Facts
The complainant was sentenced by the Higher Court of the Canton of Bern by judgment of 10 May 2019 to a partially suspended custodial sentence of a total of 36 months, with 10 months declared as unconditionally enforceable. Enforcement of the remaining 26 months was suspended, and the probation period was set at two years. The judgment became final.
On 7 April 2021, the Probation and Enforcement Services of the Office of Correctional Services of the Canton of Bern (BVD) offered the complainant to commence enforcement on 16 August 2021. The complainant then filed an application for approval of the special enforcement form of electronic monitoring or, alternatively, for approval of semi-custody. With a ruling of 23 August 2021, the BVD rejected the applications.
Against this decision, the complainant filed an appeal with the Security Directorate of the Canton of Bern (SID) on 23 September 2021, which was dismissed by a decision of 27 September 2022. The Higher Court of the Canton of Bern dismissed the subsequent appeal by order of 16 March 2023.
The complainant then filed an appeal in criminal matters with the Federal Supreme Court and requests the annulment of the Higher Court’s order of 16 March 2023. The complainant seeks enforcement of the sentence in the form of electronic monitoring (front door) and a referral of the matter back to the lower court for a new decision.
Considerations
The Federal Supreme Court changes its previous case law regarding the determination of the maximum duration of 12 months for the enforcement of a custodial sentence in the form of electronic monitoring (Art. 79b para. 1 lit. a SCC) in the case of partially suspended custodial sentences. Previously, the calculation of the maximum duration was based on the total custodial sentence (suspended plus unconditional part). However, the unconditionally enforceable part of the imposed partially suspended custodial sentence is now the sole determining factor.
This change in case law is based on a comprehensive interpretation of the law, particularly taking into account the parliamentary debates on the introduction of Art. 79b SCC. The legislative materials show that the legislator equated the unconditional part of a partially suspended custodial sentence of up to 12 months with the enforcement of an unconditional custodial sentence of up to 12 months. This equal treatment was explicitly emphasised in the parliamentary debates, particularly by the representative of the majority, who pointed out that there was no reason to differentiate between the two forms of custodial sentences of the same duration.
The previous case law, which was based on the total sentence, led to contradictory results: while electronic monitoring was possible for an unconditional custodial sentence of 10 months, this was not the case for a partially suspended custodial sentence with an unconditional part of 10 months and a total sentence of 36 months. This unequal treatment was rightly criticised in legal scholarship, as it was neither consistent with the literal wording nor with the purpose of the provision. The special preventive approach of both enforcement forms (semi-custody and electronic monitoring) aims to minimise the negative effects of deprivation of liberty, regardless of whether it is an unconditional or partially…