Facts

The complainant A. was sentenced by the Superior Court of the Canton of Lucerne on 31 March 2009 to a custodial sentence of 3 years, 5 months and 15 days. Enforcement began on 19 December 2007 (early enforcement) and was interrupted following an escape on 23 August 2010. On 12 July 2018, [A.] was arrested in Brazil and transferred to Swiss penal enforcement on 13 September 2019 to serve the original sentence. Applications for conditional release on 30 September 2019 and 9 April 2020 were rejected. The sentence was fully served on 26 July 2020.

On 2 December 2020, the Criminal Court of the Canton of Lucerne sentenced [A.] to an additional sentence of 8 years, 6 months and 15 days, which partially connected to the first sentence. Early enforcement transition occurred on 27 July 2020. With a decision dated 25 March 2021, the Enforcement and Probation Service of the Canton of Lucerne determined that the additional sentence was to be enforced not jointly with the primary sentence but subsequently. The Court of the Canton of Lucerne dismissed the appeals against this decision with a judgment dated 18 August 2021. An appeal in criminal matters (6B_1145/2021) was not admitted by the Federal Supreme Court on 4 July 2022 due to lack of standing.

On 11 July 2023, [A.] applied for conditional release as of 5 November 2023. The Enforcement and Probation Service rejected the application with a decision dated 21 September 2023. [A.] filed an administrative court appeal against this decision with the Court of the Canton of Lucerne on 5 October 2023, which dismissed the appeal with a judgment dated 21 March 2024 and found a violation of the right to a speedy trial under Art. 5 para. 4 ECHR. With an appeal in criminal matters dated 15 April 2024, [A.] appealed to the Federal Supreme Court, seeking the annulment of the judgment of 21 March 2024 and retroactive granting of conditional release as of 5 November 2023. In the alternative, [A.] requested a remittal to the Cantonal Court for reassessment.

Considerations

The complainant alleges a violation of the principle of legality (Art. 5 para. 1 Cst.) and an application of Arts. 4 and 5 Ordinance on the Criminal Code and Military Criminal Code (SCC-MCC-O; SR 311.01) contrary to federal law. The complainant argues that the primary and additional sentences should be aggregated for the calculation of the earliest possible date for conditional release, as they should be enforced jointly. However, the lower court only considered the additional sentence, which amounts to an e contrario application of the said provisions of the ordinance. Furthermore, the ordinance provisions lack sufficient legal basis, as custodial sentences constitute a serious interference with personal liberty under Art. 10 Cst.

The Federal Supreme Court first examines the compatibility of Arts. 4 and 5 SCC-MCC-O with the principle of legality. These provisions are ordinances issued by the Federal Council pursuant to Art. 387 para. 1 lit. a SCC. The principle of legality requires that state action be based on a sufficiently clear legal basis. The Federal Council did not exceed its regulatory powers, as the delegation norm explicitly authorises the issuance of provisions on the enforcement of aggregate sentences, additional sentences and simultaneously enforceable individual sentences. The ordinance thus merely concretises the statutory provisions and does not exceed the scope of the delegation.

The Federal Supreme Court then examines whether the conditions for joint enforcement of the primary and additional sentences under Arts. 4 and 5 SCC-MCC-O were met. The decisive factor is that the…