issued by the Registrar of the Court
ECHR 160 (2019)
30.04.2019
The applicant’s confinement in the security wing of a prison
by way of “placement for assistance purposes” had no legal basis
European Court of Human Rights held, unanimously, that there had been:
a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human
Rights.
The case concerns the applicant’s “placement for assistance purposes” in the period from April 2014
to April 2015.
The Court observed that the applicant had been placed in the security wing of the prison solely on
the ground that he represented a danger for others.
It noted that the Federal Council had explained that the protection of third parties could constitute
an additional factor for an assessment of the situation but that it was not decisive by itself. The
Federal Court had, moreover, expressly emphasised in its leading decision that any deprivation of
liberty “for assistance purposes” on the sole ground of endangering others was not prescribed by
law and did not constitute a valid ground for such placement. The Court concluded that the
applicant had thus been imprisoned without a legal basis and purely by way of preventive detention
in the prison.
Principal facts
The applicant, Mr T.B., is a Swiss national who was born in 1990. He was held in Lenzburg prison
(Switzerland), an institution for the execution of sentences and other penal measures.
In November 2011 T.B. was sentenced to four years’ imprisonment for premeditated murder,
aggravated rape and aggravated sexual constraint, for killing a prostitute in a particularly heinous
manner, after raping her twice. The Juvenile Court supplemented his sentence with a protection
measure, in the form of placement in a specialised closed centre with treatment for mental
disorders. In May 2012 the public prosecutor for minors sought his placement with medical
treatment, when he reached 22, in a closed and secure institution.
On 20 June 2012 the district office ordered T.B.’s placement in accordance with the first paragraph
of Article 397a of the Civil Code in security wing II of Lenzburg prison. On 5 September 2012 the
Federal Court dismissed at last instance the applicant’s civil-law appeal against that decision and on
22 November 2013 the Federal Court confirmed that new Article 426 of the Civil Code constituted a
sufficient legal basis for his placement “for assistance purposes”. T.B. again applied for his release.
In a judgment of 8 July 2014, the Federal Court pointed out that it had ruled in its leading decision
that the conditions of former Article 397a of the Civil Code were met in the present case and took
the view that T.B. represented a high risk for others. Moreover, the Federal Court decided that it
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
