Rejection of the Order of Alternative Measures by the Compulsory Measures Court

Facts

The Public Prosecutor's Office of Zofingen-Kulm is conducting a criminal investigation against the Tunisian national A. on suspicion of multiple threats and multiple coercion. A. was arrested on August 24, 2015 and, by decision of the Compulsory Measures Court of the Canton of Aargau, was provisionally remanded in custody until November 24, 2015 due to the risk of collusion and repetition.

On October 19, 2015, the Public Prosecutor's Office applied to the Compulsory Measures Court for the imposition of alternative measures instead of the existing pre-trial detention. The Compulsory Measures Court rejected this request by order of October 26, 2015 and justified this with the risk of flight and repetition. A. appealed against this order, which the High Court of the Canton of Aargau dismissed with a decision of November 19, 2015.

With an appeal in criminal matters dated December 2, 2015, A. appealed to the Federal Supreme Court and requested that the decision of the High Court be overturned and that he be released from pre-trial detention, if necessary with the imposition of alternative measures.

Considerations

The Federal Supreme Court examined whether the Compulsory Measures Court was entitled to reject the Public Prosecutor's request for the imposition of alternative measures and to maintain the pre-trial detention.

The Federal Supreme Court concluded that the Compulsory Measures Court cannot order pre-trial detention under the Code of Criminal Procedure (CCP) if the Public Prosecutor's Office has only requested alternative measures. The CCP does not provide for an express regulation for this, but it can be derived from the provisions on alternative measures (Art. 226 para. 4 lit. c, Art. 227 para. 5 and Art. 237 para. 1 CCP) that the detention judge is obliged to take those coercive measures that interfere the least with the fundamental rights of the accused.