Concordat Regulations on Disciplinary Law Applicable to Persons Detained under Criminal Law or Placed in a Closed Institution for Minors

1. This regulation specifies the disciplinary law applicable to persons subject to criminal detention or placed in a closed facility for minors in application of legislation on the criminal detention of minors (cf. Arts. 19-32 of the concordat).

2. This regulation also applies to adults who are subject to a decision taken in application of criminal law.

Each concordat establishment shall draw up internal regulations which shall determine the modalities of the disciplinary regime. These regulations must conform to the concordat provisions and to those of Recommendation CM/Rec (2008) 11.

1 Every person detained or placed who contravenes the concordat provisions or the establishment’s regulations, as well as the instructions or orders of the establishment's staff, or who threatens internal order, security, or the safety of the establishment, is liable to a disciplinary sanction. Depending on the case, they may be subjected to one or more educational measures provided for by the house’s regulations, internal provisions, or the educational concept.

2 Attempt, complicity, and incitement are punishable.

1 Disciplinary sanctions are incurred for

a) escape or attempted escape, as well as aiding an escape or attempted escape;

b) the manufacture, acquisition, trafficking, and possession of weapons or any other prohibited material or material used in a dangerous manner;

c) collective action that compromises security or disrupts the order of the institution;

d) the illicit manufacture, consumption, supply, trafficking, and possession of narcotics, alcoholic beverages, or non-prescribed psychotropic substances;

e) non-compliance with the conditions of a leave, especially those related to the consumption of narcotics, alcohol, or non-prescribed psychotropic substances;

f) refusal to work and any other manifestation of ill will towards work;

g) the willful alienation or deterioration, or deterioration due to gross negligence, of tools, equipment, installations, or any other property belonging to the establishment, its personnel, or other inmates present on the establishment's premises;

h) prohibited communication with other inmates and with persons external to the establishment;

i) the squandering of food or any other material or object;

j) incivilities or inappropriate conduct;

k) any violation of the rules of conduct provided for in the establishment's regulations or in the individualized educational program;

l) any act punishable by criminal law.

2 Disciplinary sanctions or educational measures are imposed without prejudice to any potential criminal prosecution.

1 The following disciplinary sanctions may be imposed, in compliance with the principle of proportionality and in consideration of their educational impact

a) a warning;

b) the temporary, complete or partial revocation, for a determined period not exceeding 30 days, of the possibility to participate in recreational activities offered by the facility, to access designated installations and to use material made available or authorised (radio, television, computer in particular);

c) the temporary suppression of external relations;

d) assignment to a cell for a duration of one hour to 7 days;

e) disciplinary detention up to 7 days.

2 Disciplinary sanctions may be cumulated, with the exception of those referred to in letters a), d) and e).

3 A sanction may be made subject to conditional suspension.

4 The imposition of a sanction may be suspended.

5 Educational measures provided for by the facility's regulations remain reserved.

The administrative authority provided for by cantonal law or by the management of the establishment is competent to pronounce disciplinary sanctions within the establishment.

The management may, for health reasons or reasons related to the educational program, defer, suspend, or divide the execution of the sanction.

1 From the moment an employee becomes aware of facts liable to constitute a disciplinary infraction, they shall draft a written report for the attention of the management. Based on the report, the minor shall be invited to state their position on the facts in question. Their statements shall be formally recorded.

2 If it deems it necessary, the management shall then proceed with a supplementary investigation. Hearings must be formally recorded and investigation documents catalogued.

3 The legal representatives of persons detained or placed shall be informed of the procedure.

4 At the end of the procedure, disciplinary sanctions shall be notified in writing to the person concerned. The placing authority and the legal representatives shall be informed thereof. In any case, the management shall ensure that the minor has understood the content of the decision.

5 The disciplinary decision must contain at least

a) a statement of the facts;

b) the legal provisions and regulations upon which it is founded;

c) brief grounds;

d) an indication of the nature of the sanction imposed;

e) where applicable, an indication of the extent of the sanction;

f) if the conditions are met, an indication of the conditional suspension, its duration, and the conditions for its revocation;

g) an indication of the deadlines and avenues for appeal.

1 Disciplinary decisions may be appealed within 5 days of their notification.

2 Educational measures are not subject to appeal. They may be subject to complaint in accordance with cantonal law, depending on the location of the institution.

3 The appeal must be submitted in writing, reasoned, and signed. Exceptionally, a simple declaration of appeal may be admitted.

4 The appeal does not have a suspensive effect.

1 Appeals are addressed to the president of the concordat appeal authority.

2 Upon receipt of the appeal, the president of the appeal authority shall communicate the same to the authority that rendered the impugned decision, inviting it to submit, within a period of 20 days, its observations together with the file relating to the decision. These observations shall be brought to the attention of the appellant, who may comment on them within a period of 10 days.

3 The appeal authority shall take its decisions by circulation, by a majority of votes, based on a draft decision prepared by the president of the appeal authority. It may decide, if necessary, to meet at the seat of the president's Tribunal.

4 A copy of the decision on the appeal shall be sent to the placement authority and to the management of the service on which the establishment depends, and to the secretariat of the Conference.

1 Decisions on appeal indicate

a) the designation of the appellate authority and its competence;

b) the names of the parties and their representatives;

c) the reasoning in fact and in law;

d) the operative part;

e) the date and signature;

f) the avenue of appeal.

2 In case of acceptance of the appeal, the concordat appellate authority decides on any mode of compensation.

Compensation and legal aid

1 Frivolous appeals reserved, the procedure is free of charge.

2 Legal aid is governed by the cantonal law of the place where the establishment is located. The appeal authority decides on the matter and sets the fees payable to the appointed lawyer; these are borne by the canton that placed the minor.

The decisions of the concordat authority responsible for appeals are final. The path of appeal in criminal matters to the Federal Supreme Court remains open.

The cantons concerned have a period of 6 months to adapt the regulations of existing establishments to the present regulation, respectively to adopt internal regulations.

Until the entry into force of the amendments to the concordat approved by the CLDGP on October 31, 2013, the concordat authority of appeal indicated in Articles 10 and 13 above shall be understood as the ad hoc complaints authority pursuant to Article 39, paragraphs 3 and 12 of the concordat. The latter possesses the competencies defined by the present regulations.

1 This regulation comes into force after being adopted by the cantons in accordance with their own rules.

2 It is published in the collection of cantonal laws and on the website of the Latin Conference of Heads of Departments of Justice and Police.

Published in BU 2013, 571.