Indefinite detention without review possible
On 18 December 2007 the Federal Councils voted with 128 to 59 in favour of the people's initiative on «life sentences for highly dangerous and “untreatable” sexual or violent offenders». Reviews will only be carried out, if a commission of experts decides that there is new scientific knowledge establishing that the offender is treatable and is thus no longer a threat to the community. Only after such a decision may such a therapy be carried out. If the therapy proves to be successful, a court can transform this special detention into normal detention with periodic review or order a stationary treatment in a psychiatric facility.
- Schweizerisches Strafgesetzbuch: Lebenslängliche Verwahrung extrem gefährlicher Straftäter (Changes to the penal code of 21 December 2007, pdf 4 p.)
Not compatible with international human rights standards
This regulation is problematic from a human rights perspective. International human rights demand a periodic court review in all cases of detention. The clause that reviews will only be carried out in the case of new scientific evidence that the offenders can be treated to such an extent that they will not pose any danger to the public, is not compatible with these requirements. Art. 5(4) ECHR demands that the lawfulness of a detention must be reviewed by a board that also has the power to release a prisoner.
Debates in Parliament
This initiative, which was accepted by the Swiss people in February 2004, caused a great deal of debates in Parliament, because of its infringement of human rights. In a first round of consultations in autumn 2007 the Legal Commission of the National Council proposed the National Council not to change art. 123 a of the Constitution, adopted in 2003 by the Swiss people. But the National Council decided differently.
The Council of States had decided already in the summer session 2006 to implement the initiatve. With this decision the Council followed the propositions of the Federal Council, even though during the debates several Council members voiced their concerns. Even Christoph Blocher, the then Minister of Justice admitted that the implementation will «not be such an easy thing to do». But he underlined despite numerous critical statements by human rights experts that the proposed changes to the penal code would be in line with human rights law.
Difficulties with enforcing sentences
It remains to be seen what impact the latest revision of the penal code will have on «lifers» without review options and mentally disturbed prisoners. In particular because the detention facilities apparently are not equipped to adequately take care of these persons. They lack suitable accomodation facilities and qualified staff (see article Swiss prisons reviewed by CPT).
- Time to re-examine the use of life sentences
Commissioner for Human Rights, Council of Europe, 12 November 2007
préliminaires formulées par la délégation du Comité européen pour la
prévention de la torture et des peines ou traitements inhumains ou
dégradants (CPT) à l’issue de sa visite en Suisse
Preliminary report of the CPT (in French), 7 January 2008
- People's initiative for a real life sentence: The negative effects of safety threats in direct democracies
André Vallotton, July 2004
For information on the parliamentary debates and statements by Human Rights NGOs please refer to the German or French articles on humanrights.ch.