Facts

The complainant X. was convicted by the District Court of Zurich on 19 December 2013 of several criminal offences, including desecration, attempted sexual coercion and driving while unfit to drive, and sentenced to a custodial sentence of 26 months and a fine of CHF 300. The court also ordered a residential therapeutic measure under Art. 59 SCC to be served in an appropriate psychiatric institution or a facility for the execution of measures. X.’s appeal against the judgment was withdrawn, making the judgment final.

By order of 18 September 2014, the Office of Justice and Execution of the Canton of Zurich implemented the ordered measure at the Pöschwies Prison (JVA Pöschwies). X. filed an appeal against this with the Directorate of Justice and Home Affairs of the Canton of Zurich, which was unsuccessful. The subsequent appeal to the Administrative Court of the Canton of Zurich was also dismissed on 13 May 2015.

X. then filed a criminal appeal with the Federal Supreme Court. He sought the annulment of the administrative court’s judgment and an order for the Office of Justice and Execution to implement the measure under Art. 59 paras. 1 and 2 SCC in an appropriate psychiatric institution. He also requested free legal aid and representation. The Federal Supreme Court ultimately dismissed the appeal.

Considerations

The Federal Supreme Court examined in its judgment the jurisdiction for placement in a closed institution under Art. 59 para. 3 SCC. The complainant argued that this constitutes an independent measure to be ordered by a court, which does not fall within the competence of the execution authorities. He based his argument on the intensity of the intervention of the measure, which he considered comparable to detention under Art. 64 SCC, and demanded judicial authority to order it.

The Federal Supreme Court rejected this view and confirmed that placement in a closed institution under Art. 59 para. 3 SCC is a matter of execution, falling within the jurisdiction of the execution authorities. It based its decision on the following arguments:

  • Literal and systematic interpretation of the law: The wording of Art. 59 para. 3 SCC indicates that the legislator intended to transfer the decision on placement in a closed institution to the execution authorities as a modality of execution. The phrase “as long as the danger persists” suggests a flexible adjustment option, which would not be compatible with a judicial order.
  • Historical interpretation: The legislative materials for the revision of the Criminal Code in 2007 show that the legislator considered closed placement as part of the execution of the residential therapeutic measure. The provision was introduced to enable dangerous mentally ill offenders to receive therapeutic treatment without being subject to detention under Art. 64 SCC. The intensity of the intervention was known to the legislator but was accepted as a necessary consequence of the offenders’ dangerousness.
  • Purpose of the provision: Closed placement is intended to be flexibly adapted to the changing circumstances of the offender. A judicial order would undermine this objective, as it would require a time-consuming and administratively complex procedure. Moreover, the execution authorities are better acquainted with the specific conditions in the institutions and can respond…