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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
- I. From the genesis of Article 123a of the Constitution to the present day
- II. Incorporation of Art. 123a of the Constitution into Swiss law and criminal policy issues
- III. Commentary proper
- Recommended further reading
- Bibliography
I. From the genesis of Article 123a of the Constitution to the present day
1 On May 3, 2000, the self-help group “Light of Hope - Together Against Violence” submitted to the Federal Chancellery the popular initiative “Life imprisonment for sex offenders or violent offenders deemed very dangerous and unrepentant”, bearing 194,390 valid signatures. This initiative was part of the efforts made since the early 1990s to protect society from the few prisoners who present a risk of reoffending during leave or parole. It called for a partial revision of the Federal Constitution to allow for the introduction of internment without leave for this group of individuals deemed to be very dangerous.
2 In the Message of 2001 relating to this initiative, the Federal Council noted that the issue of dangerous individuals lay in the seriousness of the acts committed and the harm inflicted on other people, rather than in their number. The government also recognized that there was an increasingly urgent demand to improve the protection of the community against the risk of reoffending that these individuals represented. However, it was not clear how this objective could be achieved. This was because committing a serious offense did not necessarily imply a risk of reoffending. Although the majority of people did reform their ways, there was still a risk of reoffending upon release. Although psychiatric assessments helped to reduce this risk, they did not eliminate it entirely. This raised the question of whether the community could be required to tolerate this residual risk.
3 According to the Federal Council, the implementation of the proposed constitutional article presented significant difficulties and could lead to unfair situations. Nevertheless, the Federal Council considered that Article 123a of the Constitution was compatible with the mandatory rules of international law, in particular those of the UN Covenant II and the ECHR. The sticking points with international standards, in particular the ECHR, could be resolved by means of an extensive interpretation that is partially contrary to the will of the initiators of the release procedure provided for by the constitutional standard. On these grounds, the government decided to submit the initiative to the people and the cantons, without a counter-proposal, and to recommend its rejection.
4 During the revision of the general part of the Penal Code, also carried out in the early 2000s, one of the points discussed in Parliament concerned a new form of security detention, applicable to all individuals who have committed serious offenses and are at risk of reoffending (see art. 64 para. 1 and 2 to 4, 64a and 64b PC). Parliament legislated taking into account the aims pursued by the initiators, moreover presenting this modification of the Penal Code as an indirect counter-project to the initiative. Despite this legislative change adopted in December 2002 and discussions between the members of the Legal Affairs Commission of the National Council and the initiators, the latter refused to withdraw their initiative. In June 2003, both the National Council and the Council of States recommended that the people and the cantons reject the initiative.
5 At the time of the vote, the main arguments of the initiators were that (i) the legislator had so far failed to protect society from sexual or violent offenders deemed unamendable and very dangerous, (ii) some of them reoffended after being granted leave or early release due to psychiatric misdiagnosis and (iii) confinement should be reconsidered only if “new scientific knowledge” made it possible to establish that the person could be treated in such a way that they no longer posed a danger to the community. The adoption of the initiative would thus make it possible to fill gaps in the legislation then in force for so-called unamendable offenders, without prohibiting an annual review of offenders considered amendable. Conversely, the Federal Council argued that the amendments to the Penal Code adopted in December 2002 provided extensive and effective protection for the community against dangerous offenders. As for the initiative, it missed its target, was incomplete and prevented the release of individuals even if they were no longer dangerous. The majority of the political parties shared the Federal Council's point of view.
6 On February 8, 2004, the popular initiative was adopted by 56.2% of the valid ballots and by 19 cantons and 5 half-cantons.
7 Subject to interpretation on several points, Art. 123a of the Constitution is not directly applicable. After the vote, a working group was quickly formed to draft provisions aimed at implementing the constitutional norm. Led by the director of the Federal Office of Justice and composed of six lawyers, two doctors and two former members of the initiative committee, the working group proposed provisions to supplement the new general part of the Penal Code adopted in December 2002. Following an arduous legislative process to reconcile, as far as possible, the will of the people and Switzerland's international human rights obligations, Articles 56(4), 64(1bis), 64a(1)phr.1, 64c, 65phr. 1, 84 al. 6bis, 90 al. 4ter, 380a and 387 al. 1bis CP finally came into force on August 1st, 2008. Although the subject matter is now found in the Penal Code, mainly in Art. 64 para. 1bis of the Penal Code, the study of the constitutional provision contributes to the interpretation of the legal text.
8 In 2018, an interpellation entitled “Has the time not come to truly implement the initiative for the life imprisonment of dangerous offenders? “ and the postulate entitled “Really implement the initiative for the life imprisonment of dangerous offenders” were submitted to the National Council. The interpellation questioned, following a decision by the Federal Court annulling a life sentence, the adequacy of the implementation standards to achieve the security objective of the initiative. In its response, the Federal Council refused to comment on the court decisions, in accordance with the principle of separation of powers. It then emphasized that the conditions set out in the implementing law were based on those set out in art. 123a Cst. Finally, he reiterated that, in addition to life imprisonment, several criminal sanctions (life imprisonment [art. 40 para. 2 CC] and ordinary imprisonment [art. 64 para. 1 CC]) made it possible to deprive a person of their liberty for the rest of their life, if their dangerousness and the protection of the community so required. As for the aforementioned postulate, it asked the Federal Council to present an interim report eleven years after the entry into force of the provisions relating to life imprisonment in the Penal Code. The government has abandoned this idea due to the small number of cases potentially affected by the measure. The National Council has not followed up on these two parliamentary interventions. In June 2022, the lower house rejected a new postulate, submitted in 2020, with the same content as the first.
9 As of the end of March 2025, only one person had been definitively sentenced to life imprisonment in Switzerland. This measure was ordered in 2010 by the Bezirksgericht of Weinfelden (Thurgau). On the date of publication of this article, the convicted person had served just over half of his 20-year custodial sentence, after which his life imprisonment will begin. Other courts of first and second instance imposed such a sentence before the Federal Supreme Court overturned it for violating federal law. In rulings that were not appealed to the Federal Court, the Bern and Zug courts of appeal and the Geneva criminal court of first instance also considered that the conditions for life imprisonment, as requested by the public prosecutor, were not met.
II. Incorporation of Art. 123a of the Constitution into Swiss law and criminal policy issues
10 Aiming above all to protect the community against a handful of individuals deemed particularly dangerous, life imprisonment reinforces some of the tensions that run through the Swiss legal system. Article 123a of the Constitution tends to weaken fundamental aspects of criminal law and relegates human rights guarantees to the margins.
