3 SCC provides that the limitation period no longer runs if a first-instance judgment has been rendered. In the case of a revision request filed by the Public Prosecutor’s Office to increase the sentence, the limitation period does not continue to run, since a conviction judgment has already been pronounced. Thus, posterior internment remains possible even if the limitation period has expired at the time the measure is ordered, otherwise Art. 65 para. 2 SCC would be rendered inapplicable.
The Federal Supreme Court then analysed the four cumulative conditions for revision under Art. 65 para. 2 SCC. It first confirmed that the assessments of 2005 and 2009, based on new risk assessment tools (HCR-20 method, Static-99), constituted new facts and…