Facts

Parties and Procedural History:

The appellant ([X.] ) was investigated by the Zurich-Limmat Public Prosecutor’s Office on suspicion of multiple acts of sexual assault (Art. 191 SCC) against patients in a hospital. He was arrested by the police on 14 September 2011 and remanded in preventive detention by the Coercive Measures Court of the Zurich District until 31 October 2011. The detention was extended until 31 January 2012 on 1 November 2011. The appellant filed an appeal against this decision with the Higher Court of the Canton of Zurich (3rd Criminal Chamber), which was dismissed on 29 November 2011. The Federal Supreme Court quashed this decision in a prior proceeding (1B_728/2011) on 13 January 2012 and remitted the matter for reassessment, finding that the right to a reply had been violated.

The Higher Court granted the appellant the opportunity to submit a reply and dismissed the appeal again on 27 January 2012. It confirmed the urgent suspicion of guilt as well as the risks of collusion and absconding and held that substitute measures were insufficient. On 22 January 2012, the Public Prosecutor’s Office applied to the Coercive Measures Court for an extension of the preventive detention until 30 April 2012, which was granted on 26 January 2012. The appellant again filed an appeal against this decision with the Higher Court, which dismissed it on 1 March 2012. In doing so, the appellant particularly contested the jurisdiction of the Coercive Measures Court for the second extension of detention as well as a violation of the principle of expeditious proceedings.

Main Points of Contention:

  • Jurisdiction for ordering a second extension of detention during a pending appeal against the first extension of detention.
  • Proportionality of the preventive detention in light of the risks of absconding and collusion and the possibility of milder substitute measures.
  • Violation of the principle of expeditious proceedings in the criminal proceedings.

Considerations

Jurisdiction for the second extension of detention: The appellant argued that the Public Prosecutor’s Office should have submitted the second application for an extension of detention dated 22 January 2012 not to the Coercive Measures Court but to the Higher Court, since the latter was already seized of the appeal against the first extension of detention. The Federal Supreme Court rejected this view and confirmed the clear statutory jurisdiction under Art. 227 para. 2 CrimPC, pursuant to which the Public Prosecutor’s Office must submit the application to the Coercive Measures Court, which decides on it. A first-instance extension of detention by the appellate court is not provided for in the law. The jurisdiction of the Coercive Measures Court also follows from Art. 18 para. 1 CrimPC, which designates this court as competent for ordering preventive detention. Any deviation from this rule would infringe the constitutional right to a lawful judge (Art. 30 para. 1 Cst.) as well as Art. 5 para. 1 ECHR and Art. 31 para. 1 Cst., since deprivation of liberty may only be ordered in the manner prescribed by law. Moreover, such a practice would undermine the appellant’s right to a second appeal (Art. 222 CrimPC), since the Federal Supreme Court would have only limited jurisdiction.

Urgent suspicion of guilt and grounds for detention: The appellant disputed the urgent suspicion of guilt and the assumption of risks of absconding and collusion. The Federal Supreme Court, however, confirmed the legality of the lower courts. The urgent suspicion of guilt arises from the numerous, independently substantiated allegations of sexual assault by 15 women, which constitute a felony (Art. 10 para. 2 SCC). The risk of absconding was affirmed on account of the threatened severe custodial sentence (up to 15 years under Art. 49 para. 1 SCC), the appellant’s dual citizenship (Croatian-Swiss) with no extradition possibility to Croatia, his family ties in Croatia, and his professional and social situation. The risk of collusion was also deemed to exist, as the appellant, in his capacity as an anaesthetic nurse, had access to evidence and could have influenced witnesses or evidence.

Substitute measures and proportionality of detention: The appellant sought the lifting of the detention and the imposition of milder substitute measures under Art. 237 CrimPC. The Federal Supreme Court dismissed this request, as none of the proposed measures (seizure of documents, bail, reporting obligations, electronic monitoring) were…