In a press release dated August 20, 2025(https://www.news.admin.ch/fr/newnsb/mL8v1JxGdm-mMFujbuOBN), published yesterday, the Federal Council assesses the use of electronic bracelets in the arsenal of criminal sanctions available to the authorities.
This assessment is positive, with the Swiss government believing that this sentencing modality has proved its worth and is increasingly being used by cantons, noting a 25% increase in decisions granting electronic monitoring between 2018 and 2023 (Federal Council report in response to postulate 16.3632 of the Legal Affairs Committee of the Council of States of August 30, 2016, p. 12).
It should be pointed out that this report focuses solely on electronic monitoring as an alternative form of sentence enforcement or as a means of lightening the sentence (Report cited above, p. 12).
In fact, the electronic bracelet can be used at different stages of criminal proceedings, and even as part of personality protection procedures. In criminal matters, it may first appear in the course of criminal proceedings, as an alternative to preventive detention. Electronic bracelets are most often used after sentencing, in the so-called sentence enforcement phase. Finally, electronic bracelets may be used to monitor compliance with measures such as the geographical and contact bans defined in art. 67b para. 3 of the Criminal Code.
1. The electronic bracelet and the law
Electronic monitoring as part ofsentence enforcement is governed by art. 79b of the Swiss Criminal Code. It can be ordered in lieu of a custodial sentence of between 20 days and twelve months, or external work or work and accommodation for a period of between three and twelve months. Following recent case law, electronic surveillance can also be ordered in the case of a partial suspended sentence when the firm part of the sentence does not exceed 12 months (ATF 150 IV 277, recital 2.4).
In addition, it can only be ordered under the following cumulative conditions:
- the offender is neither a flight risk nor a risk of reoffending,
- they have a permanent home,
- he/she works regularly for at least 20 hours a week, it being specified that domestic work, educational work, participation in an occupation program or any other structured occupation are deemed equivalent,
- adults living in the same household as the convicted person consent to this method of execution, and finally,
- the convicted person approves the execution plan drawn up for him.
The electronic bracelet can also be used as an alternative to preventive detention (art. 237 para. 3 CPP), as the Federal Court has confirmed that it is an alternative whose suitability must be assessed in the light of all the circumstances, in particular the intensity of the risk of absconding and the seriousness of the offences (ATF 145 IV 503).
In addition, the Federal Court found that wearing an electronic bracelet could be sufficient to mitigate the risk of absconding, insofar as it would dissuade the accused from violating the house arrest, or, where applicable, enable rapid police intervention in the event of an attempted escape (Federal Court ruling 1B_447/2011 of September 21, 2011, recital 3.3).
That said, this latter hypothesis has since been considerably put into perspective, not to say ruled out by the Federal Court insofar as the current implementation of the electronic bracelet does not in practice actively prevent absconding, due to the lack of concrete and permanent monitoring (Federal Court Ruling 1C_269/2018 of June 5, 2018).
Consequently, more recent case law in criminal matters still regards the wearing of an electronic bracelet as a simple control measure, being, generally speaking, insufficient to prevent the risk of absconding (Federal Court ruling 1C_269/2018 of June 5, 2018, recital 1.3; ATF 149 III 193). This implies that the electronic bracelet will only be granted to defendants who present no risk of absconding or, possibly, a particularly low risk of absconding.
In any case, it should be pointed out that the Federal Court also ruled that it was in no way acceptable for the electronic bracelet to be refused on the grounds that the equipment was lacking (Federal Court ruling 1B_447/2011 of September 21, 2011, recital 3.3). According to our High Court, it is up to the competent cantonal authorities to take the necessary measures to ensure the availability of equipment suitable for such a measure provided for in the Code of Criminal Procedure (Federal Tribunal ruling 1B_447/2011 of September 21, 2011, recital 3.3).
As explained above, the electronic bracelet can also be used to ensure compliance withperimeter or contact bans under art. 67b para. 3 of the Criminal Code, or as a condition of leave granted to prisoners under art. 84 para. 6 of the Criminal Code.
Lastly, an electronic bracelet may be ordered as part of personality protection proceedings, i.e. to prohibit a person from approaching the victim (art. 28c CC). In this respect, the Federal Court has reminded us that electronic surveillance restricts fundamental rights (personal freedom, privacy) and must respect the principle of proportionality (ATF 149 III 193).
2. Some thoughts on the electronic bracelet
In view of these different configurations for the implementation of electronic monitoring, it is worth noting that electronic bracelets and their effectiveness can provide food for thought in a number of areas.
By way of introduction, we would like to remind you that the electronic bracelet is indeed a means of enforcing a custodial sentence, which is not trivial and has important consequences in terms of the law on sanctions and individual freedom. Convicts serving their sentences under electronic surveillance are effectively deprived of part of their freedom in that, outside working hours (a maximum of 14 hours a day, including training, leisure, sporting activities, shopping, medical visits, administrative formalities and participation in individual or group therapy), they must remain at home (For the canton of Vaud, see art. 6 ff. of the Règlement concordataire sur l’exécution des peines privatives de liberté sous surveillance électronique).
