W.A. v. SWITZERLAND - 38958/16 (Judgment : Article 5 - Right to liberty and security : Third Section) [2021] ECHR 900 (02 November 2021)

Parties

Procedural Posture

Application to the European Court of Human Rights / Final Judgment

Legal Issues

1. 1 Whether subsequent preventive detention after completion of sentence violates Article 5 § 1 (right to liberty) of the Convention
2. 2 Whether the retrospective imposition of preventive detention constitutes a heavier penalty in breach of Article 7 § 1 of the Convention
3. 3 Whether the subsequent preventive detention amounts to double punishment contrary to Article 4 of Protocol No. 7 (ne bis in idem)

Ratio Decidendi

The Court found that there was no sufficient causal link between the applicant’s original conviction and his subsequent preventive detention, as the latter was imposed after the sentence was fully served and was not part of the original judgment. The preventive detention was not justified under Article 5 § 1 (a) or (e) because it was executed in an ordinary prison, not an appropriate mental health institution. The retrospective application of preventive detention constituted a heavier penalty than was applicable at the time of the offence, violating Article 7 § 1. The reopening of proceedings did not meet the requirements of Article 4 § 2 of Protocol No. 7, as there were no genuinely new...

Court Disposition

Application allowed; violations found

Orders

• The respondent State is to pay the applicant EUR 40,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
• The respondent State is to pay the applicant EUR 6,000 in respect of costs and expenses, plus any tax that may be chargeable.