Facts
Parties and Court: The appellant X. challenges the decision of the IIIrd Criminal Chamber of the Higher Court of the Canton of Zurich dated 21 February 2008, by which the order of an inpatient therapeutic measure under Art. 59 SCC was rejected and the continuation of detention under the new law was ordered. The appeal was filed with the Federal Supreme Court (6B_263/2008 of 10 October 2008).
Facts of the case:
X. was convicted by the Higher Court of the Canton of Zurich on 18 December 2001 of multiple murders, attempted murder, arson, robbery and other offences. Due to a moderately diminished capacity of discernment, she was sentenced to life imprisonment and detention under the old law (Art. 43 para. 1 lit. b aSCC) was ordered. The measure was carried out in the Hindelbank institutions.
Between 1989 and 1998, X. committed several serious criminal offences, including two completed and two attempted murders of unknown women, arson, thefts and violence against officials. The offences were committed without any discernible motive and were characterised by a high degree of planning and brutality.
In 2007, the special service of the Office of Correctional Justice of the Canton of Zurich initiated a procedure to review the conditions for a therapeutic measure under the new law (Art. 59–61 or 63 SCC). Both the special service and the Office of the Public Prosecutor recommended the continuation of detention, as the risk of reoffending remained high despite ongoing therapy. X. instead applied for the order of an inpatient therapeutic measure and submitted an expert opinion by Dr. med. A. (University Psychiatric Clinics Basel), which emphasised her treatability and long-term prospects of recovery.
The Zurich Higher Court rejected the order of a therapeutic measure and confirmed the continuation of detention. X. filed an appeal with the Federal Supreme Court, requesting that an inpatient measure be ordered or that the case be referred back for the obtaining of an additional expert opinion.
Considerations
Legal basis and relationship between detention and therapeutic measure: The Federal Supreme Court clarifies the relationship between detention under Art. 64 SCC and the inpatient therapeutic measure under Art. 59 SCC. According to the transitional provision (Art. 2 para. 2 SchlBest. SCC), the court must review whether the conditions for a therapeutic measure are met in the case of offenders detained under the old law. If this is the case, the measure must be ordered; otherwise, detention under the new law will be continued. Detention is subsidiary and may only be ordered if a therapeutic measure does not promise success (Art. 64 para. 1 lit. b SCC).
Conditions for the order of an inpatient therapeutic measure: Such a measure requires that the offender is seriously mentally disturbed and that the offence committed is related to this disturbance. Furthermore, it must be sufficiently likely that the risk of further offences related to the mental disturbance will be significantly reduced over a period of five years through the measure. It is not necessary, however, that the conditions for conditional release are already met after five years. The measure may be extended by five years at a time if continuation appears proportionate and promising.
Assessment of expert opinions and procedural deficiencies: The Federal Supreme Court criticises that the lower court based its decision on outdated and incomplete expert opinions. The expert opinion by Prof. Dr. med. B. and Dr. med. C. from the year 2000 had been prepared under the old law and did not take into account the progress…