CEDH · CASELAW;CLIN;ENG — 12 mai 2026

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary May 2026 B.M. v. Switzerland - 50227/21 Judgment 12.5.2026 [Section V] Article 5 Article 5-1-a After conviction Rejection, in 2021, of application for release on licence made by applicant, a paedophile born in 1946 who has been in preventive detention since 2005 following his conviction for sexual assault of minors: no violation Facts – In July 2003 the Court of Appeal, after sentencing the applicant to four years and four months’ imprisonment for multiple sexual acts with minors and multiple acts of sexual coercion, suspended that custodial sentence and ordered his placement in preventive detention, given his abnormal mental state and a high risk of reoffending. In May 2005 the applicant was placed in preventive detention in Pöschwies Prison. From March 2010 onwards, the Court of Appeal extended that measure a number of times. From 2014 to 2021 the applicant’s applications for release on licence or for his transfer to an open facility were rejected. At his request, the applicant was transferred to Lenzburg Central Prison in December 2019. On 11   December 2020 the Administrative Court dismissed the applicant’s application to set aside the decision of the Directorate of Justice and Internal Affairs of the Canton of Zürich rejecting his appeal against the Correctional Services and Rehabilitation Office’s decision not to release him on licence. On 24   March 2021 the Federal Supreme Court partly dismissed the 75-year-old applicant’s appeal against the Administrative Court’s judgment and upheld the continuation of the preventive detention measure. Since 2021 the Judicial Enforcements and Rehabilitation Office of the Canton of Zürich has repeatedly denied the applicant’s applications for release on licence. Law – Articles 3 and 8: The applicant had not relied on Article   3 of the Convention or raised an equivalent complaint under domestic law before the Federal Supreme Court. Furthermore, he had mentioned Article   8 of the Convention in the heading of the substantive considerations set out in his appeal to the Federal Supreme Court, without, however, referring to that provision in the reasoning of the complaint in question, or explaining how the breach of the provisions of the Criminal Code on which he relied amounted to a violation of that guarantee. Moreover, in his appeal to the Federal Supreme Court, the applicant had failed to make a subsidiary application, in accordance with the procedural requirements applicable under the Federal Supreme Court Act, seeking measures to alleviate his detention conditions – such as escorted leave – in the event that his application for release on licence was dismissed. Furthermore, he had failed to raise any complaint as to the alleged age-inappropriateness of his conditions of detention and of the relevant legal framework, or any resulting inhuman or degrading treatment. It was therefore unsurprising that the Federal Supreme Court had not addressed those issues in its judgment of 24   March 2021. The Court took the view that it was for the applicant to use the available remedies to apply for escorted leave in order to be afforded the prospect of greater leniency in the enforcement of his preventive detention and to refer the matter to the courts in the event of refusal. The same also applied to any application he might make for transfer to an outside facility which he considered more appropriate to his age and state of health. In the Court’s view, there could be no doubt that it was important for the applicant, who had been 79   years old at the time of the most recent exchanges between the parties, to be afforded living conditions appropriate to his age and state of health. However, he had not provided the Court with any specific evidence indicating that his detention conditions were inappropriate to his age or might amount to inhuman or degrading treatment. The Court observed that the applicant’s detention conditions had been adjusted to take account of his age. Since 10   December 2019, he had been held in the “60plus Section” of Lenzburg Prison, where his age-related needs and state of health were taken into account. Prior to his transfer to Lenzburg, the applicant had been placed in the Age and Health Unit of Pöschwies Prison and had thus enjoyed conditions comparable to those of the “60plus Section”. Conclusion : inadmissible (failure to exhaust domestic remedies). Article   5 §   1: The applicant’s preventive detention had a legal basis in domestic law. The measure had initially been justified under sub-paragraph   (a) of Article   5 §   1 of the Convention because it had been imposed “after” the applicant’s conviction, that is, in a sufficient causal relationship with his 2003 conviction. As to the persistence of the causal link between the initial conviction and the continuing deprivation of liberty, the Federal Supreme Court’s decision of 24   March 2021 not to release the applicant had been consistent with the objectives pursued by the Court of Appeal in 2003 in ordering the initial preventive detention measure, namely, averting the high risk that the applicant would commit sexual acts with minors if released. Furthermore, the decision not to release the detainee had to be based on an assessment which was reasonable in terms of the objectives pursued by that measure by the sentencing court. As to the risk of reoffending in view of the applicant’s age, both the judicial psychiatric evaluation of September 2014 and the privately commissioned evaluation of June 2019 had taken the applicant’s age into account in assessing that risk; the national authorities had addressed the matter of age in detail in the light of the relevant scientific literature and available statistics; and the Federal Supreme Court had used the data collected and examined as weighting criteria for its prognosis as to the applicant’s criminal conduct. In the light of the findings resulting from the correlation of a number of separate factors, the Court considered