Delay of proceedings concerning placement in the high-security unit; denial of undue delay and lack of prospects of success for legal aid

Facts

The complainant ([A.] ) was sentenced on 24 November 2016 by the Olten-Gösgen District Court to a custodial sentence of 20 months and a fine of CHF 150.--. In addition, an inpatient therapeutic measure under Art. 59 SCC was ordered.

Following a physical assault on a fellow inmate in the Solothurn Prison on 21 February 2020, the Office of Penal Enforcement of the Canton of Solothurn, by order of 2 March 2020, placed him in High-Security Unit I of the Lenzburg Prison for a limited period until 1 September 2020. On 12 March 2020 the complainant lodged an appeal against this with the Department of the Interior of the Canton of Solothurn.

On 31 July 2020 the complainant applied to the Administrative Court of the Canton of Solothurn and requested a finding of denial of justice and undue delay, as well as an instruction to the Department to decide without delay. He also requested legal aid and appointment of counsel.

By judgment of 23 September 2020, the Administrative Court dismissed the appeal to the extent that it was admissible. It held that the request concerning denial of justice had become moot after the Department had decided on 31 August 2020. It rejected the claim of undue delay in view of the chronology of the proceedings. The application for legal aid was dismissed for lack of prospects of success, and court costs of CHF 800.-- were imposed on the complainant.

By way of a criminal law appeal, the complainant requested before the Federal Supreme Court that the lower court's judgment be set aside, that a denial of justice and undue delay be found (Art. 29 para. 1 Cst., Art. 5 no. 4 and Art. 13 ECHR), that a party compensation award be granted, that court costs be borne by the state treasury, and, in the alternative, that legal aid be granted. In the subsidiary alternative, he requested remittal to the lower court. He also applied for legal aid for the proceedings before the Federal Supreme Court.

In the proceedings before the Department of the Interior, the following sequence occurred: receipt of the appeal on 13 March 2020; waiver of the cost advance and setting of a deadline until 1 May 2020 for the statement, issued on 2 April 2020; extension of the deadline until 15 May 2020 upon request of the Office of Penal Enforcement; statement on 13 May 2020; procedural order of 26 May 2020 (dismissal of the request for an oral hearing, waiver of costs, dismissal of the request for legal aid and appointment of counsel, to the extent not moot). On 8 June 2020 the complainant filed a recusal request against a legal staff member, which was not entered into on 12 June 2020. On 16 June 2020 the Administrative Court did not enter into the appeal against the procedural order.

Considerations

The Federal Supreme Court leaves open whether the complainant has standing to appeal (Art. 81 para. 1 FSCA) and whether a current practical interest exists, since the appeal is in any event unfounded. The complaint of a violation of Art. 3 ECHR does not satisfy the qualified requirements of substantiation (Art. 106 para. 2 FSCA).

Art. 5 ECHR is not applicable, since the proceedings concerned not the deprivation of liberty as such but a change in the conditions of enforcement. Art. 29 para. 1 Cst. is decisive; Art. 6 no. 1 ECHR offers no further protection with regard to the requirement of expedition. The reasonableness of the duration of proceedings is assessed in each individual case according to the significance of the proceedings, their complexity and the conduct of the parties to the proceedings. Lack of organisation or overload does not exonerate the authority, although periods of intensive activity may compensate for other phases.

The lower court has set out its essential considerations and its reasoning is reviewable; a violation of the duty to give reasons (Art. 29 para. 2 Cst.) does not exist. The complaint of arbitrary establishment of facts merely criticises the legal assessment, so there is no manifestly incorrect finding of fact within the meaning of Art. 97 para. 1 and Art. 105 para. 2 FSCA.

The deadline until 1 May 2020 for the statement of the Office of Penal Enforcement falls within the authority's discretionary latitude, particularly as the principle of equality of arms does not require deadlines of equal length. The Office submitted its statement in time and with a reasoned, once-granted…