Application of Art. 65 para. 2 SCC and Art. 410 ff. CrimPC in subsequent detention

Facts

Parties: Appellant X. against the Public Prosecutor's Office of the Canton of Zurich

Facts:

• On March 19, 2007, the Higher Court of the Canton of Zurich convicted X. of multiple attempted murder and other offenses to 12 years' imprisonment. Detention was rejected based on a psychiatric report.
• On December 13, 2017, the Public Prosecutor's Office applied for subsequent detention under Art. 65 para. 2 SCC.
• The Higher Court initially rejected the application for detention, but later revoked this decision and ordered detention.
• On June 6, 2018, the Higher Court granted the application for subsequent detention and referred the case to the District Court of Hinwil for further proceedings.
• X. filed an appeal in criminal matters, requesting the annulment of the previous decision and the referral of the case back for the completion of the investigation and further evidence gathering.

Considerations

Art. 65 para. 2 SCC regulates a federal ground for revision and refers to the rules applicable to the reopening of proceedings for jurisdiction and procedure. The CrimPC came into force on January 1, 2011, and was therefore not in force when Art. 65 para. 2 SCC was enacted. Art. 65 para. 2 SCC came into force on January 1, 2007, and has not since been adapted to the CrimPC. The revision under Art. 65 para. 2 SCC can only be carried out under more restrictive conditions than in the ordinary revision under Art. 410 ff. CrimPC.

The revision can only be considered on the basis of facts or evidence that already existed at the time of the conviction, without the court being aware of them. A new report that merely deviates from the assessments and conclusions of the previous report generally does not constitute a ground for revision.

In the present case, the…