Facts

On 15 March 2002, the Cantonal Court of Zurich sentenced X. to a prison term of 3 years and 9 months for theft, deducting 125 days of pre-trial detention. The court also ordered an ambulatory measure pursuant to art. 43, ch. 1, al. 1 aCP and suspended the execution of the sentence in favor of this measure. On 27 September 2006, the Zurich probation service terminated the execution of the ambulatory measure, considering it to have failed. The cantonal court then ordered the execution of the prison sentence. X. filed a criminal law appeal against this decision.

The key facts of the case are as follows

  • The cantonal court ordered an ambulatory measure pursuant to art. 43, ch. 1, al. 1 aCP.
  • The Zurich probation service terminated the execution of the ambulatory measure due to its failure.
  • The cantonal court ordered the execution of the prison sentence.
  • X. filed a criminal law appeal against this decision.

Considerations

The Federal Court considered that the decision of the Cantonal Court of Zurich was contrary to federal law. Indeed, the cantonal court had not ordered a new expert opinion to determine whether an institutional therapeutic measure was necessary, although the circumstances had changed since the first expert opinion.

The Federal Court recalled that, according to art. 56, al. 3 CP, decisions relating to the execution of a sentence or the order of an institutional therapeutic measure must be based on an expert opinion. In this case, the first expert opinion dated back to 2001 and was no longer current due to the changes that had occurred in X's situation.

The Federal Court also considered that the cantonal court had violated art. 63b, al. 2 and 5 CP by not ordering a new expert opinion to…