Therapeutic measures under Swiss criminal law
Objectives This article aims at a critical study of the evolution of therapeutic measures in Swiss criminal law and of the ambiguous role that criminal justice let play to legal psychiatry in its decisions. Swiss law defines as criminal sanctions both sentences (punishment) and measures. Among the latter, a distinction must be drawn between therapeutic measures, aiming in principle at the treatment of the convicted person, and security measures, designed essentially to protect public security. Method To this end, after a brief presentation of the history of penal treatment measures in Switzerland, the status of measures in the criminal sanctions system is examined, presenting the range of different criminal measures and their evolution in time. Then, the relationship between mental health and justice, in particular the question of institutional treatment of mental disordered delinquents is analyzed, including the criticisms that it raises. Results The development of criminal measures over the last twenty years is characterized by two general trends: a strong decrease in the total number of criminal measures which have been ordered, and a sharp increase in the number of institutional therapeutic measures (Art. 59 CPS) to which offenders with serious mental disorders have been convicted. This latter increase is in line with a Swiss criminal security policy that is becoming more and more oriented towards risk management and marked by an obsession with the control of “high-risk offenders.” In this logic, the primary aim of treatment for these offenders is supplanted by the aim of the protection of public security. This assumption is particularly tangible since therapeutic measures are not subject to a specific time limit and can be — and in practice are — regularly extended. This obsession with security is also crystallized in the difficult interaction between the judicial and the psychiatric worlds, since expertise is required for the pronouncement and the extension of a criminal measure. The system is criticized as well under a psychiatric as under a juridical point of view, and certain aspects have been recently condemned by the European Court of Human Rights. Conclusion We can observe that the use of the institutional therapeutic measure has increased, yet departing from its initial purpose, and obeying the movement towards more public security, even though the pronouncement of this measure is open to criticism. It rarely achieves its therapeutic objective, it is regularly submitted to prolongation, and it can lead to a measure of internment or a custodial sentence pronounced jointly, which run counter to the concrete needs of a person with mental health problems.