11 Like the 2007 revision of the general part of the Penal Code, Article 123a of the Constitution and its implementing provisions contribute to distorting the dualistic system devised by Carl Stooss by further blurring the concrete distinction between the various custodial sanctions provided for in Swiss law. In principle, sentences and measures should complement each other, not overlap. However, the measure of internment (art. 64 para. 1 CP) “is very similar” to the custodial sentence, so that “the separation between them cannot be clearly maintained in practice”. For the Federal Court, whose reasoning was confirmed by the European Court of Human Rights (ECHR), ordinary internment differs from punishment in that the former is based on the dangerousness of the perpetrator, while the latter is determined according to his or her guilt. Nevertheless, like the punishment, the measure can only be imposed by a sentencing authority as a criminal sanction following an offense. Furthermore, given its unlimited duration, its regime of execution in a closed penal institution (cf. art. 64 para. 4 and 76 para. 2 CP) and the serious infringements on freedom and personal rights that result from it, internment has an undeniable punitive character. Conversely, the security objective is not limited to the measures (cf. art. 75 para. 1 CP). The penalty is not solely intended to compensate for the perpetrator's offense, as the primary purpose of criminal law is not retribution but the prevention of offenses.
12 The Federal Supreme Court and the European Court of Human Rights have thus qualified ordinary internment as a “penalty” within the meaning of Article 7(1) of the European Convention on Human Rights, although the latter is a “measure” under domestic law. In our opinion, because of its “quasi-irreversible” nature, art. 64 para. 1bis CC a fortiori meets the criteria for defining the autonomous concept of “penalty” established by Strasbourg case law. Without necessarily referring to the ECHR, the Federal Council and some legal scholars consider that the measure of (life) detention is a penalty for similar reasons.
13 In view of the above, the question arises as to whether the principle of guilt (nulla poena sine culpa; art. 19 para. 1 CC) and the rules for determining the sentence (art. 47 CC) are being respected. If (life) imprisonment is in fact a penalty within the meaning of Article 7 of the ECHR, individuals subject to such a measure “are punished for what they have done (the act) but also and above all for what they are (the being)”, because the personal status of the perpetrator is the “determining factor” here. However, when the perpetrator is declared criminally irresponsible, but nevertheless detained (cf. art. 19 para. 3 CP), what remains of their guilt, if not their personality? This “underlying problem, which has not yet been addressed by criminal doctrine and even less resolved”, could result in a violation of the principle of the legality of sanctions enshrined in art. 7 para. 1 ECHR, insofar as it is applicable. According to the case law of the ECHR, the absence of a “conviction”, i.e. a finding of guilt, does not preclude the classification as a “penalty” within the meaning of the Convention.
14 Art. 123a of the Constitution also undermines the coherence of the Swiss sanctions regime insofar as the law authorizes the pronouncement of a life sentence and a life imprisonment sentence (art. 40 para. 2, second sentence of the Penal Code; cf. art. 57 Penal Code). Despite the monist nature of the sentence of life imprisonment and the fact that it constitutes a “functional equivalent” of ordinary internment, there is nothing to prevent them from being ordered together in practice, in accordance with case law (cf. art. 64 para. 3, 64a para. 1 and 86 para. 1 CP). On the other hand, with regard to their different conditions of execution and release (cf. art. 64c and 86 para. 1 CP), the Federal Court has been more critical of the possibility of linking the execution of a life imprisonment with that of the life imprisonment sentence that would precede it, if any (art. 64 para. 2 CP), by stating that a “coordinated solution appears to be ruled out”.
15 The Federal Council also considered it necessary to “regulate more clearly the form of execution when a sentence of life imprisonment is pronounced together with internment” as part of the reform of the sentence of life imprisonment initiated in response to the Caroni and Rickli postulates. In its preliminary draft of June 2, 2023, the executive proposed that the deprivation of liberty should first be enforced in accordance with the rules relating to the custodial sentence and then, after a period set at 26 years, “the enforcement [should continue] according to the provisions applicable to (life) imprisonment” (cf. art. 64 para. 3bis and 64c para. 7 AP-CP). While the desire to regulate the articulation of these sanctions was welcomed by most of the stakeholders in the consultation, “ambiguities” in the Federal Council's implementation solution remained to be resolved. Taking into account the results of the consultation procedure that ended on October 2, 2023, the Federal Council's draft of February 19, 2025 finally provides for the introduction of an art. 80a P-CP so that “certain aspects of the deprivation of liberty [can] be carried out under the conditions of internment”. Under the terms of this new provision, formulated in a more restrictive manner than those of the preliminary draft, “when the detainee has been sentenced to life imprisonment, and the judge has also ordered internment within the meaning of art. 64 para. 1 or 1bis, and the detainee has served 25 years of the sentence, he may be placed in a specialized institution for the execution of detention orders”. In our opinion, none of these proposals resolves the question of what release conditions apply in the case of a joint sentence of life imprisonment and life detention, although this is precisely the stumbling block identified by case law.
16 By pursuing the security objective of the definitive neutralization of individuals considered dangerous, Article 123a of the Constitution also reflects a very old fear of recidivism that is part of the concept of an “enemy criminal law.” Particularly in the context of serious offenses against physical and sexual integrity, one of the preferred ways of “defending” society seems to be to definitively remove, through criminal means, “undesirable” members who are not, or no longer, an integral part of society and thereby lose the full and complete protection that the State is supposed to provide. Since there is always a (supposed) collective interest in security, which is a priori irreconcilable with the safeguarding of human dignity and (individual) freedoms, the principles of universality and unconditionality of human rights are thus annihilated. Given the suffering and social exclusion imposed on (lifelong) inmates, the adoption of Art. 123a of the Constitution reflects a form of indifference towards their fate and their rights, which is justified by the (statistical) risks they represent for the community. This dichotomous and hostile view runs counter to the theory that society is composed of all its members and that no one can be outside the social contract, regardless of their actions. This way of thinking about and constructing living together and the common good gives rise to a “paradoxical contradiction” between criminal law and human rights, which is well illustrated by life imprisonment; it becomes impossible to protect the fundamental values of the system without, at the same time, transgressing them. Consequently, human rights only penetrate the penal system marginally in the sense that, particularly in the case of serious offenses, they only come into play to contain so-called “radical” or “extreme” sentences. Thus, the process of implementing art. 123a Cst. has mainly consisted - sometimes in vain - of limiting the scope of a constitutional norm that clearly denied fundamental rights.
17 For some legal theorists, the severity of the sanction, its neutralizing dimension and its irrevocable nature bring life imprisonment closer to the death penalty. Historically, the “qualitative proximity” between the death penalty and perpetual sanctions is clearly distinguished in the work of Beccaria, who advocates replacing the death penalty with a life sentence on the grounds that the latter would be more effective in that it is more cruel due to its duration of execution. The processes of abolition of the death penalty in several Western countries have constantly reactivated this link during the 19th and 20th centuries; in the end, a life sentence has replaced the death penalty in most of them, because ” when thinking of an alternative to the death penalty, the main concern is not to take into account the fundamental rights of the condemned, but to avoid 'weakening' the scale of penalties'. Researchers and practitioners also believe that within legal systems in which capital punishment is no longer practiced, only biological death has been abolished, as life sentences, which kill “slowly”, are another kind of death penalty.
