Update: 03.09.2014

The Benaissa case and the regime of detention pending trial in Switzerland

The Canadian national Riahd Benaissa was kept in custody in the regional prison of Bern for over 2 years. Now, the former Vice President of a Canadian Civil Engineering Group has been sentenced to a conditional prison sentence of three years by the Federal Criminal Court in Bellinzona. As executive manager of the Canadian enterprise SNC-Lavalin, Benaissa had bribed the son of the former Libyan dictator Gaddafi in order to receive building contracts. Because Benaissa had already served a big part of his sentence in the Bern Regional Prison, the extradition to Canada was possible already at the beginning of October 2014.

Rafik Benaissa, the brother of Riahd, labelled the prison conditions in the Bern Regional Prison as a «system of mental torture». In January 2014, he filed a suit in Canada against Switzerland as well as against the competent federal prosecutors.

The story of Riadh Benaissa

The Office of the Attorney General of Switzerland arrested Riadh Benaissa in a Geneva Hotel in April 2012. In his position as Vice President for the 8 billion Dollar group SNC Lavalin he is said to have bribed officials in several states in order to obtain construction contracts. The focus was primarily on Libya where Benaissa is said to have bought construction orders from the former dictator Muammar Gaddafi. Benaissa is said to have had close ties with Gaddafi’s son Saadi in particular. The Swiss accounts used for this purpose were registered to companies based in the Virgin Islands.

After 29 months of imprisonment in Bern Regional Prison he has now been sentenced to three years conditional imprisonment in a summary procedure. This procedural novelty facilitates a deal between the prosecution and the person accused. A precondition is the approval of the accused to the indictment, which is equivalent to an admission of guilt. The summary procedure, which works without the taking of evidence is contested amongst legal experts. It allows the prosecution to exert pressure upon the persons affected and to reach a settlement that does not have to withstand judicial review.

Benaissa was extradited to Canada already shortly after his conviction, since the two-and-a-half-year pre-trial detention was taken into account. But his return to Canada did not bring Benaissa liberty since he was arrested when he arrived in his homeland. The next process is awaiting him.

His brother commented the change in the Riadh Benaissa case with the following words: «My brother has merely signed the confession because he could no longer live under these prison conditions».

Precarious conditions of detention

The prison conditions in the Bern Regional Prison are precarious: Apart from a one-hour walk, Riadh Benaissa had no possibility of contact with other detainees. He was locked in his cell for 23 hours a day and the meals were served to him via a food slot in the door. Benaissa had the possibility to take a shower twice a week. His wife and his daughter were not allowed to visit him in the first 4 months due to danger of collusion, afterwards the maximum duration of a visit was 45 minutes and the communication had to take place through a small window. Benaissa was only allowed to make a phone call every two weeks.

Rafik Benaissa also pointed out the problematic lighting conditions in his brother’s cell: only a yellow lamp provides dim light. After more than two years in that prison his brother’s eyes have adapted so much to the permanent darkness that he cannot tolerate normal light anymore. And in summer temperatures in the cell rose so high that he had to flood the floor with water for cooling.

The prison conditions in the Bern Regional Prison have been criticised in the past. The Bernese Administrative Court for example stated in its decision from 6 August that «the one-hour walk in a small court, surrounded by high walls and covered with barbed wire without any further opportunities to spend time or to exercise outdoors does not meet the minimum requirements in the case of a long detention period». And, after its visit to the Regional Prison in 2011, the National Commission for the Prevention of Torture (NCPT) stated that «the cells which are scarcely 10 square metres do not correspond to the federal guidelines. Additionally, the cells do not fully meet the requirements of suitable ventilation at high summer temperatures». It was further stated that the supply of sunlight in the courtyard through the small roof opening is not sufficient resulting in a particularly negative situation since the cells do not have much direct incidence of light either.

Psychological effects of the detention protocol

Rafik Benaissa was deeply concerned about the health of his brother. His brother repeatedly said that he would rather die than to be imprisoned any longer under conditions like the ones he experienced during detention pending trial. His wife and his child had broken off all contact and he was not allowed to attend the funeral of his father in 2013. Over the months, according to Rafik Benaissa, his brother developed a «Stockholm syndrome», meaning he was convinced that the prison guards «saved his life». Humanrights.ch disposes of a statement of the American psychiatrist Booker Evans who visited Riahd Benaissa in August 2013. In this statement Evan stated «I am convinced that the described prison conditions have led to depression and anxiety, and that Riahd Benaissa will depend on psychiatric treatment should he survive his time here».

Rafik Benaissa believes that the authorities wanted to get his brother to speak applying a «system of psychological torture». The longer he remained detained under these conditions, the greater the pressure would be to confess. Another fact showing that the psychological distress for the detainees in imprisonment on remand in Swiss prisons is very high is that according to the Federal Statistical Office 51 detainees have committed suicide over the past ten years. Compared to normal law enforcement, this quota is above average.

Lawsuit against Lauber and Switzerland before a Canadian Court

At the beginning of 2014 Rafik Benaissa filed action before a Canadian court against Switzerland and the competent Attorneys General for inhuman and degrading treatment. Legally this has been a unique case since action against Swiss officials has never been sought before a foreign court for human rights violations committed in Switzerland. Before, Rafik Benaissa had already filed legal action in Switzerland (no-proceedings order) and before the ECHR (not exhausted levels of review) against the conditions of detention without any success.

