Facts
The appellant [X.] , a Nigerian national, was sentenced to a prison term of seven years for multiple qualified kidnappings and multiple abductions of minors. He has been in the Pöschwies prison since May 26, 2015, and has served two-thirds of his sentence. The appellant applied for conditional release, which was rejected by the Office of Justice of the Canton of Zurich and the Administrative Court of the Canton of Zurich.
The appellant has two sons whom he took to Nigeria in 2011 without the knowledge and consent of the mother. He has not yet made any effort to return his sons to Switzerland and has set conditions for doing so. The Administrative Court refused conditional release because the appellant is not willing to cooperate with the Swiss authorities to return the children to Switzerland.
Considerations
The Federal Court dismissed the appellant's appeal. It found that the refusal of conditional release does not violate Art. 86 para. 1 SCC, as the appellant is not willing to cooperate with the Swiss authorities to return the children to Switzerland. The Federal Court also found that the refusal of conditional release does not violate the presumption of innocence under Art. 10 para. 1 CrimPC.
The Federal Court also discussed the case law on ongoing offenses and conditional release from custodial sentence. It found that an ongoing offense exists when the justification of the unlawful situation and the omission of its termination form a unit and the behavior aimed at continuing the delictual success is explicitly or implicitly included in the relevant offense.
The Federal Court also discussed the requirements for conditional release from custodial sentence under Art. 86 para. 1 SCC. It found that conditional release is the rule, from which only good…