18 By updating a model of punishment that still seems unsurpassable today, the adoption of art. 123a of the Constitution highlights the lack of renewal of penal ideas since the 18th century. However, the comparison between life imprisonment and the death penalty helps to normalize other sanctions involving deprivation of liberty for an indefinite period by presenting the sentence of life imprisonment (art. 40, paras. 1 and 2 of the Penal Code), ordinary internment (art. 64, para. 1 of the Penal Code) and institutional therapeutic measures (art. the sentence of life imprisonment (art. 40, paras. 1 and 2, CC), ordinary internment (art. 64, para. 1, CC) and institutional therapeutic measures (art. 59, para. 3, CC). Since it is the “most severe” of these and the ultima ratio, life imprisonment tends to overshadow the severity of these other sanctions by capturing a large part of the expectations of its supporters and the concerns of its opponents. The vote in favor of the popular initiative for life imprisonment indicates that the majority of the people and the cantons did not consider the existing penal arsenal to be sufficient and that only this new perpetual measure could protect society. In return, the argument has often been made against Article 123a of the Constitution and its implementing provisions that the single - or cumulative (cf. Article 57 of the Penal Code) - pronouncement of other indefinite sanctions already made it possible to neutralize a person deemed dangerous until his death. However, despite their differences, these sanctions all proceed, to varying degrees, from a logic similar to that of life imprisonment; they are constructed from the same “system of ideas” and, given their lack of a time limit, induce effects and risks of infringement of fundamental rights of the same nature. Art. 123a of the Constitution thus contributes to broadening the spectrum of penal practices currently considered acceptable for punishing and preventing the commission of serious offenses; beyond its own existence, it perpetuates the principle of recourse to endless sanctions.
III. Commentary proper
A. Absence of a marginal title
19 Art. 123a of the Constitution is the only provision of the Federal Constitution that does not have a marginal title. Biaggini calls it “das namenlose Sorgenkind” (the nameless problem child). This anomaly can be explained by the fact that the initiators did not provide a marginal title for the article (not to be confused with the title of the initiative) when drawing up the draft popular initiative (cf. art. 139 para. 2 hyp. 2 Cst.). During the preliminary examination of the initiative by the Federal Chancellery, this omission - without the slightest formal consequence - does not seem to have given rise to exchanges with the initiators. Following the official publication of the initiative and the concomitant launch of the collection of signatures (art. 139 para. 1 Cst.), the addition of a marginal title - i.e. an element of interpretation of the text that is part of the constitutional article - was no longer possible (see art. 139 para. 5 sent. 1 Cst. and art. 99 LParl, relating to the prohibition on amending the text of a popular initiative).
B. Paragraph 1, sentence 1: conditions for pronouncing life imprisonment
20 Art. 123a para. 1 sent. 1 Cst. provides that a “sex offender or violent offender” must be interned for life if the expert report on which the judgment is based qualifies him or her as “extremely dangerous” and “non-amendable”.
1. A “sex offender or violent offender”
21 According to the constitutional text, life imprisonment is ordered against a “sex offender or violent offender”, i.e. the perpetrator of an act of a violent or, alternatively, a sexual nature. Since this notion of “sexual or violent offender” is unknown in Swiss criminal law, it has been transposed in the form of an exhaustive list of offenses (art. 64 para. 1bis in limine CP), in accordance with the principle of legality (art. 1 CP). Thus, anyone who has committed or attempted to commit an assassination (art. 112 CP), a murder (art. 111 CP), a serious bodily injury (art. 122 CP), a rape (art. 190 CP), robbery (art. 140 CP), sexual coercion (art. 189 par. 2 and 3 CP), false imprisonment (art. 183 ch. 1 CP), kidnapping (art. 183 ch. 2 CP), hostage-taking (art. 185 CP) or the crime of enforced disappearance (art. 185bis CP), or who has engaged in human trafficking (art. 182 PC), participated in genocide (art. 264 PC) or committed a crime against humanity (art. 264a PC) or a war crime (art. 264d to 264h PC). In addition, the person must have caused or intended to cause a particularly serious harm to the physical, psychological or sexual integrity of another person (art. 64 para. 1bis let. a CP). The Federal Supreme Court and legal doctrine specify in this regard that the offenses in the catalog do not all have the same degree of seriousness. While there is no doubt, for example, that murder or rape per se constitute such an offense, so that the condition required by art. 64 para. 1bis let. a PC will always be met, the examination will have to be more thorough, particularly in the case of sexual coercion. According to the Federal Court, the latter offense does not necessarily imply a particularly serious violation of physical, psychological or sexual integrity. The two cumulative conditions relating to the nature of the offense provided for by the Penal Code (art. 64 para. 1bis in limine and 1bis let. a PC) thus reflect the desire to restrict the pronouncement of life imprisonment to the most serious cases.
2. An “extremely dangerous” individual
22 The “extreme dangerousness” that characterizes the individual under the terms of art. 123a para. 1 Cst. is an indeterminate concept from a legal point of view and imprecise from a psychiatric point of view. At the legal level, several elements of the implementing provision make it possible to concretize this idea, which could not be taken over as it stood. The person's “extreme dangerousness” is mainly deduced from the high risk of reoffending, by committing again one of the crimes mentioned in art. 64 para. 1bis in limine CP (art. 64 para. 1bis let. b CP). The primary commission (or attempt) of one of the offenses in the catalog as well as the (actual or intended) infliction of a serious attack on the integrity of others (art. 64 para. 1bis let. a CP) are also indications of this. From a medical point of view, the difficulties lie in particular in the controversy surrounding the notion of dangerousness and the uncertainty inherent in the assessment of the risk of reoffending. The high probability of specific or similar reoffending required in art. 64 para. 1bis let. b CP, limits the possibility of pronouncing life imprisonment to exceptional cases.
3. An “unamendable” individual
23 For the purposes of the constitutional provision, the individual must also be considered “unamendable” (nicht therapierbar; refrattario alla terapia). This notion has been widely contested by practitioners and the scientific communities concerned because it touches on a fundamental ethical question. According to the Kantian conception of human dignity, based on respect for individual autonomy, it is not acceptable to treat a person as being definitively incapable of taking control of his or her life, because this is equivalent to considering that he or she is not a rational agent capable of moral judgment. In other words, to postulate the irreversible incurability of a person is to deny their humanity, insofar as autonomy and self-determination, which include the capacity to change, are imprescriptible and inalienable qualities of the human being. The notion of non-amendability therefore appears to be difficult to reconcile with constitutional and conventional standards protecting human dignity, as it is one of the fundamental values of democratic societies. For ethical and scientific reasons based on similar reasoning, the prevailing forensic psychiatric doctrine also considers that it is not conceivable to make a definitive statement on non-amendability; every living being, and a fortiori the human being, remains capable of evolving over time. From the point of view of their clinical validity, the vast majority of psychiatrists also specify that prognoses can at most cover a period of one or two decades when the perpetrators concerned generally have a residual life expectancy of forty to fifty years at the time of sentencing.
