Legal Remedies Available to Lawyers Against Arbitrary Detention After Completion of Sentence

Which criminal lawyer has not faced the stark reality of individuals with mental illnesses or addictions who remain in detention for years after having fully served their sentences?

What limits does the European Convention on Human Rights (ECHR) place on such treatment, and what remedies are available to criminal defense lawyers seeking the release of clients detained beyond the expiration of their sentences?

These questions are particularly relevant in practice, as individuals detained for extended periods often have limited financial resources to assert their rights.

1. Article 5 § 1(a) ECHR: The Link Between Deprivation of Liberty and Conviction

Paragraphs (a) to (f) of Article 5 § 1 of the ECHR provide an exhaustive list of grounds authorizing deprivation of liberty. Detention is unlawful if it does not fall within one of these specified grounds (ECtHR, Del Río Prada v. Spain [GC], 2013, Req. 42750/09, § 123).

Article 5 § 1(a) of the ECHR states:

« Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court (…) »

This provision applies to any deprivation of liberty ordered by a court, regardless of whether it is classified as criminal or disciplinary under national law (see Engel and Others v. the Netherlands, 1976, § 68; Galstyan v. Armenia, 2007, § 46).

It is crucial to understand that « after conviction » in Article 5 ECHR does not merely imply a chronological sequence between conviction and detention. The detention must result from the conviction, occur in direct succession, and be a consequence or by virtue of that conviction. There must therefore be a sufficient causal link between the conviction and the deprivation of liberty (see Del Río Prada v. Spain, § 124; James, Wells and Lee v. the United Kingdom, 2012, § 189; Monnell and Morris v. the United Kingdom, 1987, § 40).

However, this causal link diminishes over time and can ultimately be severed if decisions to deny release, re-imprison, or extend detention are based on grounds unrelated to the original objectives of the legislature or the sentencing judge, or if they are based on unreasonable assessments. In such cases, what was initially lawful detention becomes arbitrary and thus incompatible with Article 5 ECHR (see Del Río Prada v. Spain, § 124; H.W. v. Germany, 2013, § 102; M. v. Germany, 2009, § 88; see also W.A. v. Switzerland, 2021, Req. 38958/16, §§ 39-45; and BIGLER, Commentaire de la CEDH – art. 1 à 18, Berne/Paris 2018, N. 77 ad Art. 5).

In W.A. v. Switzerland, the European Court of Human Rights rejected the existence of a causal link and clarified that only new facts, in exceptional circumstances, may justify reopening the original case and imposing a new custodial sentence:

« [The Court] notes that the Convention system accepts that the finality of a criminal court’s judgment can be set aside and the judgment amended to the convicted person’s detriment in accordance with the national law of a Convention State in exceptional cases, notably if there is evidence of new or newly discovered facts which could affect the outcome of the case (compare Article 4 § 2 of Protocol No. 7 to the Convention). However, where a State relies on such a procedure in order to create a causal link between an initial, final conviction of a person in a judgment which did not impose the deprivation of liberty in question and the subsequent imposition of a new, additional deprivation of liberty, the Court can only accept the existence of such a causal link where the initial criminal proceedings are truly ‘reopened’ following the discovery of new facts or evidence which are so significant as to potentially affect the ‘outcome of the case.’ A ‘reopening’ usually means that the initial judgment of the criminal court is annulled and the criminal charge is determined anew in a fresh decision (compare Nikitin v. Russia, no. 50178/99, §§ 45-46, ECHR 2004-VIII, and Xheraj v. Albania, no. 37959/02, § 73, 29 July 2008). » (W.A. v. Switzerland, § 42).

2. Application of Article 5 ECHR in Switzerland

The Swiss Federal Supreme Court (Tribunal fédéral) examined a case (ATF 136 IV 156) in which a Swiss canton ordered the detention of an individual following the failure of outpatient treatment (« traitement ambulatoire »). The Federal Court found the detention order justified, as the individual had threatened to set fire to public places, thereby posing a serious risk to public safety.

In its interpretation of Article 5 ECHR, the Federal Court emphasized the central importance of the principle of proportionality in the execution of therapeutic measures. The Court indicated that the longer a deprivation of liberty continues, the stricter the requirements regarding the type and probability of future offenses become in the risk assessment justifying continued or altered measures. Furthermore, the greater the time elapsed since the initial conviction, the stricter the requirements regarding the causal link under Article 5 § 1(a) ECHR (ATF 136 IV 156, consid. 3.2).

The Federal Court summarized as follows:

« In summary, the following can be said: if outpatient treatment fails, there is no requirement that a sentence remains to be served before an institutional therapeutic measure can be ordered. From a substantive point of view, there must be a link between the conviction and the deprivation of liberty (i.e., the decision for institutional therapy). The transformation of an outpatient measure into an institutional measure after the sentence has been fully served remains permissible, as under the former law, only in clearly exceptional cases (‘in klaren Ausnahmefällen’) and with strict adherence to the principle of proportionality. It is for the previous instance to determine whether such an exceptional situation exists. » (ATF 136 IV 156, consid. 4.1)

3. Conclusion

The case law cited above demonstrates that the legality and regularity of detention, which may appear acceptable under national law, are not necessarily so under Article 5 ECHR. This provision therefore constitutes an important legal basis to be invoked in national proceedings to contest the lawfulness of detention after a sentence has been fully served.