Federal Supreme Court, 07.24.2026, 6B_247/2026
Facts
An individual, A.________, was found guilty of multiple offenses, including violence and threats against authorities and public officials, obstruction of official action, threats, defamation, and driving while incapacitated. His criminal responsibility was deemed moderately diminished for part of the acts. He was sentenced to a 27-month custodial sentence, a monetary penalty, and a fine, all of which were considered fully served by pre-trial detention. The cantonal court also ordered an institutional therapeutic measure for mental disorders underArt. 59 of the Swiss Criminal Code (SCC) and his continued detention for security reasons until the start of the measure. (A.)
The convicted person, hereinafter the appellant, filed a criminal appeal with the Federal Supreme Court. He does not contest his guilt or the sentences, but objects exclusively to the institutional therapeutic measure. He requests its cancellation and the imposition of an outpatient measure, preceded by an introductory phase in a closed setting as permitted by Art. 63 para. 3 SCC. He argues that the institutional measure is disproportionate and that the lower court acted arbitrarily by departing from the psychiatric expert report. (B., consid. 1.1.)
Law
The Federal Supreme Court reiterates the conditions for ordering a therapeutic measure. According toArt. 56 para. 1 SCC, a measure is ordered if a sentence alone is insufficient to deter the offender from committing further offenses, if there is a need for treatment or if public safety requires it, and if the specific conditions of Art. 59 SCC are met. Institutional treatment for mental disorders (Art. 59 SCC) requires that the offender suffers from a serious mental disorder, that they have committed a crime or misdemeanor linked to this disorder, and that the measure is likely to reduce the risk of recidivism. Outpatient treatment (Art. 63 SCC) is an alternative subject to the same basic conditions. In accordance with the principle of subsidiarity (Art. 56a para. 1 SCC), if several measures are equally effective, the judge must choose the least intrusive one. (consid. 1.3.1., 1.3.2.)
The principle of proportionality (Art. 56 para. 2 SCC) is central. A measure must be suitable for achieving its goal (improving the prognosis), necessary (a less severe measure would not suffice), and proportionate in the strict sense (a fair balance between the severity of the infringement on the individual's rights and the public interest in safety). The examination of proportionality is a question of law that the Federal Supreme Court reviews with full power of review. An institutional measure, which constitutes a serious infringement on liberty, is not justified for preventing minor offenses, but requires a risk of offenses of a certain gravity. The dangerousness of the offender should not, in principle, be judged as greater than that manifested by the acts committed, although diminished responsibility does not preclude a measure. (consid. 1.3.3.)
The judge bases their decision on an expert report (Art. 56 para. 3 SCC) that addresses the necessity and likelihood of success of the treatment, the risk of recidivism, and the terms of implementation. While the judge has discretion in assessing the expert report, they cannot deviate from it on technical matters without serious and duly reasoned grounds, as doing so would be considered arbitrary (Art. 9 Cst.). Conversely, the choice of the legal framework—whether institutional or outpatient—to implement the expert's therapeutic recommendations is a question of law that falls under the judge's jurisdiction. (consid. 1.3.4., 1.5.3.)
The Federal Supreme Court clarifies the division of responsibilities between the trial judge and the enforcement authority. The judge orders the type of measure (e.g., institutional under Art. 59 SCC or outpatient under Art. 63 SCC). However, the specific terms of implementation, such as the choice of facility, the granting of progressive regimes like work and housing release (Art. 90 para. 2bis SCC), or the inpatient introduction of an outpatient measure (Art. 63 para. 3 SCC), fall under the authority of the enforcement agency. The trial judge may include recommendations regarding these terms in their reasoning but cannot impose them in the operative part of the judgment. (consid. 1.5.5., 1.5.6.)
Application to the specific case
The Federal Supreme Court first examines the appellant's claim that the lower court arbitrarily worsened his prognosis. It finds that the cantonal court, while qualifying the expert's assessment, ultimately agreed that there is a high risk of recidivism for offenses similar to those already committed and a low short-term risk of serious physical violence. The claim of arbitrariness regarding the prognosis assessment is therefore rejected. (consid. 1.4.1., 1.4.2., 1.4.3.)
The central point of the dispute is the proportionality of the institutional measure. The appellant argues that the lower court based its decision on a work and housing release regime, a mode of execution it lacks the authority to order. The Federal Supreme Court agrees with him on this point. The cantonal court deemed the institutional measure proportionate based on a hypothetical and progressive execution scenario, whereas it should have evaluated the proportionality of the measure within its standard framework—namely, execution in a closed setting (a clinic or secure facility). By basing its proportionality assessment on a future and uncertain mode of execution outside its jurisdiction, the cantonal court violated federal law. (consid. 1.5.1., 1.5.7.)
The Federal Supreme Court decides to rule on the merits itself, as the facts have been established. It analyzes the necessity and appropriateness of the measures. Like the lower court, it concludes that an outpatient measure is currently inappropriate. Indeed, the appellant, having served his sentences, would be released without the structured environment and intensive monitoring essential to prevent a relapse. The two-month inpatient introduction phase provided for by Art. 63 para. 3 SCC is deemed too short to organize stable housing, employment, and therapeutic follow-up. Only an institutional measure (Art. 59 SCC) allows for the adequate establishment of this framework and provides the necessary flexibility to respond to crises. The institutional measure is therefore deemed necessary and capable of achieving the intended goal. (consid. 1.5.8.)
However, the Federal Supreme Court notes that both the expert report and the cantonal court agree that long-term purely institutional treatment has little chance of success. The institutional phase must primarily serve to prepare for reintegration into an open environment. Under these circumstances, and given the significant infringement on the appellant's liberty, the Federal Supreme Court finds that the institutional measure must be time-limited. It sets this duration at one year, a period deemed sufficient to plan and implement the reintegration framework. If, at the end of this period, the conditions for conditional release are not met, the enforcement authority may request an extension from the judge (Art. 59 para. 4 SCC). (consid. 1.5.8.)
Finally, the Federal Supreme Court confirms that the measure, limited to one year, is proportionate in the strict sense. Despite the severity of the infringement on liberty, the public interest in safety prevails. The appellant has committed repeated offenses (death threats, property damage, physical violence against police) and presents a high risk of recidivism for similar acts, as well as a long-term risk of serious violence. The balancing of interests therefore justifies a temporary custodial measure to protect the community. (consid. 1.5.9.)
Outcome
The Federal Supreme Court partially grants the appeal. It sets aside the portion of the cantonal court's ruling ordering the institutional therapeutic measure and amends it. It orders an institutional therapeutic measure pursuant to Art. 59 of the Swiss Criminal Code, but limits its duration to one year. The remainder of the appeal is dismissed. Costs are apportioned, and the appellant is awarded compensation for the portion of the claim on which they prevailed. (consid. 1.6., 2., and operative part)