24 By pitting the majority of the people against that of the experts and practitioners, the notion of “non-amendability” reflects the Gordian knot that is the measure of life imprisonment. It has given rise to considerable discussion as to its legal interpretation. Art. 64 para. 1bis let. c CP provides for the ordering of life imprisonment for a person qualified as “permanently unamendable” [(dauerhaft nicht therapierbar; durevolmente refrattario alla terapia)], insofar as therapy seems doomed to failure in the long term. In the Message of 2005, the executive describes the unamendability as a chronic condition and explains that it “in fact represents a probability ratio that contrasts the extremely high risk that new very serious offenses will be committed with the very low probability that changes will occur that would reduce the risks”. By proposing to add the adverb “permanently” to take account of scientific reservations about non-amendability, the Federal Council took the risk of relaxing the conditions for pronouncing life imprisonment. This choice may come as a surprise insofar as it a priori goes against the logic of locking up that guided the implementation of life imprisonment. It reveals the Swiss authorities' difficulty in reconciling the different interests and issues following the adoption of Art. 123a Cst.
25 After a meticulous analysis, the Federal Court finally ruled in favor of a restrictive approach, holding that “only someone who is truly unresponsive to treatment for life” is permanently unamendable within the meaning of art. 64 para. 1bis let. c CP. Its interpretation, more faithful to the will of the legislator than that outlined by the Federal Council, reduces the practical scope of the legal provision to almost nothing since “the initiative is based on a fiction that contradicts reality”.
26 According to the Federal Council, the envisaged treatment process (Behandlung; trattamento) must aim to sufficiently reduce the dangerousness of the person, whether it is related to mental disorders in the strict sense or deduced from symptoms or personality characteristics that could be successfully treated by means of therapy. The provisions on life imprisonment therefore apply both to individuals with mental disorders and to those who do not suffer from them, provided that it is established, at the time of sentencing, that no form of therapy will prevent them from committing another serious offense.
27 In line with the Federal Council, case law requires that the analysis of the condition of the individual be based solely on structural criteria that are closely and lastingly linked to the person. Variable criteria - such as lack of motivation, lack of rational recognition of the act, symptoms likely to be modified by the use of medication or the absence of a suitable institution - are not taken into consideration. Moreover, if this were the case, Switzerland would be failing to fulfill its duties under Articles 3 and 5(1) of the ECHR in the area of care, particularly mental care, administered in detention. In this respect, an appropriate establishment and care of the person's state of health are precisely part of the indispensable measures. In general, in accordance with the positive obligation to offer all persons deprived of their liberty the opportunity to progress on the path to reform, all means enabling the individual to reduce his dangerousness must be offered to him, whether or not he presents mental disorders. Furthermore, in the event that a person is considered to be “permanently unamendable” within the meaning of federal case law, the Swiss authorities would not be released from their obligations towards that person.
C. Paragraph 1, sentence 2: exclusion of relief during the execution of life imprisonment
28 Art. 123a para. 1, second sentence, Cst. excludes any early release and any leave for persons serving a life sentence. This prohibition is explicitly included in art. 90 CC – paragraphs 2 to 4bis of which regulate the procedures for preparation for release – which states in paragraph 4ter that “no leave or other relief in the execution is granted during life imprisonment”. Art. 84 CC, which regulates the relationship of the convicted person with the outside world, has also been supplemented by a paragraph 6bis which provides for the same exclusion during the execution of the sentence preceding life imprisonment.
29 In the 2001 Message, the Federal Council rightly emphasizes that the regime provided for by the initiative is difficult to reconcile with the principle of proportionality. We have two additional reservations regarding the conformity of the system established by Art. 123a para. 1 sent. 2 Cst. The first could already have been formulated at the time of the vote on life imprisonment, while the second stems from developments by the ECHR subsequent to the adoption of art. 123a of the Constitution and its implementing provisions, but falling under a norm of jus cogens. On the one hand, according to established case law since the 1990s, States have an obligation to allow and assist persons deprived of their liberty to maintain contact with their immediate family under Article 8 of the ECHR. While this does not result in an unconditional right to temporary leave, it is incumbent on the national authorities to assess each individual request on its merits and to demonstrate that the restriction on the right of the person concerned is justified under Article 8(2) of the ECHR. By ruling out any weighing of interests, art. 84 para. 6bis CP does not meet these requirements. On the other hand, art. 84 para. 6bis and 90 para. 4ter CC appear to contradict the cardinal objective of reintegration and resocialization that governs the execution of Swiss criminal sanctions (cf. in particular art. 74, 75 al. 1 and 3 and 90 al. 2 CC) and that the ECHR elevated to the rank of positive obligation in 2013. According to the Court, this concerns respect for the human dignity of any person deprived of liberty, but also the security of the public community, since the resocialization function of criminal sanctions “aims, as a last resort, to prevent recidivism and, therefore, to protect society”. In the context of Article 3 of the ECHR, the obligation to promote the resocialization of all persons deprived of liberty, even when they are serving a life sentence, implies in particular guaranteeing the existence of prison regimes that are compatible with the objective of rehabilitation and that enable them to progress along this path. The progressive regime for the enforcement of sentences (cf. art. 75 PC) and measures (cf. art. 90 PC), which includes reductions, is precisely an expression of the resocialization function of criminal sanctions. Similarly, maintaining contact with the outside world is fundamental to promoting the reintegration of persons deprived of their liberty. Thus, although contact may possibly be maintained in another way, the absolute exclusion of leave seems to us to constitute a major obstacle to the social reintegration of persons sentenced to life imprisonment and, therefore, to risk participating in a violation of Article 3 ECHR.
D. Paragraph 2, sentence 1: conditions for the lifting of life imprisonment
30 Under the terms of Article 123a, paragraph 2, sentence 1, of the Penal Code, “new expert assessments shall only be carried out if new scientific knowledge makes it possible to establish that the offender can be reformed and that he or she therefore no longer represents a danger to the community”. In other words, only “new scientific knowledge” opens up the possibility of lifting a life sentence. The main difficulty in implementing the constitutional provision lies in the fact that it does not consider that the reduction or even disappearance of the dangerousness of the person serving a life sentence can depend on anything other than his or her ability to respond to treatment.
31 Under the first three paragraphs of Art. 64c CC, the legislator merely provides for a relatively complex implementation mechanism, endorsing the logic of the initiative. Firstly, the competent cantonal authority, either ex officio or at the request of the person committed for life, instructs a specialized federal commission to examine whether there is “new scientific knowledge” that would make it possible to establish that the individual in question can be reformed (art. 64c para. 1 CP). Based on the commission's advisory report, the cantonal authority then decides to offer the treatment to the person when it considers that it is sufficiently probable that their dangerousness will disappear (art. 64c para. 1 and 2 CP). Finally, if at least two new expert reports conclude that, thanks to the treatment, the dangerousness of the individual has been significantly reduced and can be reduced further to the point that he or she no longer represents a danger to the community, the court that ordered the life imprisonment orders its lifting and replaces it with an institutional therapeutic measure (art. 64c para. 3 and 5 CP; cf. art. 59 ff CC). At this stage, the person may be released under the conditions of Articles 62 to 62d CC.