that the Federal Supreme Court’s findings to the effect that the judicial psychiatric evaluation of 2014 remained relevant and constituted a legitimate basis for the domestic authorities’ decisions – especially in the light of numerous more recent reports on the applicant’s condition, including the 2019 privately commissioned psychiatric evaluation – had been based on a reasonable and comprehensive assessment of the evidence before it. The Court was of the view that – in taking as a decisive factor in the assessment of the risk of reoffending the fact that, according to the concurring findings of the judicial psychiatric evaluation of September 2014 and the privately commissioned psychiatric evaluation of June 2019, the applicant had not succeeded in reflecting critically on his dangerous attitude towards the group of children to which he was drawn; the fact that he had no strategies for coping with the risk of reoffending; and the fact that there was no reason to expect a change in his behaviour in view of his constant refusal to undergo therapy designed to address the offences committed – the Administrative Court and the Federal Supreme Court had carried out an in-depth examination of the justification for the applicant’s detention. The prognosis as to the risk of his reoffending therefore remained unchanged and high. Furthermore, the Federal Supreme Court had assessed that the applicant’s use of child pornography, albeit from 2012 onwards, proved his need for blatantly sexual and sadistic satisfaction, which confirmed the prognosis in question. As to the conditions under which the applicant could be released on licence, the courts had taken into account the concurring opinions of the two experts, who were of the view that such a decision could be contemplated only if rigorous risk-management were put in place. The measures recommended by the privately commissioned psychiatric expert in order to prevent a repeat offence in the event of release on licence, such as prohibiting contact with children and an electronic monitoring order, required that the applicant be subjected to highly structured supervision and closely monitored outside prison, the achievement and results of which were not guaranteed. The privately commissioned psychiatric evaluation had found that, because of his age, the applicant would be likely to commit criminal acts only after prolonged contact with a child, and that his therapists and his family and friends should be in a position to identify situations of risk and intervene before he was able to act. The Court acknowledged that this scenario for warding off the risk that the applicant would reoffend was difficultly achievable in practice and created a responsibility as to the eventuality of fresh offences which could not be assumed by third parties. As to the proportionality of the applicant’s continued detention, the Administrative Court had taken the view that the need to protect potential victims outweighed the applicant’s interest in being released on licence in view of the high risk of reoffending and the absence of any prospect of change in that regard. In the Federal Supreme Court’s assessment, the risk-management measures proposed by the privately commissioned psychiatric expert were insufficient to keep the applicant from reoffending, especially as he had not processed the fact that he needed to give up on sexual contact with children and keep away from them. The Court saw no reason to call into question the domestic courts’ conclusion on this point. The Court was of the view that it had been on the basis of a comprehensive and thorough assessment of all the elements of the case, in particular the applicant’s age, that the domestic authorities, including the Administrative Court and the Federal Supreme Court, had concluded, giving detailed reasons and relying on numerous practical considerations, that there was still a significant risk that the applicant would again commit serious child abuse if released. The Court found that the Federal Supreme Court had adopted an approach consistent with the principles set out in its case-law on the justification for a deprivation of liberty under Article   5 §   1   (a) of the Convention when it had held that the legal interests at stake were of high importance, since it was a matter of the physical and mental well-being of children, who were vulnerable individuals. The continuation of the preventive detention measure had therefore been the only way to counter the high risk that the applicant would reoffend, as the measures provided for in the event that he was released on licence were not sufficient for that purpose. Consequently, the Court considered that the domestic authorities’ 2021 decision not to release the applicant had been based on an assessment that was reasonable in terms of the objectives pursued by the Court of Appeal in 2003 with a view to protecting minors from serious sexual offences when it had ordered the applicant’s initial placement in preventive detention. Conclusion : no violation (unanimously). The Court further held, by five votes to two, that there had been a violation of Article   5   §   4 on account of the absence of a hearing before the Administrative Court, thereby depriving the applicant of the opportunity to be heard. In the particular circumstances of the case, it had been necessary for the Administrative Court to hear the applicant at a hearing, given that the judicial authority’s task had been to assess his personality. The need to hear the applicant had further been compounded by his vulnerable status and the lack of a recent expert opinion on which the domestic courts might have relied to make their ruling. Article   41: EUR   10,000 in respect of non-pecuniary damage. (See Dörr v.   Germany (dec.), 2894/08 , 22   January 2013; H.W.   v.   Germany , 17167/11, 19   September 2013, Legal Summary ; D.J. v.   Germany , 45953/10 , 7   September 2017; Tim Henrik Bruun Hansen   v.   Denmark , 51072/15, 9   July 2019, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .