Facts
Parties involved: The accused (A.) and the Obergericht of the canton of Zurich.
Courts involved: Zurich District Court, Obergericht of the canton of Zurich, SCC.
Dates: Judgment of the Zurich District Court of June 5, 2020, judgment of the Obergericht of September 22, 2021, judgment of the SCC of May 23, 2022, new judgment of the Obergericht of June 6, 2023, decision of the SCC of December 15, 2023.
Main facts: The accused was sentenced to a term of imprisonment of 14 and a half years for various offenses, including rapes and thefts. The court of first instance ordered an outpatient measure without suspending the execution of the sentence. The Obergericht confirmed this decision, but the SCC partially admitted the accused's appeal and referred the case back to the Obergericht for a new decision. The accused contests the order of the outpatient measure and requests a measure for young adults.
Considerations
The SCC examines whether the order of a measure for young adults is justified and whether the principle of proportionality, including the prohibition of overly lenient sanctions (Untermassverbot), is respected. The SCC recalls that the prohibition of overly lenient sanctions stems from the principle of proportionality and must be considered in relation to measures for young adults. The execution of long terms of imprisonment should only be suspended exceptionally, when the prospects of success are particularly favorable or if the measure allows for resocialization that could not be achieved by outpatient treatment during the execution of the sentence.
The SCC emphasizes that the order of a measure for young adults is a question of law, while the assessment of the prospects of success and the therapeutic usefulness of the measure falls under questions of fact, subject to review for arbitrariness. The SCC recalls that the judge must base an order of a measure on a scientific expertise and…