Regulation on the Execution of Custodial Sentences under Electronic Surveillance

Electronic monitoring is permissible for custodial sentences as well as for custodial sentences replacing fines and pecuniary penalties.

1 Electronic surveillance is permitted provided that the pronounced sentence or the total duration of sentences enforceable simultaneously is between a minimum of 20 days and a maximum of 12 months.

2 Provisional detention or detention for security reasons is not taken into consideration for the calculation. (Gross sentence principle) [3].

3 For partially suspended sentences, the total duration of the imposed sentence (suspended part plus part to be executed) is decisive.

[3] The gross principle means that the examination of temporal conditions is based on the duration of the pronounced sentence, without computing the detention already served. The net principle means that the examination of temporal conditions is based on the duration of the pronounced sentence, computing the detention already served.

If, after the revocation of conditional release, one or more remaining sentences still need to be executed, the following elements are determinative for calculating the duration of the sentence

a) the remaining sentence, if the judge has not imposed a single global sentence;

b) the overall sentence, if the judge has imposed a single global sentence.

To benefit from electronic monitoring, the following conditions must be met

a) formal request from the convicted person;

b) exclusion of the risk of absconding;

c) exclusion of the risk of re-offending;

d) residence permit in Switzerland and the right to engage in gainful employment, training, or an occupation as per letter f) second sentence of this article;

e) no expulsion under Articles 66a and 66a *bis* SCC;

f) engage in a recognized professional activity or training, corresponding to an occupation of at least 20 hours per week.

Domestic work, educational duties, participation in an occupational program or other structured activity are considered equivalent. The convicted person may be assigned an activity of at least 20 hours per week, without this constituting a right;

g) ability to comply with the framework conditions for execution in the form of electronic monitoring;

h) stable and appropriate residence and accommodation. Residence in institutions or community structures, such as halfway houses, is permitted provided they are suitable for electronic monitoring and the management of the structure or institution consents. In particular, the competent enforcement authority must be guaranteed access to the convicted person's accommodation at all times, even without prior notice and for the entire duration of the sentence execution;

i) the accommodation must have suitable network coverage, fixed or mobile, for electronic data transmission and compatible with the monitoring technology;

j) adults living in the same household must give formal consent for the competent enforcement authority to access the residence at any time, even without prior notice, throughout the entire duration of electronic monitoring;

k) the convicted person's acceptance of the execution plan, including the pre-established schedule. The competent enforcement authority must be guaranteed access to the residence at all times, even without prior notice, throughout the entire duration of electronic monitoring;

l) a conviction for domestic violence or sexual abuse of minors, when they live in the same residence, or other overriding professional or family factors, are grounds for preclusion from this form of execution.

The enforcement authority

a) informs the convicted person about the modalities of this form of enforcement, in particular the controls provided for in Article 10 of this regulation;

b) sets a deadline for submitting the application for enforcement in the form of electronic surveillance;

c) examines the application of the convicted person and the documents produced;

d) decides on the application and, in case of acceptance, sets the place and the beginning of the enforcement, as well as the conditions to which the convicted person is subjected and the type of electronic surveillance.

The convicted person must submit the following documents

a) Work or training certificate.

Employee

A certificate from the employer or the employment contract, indicating the place and hours of work, as well as the last salary statement.

Self-employed person

A document attesting to self-employment (e.g., AVS affiliation certificate and latest statements, other insurance certificates) with an indication of the place and hours of activity;

Student or person in training

A document attesting to student or trainee status with an indication of the place of study and the lesson schedule.

Foreign national

If this information does not clearly emerge from their residence permit in Switzerland, the convicted foreign national must provide any useful document attesting to their right to reside or to engage in a work or training activity in Switzerland.

Proof of stable residence and accommodation (e.g., rental contract, certificate of domicile);

Proof of connection to a fixed or mobile telephone network and payment of communication expenses for the last two months;

Consent from all adult persons living in the same household (form), so that the competent enforcement authority can access the dwelling at any time, even without prior notice.

