Facts
The District Court of Bülach convicted the appellant A. by judgment of 13 June 2023 (supplemented by addendum of 29 June 2023) of various offences, including intentional causing of an explosion, theft, forgery of documents, drug offences and facilitation of illegal residence, to 64 months’ imprisonment and a ban on residing in Switzerland for 14 years. A. had been in custody since his arrest on 5 January 2022 and in early penal execution since 28 June 2022.
In August 2024, A. filed an application for execution relaxations in the form of accompanied family leave in order to be able to meet his family (wife, parents, children and grandchildren). The probation and execution services of the Canton of Zurich forwarded this application on 19 August 2024 to the IInd Criminal Division of the Zurich Higher Court, which they considered to be the competent authority for conducting the proceedings. The President of the IInd Criminal Division issued a presidential ruling on 9 September 2024 declining to take any action on the application due to lack of jurisdiction.
A. then lodged an appeal in criminal matters with the Federal Supreme Court and requested that the presidential ruling be set aside and the matter referred back to the lower court for a substantive assessment. In the alternative, he sought an order for the Higher Court to assess the application and a finding that the right to a speedy trial had been violated. He also requested that the submission by the probation and execution services be removed from the file.
Considerations
The Federal Supreme Court examined A.’s appeal and considered the question of whether the IInd Criminal Division of the Zurich Higher Court was competent to assess execution relaxations in early penal execution. The appellant argued that the revision of Art. 236 CrimPC had merely effected linguistic changes and that the authority of the authority conducting the proceedings to decide on execution relaxations remained unchanged. The lower court, by contrast, relied on the revised version of Art. 236 CrimPC and took the view that jurisdiction for execution relaxations now lay with the cantonal execution authorities.
The Federal Supreme Court confirmed the lower court’s view and stated that the revision of Art. 236 CrimPC with effect from 1 January 2024 had brought about a material change in the rules on jurisdiction. Under the new version, the authority conducting the proceedings may only grant early penal or preventive execution if the purpose of pre-trial detention (e.g. risk of absconding, collusion, repetition or execution) does not conflict with early execution. Moreover, jurisdiction for execution relaxations was transferred from the authority conducting the proceedings to the cantonal execution authorities, as these are better placed to decide on relaxations on account of their specialist knowledge and experience. Before making a decision, the cantonal authorities may request the authority conducting the proceedings to submit an opinion.
The Federal Supreme Court emphasised that the new rule is intended to clearly separate the different execution regimes (for convicted offenders and for accused persons). Whereas under the old law early execution was still supervised by the authority conducting the proceedings, once the accused is admitted to the penal institution he or she is subject to the execution regime of the cantonal authorities. This also applies to execution relaxations, which are now to be assessed…