Facts
[K.] is serving several custodial sentences imposed in 1979, 1983 and 1987, as well as a remaining sentence of 20 months' imprisonment following the revocation of his conditional release by the Department of Justice of the Canton of Zurich. On 9 July 1988, [K.] requested conditional release, but this request was rejected on 6 December 1988 by the Criminal Chamber of the Canton of Thurgau. [K.] then appealed this decision to the SCC.
Considerations
First, the SCC examines whether the Criminal Chamber correctly interpreted and applied Art. 38 para. 4 sent. 1 SCC. According to this provision, in the event of a new custodial sentence of more than three months being imposed during the probationary period of conditional release, the revocation of the latter is mandatory. However, this does not necessarily mean that the remaining sentence must be served in full, as the Criminal Chamber had concluded. On the contrary, the prevailing doctrine considers that Art. 38 para. 4 sent. 1 SCC allows the remaining sentence to be taken into account again after the revocation.
Furthermore, the Criminal Chamber was wrong to consider that Art. 2 para. 5 CARO 1, which allows the remaining sentence to be taken into account in setting the first date of…