Facts

The Criminal Court of Basel-Stadt extended by judgment of 26 November 2024 a stationary therapeutic measure ordered on 18 December 2017 and first extended on 13 December 2022 against A. by 18 months. At the same time, it ordered pre-trial detention until 16 March 2025 by separate order. A. appealed the first-instance extension of the measure to the Appellate Court of the Canton of Basel-Stadt (Art. 365 para. 3 CrimPC).

On 14 March 2025, the President of the Appellate Court as the appellate instance gave the parties the opportunity to comment on a possible extension of the pre-trial detention and provisionally extended it “until the decision (in week 13)”. The Office of Corrections of the Canton of Basel-Stadt submitted statements and “relevant enforcement files” on 17 March 2025. A. was heard on 21 March 2025. On 24 March 2025, the President of the Appellate Court extended the pre-trial detention “until a new decision at the time of the appellate judgment” and provided the statements to the parties.

A. filed a criminal appeal with the Federal Supreme Court on 28 May 2025 and requested:

  • immediate release from detention, alternatively the imposition of suitable substitute measures;
  • a finding that the detention since 16 March 2025 was illegal;
  • an award of compensation of CHF 200.- per day of detention plus 5 % interest;
  • a finding that the lower court violated the right to a hearing;
  • alternatively, referral back to the lower court for a new justification and decision.

The Appellate Court and the Office of Corrections waived the right to respond. The Federal Supreme Court partially upheld the appeal and dismissed it in all other respects.

Considerations

The Federal Supreme Court first examined the procedural objections raised by the appellant, in particular whether the extension of pre-trial detention required a formal extension application by the public prosecutor’s office or the enforcement authority and whether the pre-trial detention had to be time-limited.

Regarding the formal extension application: The Federal Supreme Court clarified that different procedural rules apply to extensions of detention in the context of an independent subsequent procedure (here: extension of a stationary therapeutic measure), depending on whether the main proceedings are pending before the court of first instance or the appellate court. For the court of first instance, Art. 364b para. 3 CrimPC refers to Art. 227 CrimPC, whereas for the appellate court, Art. 364b para. 4 CrimPC in conjunction with Arts. 231 et seq. CrimPC applies. According to Art. 388 para. 1 lit. b CrimPC, the appellate court is empowered ex officio to decide on the extension of existing pre-trial detention without requiring a formal extension application. This authority arises from the systematic interpretation of the relevant provisions and the case law of the Federal Supreme Court (see ATF 139 IV 94 para. 2.3.2; Judgment 1B_488/2017). The appellant’s view that a formal application was required was therefore rejected.

Regarding the time limit for pre-trial detention: The appellant argued that the pre-trial detention should have been time-limited pursuant to Art. 227 para. 7 CrimPC. The Federal Supreme Court rejected this argument, noting that Art. 364b para. 4 CrimPC does not refer to Art. 227 para. 7 CrimPC. Moreover, the Federal Supreme Court’s case law on Art. 231 f. CrimPC applies, according to which the appellate court is not required to periodically time-limit pre-trial detention but may order it until the appellate judgment. The guarantees under the Convention and the Constitution (Art. 5 para. 4 ECHR, Art. 31 paras. 3 and 4 Cst.) are safeguarded by the…