Facts

{ "title": \"Compensation for excessive detention in the context of protective measures in juvenile criminal law denied", \"facts": \"

Parties and roles:

  • the appellant ([A.] ), represented by Attorney Angelina Grossenbacher,
  • the Director of the Juvenile Prosecutor’s Office of the Canton of Bern (respondent),
  • the Juvenile Court of the Canton of Bern,
  • the Higher Court of the Canton of Bern, Criminal Division,
  • the Regional Juvenile Prosecutor’s Office Emmental-Oberaargau.

Procedural data and events:

  • Conviction of the appellant by the Juvenile Court of Bern on 27 May 2016 for eventual intent to commit grievous bodily harm, affray, possession of marijuana, and indecent conduct, to a term of imprisonment of 11 months (partially conditionally executed). Credit for 156 days of pretrial detention and 107 days of early enforcement of sentence. Order of a protective measure (placement in an educational institution).
  • Determination of finality by the Higher Court of Bern on 6 July 2017 regarding the convictions for affray, possession of marijuana, and indecent conduct as well as the protective measure. Conviction for attempted intentional homicide and sentence to a term of imprisonment of 24 months (credit for pretrial detention). Determination of early enforcement of sentence since 13 February 2016 and of the protective measure since 7 June 2016.
  • Revocation of the protective measure (placement in an open educational institution) by the Regional Juvenile Prosecutor’s Office of Bern on 1 March 2021, with determination that the term of imprisonment of 24 months could no longer be enforced. Partial allowance of an appeal by the Higher Court of Bern, as official defence should have been ordered and any excessive detention and compensation issues should have been examined.
  • Application for appointment as official defence by the appellant’s legal representative on 29 July 2021 and request for credit of the unlawfully suffered deprivation of liberty against the custodial sentences imposed by criminal order on 17 May 2021 and 23 July 2021.
  • Order of the Juvenile Prosecutor’s Office of Bern on 3 August 2021 appointing the legal representative as official defence for the appellant.
  • Order of the Juvenile Prosecutor’s Office of Bern on 29 December 2021 waiving the subsequent imposition of the unconditional term of imprisonment of 24 months and the payment of compensation due to lack of excessive detention.
  • Filing of an appeal by the appellant with the Higher Court of Bern against the waiver of compensation and request for compensation of CHF 34,500.-- for excessive detention of 345 days.
  • Dismissal of the appeal by the Higher Court of Bern on 22 March 2022.
  • Filing of an appeal in criminal matters by the appellant on 25 August 2022 seeking annulment of the higher court’s decision and award of compensation of CHF 34,500.-- for the excessive detention of 345 days.

Core issue and subject matter of dispute:

  • Question of compensation liability for excessive detention pursuant to Art. 431 para. 2 CrimPC in conjunction with Art. 110 para. 7 SCC and Art. 32 para. 3 JCLA, if the deprivation of liberty (pretrial detention, early enforcement of sentence, enforcement of measures, preventive detention, and arrest) exceeds the imposed term of imprisonment of 24 months.
  • Dispute as to whether the deprivation of liberty incurred in the context of a protective measure (placement pursuant to Art. 15 JCLA) is to be qualified as pretrial or preventive detention and triggers compensation for excessive detention.

Relevant legal aspects:

  • Credit for 1,065 days against the term of imprisonment of 720 days (24 months), resulting in a difference of 345 days.
  • Examination of the legality and proportionality of the protective measure and its duration in comparison to the term of imprisonment.
  • Distinction between protective measures (educational/therapeutic purposes) and pretrial detention (Art. 110 para. 7 SCC) and their credit and compensation claims.

Decision of the Higher Court of Bern of 22 March 2022:

  • No compensation for excessive detention, as the protective measure was lawful and proportionate and its duration was permitted to exceed the term of imprisonment.
  • No equal treatment with adult criminal law, as juvenile criminal law pursues different principles (special prevention, educational measures).
  • No violation of Art. 8 Cst. (principle of equal treatment) and Art. 9 Cst. (prohibition of arbitrariness), as the lower court correctly applied the legal provisions.
", \"reasoning": \"

Distinction between protective measures and pretrial detention:

The Federal Supreme Court confirms the lower court’s view that protective measures pursuant to Arts. 10 et seq. JCLA (e.g. placement pursuant to Art. 15 JCLA) are not penalties but penalties independent of guilt pursuing exclusively educational and/or therapeutic purposes (para. 1.5.1 and 1.5.4). In contrast, pretrial detention pursuant to Art. 110 para. 7 SCC and Art. 27 JCrimPC serves exclusively the purpose of clarifying the criminal act and may only be ordered if proportionate (para. 1.5.3).

The Federal Supreme Court states that the enforcement of measures (e.g. placement in an educational institution) is generally unlimited in duration, as long as the measure is objectively justified or proves futile (Art. 19 para. 1 JCLA; para. 1.5.2). The duration of the protective measure is therefore not limited by the imposed term of imprisonment but justified by its educational and/or therapeutic purpose (para. 1.5.4).

No compensation liability for excessive detention in the case of protective measures:

The Federal Supreme Court explains that compensation for excessive detention pursuant to Art. 431 para. 2 CrimPC is only possible if the pretrial detention (or preventive detention) was lawfully ordered but its duration exceeds the term of imprisonment imposed in the decision (para. 1.3.1). In the present case, however, it was not the pretrial detention but the protective measure (placement) that exceeded the term of imprisonment, which pursues its own purpose (educational/therapeutic care) (para. 1.5.4).

The Federal Supreme Court emphasises that protective measures in juvenile criminal law cannot be equated with penalties, as they do not serve the purpose of retribution but of special prevention and social integration of the juvenile (Art. 2 para. 1 JCLA; para. 1.5.1). The choice of sanctions is therefore not made according to the same criteria as in adult criminal law (para. 1.5.1).

Proportionality of the protective measure:

The Federal Supreme Court confirms the lower court’s findings that the enforcement of the measure was lawful and proportionate until its revocation (para. 1.5.6). The Juvenile Prosecutor’s Office of Bern reviewed the protective measure annually (Art. 19 para. 1 JCLA) and adjusted the enforcement setting (e.g. transfer to another institution) based on the appellant’s conduct. The protective measure was therefore objectively justified and did not result in an unjustified deprivation of liberty (para. 1.5.6).

The Federal Supreme Court states that the credit for the deprivation of liberty associated with the protective measure against the imposed term of imprisonment pursuant to Art. 32 para. 3 JCLA is sufficient to avoid double punishment of the juvenile (para. 1.5.4). Any additional compensation for excessive detention is therefore not justified (para. 1.5.4).

No violation of the principle of equal treatment (Art. 8 Cst.):

The Federal Supreme Court states that the appellant has not provided sufficient grounds for his allegation of a violation of the principle of equal treatment (Art. 106 para. 2 FSCA; para. 1.5.5). The appellant merely refers to an opinion expressed in the literature without explaining the specific legal situation in adult criminal law or demonstrating a comparable factual situation (para. 1.5.5).

The Federal Supreme Court states that protective measures in juvenile criminal law have no equivalent in adult criminal law, as they do not serve the purpose of retribution but of special prevention (para. 1.5.1). The choice of sanctions is therefore not made according to the same criteria, which justifies different treatment (para. 1.5.1).

Final decision:

The Federal Supreme Court considers the appellant’s appeal to be…