1 If the convicted person does not meet the conditions for benefiting from electronic monitoring, the authority may grant them an additional period to request another form of execution.

2 This possibility is excluded in cases of abuse, failure to comply with the obligation to cooperate and communicate, non-observance of deadlines, submission of incomplete documents, and in the presence of circumstances that a priori exclude a facilitated form of execution.

1 The competent authority establishes the electronic surveillance enforcement plan in agreement with the convicted person.

2 The plan shall regulate, in particular

a) The weekly schedule in relation to working hours, employment or training, as well as other obligations;

b) The psychosocial support and accompaniment of the convicted person during the period of enforcement of the sanction.

3 For each working day [4], the convicted person may spend a maximum of 14 hours outside the accommodation for

a) work, employment, training and leisure activities (including sports and other activities);

b) shopping, medical appointments, administrative procedures;

c) participation in individual or group therapies.

4 The convicted person shall spend at least one day per week at their domicile.

[4] The notion of work is defined in Art. 4 lit. f) of these Regulations.

1 Should the person benefiting from electronic monitoring be unable to comply with the imposed conditions, they must immediately notify the competent authority.

2 Likewise, they must inform the competent authority without delay in the event of loss or interruption of work, training, or other occupation, as well as any change in their personal situation.

3 During the execution of the sentence, it is prohibited to leave Swiss territory.

1 During the execution, the authority verifies that the convicted person carries out the activity declared for the purpose of granting electronic monitoring.

2 To this end, it takes all necessary measures. In particular, it may at any time and, depending on the technique used for monitoring

a) inform the person employing or providing training to the convicted person that the latter is serving a sentence under the electronic monitoring regime and invite them to immediately inform the competent authority in case of absence from the workplace or training site;

b) visit the convicted person's workplace or training site.

3 The authority may delegate its competence.

1 During days off from work or training, such as Saturdays, Sundays, and public holidays, the convicted person may, by decision of the authority, be granted a maximum number of daily hours of free time [5], according to the following progression

1st and 2nd month

3 h/day

3rd and 4th month

4 h/day

5th and 6th month

6 h/day

from the 7th month

8 h/day

2 By decision of the authority, free time hours may be accumulated up to a maximum of 24 hours between the 3rd and 6th month and 36 hours from the 7th month. The accumulated balance of hours remains acquired.

[5] Free time, within the meaning of Art. 79b para. 3 SCC, refers to the time a person may freely dispose of outside their place of residence and accommodation.

1 If the convicted person does not satisfy the requirements referred to in Articles 2 and 3, electronic surveillance shall be terminated.

2 If the convicted person, through no fault of their own, completely or partially loses their employment, training, or activity, the competent authority may maintain electronic surveillance provided that the person finds an appropriate activity within 21 days and that their accompaniment is guaranteed during the transitional period.

3 In the event of revocation of electronic surveillance, the convicted person shall continue to serve their sentence in an open or closed prison or, if they meet the conditions, under a semi-detention regime.

1 The authority may issue a warning to the convicted person who fails to comply with the conditions of electronic monitoring or who otherwise betrays the trust placed in them, particularly if they

– abuse the time spent outside the accommodation;

– fail to comply with the weekly schedule;

– possess or consume narcotic substances;

– fail to comply with the imposed rules and obligations (e.g., follow therapy, prohibition of alcohol consumption);

– manipulate or attempt to manipulate monitoring devices;

– refuse to pay advances or contributions to execution costs.

2 The decision to limit the convicted person’s free time remains reserved.

1. If, despite a formal warning, the convicted person persists in their behavior, the authority may revoke the electronic monitoring and order, with immediate effect, the execution of the remainder of the sentence under an ordinary regime or, if all conditions are met, under a semi-detention regime.

