CAT/OP/CHE/ROSP/1
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.
173. The Subcommittee noted with satisfaction the work undertaken in specialized units
with convicted prisoners subject to therapeutic measures under article 59 of the Criminal
Code, in both prisons and hospitals. However, it finds it regrettable that, too often, convicted
prisoners under therapeutic measures are held in ordinary detention without access to the
treatment facilities and the level of care they would be entitled to expect in order to expedite
their recovery, thus affording them the prospect of release.
174. The Subcommittee encourages the State party to increase the number of places
in appropriate facilities for persons sentenced to therapeutic measures and wishes to be
informed of the decisions taken in this regard.
175. The Subcommittee wishes to draw the attention of the State party to the situation of
persons in indefinite detention under article 64 of the Criminal Code. Many of them are
suffering from severe psychiatric disorders, and some have been declared not criminally
responsible. They are in ordinary detention, sometimes in high-security wings, where they
are held in solitary confinement for long periods. They receive no treatment other than that
provided by the prison medical unit. That being the case, it is inevitable that their condition
will not improve and that their release will remain unattainable.
176. The Subcommittee, bearing in mind rule 109 (1) of the Nelson Mandela Rules,
considers that the State party should conduct an in-depth review of the situation of
persons in indefinite detention and amend its legislation and institutional responses
accordingly.
177. The Subcommittee is particularly concerned about one of the findings of the scientific
study ordered by the National Commission for the Prevention of Torture,71 which emphasizes
that decisions to extend therapeutic measures are scantly reasoned, often simply summarizing
the treatment reports without examining the proportionality of extending the measures while
nevertheless approving the request by the enforcement authority to that effect.
178. The Subcommittee recommends that extension of therapeutic measures be based
on a detailed examination of the necessity and proportionality of such a step, with due
regard for the therapeutic progress made by the person subject to the measures. It
further recommends that, for the purposes of the procedure, inmates automatically be
heard by the relevant cantonal authorities before the measures are extended and that
they have the assistance of counsel.
179. The Subcommittee makes the same recommendation in respect of the review of
indefinite detention.
180.
Persons sentenced to therapeutic measures could be forced to take medication.
181. The Subcommittee considers, as a matter of principle, that, as provided in the
Civil Code, medication should be administered only with explicit free consent, duly
documented, other than in the exceptional circumstances envisaged in article 434 of the
Code.
182. The Subcommittee is of the view that, in application of the principle of
equivalence of care, there is no reason to waive all these conditions in the case of
prisoners, including those sentenced to therapeutic measures.
183. Pretrial detainees and convicted prisoners subjected to psychiatric hospitalization
were admitted to mental health services not under the mechanism for institutionalization for
purposes of care provided for in articles 426 et seq. of the Civil Code, but on the basis of a
transfer order issued by the competent authority (the public prosecutor’s office or the
cantonal office for the enforcement of sentences) with no consideration of the issue of consent.
71
GE.21-03779
J. Weber et al., « Anordnung und Vollzug stationärer therapeutischer Massnahmen gemäss Art. 59
StGB mit Fokus auf geschlossene Strafanstalten bzw. geschlossene Massnahmeneinrichtungen »,
étude réalisée pour la CNPT, 2015.
23
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