issued by the Registrar of the Court
ECHR 328 (2021)
02.11.2021
Violations in preventive detention of mentally ill serious offender
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,
a violation of Article 7 § 1 (no punishment without law) of the European Convention, and
a violation of Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the Convention.
The case concerned the ordering of preventive detention in respect of W.A. – a man who had serious
psychiatric issues – after he had served a 20-year sentence for two homicides.
The Court found in essence that by this detention, ordered in a reopening procedure in which there
had not been any new evidence concerning the nature of the offence or the extent of the applicant’s
guilt, he had been punished twice for the same offences. Moreover, while the applicant could
indeed have been detained as a person “of unsound mind” in accordance with the Convention, his
detention had not been lawful as he had not been detained in an institution suitable for mentally ill
patients.
Principal facts
The applicant, W.A., is a Swiss national who was born in 1960 and is incarcerated in Pöschwies
Prison, Regensdorf (Switzerland).
In the early 1990s the Zürich Jury Court sentenced W.A. to 20 years’ imprisonment for two
homicides.
W.A. suffered from a personality disorder which was difficult to treat and was diagnosed by a
psychiatric expert as having carried out the crimes under diminished capacity. However, the court
held that the applicant presented a threat to society that could be dealt with only with a long-term
sentence, rather than preventive detention, which in practice rarely lasted more than five years.
W.A. served his sentence until 2010, when he was detained on remand following a prosecutorial
application to have him placed in preventive detention under new amendments to the Criminal
Code. In 2012 the Federal Court, contrary to the lower courts, reopened the proceedings, citing
certain facts that in its view had not been known to the original jury in the case, including the
untreatability of his condition.
In 2013 his preventive detention was ordered by the Zürich District Court. Although it did not re-
examine the original offences, the court referred to a recent psychiatric report and to the conditions
for preventive detention, which had been met in the early 1990s and which, in its view, continued to
be met. It also held that W.A. would highly likely again commit violent offences, and that there was
little prospect of successful psychiatric treatment. He continued to be held at Pöschwies Prison.
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.