2. In serious cases, instead of a warning, immediate revocation may be ordered.

The authority may provisionally suspend the electronic surveillance regime for serious reasons or as a precautionary measure (for example, in the presence of a risk of committing new offenses). In this case, the execution immediately continues under the ordinary regime. A formal decision is issued within 10 days of the suspension.

If a criminal investigation is opened against the convicted person during the execution of electronic surveillance, the latter may be suspended or revoked.

1 The payment of fines or pecuniary penalties is computed according to the express will of the convicted person. In the absence of an explicit declaration, the authority opts for the solution most favorable to the convicted person.

2 A derogation from this rule is possible when prescription is imminent. In this case, payments are computed on the fines or pecuniary penalties that are subject to prescription first.

1 The person benefiting from this regime must contribute to the costs of executing the sentence.

2 The amount of the contribution is determined by the Conference.

3 The convicted person makes regular advance payments.

4 Supplementary costs for telephony or data connection, generated by the execution of the sentence through electronic monitoring, as well as other costs arising from obligations or rules such as abstinence checks, therapeutic treatment or otherwise, shall be borne by the convicted person.

5 At the request of the convicted person, the competent authority may grant a partial exemption from contributing to the costs of execution when a precarious economic situation is demonstrated and, in particular, if such contribution prevents them from fulfilling their maintenance and support obligations.

The convicted person may request to waive the electronic surveillance regime. In this case, and as a rule, the remainder of the sentence is executed immediately under the ordinary regime, or if the conditions are met, under the semi-custodial regime.

Subject to Article 43, paragraph 3 SCC, the provisions on conditional release (Article 86 et seq. SCC) apply.

1 Electronic surveillance may be authorized in lieu of external work and/or external work and accommodation for a duration of 3 to 12 months.

2 Electronic surveillance, in this case, assumes the function of a supplementary phase in the progressive regime of sentence execution.

Subject to the following provisions, the rules set forth in Title I of this Regulation shall apply by analogy.

Generally, electronic monitoring may be granted after having served half of the custodial sentence

a) instead of external employment;

b) after an initial phase of external employment pursuant to Art. 77a para. 1 SCC and instead of external work and accommodation.

1 As a rule, the convicted person may benefit from electronic monitoring after demonstrating good behavior for at least 6 months in an open regime and having successfully completed several leaves.

2 If an initial phase of external work has been granted, the convicted person may benefit from electronic monitoring provided they have demonstrated good behavior during at least two-thirds of the foreseeable duration of the external work (depending on conditional and/or definitive release).

Should electronic surveillance be revoked, the execution of the remaining sentence will proceed under the ordinary regime or, if the convicted person fulfills the conditions, through external work.

The convicted person may request to waive the electronic surveillance regime.** In this case, and as a rule, the remainder of the sentence is immediately executed under an ordinary regime, or if the conditions are met, through external work.

1 The beneficiary is liable for damages caused (electronic monitoring equipment, goods, persons or otherwise). The convicted person is responsible for their insurance coverage.

2 The convicted person serving their sentence through electronic monitoring is not insured against accidents by the State.

During the execution of the sanction, data generated by the use of a geolocation system are accessible

a) to the competent enforcement authority and any delegated bodies;

b) to the surveillance center, according to the terms of its specifications;

c) to authorized technical operators.

For the rest, data protection is governed by cantonal law.

1. This regulation enters into force on January 1, 2018.

2. The Conference therefore invites the governments of the cantons of Latin Switzerland to adapt their cantonal regulations concerning the execution of custodial sentences through electronic monitoring.

3. Title I of this regulation also applies to sentences pronounced before its entry into force, but whose execution has not yet begun.

4. Title II of this regulation is governed by Art. 388 para. 3 SCC.

5. It shall be published on the Conference's website and by each canton, according to its own procedure.

The Secretary General: Blaise Péquignot The President: Béatrice Métraux

State Councillor

Published in Official Gazette 2017, 500.