32 The notion of “new scientific knowledge” that determines the lifting of life imprisonment has fuelled much debate, because, in the unanimous opinion of the parties involved in the legislative process, the compatibility of the measure with Article 5 ECHR depends to a large extent on it. The initiative committee undoubtedly understood this expression in the objective sense of “new curative procedures for the treatment of dangerous offenders”, thus disregarding the requirements of Article 5 ECHR. With Strasbourg case law in mind, the Federal Council considers in its 2005 Message that the question that arises is whether there are new therapeutic methods, but that these must also take into account the changes in the person concerned, i.e. those of a subjective nature. In the same paragraph of the Message, it also describes as “new scientific knowledge [...] all that acquired through methodical processes, which concern the dangerous and (non) amendable nature of the offender that led to their internment”. It is therefore not clear whether, for the Federal Council, these can concern dangerousness and amendability independently or whether they should only relate to amendability, which may have an impact on dangerousness. The three language versions of the 2001 Messages all agree that the examination relates to dangerousness and amendability. In the 2005 Message, the definition in French is identical, but the German and Italian versions only mention amendability. The doubt raised by the government's definition as to what exactly this indeterminate legal concept covers did not dissipate with the parliamentary debates. It persists at present, since the Federal Court has not settled the question.
33 Pending a decision by the federal judges, we believe that the analysis under art. 64c paras. 1 to 3 CP only covers developments in the person committed for life in relation to a form of treatment. In other words, the examination only concerns the existence of scientific knowledge concerning the (non) amendability of the person interned for life that makes it possible to expect changes in his extremely dangerous nature. In our view, a broader definition, which would include all changes in the dangerous nature of the person, ignores the will of the constituent and strays too far from the text of Articles 123a para. 2, first sentence, of the Constitution and 64c, paras. 1 to 3, of the Penal Code, emptying the notion of “new scientific knowledge” of its literal meaning. We also reject it because it goes against legal systematics. It prevents the articulation of art. 64c paras. 1 to 4 CC insofar as, in absolute terms, the old age and illness mentioned in paragraph 4 also constitute changes influencing the dangerous nature of the person committed for life, changes which should be considered from the perspective of paragraphs 1 to 3 if the concept of “new scientific knowledge” were interpreted extensively.
34 In art. 64c para. 4 CP, the legislator provides – again with a view to compliance with art. 5 ECHR, but clearly departing from the spirit of art. 123a para. 2 phr. 1 Cst. - the possibility for the judge to grant conditional release (cf. 64a of the Penal Code), without prior or subsequent treatment, to the person who, because of his or her age, serious illness or for any other reason, no longer represents a danger to the community. The question of treatment thus fades into the background in favor of the broader question of dangerousness. The interpretation of this paragraph is uncertain for the time being, but proves decisive for the whole mechanism of lifting life imprisonment insofar as it is a path of alternative release to that provided for in the first three paragraphs. For the doctrine, which we agree with, the general clause of art. 64c para. 4 CC, which provides for the release of the person for “another reason”, is not unequivocal.
35 The Federal Council's preliminary draft based the conformity of the provision of art. 64c CC with art. 5 ECHR on the extensive interpretation of “new scientific knowledge” and an art. 64c para. 4 AP-CC providing only for the two variants of old age and serious illness. At the end of the consultation procedure, the government inserted this third “other reason” for release in paragraph 4, as some of the stakeholders felt that otherwise the text would be contrary to Article 5 of the ECHR. It is not easy to understand whether, from the Federal Council's point of view, the compatibility of the modalities for lifting life imprisonment with the ECHR is guaranteed by the extensive interpretation of “new scientific knowledge” in Article 64c(1) CC, by the addition of the third variant to Article 64c(4) CC, or by both. Nor has the executive specified the relationship between the mechanism provided for in paragraphs 1 to 3 and that instituted by paragraph 4, nor their respective scope. It has merely stated that the words “for another reason” allow the competent authority to “ask the court to order conditional release when, on the basis of the report of the specialized commission according to paragraph 1, it comes to the conclusion that, even without prior treatment or after ‘trial’ treatment within the meaning of paragraph 2, the perpetrator no longer poses a danger to society”. In Parliament, opinions also diverged on the interpretation of this clause, so that uncertainty remains. The Federal Court, for its part, has not had the opportunity to rule on the implementation of art. 64c para. 4 CP. For our part, we include in the “other reason” of art. 64c para. 4 CC all conceivable grounds for the subsequent disappearance of the dangerousness of the individual interned for life.
36 Unlike paragraphs 1 to 3 of art. 64c CC, paragraph 4 does not detail how the judicial review of parole is initiated. This review may, in all likelihood, be initiated either at the request of the detained person or at the initiative of the enforcement authority. The prior notice of the federal specialized commission does not appear necessary in this context. According to the letter of art. 123a para. 2 phr. 1 Cst., art. 64c al. 1 to 3 CP and the Ordinance of June 26, 2013 (cf. in particular its title and art. 2 let. a), this commission's sole mandate is to rule on the question of the existence of treatment for the individual in question, i.e. on his or her amendability. However, it is not impossible that, in carrying out this analysis in accordance with art. 64c para. 1 CP, the commission may find that the person detained for life is no longer dangerous. In such a case, art. 64c paras. 2 and 3 CP do not apply and the enforcement authority refers the matter to the judge on the basis of art. 64c para. 4 CC. To decide on the lifting of life imprisonment and conditional release, the court relies on two independent and concordant expert reports confirming that the person concerned is not dangerous (art. 64c para. 5 CC; cf. also art. 64a CC).
37 Our approach, which advocates a broad interpretation of the “other reason” in Article 64(c)(4) of the Penal Code, allows for a logical articulation of all the paragraphs of Article 64(c) of the Penal Code when the person is no longer considered “extremely dangerous”. The measure may be lifted in four scenarios. The first scenario is that of the person whose dangerousness has already decreased significantly thanks to treatment and may decrease further. Their life-long detention order will be lifted and they will be admitted to a secure institution as part of an institutional therapeutic measure within the meaning of Articles 59 to 61 of the Penal Code, from which they will then be released under the conditions of Articles 62 to 62d of the Penal Code (Article 64c paragraphs 1 to 3 cum paragraph 5 of the Penal Code). The second case is less clear because of the lack of distinction in Art. 64 para. 1bis CC between persons with mental disorders and those who do not suffer from them. In fact, only the “sick” individual, i.e. the one with a mental disorder, can be “cured” and therefore released. Also, a person who is undergoing therapy under Art. 64c para. 1 and 2 CC, but who was not dangerous due to a mental disorder, cannot follow the procedure provided for in Art. 64c para. 3 CC, because a priori he or she does not meet the conditions for the imposition of an institutional measure (cf. in particular Art. 59 CC). Although fragile, the only possibility we can imagine for overcoming this obstacle and considering the release of this person is that of art. 64c al. 4 hyp. 3 CP (cum al. 5 CP), considering that his dangerousness has disappeared for an “other reason”. From this point of view too, the question of dangerousness must necessarily take precedence over the subsidiary question of amendability. The third case is that of a person who is no longer dangerous due to old age, serious illness or any other similar form of disability and who will be released under the conditions of Article 64a of the Penal Code (Article 64c paragraph 4 cum paragraph 5 of the Penal Code). The fourth, rare but theoretically conceivable, scenario concerns the individual who is committed for life and whose recognized non-dangerousness is not attributable to the effect of treatment or to the deterioration of his or her physical condition. For this individual, the only way to be released is to argue, as for the person in the second situation, the existence of an “other reason” (art. 64c para. 4 hyp. 3 cum para. 5 CP).
