Preventive detention : Federal Supreme Court clarification on the concept of serious harm under Art.221 para. 1bis let. a of the CPP
A suspect was placed in preventive detention after threatening passersby with a handsaw. Additionally, he allegedly attempted to commit a robbery, shouting “I kill you” at a passerby while brandishing the weapon. Although no physical harm was observed, the victims were deeply traumatized.
In light of these actions, the suspect was placed in preventive detention on grounds of flight risk and risk of reoffending.
He challenged his detention all the way to the Federal Supreme Court (hereinafter: the "FSC"), which had to determine whether the conditions set out in Art. 221 para. 1bis CPP were met—specifically, whether serious harm had occurred and whether there was a qualified risk of reoffending.
According to this provision:
- The suspect must be strongly suspected of having seriously harmed another’s physical, psychological, or sexual integrity by committing a serious crime or offense (let. a);
- There must be a serious and imminent danger that he will commit another serious crime of the same kind (let. b).
The FSC had to clarify, in particular, whether actual and proven harm to integrity is required, or whether an abstract serious danger is sufficient, even without actual consequences.
Regarding the notion of serious harm to integrity, the FSC emphasized that this condition does not necessarily imply an actual injury. It pointed out that the legislator’s objective is to consider the potential severity of the incriminated acts within their specific context. Thus, the inherent danger of the act may be enough to constitute serious harm.
The FSC also recalled that such acts must target legal interests of high value.
In this case, the FSC confirmed that the suspect’s behavior, both in abstract and concrete terms, constitutes serious offenses targeting high-value legal interests.
As for the condition of a qualified risk of reoffending, it is met when there is a serious and imminent danger that the suspect will again commit a serious crime of the same kind.
In this instance, the FSC relied on a detailed psychiatric assessment concluding, with “very high probability,” that similar acts would be committed again if the suspect were released.
This assessment was deemed credible and sufficient to establish a serious and imminent risk of reoffending.
Accordingly, the FSC dismissed both appeals, and the preventive detention was upheld.
This ruling helps clarify the requirements of Art. 221 para. 1bis CPP: it is not necessary for serious harm to have actually occurred. It is sufficient that the incriminated act, in its concrete execution, exposed others to a serious risk against a legal interest of high value.
Written by Me Kaltrina FAZLIU