Facts
Parties and procedural participants:
The appellant ([A.] ) challenges a presidential order of the Higher Court of the Canton of Zurich, II. Criminal Chamber, dated 23 March 2022. This order rejected his application for transfer to early open prison sentence and his application for direct imposition of electronic monitoring (“EM-backdoor”). The Zurich-Sihl Public Prosecutor’s Office waived the right to submit statements.
Facts of the case:
On 17 March 2021, the Zurich District Court convicted the appellant of commercial and gang-related theft and other offences to a custodial sentence of 44 months. In addition, a fine (110 daily rates of CHF 30.-- each) and a ban on entering the country for a period of 9 years were imposed. The appellant has been in pre-trial detention for approximately 28 months, currently in early prison sentence. On 16 February 2022, he applied to the Higher Court of the Canton of Zurich for release from the prison facility to electronic monitoring outside a detention facility or alternatively for transfer to early open prison sentence. The lower court rejected both applications.
The appellant filed an appeal with the Federal Supreme Court on 25 April 2022 and requested the quashing of the contested decision. He in particular alleged a violation of the principle of expeditious proceedings, insufficient consideration of his family situation and the assumption of significant risk of absconding by the lower court.
Considerations
The Federal Supreme Court examines the appellant’s appeal against the rejection of his applications for transfer to early open prison sentence and for imposition of electronic monitoring. First, the Federal Supreme Court confirms its jurisdiction to hear the appeal against a detention review decision of the cantonal appellate instance, as the requirements of Art. 80 para. 2 sentence 3 FSCA are met.
Risk of absconding as grounds for detention: The appellant does not dispute the urgent suspicion of guilt but objects to the assumption of significant risk of absconding (Art. 221 para. 1 lit. a CrimPC). The lower court bases its assumption on the following indicators: The appellant has previously evaded criminal prosecution and was wanted internationally for arrest. He has connections abroad, in particular to Bosnia-Herzegovina, where his parents own a house, and has lived in Germany. In addition, he faces a higher custodial sentence and a longer ban on entering the country. The Federal Supreme Court confirms that these circumstances give rise to significant risk of absconding, in particular since mild substitute measures such as reporting obligations or confiscation of passports are regularly insufficient in cases of pronounced tendency to abscond (cf. BGE 145 IV 503 para. 3.2).
Early prison sentence and substitute measures: Early prison sentence (Art. 236 CrimPC) serves to secure the purposes of detention and is generally to be served in a closed facility, in particular in cases of concrete risk of absconding. The appellant applied for transfer to early open prison sentence or for imposition of electronic monitoring outside a detention facility. The Federal Supreme Court clarifies that electronic monitoring is not an independent substitute for pre-trial detention but a technical tool for monitoring substitute measures such as house arrest or restrictions on residence (Art. 237 para. 3 CrimPC). In cases of significant risk of absconding, such substitute measures are however unsuitable as they cannot sufficiently reduce the incentive to abscond. The lower court was therefore correct to reject the appellant’s applications.
Proportionality of detention duration and principle of expeditious proceedings: The appellant alleges…