CONCURRING OPINION OF JUDGE ZÃœND

1. I agree with my colleagues in finding a violation of Article 5 § 1 (a), Article 7 and Article 4 of Protocol No. 7.

2. I also subscribe to the reasoning under Article 7. The law, as in force at the time when the applicant committed the crime, did not provide for a subsequent preventive detention, as it has done since 2007. In addition, in the past the order of execution in the case of imposition of a prison sentence combined with a preventive detention measure had regularly led to the person concerned being detained for a shorter period of time, as noted in § 58 of the judgment. Therefore, the Federal Court applied the new legislation in breach of the principle of no punishment without law.

3. Article 5 § 1 (a) and Article 4 § 2 of Protocol No. 7 have to be read together, as rightly pointed out by the Court in § 42 of the judgment.

4. Detention is lawful under Article 5 § 1 (a) when it is provided for in a judgment or linked to this judgment. In cases of preventive detention under German law, the Court has considered that if, in the sentencing court’s judgment, no order was made for the preventive detention of the offender, that judgment did not cover any preventive detention ordered subsequently, and there was thus no sufficient causal connection between the applicant’s “conviction”, for the purposes of Article 5 § 1 and his subsequent preventive detention (§ 35 of this judgment).

5. However, Article 4 § 2 of Protocol No. 7 allows the reopening of the proceedings if there is evidence of new or newly discovered facts which could affect the outcome of the case. Unlike German law, Swiss law refers to the reopening of the proceedings when it subsequently permits a preventive detention order under Article 65 § 2 of the Criminal Code. For the majority, a reopening of the proceedings is permitted only if new facts or evidence emerge concerning the commission of a crime or the extent of guilt. In my view, however, such facts or evidence may also concern the preconditions for imposing a specific sanction such as preventive detention, inasmuch as they existed before the first judgment and the sentencing court was unaware of them.

6. I therefore consider that the Convention would not in principle rule out the possibility of imposing, in reopening proceedings, a sanction such as preventive detention where it can be shown that newly discovered facts concerning the convicted person’s unsound mind had led to the commission of a crime and that the court was unaware of this fact, as provided for in Article 65 § 2 of the Swiss Criminal Code. In such a case, neither Article 5 § 1 (a) nor Article 4 § 1 of Protocol No. 7 are violated when the reopening of the proceedings is based on the detection of such facts.

7. In this case, however, it was known to the sentencing court that the applicant, when convicted in 1995, was of unsound mind. It seems unreasonable to me to find in 2015 that the psychiatric disease falls under a psychiatric classification different from the one providing the basis for the initial judgment. The only possible decisive point is whether the person is dangerous because of an unsound mind, not the exact psychiatric diagnostic of that mental state. There were no new or newly discovered facts to permit the reopening of the proceedings within the meaning of Article 4 § 2 of Protocol No. 7. The Federal Court applied the framework of the reopening of proceedings in order to impose a sanction which the initial judgment of 1995 had intentionally failed to impose.

8. Therefore, the detention which has been going on since 2013 is based on a second punishment, in breach of Article 4 § 1 of Protocol No. 7, for an offence for which the applicant had already been convicted. Furthermore, the detention since then cannot be understood as being lawful detention after conviction within the meaning of Article 5 § 1 (a) of the Convention.