38 Neither interpretation is perfectly in line with the will of the initiators. However, our proposal appears in two respects to be more solid in terms of conventionality than the one based on an extensive definition of “new scientific knowledge”, at least with regard to art. 5 ECHR.
39 First, while the latter interpretation may contribute to the compatibility of the provision set out in art. 64c paras. 1 to 3 CC with art. 5 ECHR, it raises a new difficulty from the perspective of the latter standard. The contra legem reading proposed by the Federal Council makes the application of art. 64c PC significantly more uncertain. However, according to the ECHR, provisions receiving contradictory interpretations from the internal authorities that are mutually exclusive do not meet the requirement of legal certainty set out in art. 5 par. 1 ECHR. By not emptying the concept of “new scientific knowledge” of its literal meaning and by articulating the two release channels provided for in art. 64c PC, our proposal therefore aims to guarantee greater predictability in the application of the legal provision.
40 Secondly, art. 5 par. 4 ECHR guarantees the right to have the legality of any deprivation of liberty reviewed promptly and at regular intervals by an impartial and independent court. On the occasion of this review, which constitutes a right in its own right, the court must verify whether the sentence or measure still meets the conditions of art. 5 par. 1 ECHR and order release, if appropriate. In general, it is the person's overall situation at the time of the review that is the only relevant factor for the judge who is reviewing the legality of an indefinite deprivation of liberty, the grounds for which are likely to evolve over time. The court's decision is based in particular on the personality and behavior of the individual, his or her state of mental health and potential dangerousness. More specifically, the deprivation of liberty under art. 64 para. 1bis CP falls, depending on the circumstances, under the grounds of art. 5 para. 1 let. a or let. e ECHR, or both at the same time.
41 In matters of preventive detention, the judge in principle examines the situation of persons who do not present mental disorders and have been declared guilty under the terms of art. 5 par. 1 let. a ECHR. Among the criteria governing the analysis is that of the sufficient causal link between the conviction handed down by the trial court and the deprivation of liberty. This link gradually weakens over time and may end up breaking, particularly if the decision not to release is based on an unreasonable assessment of the objectives pursued by the initial conviction. The refusal of release may also become incompatible with the purpose of the original sentence when the person remains in detention “because there is a risk of reoffending while, at the same time, being deprived of the necessary means [...] to enable him or her to demonstrate that he or she no longer presents a danger”. In these cases, a sanction that was originally a regular life sentence turns into a deprivation of liberty incompatible with art. 5 par. 1 let. a ECHR.
42 With regard to the person “insane” within the meaning of art. 5 par. 1 let. e ECHR, whose mental disorders have motivated the deprivation of liberty, the court must in particular ensure that these persist on the day of the examination for release by considering any possible evolution of his mental health that has occurred after the sentence or measure was pronounced. Deprivation of liberty as referred to in Article 5(1)(e) of the ECHR is considered arbitrary in the absence of such disorders. It is just as arbitrary if the disorders at the root of the sentence are not adequately treated, and this “even when the illness or disorder cannot be cured or the person concerned is not likely to respond to treatment”.
43 The mechanism for lifting life imprisonment does not meet the requirements of Art. 5 ECHR if the review is limited to the sole question of amendability. Since the decisions of the enforcement authority based on art. 64c paras. 1 and 2 CC are subject to appeal, the problem is a priori not so much that of access to a judge as that of the restriction of the court's power of cognition (art. 5 para. 1 cum para. 4 ECHR). By limiting the notion of “new scientific knowledge” to changes in the extremely dangerous nature of the detained person due to treatment, the mechanism provided for in the first three paragraphs does not leave sufficient leeway for the court to carry out a review in accordance with the case law of the ECtHR. On the other hand, with the alternative route provided for in art. 64c para. 4 CP, the release mechanism is more compatible with the ECHR. The court that decides in this context does have all the latitude required to assess the evolution of the individual in question (art. 5 para. 1 cum para. 4 ECHR).
44 In summary, we consider that the mechanism for lifting life imprisonment violates Article 5 ECHR if we stick to Article 123a(2)(1) of the Constitution and its legal counterpart, the sole Article 64c(1) to (3) of the Penal Code. Subject to a problem of predictability of the law that cannot be completely resolved de lege lata, paragraph 4 constitutes the only chance to “save” art. 64c PC on the grounds of art. 5 ECHR, since it allows the lifelong detention of a person who is no longer “extremely dangerous” to be lifted, for whatever reason.
45 Under Article 3 ECHR, any custodial sentence for an unlimited period must also be open to reduction in law and in fact, i.e. there must be the possibility of review and the chance of release as soon as the sentence is passed. On the one hand, the life sentence or life-time measure must be subject to periodic reviews to enable the competent authority to determine whether, during the course of its execution, the individual has evolved and progressed on the path to rehabilitation to such an extent that there are no longer any legitimate penological grounds for continuing to detain them. According to the ECHR, it is contrary to human dignity for a “punishment to remain unchanged [...] no matter what the individual does or how exceptional his progress towards reform may be”. While leaving a wide margin of discretion to States with regard to the modalities of the review, the ECHR specifies that they must reflect its relevant case law and present a sufficient degree of clarity and certainty. Thus, every person sentenced to life imprisonment has the right to know, as soon as their sentence is handed down, what they must do to be considered for release and under what conditions. In particular, the person concerned has the right to know when a first review will take place or can be requested. Furthermore, Article 3 of the ECHR requires the State to offer all life prisoners real prospects of early release. Strasbourg case law considers that respect for human dignity “prevents a person from being deprived of his liberty by coercion without at the same time working for his reintegration and without providing him with a chance to regain that freedom one day”. In addition to the positive obligation to ensure the existence of conditions of detention and arrangements, measures or treatments likely to enable the reform of life-sentenced persons, it would seem – in the light of certain judgments of the ECHR – that States must also provide, as a tool for encouraging reform, a mechanism of conditional release for all persons detained. Release on humanitarian grounds alone, such as age or serious illness, is insufficient for the purposes of compressibility and statistically rare in Switzerland.
46 The mechanism for lifting life imprisonment under Article 64c of the Swiss Criminal Code does not meet the requirements of the ECHR under Article 3 ECHR already because it does not provide a sufficient degree of clarity given the difficulties of interpretation that it raises. These substantial doubts are, in the same way as for art. 5 ECHR, problematic as such with regard to art. 3 ECHR.
