CAT/OP/CHE/CSPRO/1
relevant communal and cantonal authorities and representatives of civil society. Following
the reform of the asylum system under the law that entered into force on 1 March 2019, the
Ordinance of the Federal Department of Justice and Police was completely reworked. As a
result, the State Secretariat for Migration is now able to authorize longer periods of leave
when there are strong reasons to do so. It can also reach an agreement with the relevant
communal authorities to extend the hours when asylum seekers are allowed to leave the
centres. There have been cases in which it has done so.
137. Lastly, it should be noted that access to spiritual assistance and to legal advice and
representation is guaranteed in federal asylum centres. Support of this kind is provided by
independent actors who can make critical observations to the State Secretariat for Migration
at any time. In addition, the National Commission for the Prevention of Torture makes
unannounced visits to the centres on a regular basis in order to ensure that human rights are
being respected. The centres also receive regular visits and recommendations from the Office
of the United Nations High Commissioner for Refugees.
VI. Therapeutic measures and indefinite detention
A.
Legal framework
138. Paragraphs 156 to 159: With regard to article 64 (1) bis of the Criminal Code
specifically, the Subcommittee:
• Recalls that, for a life sentence to remain compatible with article 5 of the European
Convention on Human Rights, there must be both a real prospect of release and a
possibility of thorough review.
• Expresses serious doubts as to the feasibility of establishing a medical prognosis of
lifelong untreatability and permanent psychiatric, criminal and social dangerousness.
Predictions about a convicted person’s future behaviour are, by their very nature,
uncertain, with a significant risk of error. Deprivation of liberty for life on such flimsy
grounds could raise serious issues of lawfulness.
139. Consequently, the Subcommittee recommends that the State party review article 64
(1) bis of the Criminal Code in the light of these comments and consider the advisability of
repealing it.
140. Article 123a of the Constitution and article 64 (1) bis of the Criminal Code give effect
to the people’s initiative on life imprisonment for persons convicted of sex offences or violent
crimes who are considered very dangerous and not responsive to rehabilitation. These two
provisions stipulate that only extremely dangerous offenders who are very likely to reoffend
and are not responsive to rehabilitation may be placed in lifelong detention. Moreover, the
dangerousness of an offender and the assessment that he or she is permanently untreatable
must be confirmed by two psychiatric evaluations. Life imprisonment is thus intended for
very dangerous offenders. This explains why the law provides for this criminal penalty as a
last resort and why only one person is currently serving a life sentence. The recent case law
of the Federal Supreme Court on the subject 26 confirms that this penalty can be applied in
only a very limited number of cases. The Court ruled that only persons who will remain
unreceptive to treatment throughout their lifetime may be imprisoned for life.
B.
Field visits: Rheinau psychiatric clinic
141. Paragraph 175: The Subcommittee wishes to emphasize that prisoners suffering from
psychiatric disorders should, in all circumstances, be treated by staff who are qualified and
sufficiently numerous to provide the requisite assistance and care, in an appropriate setting,
be that a specialized hospital unit or a specialized prison unit.
26
GE.21-03864
See, in particular, Federal Supreme Court decision 140 IV 1 and decision 6B_35/2017 of 26 February
2018.
21
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