In this respect, we can refer to the Federal Council’s report: “it was noted that this form of enforcement took on a punitive character reminding “the person concerned of his situation 24 hours a day, who must moreover be constantly attentive to respecting his weekly and daily schedule ” (Federal Council report in response to postulate 16.3632 of the Legal Affairs Committee of the Council of States of August 30, 2016, p. 5).
On this basis, it can be asserted that this method of enforcing short custodial sentences is in perfect harmony with the aim pursued by sentences in modern criminal law, i.e. to punish past deviant behavior, while promoting the convicted person’s reformation and reintegration, and discouraging him or her from committing further offences.
The resocialization aspects are all the more important as, for convicts with a job or who have to stay at home to look after their loved ones (usually children), serving the sentence under electronic surveillance enables them to maintain socio-professional and family ties, whereas convicts serving a custodial sentence lose their job, and often their home as a result, or are no longer able to look after their families, causing considerable collateral damage that goes far beyond the aim of the law on sanctions.
What’s more, when it comes to costs for both convicts and the community, the costs of serving a sentence under electronic surveillance are considerably lower than those of serving a custodial sentence.
In this respect, we need to take into account the advantages of electronic surveillance in the face of the deleterious prison conditions resulting from growing prison overcrowding.
Wearing an electronic bracelet would easily relieve prison overcrowding if it were applied more widely and to a greater number of situations.
Lastly, from the point of view of restoring the interests of victims and injured parties, the execution of a custodial sentence under electronic surveillance enables the convicted person to maintain a gainful occupation, and thus the concrete possibility of compensating victims, a compensation often hindered in the case of imprisonment.
It is regrettable that the Federal Council has not taken this opportunity to increase the length of custodial sentences that can be served under electronic surveillance, as some cantons, albeit in a minority, have proposed that sentences of up to 18 months or even 24 months can still be served under electronic surveillance. By way of example, the maximum firm sentence that can be handed down in the event of a partial suspended sentence is 18 months, i.e. half the maximum overall sentence admissible for a partial suspended sentence (36 months). Given that the sine qua non condition for even a partial suspended sentence is the absence of an unfavorable prognosis, the current solution seems absurd, since anyone sentenced to 36 months’ imprisonment with a partial suspended sentence, of which 18 months would be firm, would have no choice but to go to prison, at the risk of losing his job, home and family, even though there would be no unfavorable prognosis in his case. It’s hard to believe that a difference of only six months could, all other things being equal, justify such different consequences. At the very least, we need to think about the relationship between electronic surveillance and partial suspended sentences.
Another shadow on the horizon, which this time mainly concerns electronic surveillance implemented as an alternative to preventive detention in cases of risk of absconding or reoffending, respectively contact and perimeter bans. To date, it seems certain that the use of this surveillance measure needs to be rethought, given theabsence of constant and effectiveactive surveillance (or mobile surveillance), enabling the individual concerned to be geolocated in real time at any time of the day or night.
This is a central and highly problematic element, since at present only so-called passive surveillance is implemented. In concrete terms, this means that the movements and activities of the wristband wearer are continuously recorded, but that alert messages (such as a perimeter or time violation) are managed mainly during office hours (08:00 to 17:00, Monday to Friday). This means that in the event of a deviation, often with serious consequences, the competent authority is informed the next working day, rather than immediately.
This pitfall is first and foremost sensitive from the point of view of protecting victims of violence, who rightly feel unprotected notwithstanding the fact that the offender is wearing an electronic bracelet, since they know that the police will not be alerted in real time and will therefore not have the time to intervene in time in the event of a violation of the perimeter ban, for example.
But this is also problematic for defendants who are regularly denied access to an electronic tag on the grounds that, generally speaking, this surveillance measure fails to sufficiently prevent a risk of absconding, often regardless of whether there is any risk of absconding in the specific case.
In other words, when the State fails to enforce a penal measure, many people are forced to endure a major infringement of their freedom, even though the legal arsenal would be perfectly capable of finding solutions that are proportionate and less detrimental to the fundamental rights of those concerned.
The main obstacle to the implementation of continuous monitoring by means of an electronic bracelet seems to be a financial one, i.e. the significant costs generated by the generalization of this technical surveillance. However, a simple accounting logic does not seem adequate to properly grasp all the implications of electronic surveillance and its implementation.
A convict’s resocialization objectives should never have to depend on the budget the state is prepared to invest. Rehabilitation and the fight against desocialization are priceless. Nor is the need for security for victims of violence.
In conclusion, it’s certainly gratifying that the Federal Council has recognized the benefits of the electronic bracelet. But satisfaction does not mean complacency. We need to be constantly and forcefully reminded that this type of surveillance could be improved and extended. It’s a question of pursuing the objectives our criminal justice system has set itself, of rehabilitating convicted offenders and of serving the interests of victims. In other words, it’s simply a matter of acting in the interests of society. It is essential to punish offenders, but it is just as important to do so with intelligence, the intelligence of the role played by the right sentence in restoring the fragile balance that the offence undermines, on one side of the bar as on the other. The electronic bracelet is a cardinal step in this direction.
