Author: Lawyer Enrico Germano

The Federal Supreme Court recently ruled that a father sentenced to 18 years in prison for beating and even abusing his children for several years will not be allowed to receive their photographs during his imprisonment . The case had started in August 2019, when the management of the prison where the father was being held informed him that the letters addressed to him by his mother and brother, containing numerous photographs of their children, had been seized and that they would only be forwarded to him with the explicit consent of the children and their guardian

The father had been sentenced to 18 years’ imprisonment for qualified simple bodily harm, qualified assault, endangering the lives of others, qualified threats, sexual acts with minors, aggravated sexual coercion, aggravated rape, attempted aggravated rape, pornography, incest, complicity in incest and breach of duty of care or education (Broye and Nord vaudois District Court judgment of 29 March 2018). 

The Federal Supreme Court held that the guarantee of personal liberty (Art. 10 para. 2 of the Swiss Constitution) and the right to respect for private and family life (Art. 8 of the European Convention on Human Rights (ECHR) and Art. 13 of the Swiss Constitution) certainly allow prisoners to maintain contact with members of their families, within the limits imposed by the measure of constraint imposed on them and by the particular relationship of subjection that binds them to the State, but that in accordance with the requirements of Art. 36 of the Swiss Constitution, restrictions on these rights must have a legal basis – material in the case of correspondence and must not go beyond what is necessary for the purposes of detention and the functioning of the detention facility.

The principle of proportionality, enshrined in general terms in the aforementioned provision, requires that any violation of these rights be subject to a balancing of interests in which the authority must take into account all the circumstances, in particular the purpose of detention, the security needs of the prison, the duration of detention and the personal situation of the prisoner.

According to Article 84 of the Swiss Criminal Code (SCC), prisoners have the right to receive visits and to maintain relations with the outside world; relations with friends and relatives must be encouraged. Relationships may be supervised; they may be restricted or prohibited for reasons of order and security of the institution; supervision of visits is not permitted if the persons concerned are not informed .

The cantonal court had held that the enforcement authority must take all appropriate measures to protect the personality of the victims when it finds that the acts are likely to harm them. In this respect, the extreme seriousness of the acts committed by the father against most of his children and the resulting trauma justified greater protection of the children. The children’s interest in ensuring that their photographs did not fall into the hands of their torturer – unless they or their legal representatives gave their express consent – clearly outweighed the applicant’s interest in being able to freely dispose of his children’s photographs. Under Article 28 of the Swiss Civil Code (SCC), the father could not continue to possess the photographs he and his wife had taken of their children without their consent or that of their legal representatives. What was at stake was the protection of the children’s personalities, in particular respect for their privacy.

Switzerland’s highest court has ruled that the limits placed on a prisoner’s right to receive photographs of his children from third parties are based on the reasons for the prisoner’s criminal conviction. To the extent that children are direct victims of serious crimes, it may be necessary to take measures to protect their rights and freedoms, such as seizing photographs of their children . 

1 ATF 6B_1206/2023 du 30 mars 2023

2 La Regione, 4 maggio 2023, Ticinonews 4 ,aggio 2023

3 ATF 6B_1206/2023 du 30 mars 2023

4 ATF 6B_1206/2023 du 30 mars 2023, consid. 2.1; DTF 145 I 318, par. 2.1 and ref.

5 ATF 6B_1206/2023 du 30 mars 2023, consid. 3.2.3

6 ATF 6B_1206/2023 du 30 mars 2023, consid. 4.1

7 ATF 6B_1206/2023 du 30 mars 2023, consid. 5.1