What is the rule of detention in the GTU

Service and navigation

Art. 227 para. 7 StPO (SR 312.0). Extension of pre-trial detention by more than three months. The complainant is said to have delinquished in around 70 cases, which is why he was transferred to pre-trial detention because of the risk of escape and risk of repetition. His pre-trial detention was subsequently extended by four months at the request of the public prosecutor's office by the compulsory judge in application of the exception provision of Art. 227, Paragraph 7 of the Code of Criminal Procedure. The prosecution partially approved a complaint directed against this and reduced the length of detention - in the absence of (valid) exceptional reasons - to the maximum legal maximum of three months (Prosecution Chamber, June 15, 2016, AK.2016.171).



From the considerations:

II. 2. Pursuant to Art. 221, Paragraph 1 of the Code of Criminal Procedure, pre-trial detention is only permitted if the accused is urgently suspected of a crime or misdemeanor and there is a serious fear that they will try to escape the criminal proceedings or the expected sanction by fleeing (lit. a), influences people or acts on evidence in order to impair the establishment of the truth (lit. b) or seriously endangers the safety of others through serious crimes or misdemeanors after she has already committed similar offenses (lit. c). Detention is also permitted if there is a serious fear that a person will carry out his threat to commit a serious crime (para. 2). Pretrial detention is ordered for a maximum of three months or the detention is extended by a maximum of this duration, whereby in exceptional cases an extension of detention up to six months is possible (Art. 227 Paragraph 1 and 7 StPO).


[Legal remarks on the urgent suspicion as well as on the risk of flight and repetition]


2.4. An extension of the pre-trial detention up to a maximum of six months is only possible in exceptional cases according to Art. 227 Para. Such an exceptional case can exist if it is evident from the outset that the reason for detention will still exist after more than three months, e.g. because there is a risk of collusion in proceedings with a large number of files or numerous witnesses to be questioned (BSK StPO - Marc Forster, Art. 227 N 14). Such an exceptional case is conceivable in particular in proceedings for complex homicides or in extensive white-collar crime proceedings with complex expert reports (Niklaus Schmid, loc. Cit., Art. 227 N 14). Other commentators seem to be a little more generous in assuming an exceptional case, but then at least demand a detailed justification (see e.g. Markus Hug / Alexandra Scheidegger, in: Donatsch / Hansjakob / Lieber, Art. 227 N 15). In a decision of August 12, 2013, the Federal Supreme Court adopted a rather restrictive stance and reduced the length of detention - especially with reference to the possibility of a renewed request for an extension of detention - to three months (BGer 1B_249 / 2013 E. 8).


[Actual statements according to which there is an urgent suspicion as well as the risk of escape and continuation]


5. Given this initial situation, it remains to be checked whether the detention ordered is also lawful and proportionate in terms of its duration. The complainant considers a six-week, possibly three-month imprisonment to be sufficient, while the lower instance ordered an extension of four months in accordance with the application.


5.1. Due to the continuing risk of flight and the ongoing risk of continuation or repetition, the specific need for clarification with regard to the numerous, to a large extent still disputed allegations, there are no apparent reasons for a mere six-week detention order. The main request of the complainant is thus to be rejected. Against this background, ordering a three-month extension of detention is clearly indicated, as the offenses are numerous and the investigations across several cantons are time-consuming. Obtaining a psychiatric report is also considered. In addition, with a view to the suspiciously threatened punishment - at least with an armed robbery in the center - there is still no over-arrest until further notice.


5.2. In the present case, however, the pre-trial detention was extended by four months with reference to the exception provision of Art. 227, Paragraph 7 of the Code of Criminal Procedure. The public prosecutor's office did not justify the length of detention requested by it neither in its request for an extension of detention of April 26, 2016, nor in its statements in the appeal proceedings of May 13, 2016. The lower instance cites the possibly pending dangerousness report on the complainant, the large number of offenses and the cross-cantonal investigations as reasons for the ordered extraordinary detention period.


5.3. A person who has not yet been convicted is deprived of their liberty through pre-trial detention. Detention cases must therefore be carried out as a matter of urgency (Art. 5 Para. 2 StPO), whereby the public prosecutor's office is entitled to submit further applications for an extension of detention. In principle, it seems reasonable to the public prosecutor's office to have to give reasons to the judge at least every three months and to give an account of the fact that the reasons for detention still exist, what was done in the previous period of detention and what was being investigated is planned for the future. The exception regulation should therefore - for reasons of the rule of law and legal protection law - only apply in factually justified exceptional cases. The complainant has the opportunity to apply for release from prison at any time. Since the state is deprived of his freedom, the state is also obliged to expressly justify this drastic coercive measure at least every three months in the event of an extension request (cf. also Mark Pieth, Schweizerisches Strafprozessrecht, 2. A., Basel 2012, P. 130).


5.4. There are no valid reasons for a four-month extension in the present case, and the public prosecutor's office and the lower court either do not or only partially give them. The investigations show some dynamism due to the high number of offenses to be investigated. The further investigations could well lead to a significant change in the initial situation, which would make (at least) a periodic review of the detention appear advisable within the usual period of three months.