47 Moreover, contrary to the result that can be achieved from the perspective of art. 5 ECHR, we consider that the incompatibility of Swiss law with art. 3 ECHR will persist, regardless of the interpretation of domestic law that may ultimately be favored. The notion of “new scientific knowledge”, around which the path of art. 64c para. 1 to 3 CP revolves, does not make it possible to determine the time frame in which the first and subsequent reviews will take place. The existence of a new treatment influencing the person's amendability is a random occurrence, with no time anchor, which in no way reflects the relevant case law of the ECHR. Even if a custodial sentence is imposed jointly (cf. art. 57 para. 1 and 64 para. 2 sent. 1 PC), the person sentenced to life imprisonment cannot know from the outset when his sentence will be reviewed and is forced to spend an indeterminate number of years in detention without any concrete indication as to the possibility of review and, therefore, his prospects of release. Indeed, it seems difficult to us to deduce the existence of such a time limit from Art. 64c para. 6 CC, which certainly provides that the lifting of life imprisonment “takes place at the earliest when the perpetrator has served two thirds of their sentence or fifteen years of the sentence in the case of a life sentence”, but does not yet mean that the end of the measure, the conditions of which differ from those of the sentence, will be examined on that occasion. Furthermore, given that the possibilities for release under Article 64(1bis) of the Penal Code depend solely on the question of the existence of new treatment, they are largely beyond the control of the person serving a life sentence and the enforcement authorities. Efforts to secure release may thus appear futile and the sentence may appear to have no end. In short, the condition of “new scientific knowledge” makes life imprisonment one of the irreversible sanctions by excessively restricting both the possibility of review and the prospects of release. Our interpretation of art. 64c para. 4 CP does not guarantee compatibility under art. 3 ECHR either. The overall examination of the person's (non-) dangerousness offers concrete prospects for release, provided that the release is not limited to humanitarian reasons. However, in the absence of a legal deadline for review specifically concerning the lifting of life imprisonment, it remains impossible for the convicted person to know, on the day of his or her conviction, when an authority will check that the measure remains justified.
48 In conclusion, given the inadequate conditions for the lifting of life imprisonment laid down in Article 123a(2), first sentence, of the Constitution, no solution for implementation can be fully satisfactory. Our approach seems to us to be the most likely to confer a certain overall coherence on the mechanism for lifting life imprisonment provided for in art. 64c of the Penal Code and, after noting that art. 123a para. 2 sent. 1 of the Constitution is irremediably incompatible with the ECHR, to take the best possible account of the issues of conventionality. On the other hand, this approach departs from the will of the people insofar as it allows the release of an interned person who is no longer considered dangerous (art. 64c para. 4 hyp. 3 CP cum art. 64a CP), even in the absence of “new scientific knowledge enabling it to be established that the offender can be reformed” (art. 123a para. 1, first sentence, Cst.).
E. Paragraph 2, sentence 2: responsibility of the authority ordering the release from confinement
49 According to Art. 123a, paragraph 2, clause 2 of the Constitution, the authority that orders the release of the person detained on the basis of the new expert reports is liable in the event of a repeat offense (cf. Art. 64c, paragraph 5 of the Criminal Code).
50 The initiative aims primarily to establish the liability of the State. Within the “internment” working group, the two former members of the initiative committee argued that the letter of the constitutional text clearly provided for the “responsibility of the authority”, which would imply “less of a financial remedy than obliging those who made the decision to release the perpetrator to bear the consequences of that decision”. However, the Federal Council, in line with the vast majority of the working group, considered that the concept of liability was legally clear and could only be understood in the sense of “payment of damages for financial consequences” (cf. art. 41 et seq. CO).
51 The State's liability was specified in art. 380a para. 1 CC in the form of liability under public law on a no-fault basis, i.e. independent of any fault on the part of an agent when lifting a life sentence. The public authority is thus held liable when one of its affiliated authorities lifts a life sentence or grants parole to a person serving a life sentence and the latter commits one of the crimes referred to in art. 64 para. 1bis PC again. Recidivism is thus understood in its special meaning. The procedure is governed, depending on the authority concerned, by the cantonal laws on state liability or by the Federal Act on the Liability of the Confederation, the Members of its Authorities and its Officials of March 14, 1958 (LRCF). Only the public authority – federal or cantonal – is liable for the damage, to the exclusion of the authority that rendered the decision, which lacks legal personality. As the specialized federal commission only has an advisory function, its conclusions do not result in the Confederation being held liable.
52 The State's liability does not exclude the civil liability of the person who has committed a repeat offense (art. 41 et seq. CO). The injured party thus benefits from a combination of actions against the public authority and the repeat offender. Under art. 380a para. 2 CC, the provisions of the Code of Obligations on unlawful acts apply, as a supplementary public law, to the recourse of the public authority sought against the perpetrator of the crime (art. 51 CO) as well as to the limitation of the action for damages or compensation for moral injury (art. 60 CO).
53 Art. 380a of the Penal Code protects members of the authority who have ordered the lifting of life imprisonment from any direct action by the victim of the damage. Under paragraph 3, the community sought, however, has a recourse action, governed by cantonal law or by the LRCF, against its agents.
54 According to the 2001 Message, the text of the initiative fails to specify the type of liability involved, so it should be assumed that the initiators envisaged not only civil but also criminal liability. The criminal liability of the members of the authority ordering the (conditional) release would be covered by the provisions of the special part of the Penal Code, in particular the offenses of manslaughter by negligence (art. 117 PC) or serious bodily injury by negligence (art. 125 para. 1 and 2 PC). Following the adoption of the constitutional standard, this form of liability was no longer mentioned by the Federal Council in its 2005 Message and was not discussed in Parliament. It is rightly agreed in legal theory that the liability referred to in art. 123a para. 2 sent. 2 Cst. is not criminal in nature.
55 On the conventional level, the procedural obligations resulting from art. 2 ECHR do not impose the payment of compensation by the State to a victim on the basis of objective responsibility in the event of recidivism of a person benefiting from a sentence reduction or conditional release. Nor do they preclude making the liability of members of an authority ruling on measures to extend detention dependent on fraud or serious misconduct. On the other hand, Article 2 ECHR includes the positive obligation of the State to establish the possible liability of these officers if, at liberty, the individual sentenced to life imprisonment commits a new serious offense. The proceedings brought against these officers do not necessarily have to be criminal; they may also be civil or disciplinary.
F. Paragraph 3: requirements for expert reports
56 According to Article 123a(3) of the Constitution, any expert report concerning a person at risk of life imprisonment must be “drawn up by at least two independent experts who take into consideration all relevant factors”. In support of the German and Italian versions, which are more precise than the French version, it can be concluded that the initiators wanted two experienced (erfahrene Fachleute; periti esperti) and independent (voneinander unabhängig; reciprocamente indipendenti) experts to draw up two complete expert reports on the individual in question.
57 Art. 56 para. 4bis of the Penal Code transcribes the essence of art. 123a para. 3 of the Constitution in the law. The legislator has refrained from including the expected competencies of the experts in the Penal Code. In its 2005 Message, the Federal Council specifies, however, that the experts called upon must be specialists in forensic psychiatry, judicial prognostic assessment and the treatment of perpetrators of serious offences against physical or sexual integrity. On the other hand, in relation to the constitutional text, Art. 56 para. 4bis PC adds the condition of the independence of the experts in relation to the person being evaluated, in the sense that the former must not have treated the latter or dealt with them in any way. In practice, the small number of experts and the long criminal record of persons at risk of life imprisonment complicate the implementation of this requirement.
