Provisional detention for security reasons due to a qualified risk of reoffending for offenses under the narcotics act
A defendant, incarcerated for cocaine trafficking and having admitted to distributing 30 grams of the substance, had his requests for release denied both at first instance and on appeal. The Federal Supreme Court was called upon to determine whether detention based on security concerns, relying on a qualified risk of reoffending, was justified.
Article 221 para. 1bis of the Swiss Code of Criminal Procedure (CrimPC) sets out two cumulative conditions for ordering exceptional provisional detention: first, there must be a strong suspicion that the accused seriously harmed the physical, psychological, or sexual integrity of another by committing a serious crime or offense; second, there must be a serious and imminent danger that the person will commit another serious crime of the same nature.
The first condition concerns violations of legal interests of high value, which is deemed fulfilled when the alleged offense harmed the legal interests of a specific individual (Art. 116 para. 1 CrimPC). However, it is not necessary that the offense actually resulted in serious harm to the victim’s physical, psychological, or sexual integrity.
The second condition requires the persistence of an immediate threat to these individual legal interests. This is considered met when there is a serious likelihood that another serious crime will be committed.
The Federal Supreme Court emphasized that the Narcotics Act is primarily intended to protect public health and that violations of this law typically constitute an abstract endangerment, rather than an infringement upon the legal interests of a specific individual. As such, these offenses generally cannot serve as a basis for establishing a qualified risk of reoffending.
However, an exception may be considered if the narcotics offense is combined with an aggravating circumstance provided for in Art. 19 para. 2 of the same law.
In the case at hand, although the defendant's prognosis is unfavorable, it was not demonstrated that his actions infringed upon a highly valuable individual legal interest. Therefore, the legal requirements of Art. 221 para. 1bis CrimPC are not met.
Accordingly, the appeal is upheld and the defendant is released.
Article written by Me Maxime Guffon