Switzerland: Experts welcome corrective decisions of the Federal Court in case of “Brian K.”

UN human rights experts* today expressed their satisfaction with the decision of the Swiss Federal Court, published on 17 December, instructing the Cantonal Court of Zurich to ensure the immediate easing of the conditions of detention of Brian K., noting that his prolonged solitary confinement is not compatible with his human rights. 

 “We welcome the consideration, by the Federal Court, of Brian's human rights in reviewing the security measures applied against him, including keeping him in solitary confinement for more than 3 years,” the experts said. “These conditions violate the international human rights standards as set out in the Nelson Mandela Rules, according to which any solitary confinement exceeding 15 consecutive days contravenes the prohibition of torture and ill-treatment."

This decision by the Federal Court follows that of 12 November, which quashed Brian's sentencing to 6 years and 4 months of imprisonment and instructed the cantonal authorities to conduct a thorough investigation into the compatibility with the prohibition of torture and ill-treatment of several episodes of prolonged solitary confinement and a series of other incidents and measures imposed on Brian since 2006, when he was only 10 years old.

“These two judgments endorse our analysis and the measures that we requested in our official letters to the Swiss Government, dated 9 June and 3 September 2021, the content of which the Government unfortunately rejected without regard to its international obligations,” the experts said.

Brian has been held in Pöschwies High Security Prison since August 2018, where he is in prolonged solitary confinement, with extremely limited activities and social contacts. "This is just the most recent episode in a life marked by a vicious cycle of violence, helplessness and excessive repression, exacerbated by Brian’s progressive dehumanization by authorities and the media," the experts said.    

In the light of these corrective decisions by the Federal Court, the experts reiterated their concerns about the categorical dismissal by the Swiss Government of any allegation of arbitrary detention, torture and ill-treatment, as well as the Government's persistent refusal to recognize the need for an immediate and independent investigation with the aim of establishing administrative and criminal responsibility for the human rights violations to which Brian has been subjected since 2006.

“We regret that, despite our repeated reference to their obligation to investigate under the Convention against Torture, the Swiss Government has limited its cooperation to transmitting a response from the very same cantonal authorities that are hierarchically responsible for the alleged facts, and has expressly aligned itself with the attempt of those authorities to justify conditions of detention, which are absolutely prohibited by international law,” the experts said.  

The experts recalled all obligations under the Convention against Torture, including the duty to prevent, investigate and, where appropriate, prosecute and punish any violation of the prohibition of torture and other ill-treatment, as well as to compensate and rehabilitate any victim of such an act.

“No exceptional circumstance whatsoever can be invoked to justify torture or other ill-treatment,” they said.   

The experts are in direct contact with the Swiss Government on this matter and will continue the dialogue with the aim of ensuring that international standards are correctly interpreted in the context of the comprehensive investigation ordered by the Federal Court, as well as in the implementation of the immediate improvement of Brian's conditions of detention.

The Special Rapporteur on Torture thanked the Government of Switzerland for accepting his request to visit Brian in order to examine his conditions of detention, his treatment, as well as his state of health, in accordance with the relevant international standards. This visit will take place in January 2022.

END

* The experts: Nils Melzer , Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment ; and Elina Steinerte (Chair-Rapporteur), Miriam Estrada-Castillo (Vice-Chair), Leigh Toomey, Mumba Malila, Priya Gopalan, Working Group on Arbitrary Detention. 

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Comprising the largest body of independent experts in the UN Human Rights system, Special Procedures is the general name of the Council's independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

UN Human Rights, country page – Switzerland

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