Does imprisonment on remand conform to human rights?

Generally a paradoxical situation has arisen: the imprisonment on remand in comparison to serving the sentence itself consists of a much stricter prison regime although the detainees are presumed innocent. Remaining in remand, characterised by long periods of confinement and a very limited freedom of movement, offers virtually possibility to work or recreation for the detainees. The NCPT considers this a contradiction which should be reviewed in light of the actual purpose of imprisonment in remand. For this reason it has issued a mandate to the Swiss Competence Centre for Human Rights (SCHR) to conduct a study on the conformity of the restrictive detention conditions for detainees on remand, in particular with regard to the fundamental rights and the presumption of innocence. The study is planned to be published at the end of 2014.

Solitary confinement as inhuman treatment

According to the ECHR a complete sensory and social isolation may lead to the destruction of a person’s personality wherefore it is to be considered as inhuman treatment and constitutes a violation of Para. 3 ECHR. But even if those limits are not violated, the prohibition of torture and inhuman treatment might be violated. This is the case if the imposition or design of solitary confinement cannot be justified because it contradicts the proportionality principle. Relevant factors for the assessment in accordance with the practice of international organisations are duration, objective pursued, specific design of the remand as well as the detainee’s personal circumstances (e.g. age, health, sex).

Duration of the imprisonment on remand

With regard to the period of remand, Para. 5 ECHR states that every person has a right to a trial within a reasonable time or to a release pending trial. In the case Shabani vs. Switzerland the European Court of Human Rights ruled a 5 year detention as permissible since this was a case of organised crime.

Whether the duration of the imprisonment on remand, lasting 29 months, was justified in this present case may be doubted. In order to prevent the risk of flight, less restrictive measures could have been adopted. For example Benaissa’s passport could have been taken from him and he could have been obliged to report regularly. A risk of collusion also seemed farfetched after almost two years of detention. Investigations which could have been influenced by Benaissa should have been conducted in the first few months of detention in order to meet the need of speed.

Detention conditions

From a human rights perspective the question also arises whether or not the tangible conditions of detention are compatible with the prohibition on torture and inhuman or degrading treatment pursuant to Art. 1 and Art. 16 of the UN Convention against Torture, Art. 7 of the UN Covenant on Political and Civil Rights and Art. 3 ECHR. The determining factor is also Art. 10 of the UN Covenant on Political and Civil Rights which also includes a right to decent conditions of imprisonment.

According to the recommendations of the Council of Europe regarding remand, published in German by Switzerland, Austria and Germany, conditions which correspond to their legal status must apply to detainees on remand. This implies that only such limitations may be imposed that are necessary for the administration of justice, the safety of the facility, the detainees and the staff as well as for the protection of the rights of third parties. Therefore all possible detention relaxations must be included in the design of the remand not contradicting its aim.

In addition it is stated in the European Prison Rules that the design of the remand must not be influenced by the fact that the detainee may be convicted at some point in the future. Detainees ought to be given the opportunity to work. They may (unless in a particular case a more concrete prohibition issued by the judicial authority for a specified period of the detention applies) receive visits and get in contact with their family and other persons in the same manner as convicted detainees, receive further visits and have additional access to other ways of communication. Furthermore, the access to books, newspapers and other news media is to be granted to detainees being imprisoned on remand.

Swiss Federal Supreme Court on conditions of imprisonment on remand

On 26 February 2014, the Federal Supreme Court established for the first time a violation of Art. 3 ECHR in connection with the detention facilities in Switzerland. In both successful complaints six detainees had been remanded for 3 months in a cell of 23 m2 size for 23 hours a day in the canton of Geneva prison of Champ-Dollon. In the Federal Supreme Court view, these detention conditions violate human dignity according to Art. 3 ECHR because they contradict the prohibition of degrading or inhuman punishment.

The size of Riahd Benaissa’s single cell is about twice as big in comparison. However, a longer period also increases the prison condition requirements. As mentioned already, isolation in itself may already mean an inhuman and degrading treatment.

Comment by humanrights.ch

Imprisonment on remand is designed to avoid that a criminal investigation is thwarted or that the accused escapes prosecution. Being detained for 23 hours a day as well as being exposed to the prison conditions described above over such a long period are unnecessary to achieve this aim and may be classified as disproportionate.

The assumption that this restrictive regime of imprisonment was primarily applied in the Benaissa case to exert pressure in order to obtain a confession cannot be ruled out. Such a practice is unconstitutional: persons in imprisonment on remand are presumed innocent irrespective of the individual case and the suspected offences.

The authorities are required to take into consideration this presumption by allowing the detainees more movement and work opportunities and by relaxing the confinement times. If a detention facility does not dispose of the necessary structural requirements for such a relaxed prison protocol, detainees imprisoned on remand must be transferred to a more appropriate institution after a number of months. The Federal Supreme Court ruling regarding the prison conditions in Champ Dollon from 26 February 2014 marks a turnaround and will not remain without influence since more complaints from prison inmates are pending.

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