Background
B.K., a Swiss national, was transferred to Pöschwies Prison on 17 August 2018 while in pre-trial detention; after charges were brought in 2019, his detention continued as security detention. He was held under the prison’s restrictive “SI 1” regime, spending 23 hours per day alone in his cell and having no contact with other prisoners. On 21 August 2019, the prison authority decided that he would no longer receive an hour of outdoor activity on weekends and public holidays, a restriction he challenged through the Swiss courts.
While B.K.’s appeal was pending, the Federal Supreme Court asked the prison authority about a newly constructed cell intended to facilitate daily outdoor activity. The authority reported that B.K. had allegedly damaged the cell on 27 October 2020. Without informing him of that exchange or inviting his comments, the Federal Supreme Court expressly referred to the alleged damage and dismissed his appeal as an abuse of process. In separate proceedings, B.K. challenged his continued detention at Pöschwies and sought a transfer, relying at earlier stages on the overall conditions there, but his final appeal to the Federal Supreme Court focused on the presumption of innocence and the separation of remand prisoners from convicted prisoners.
The Court’s Holding
The European Court of Human Rights unanimously held that the Federal Supreme Court violated the civil limb of Article 6 § 1. The adversarial principle and equality of arms required B.K. to be informed of, and given an opportunity to comment on, information that the court obtained on its own initiative. The information about the alleged destruction of the cell was placed in the case file, expressly cited in the judgment, and used at least as a subsidiary basis for treating his appeal as abusive. The Federal Supreme Court also gave no reason for withholding an opportunity to respond.
The Court did not decide whether the detention conditions themselves violated Articles 3 or 8. It declared those complaints inadmissible for failure to exhaust domestic remedies: the outdoor-activity conditions had ended before the first application was filed, yet B.K. had not first pursued an available compensatory remedy; and in the second application, he had not preserved his conditions-of-detention or medical-care complaints through the final domestic stage. The finding of an Article 6 violation was sufficient just satisfaction for non-pecuniary damage, and Switzerland was ordered to pay EUR 5,000 for costs and expenses.
Key Takeaways
- A court must ordinarily disclose information it obtains on its own initiative and allow the parties to comment when that material may influence its decision.
- The requirement applies even if the undisclosed material is only a subsidiary basis for the judgment; the parties, rather than the court, decide whether a response is warranted.
- Conditions-of-detention claims may fail for non-exhaustion when an applicant does not pursue an available compensatory remedy after the challenged conditions end or does not preserve the complaint through the final domestic stage.
Why It Matters
The judgment reinforces that appellate courts cannot rely on independently obtained factual material without giving the affected party a meaningful chance to respond. That safeguard remains essential when the court characterizes a litigant’s claim as abusive based partly on contested conduct reported outside the ordinary adversarial process.
The decision also illustrates the strict procedural divide between a viable fair-hearing claim and unexhausted substantive complaints. Although B.K.’s prison conditions were central to the dispute, the Court adjudicated only the Article 6 defect and expressed no merits conclusion under Articles 3 or 8.