CIMENDAG v. SWITZERLAND
Inadmissible
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen
1. The applicant, Mr Fikret Cimendag, is a Turkish national who was born in 1977 and is currently detained in Thorberg Prison in Krauchtal, Canton of Bern. 2. The applicant entered Switzerland in 1993. From 2003 onwards he had a relationship with A., another Turkish national living in Switzerland. The couple’s relationship was marked by conflict, and the applicant repeatedly threatened and also committed major assaults against A. Numerous criminal proceedings were instituted but subsequently closed because A. withdrew her accusation or refused to institute criminal proceedings. 3. On 15 January 2010 the applicant was however found guilty by the appeal court of the Canton of Basel-Stadt (Appelationsgericht des Kantons Basel-Stadt, “the appeal court”) of endangering A.’s life by pushing her into the Rhine and of raping her. He was sentenced to twenty-seven months’ imprisonment, of which fourteen months suspended for four years. It was planned that the applicant would serve the prison sentence from April 2011 onwards. 4. On 13 September 2010 the Migration Office of Basel-Stadt ordered the expulsion of the applicant from Swiss territory. It is unknown whether that decision became final. 5. On 17 February 2011 the criminal court of the Canton of Basel-Stadt (Strafgericht des Kantons Basel-Stadt, “the criminal court”) sentenced the applicant for threatening behaviour towards A. to twelve months imprisonment. Since the applicant was sentenced during the probation period under the former conviction of 15 January 2010, the criminal court decided that the previously suspended fourteen months’ imprisonment was to be enforced as well. 6. The applicant was sentenced on the basis of the following event. On 12 November 2010, during an appointment with his psychiatrist, who had been treating him since 2002, the applicant had declared that he was planning to take revenge on his ex-girlfriend, A., whom he considered to be the cause of all his problems. He had stated that he would find her, rape her and kill her, and that he did not care if he were sentenced again. As later stated by the psychiatrist, this was not the first time that the applicant had expressed feelings of revenge against A. This time, however the psychiatrist had had the impression that the applicant was very determined to accomplish those acts, especially because at the end of the session the applicant had thanked him “for everything” and refused to make another appointment. Fearing for A.’s life, the psychiatrist had therefore sought authorisation from the Health Department of the Canton of Basel-Stadt to be released from his duty of professional confidentiality, and subsequently informed the police. The same day the police informed A. about the applicant’s threats. Anxious about what could happen to her, she made a criminal complaint against the applicant for threatening behaviour. 7. During the proceedings before the criminal court, the applicant denied that he had threatened to kill A. He stated that his psychiatrist had misunderstood him and that he had effectively said that he was going to kill himself. Partly contradicting himself, the applicant also claimed that he “had not meant seriously” what he had said. In defence of the applicant, his representative further submitted that the applicant had made those statements to his psychiatrist, who was acting under professional confidentiality. He could not have anticipated that his psychiatrist was going to inform the police, and he had therefore not acted with the intention to threaten his ex-girlfriend. 8. In its judgment of 17 February 2011 the criminal court however found that the applicant had fulfilled all the elements of threatening behaviour as established in Article 180 § 1 of the Swiss Criminal Code ( “the SCC”, see paragraph 12 below). On the one hand, it was not necessary for the applicant to have made the threat directly to A; it was sufficient that she had become aware of it. On the other hand, the criminal court held that the applicant could have anticipated, in the light of the seriousness of his threats and his general behaviour during the session with the psychiatrist, that his psychiatrist would take action to prevent him from carrying them out; even more so as his psychiatrist knew his former criminal record and had been treating him for many years. The criminal court found that it must have been clear to the applicant that his psychiatrist, especially as a doctor, would give more weigh to the health of a third person than to his duty of professional confidentiality. Furthermore, at a later time, when the applicant’s sister informed him that the police were looking for him, he had immediately known the reason for it. He had hence anticipated his psychiatrist’s acts and acted with the intention of threatening his ex-girlfriend. He therefore fulfilled all the elements of threatening behaviour according to Article 180 § 1 of the SCC. 9. The applicant appealed against this decision. He claimed in particular that he had not acted with the intention of threatening A. He could not have anticipated that his psychiatrist would be released from his duty of professional confidentiality and would subsequently inform the police, who would in their turn inform A. He had therefore not fulfilled the subjective elements of threatening behaviour as established in Article 180 § 1 of the SCC. 10. On 28 November 2011 the appeal court endorsed the decision of the criminal court. It established that during questioning the applicant had never stated that he was relying on the psychiatrist’s duty of professional confidentiality. He had only disputed that he had ever said that he was planning to rape and kill A. The appeal court further held that from the applicant’s decisive behaviour on that day in not making another appointment and saying goodbye to his psychiatrist in a dramatic manner, it could even be concluded that he wanted his psychiatrist to do something. Even if the applicant had wished to provoke his psychiatrist into taking action other than seeking an intervention by the police, the psychiatrist would have been obliged to be released from the duty of professional confidentiality in any event, and A. would have come to know about the threats anyway. The appeal court therefore concluded that the applicant had intended to threaten A. and that he was guilty under Article 180 § 1 of the SCC. 11. On an appeal by the applicant, the Federal Supreme Court upheld the appeal court’s decision on 5 March 2012. It reasoned that in the given circumstances the applicant could have predicted that the psychiatrist would give more weight to A.’s life higher than to his duty of professional confidentiality. In behaving as he did that day the applicant had at least regarded this as possible and accepted that the threats would come to be known by A. The applicant had therefore been correctly sentenced. 12. Articles 12, 180 § 1 and 321 of the SCC, as in force at the relevant time, read as follows: “ 1. Unless the law expressly provides otherwise, a person is only liable to prosecution for a felony or misdemeanour if he commits it wilfully. 2. A person commits a felony or misdemeanour wilfully if he carries out the act in the knowledge of what he is doing and in accordance with his will. A person is acting wilfully as soon as he regards the realisation of the act as being possible and accepts this. 3. A person commits a felony or misdemeanour through negligence if he fails to consider or disregards the consequences of his conduct due to a culpable lack of care. A lack of care is culpable if the person fails to exercise the care that is incumbent on him in the circumstances and is commensurate with his personal capabilities. “ “ 1. Any person who places another in a state of fear and alarm by making a serious threat is liable on complaint to a custodial sentence not exceeding three years or to a monetary penalty ...” “ 1. Any person who in his capacity as a member of the clergy, lawyer, defence lawyer, notary, patent attorney, auditor subject to a duty of confidentiality under the Code of Obligations, doctor, dentist, pharmacist, midwife, psychologist or as an auxiliary to any of the foregoing persons discloses confidential information that has been confided to him in his professional capacity or which has come to his knowledge in the practice of his profession is liable on complaint to a custodial sentence not exceeding three years, or to a monetary penalty ... 2. No offence is committed if the person disclosing the information does so with the consent of the person to whom the information pertains or on the basis of written authorisation issued in response to his application by a superior authority or supervisory authority ...” 13. Paragraphs 26 and 27 of the Health Act of the Canton of Basel-Stadt (hereinafter “the Health Act”) as in force at the relevant time read as follows: “ ... 2. In well-grounded cases the competent body can release a person from the duties of confidentiality provided in Article 321 (1) and (2) of the Swiss Criminal Code. “ “ ... 3. Information can be provided to the authorities of investigation and prosecution, also upon their own request, if if there is a suspicion that one of the following crimes might be committed (“Verdacht auf Erfüllung einer der folgenenden Straftatbestände”): a) homicide; b) grave bodily assault ... j) criminal acts against the sexual integrity of a person ...”