58 According to the Message of 2005, while the two expert reports do not necessarily have to agree on all points, they should not contain any fundamental contradictions regarding the conclusions concerning the pronouncement of life imprisonment. In the event of a divergence between the experts, the court has the option of requesting a third opinion, since art. 123a (3) Cst., reproduced in art. 56 (4bis) CP, stipulates that the judge shall rely on “at least” two independent expert opinions. Case law has specified that the pronouncement of life imprisonment requires clear, indisputable and convergent opinions from these two experts as to the person's incurability for life. According to the judgments published at the end of March 2025, some experts concluded that the individual in question was truly inaccessible to treatment for the rest of his or her life. The very restrictive conditions imposed by the Penal Code, taken from the constitutional standard, for pronouncing this measure, particularly the request to the experts to predict an “impossibility of lifelong treatment”, should nevertheless mean that lifelong detention will only very rarely, if ever, be applied.
59 The lifting of the measure also requires the establishment of two expert reports, meeting the same requirements (cf. art. 64c para. 5 CC).
About the author
Justine Barton is a doctoral student in the Department of Criminal Law at the University of Geneva and is also completing her legal internship. She holds a Bachelor's degree in law (2015), a Master's degree in general law (2017) and a Certificate of Specialization in Legal Professions (2017) from the University of Geneva. Her research and practice are mainly divided between criminal law and fundamental rights.
Fabio Burgener is a doctoral student and assistant in the Department of Criminal Law at the University of Geneva. He holds a Bachelor's degree in Law from the University of Geneva (2013), a bilingual Master's degree in Civil and Criminal Law from the Universities of Geneva and Basel (2016) and a Certificate of Specialization in Legal Professions (2015). He is also a member of the Geneva Bar, practises at Keppeler Avocats and is a member of the Criminal Law Commission of the Geneva Bar Association. His research and practice focus mainly on substantive criminal law and criminal procedure.
Recommended further reading
Boos Susan, Auge um Auge, Die Grenzen des präventiven Strafens, Zurich 2022.
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Foucault Michel, Contre les peines de substitution, Libération du 18 septembre 1981, p. 5, suivi de Punir est la chose la plus difficile qui soit, Témoignage chrétien du 28 septembre 1981, p. 30, reproduits in Dits et écrits II, 1976-1988, Paris 2001, p. 1024 ss.
Helmer Étienne, Aux frontières de la cité : les incurables de Platon, Philosophie antique 2017, no 17, p. 125 ss.
Nietzsche Friedrich, Zur Genealogie der Moral : Eine Streitschrift, Leipizig 1887 (en particulier : Zweite Abhandlung : « Schuld », « schlechtes Gewissen » und Verwandtes).
Sureau François, Le chemin des morts, Paris 2013.
Weber Hartmut/Scheerer Sebastian (édit.), Leben ohne Lebenslänglich, Gegen die lebenslange Freiheitsstrafe, Bielefeld 1988.
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Doctrine
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Official documents
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Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants, Rapport au Conseil fédéral suisse relatif à la visite effectuée en Suisse du 22 mars au 1er avril 2021, 8 juin 2022 (cité : Rapport CPT).
Commission nationale de prévention de la torture, Rapport thématique sur la conformité aux droits fondamentaux de l’exécution de l’internement en Suisse (art. 64 CP) 2019–2021, 26 juillet 2022 (cité : Rapport CNPT).
Conseil fédéral, Message à l'Assemblée fédérale à l'appui d'un projet de code pénal suisse, 23 juillet 1918, FF 1918 IV 1 (cité : Message 1918).
Conseil fédéral, Message concernant l’initiative populaire « Internement à vie pour les délinquants sexuels ou violents jugés très dangereux et non amendables », 4 avril 2001, FF 2001 3265 ss (version française citée : Message 2001), FF 2001 3433 (version allemande citée : Message all. 2001), FF 2001 3063 ss (version italienne citée : Message ital. 2001).
Conseil fédéral, Explications à propos de la votation populaire du 8 février 2004, janvier 2004 (cité : Explications).
Conseil fédéral, Message relatif à la modification du Code pénal dans sa version du 13 décembre 2002 et du Code pénal militaire dans sa version du 21 mars 2003, 29 juin 2005, FF 2005 4425 ss (cité : Message 2005a).
Conseil fédéral, Message relatif à la modification du Code pénal dans sa version du 13 décembre 2002 (Mise en œuvre de l’art. 123a de la Constitution fédérale sur l’internement à vie pour les délinquants extrêmement dangereux), 23 novembre 2005, FF 2005 869 ss (cité : Message 2005b), FF 2005 889 ss (version allemande citée : Message all. 2005b), FF 2005 807 ss (version italienne citée : Message ital. 2005b).
Conseil fédéral, Rapport en réponse aux postulats Caroni Andrea 18.3530 et Rickli Natalie (Schwander Pirmin) 18.3531, Réforme de la peine privative de liberté à vie pour les infractions particulièrement graves, 25 novembre 2020 (cité : Rapport CF 2020).
Conseil fédéral, Message relatif à la modification du Code pénal et du droit pénal des mineurs (Train de mesures. Exécution des sanctions), 2 novembre 2022, FF 2022 2991 (cité : Message 2022).
Conseil fédéral, Modification du Code pénal (réforme de la peine privative de liberté à vie), Rapport explicatif relatif à l’ouverture de la procédure de consultation, 2 juin 2023 (cité : Rapport CF 2023).
Conseil fédéral, Message relatif à la modification du code pénal (réforme de la peine privative de liberté à vie), 19 février 2025, FF 2025 773 (cité : Message 2025).
Département fédéral de justice et police, Communication aux médias en vue de la votation populaire du 8 février 2004, 18 novembre 2013 (cité : Communication DFJP).
Groupe de travail, Rapport relatif à la modification du Code pénal suisse dans sa teneur du 13.12.2002, présenté par le groupe de travail « internement », 15 juillet 2004 (cité : Rapport GT).
Groupe de travail, Tableau synoptique des propositions de modifications, 4 août 2004 (cité : Tableau AP GT).
Office fédéral de la justice, Résumé des résultats de la procédure de consultation concernant le rapport et l’avant-projet du 15 juillet 2004 présentés par le groupe de travail « internement », octobre 2005 (cité : Résumé Consultation).
Office fédéral de la justice, Rapport explicatif relatif à l’ordonnance concernant la commission fédérale d’évaluation des possibilités de traiter les personnes internées à vie, 26 juin 2013 (cité : Rapport Commission).
Office fédéral de la justice, Rapport relatif à la motion 16.3002 de la Commission des affaires juridiques du Conseil national « Unifier l'exécution des peines des criminels dangereux », 20 novembre 2018 (cité : Rapport OFJ).
Office fédéral de la justice, Synthèse des résultats de la procédure de consultation concernant la modification du code pénal (réforme de la peine privative de liberté à vie), 19 février 2025 (cité : Synthèse Consultation).
Office fédéral de la statistique, Section 19, Analyses de la récidive, Terminologie et définitions, mai 2009 (cité : OFS).