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BOULOIS v. LUXEMBOURG - 37575/04 [2012] ECHR 587 (3 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/587.html
Cite as:
55 EHRR 32,
[2012] ECHR 587,
(2012) 55 EHRR 32
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GRAND
CHAMBER
CASE OF BOULOIS v. LUXEMBOURG
(Application
no. 37575/04)
JUDGMENT
STRASBOURG
3 April 2012
This judgment is final
but may be subject to editorial revision.
In the case of Boulois v.
Luxembourg,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Nicolas Bratza,
President,
Jean-Paul Costa,
Françoise
Tulkens,
Josep Casadevall,
Nina Vajić,
Boštjan
M. Zupančič,
Elisabet Fura,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Päivi Hirvelä,
George
Nicolaou,
Ledi Bianku,
Ganna
Yudkivska,
Vincent A. de Gaetano, judges,
and
Vincent Berger, Jurisconsult,
Having
deliberated in private on 31 August 2011 and on 22 February 2012,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 37575/04) against the Grand
Duchy of Luxembourg lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a French national, Mr
Thomas Boulois (“the applicant”), on 16 October 2004.
The
applicant was represented by Mr O. Lang, a lawyer practising in
Luxembourg. The Luxembourg Government (“the Government”)
were represented by their counsel, Mr N. Decker, a lawyer practising
in Luxembourg.
The
applicant alleged, in particular, that he had been deprived of his
right to a fair hearing and his right of access to a court in
connection with the decisions refusing his requests for prison leave.
The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Dean
Spielmann, the judge elected in respect of Luxembourg,
withdrew from sitting in the case (Rule 28) and the respondent
Government waived their right to appoint a replacement. A Chamber
of that Section accordingly appointed Françoise Tulkens, the
judge elected in respect of Belgium, to sit in his place (Article 26
§ 4 of the Convention and Rule 29 §§ 1 and 2). On 7
December 2006 a Chamber of the same Section, composed of Christos
Rozakis, President, Loukis Loucaides, Françoise Tulkens, Nina
Vajić, Elisabeth Steiner, Khanlar Hajiyev and Sverre Erik
Jebens, judges, and Søren Nielsen, Section Registrar, decided
to give notice of the application to the Government.
Having
been informed on 12 December 2006 that they could submit written
observations under Article 36 § 1 of the Convention and Rule 44,
the French Government indicated on 27 March 2007 that they did not
intend to exercise their right in that regard.
On
2 September 2008 the Court decided to adjourn examination of the case
pending the outcome of the case of Enea v. Italy (no.
74912/01), which was then pending before the Grand Chamber.
On
14 December 2010, following a change in the composition of the
Sections, a Chamber of the Second Section, composed of Ireneu Cabral
Barreto, President, Françoise Tulkens, Danutė
Jočienė, Dragoljub Popović, András Sajó,
Işıl Karakaş and Guido Raimondi, judges, and
Stanley Naismith, Section Registrar, declared the application
admissible by a majority. It held, by four votes to three, that there
had been a violation of Article 6 of the Convention.
On
4 March 2011 the Government requested the referral of the case to the
Grand Chamber in accordance with Article 43 of the Convention and
Rule 73. A panel of the Grand Chamber granted that request on 11
April 2011.
The
composition of the Grand Chamber was determined according to the
provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24. At the final deliberations, Jean-Paul Costa continued to sit
following the expiry of his term of office, in accordance with
Article 23 § 3 of the Convention and Rule 24 § 4.
The
applicant and the Government each filed a memorial.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 31 August 2011 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr N. Decker, lawyer,
Counsel,
Ms A. Ferreira Da Silva, lawyer,
Mr J.
Wallendorf, judge, Court of Appeal, Advisers;
(b) for the applicant
Mr O. Lang,
lawyer, Counsel,
Mr R. Schons, lawyer, Adviser,
Mr T.
Boulois, Applicant.
The
Court heard addresses by Mr Lang and Mr Decker.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, who was born in 1972, was detained in Schrassig
(Luxembourg) Prison on the date the application was lodged. He is
currently living in Peppange (Luxembourg).
On
15 December 1998 he was remanded in custody.
In
a judgment of 22 October 2001 the Criminal Division of the Court of
Appeal sentenced him to fifteen years’ imprisonment, of which
three years were suspended, for assault occasioning actual bodily
harm, rape and false imprisonment accompanied by acts of torture,
committed on 10 December 1998.
The
applicant provided the Court with copies of several court decisions,
given between 14 June 2001 and 13 April 2005, concerning the issue of
his visiting rights in respect of his three minor children following
his divorce, made final on 19 October 2000.
While
in prison, the applicant submitted requests for conditional release,
transfer to Givenich semi-open prison and temporary leave of absence
(“prison leave”). The requests for prison leave are the
subject of the present case.
A. The first request for prison leave
The
applicant stated that he had submitted a request for prison leave to
the Attorney General in October 2003.
At
the request of the counselling service’s psychologist the
applicant explained on 16 October 2003 that he was requesting prison
leave for one day and had no objection to being escorted while on
leave. He stated that the reason for the request was to complete
certain administrative formalities, which he listed as follows:
“(i)
go to a photographer or photo booth to obtain passport photos;
(ii)
go to the Transport Ministry to renew my driving licence (medical
certificate already obtained);
(iii)
go to the Embassy to renew my consular registration card;
(iv)
go to see Mr [B.] at Luxembourg police station, investigations
division, to pick up an envelope containing documents needed by a
former client;
(v)
go to see the manager of [B.] bank in Esch/Alzette;
(vi)
go to the taxation office in Esch/Alzette;
(vii)
meet a group of friends in a restaurant near Esch/Alzette;
(viii)
go to my flat in Differdange to collect the remaining documents for
the same client;
(ix)
take some measurements for items I might make in the [prison]
workshop;
(x)
go to Differdange town hall for a personal interview with the mayor;
(xi)
go to the home of Mrs [S.] in Luxembourg to meet her husband;
(xii)
go to my lawyer’s office to hand over the missing documents for
my former client;
(xiii)
if possible, go to the bookshop near [S.]’s house.”
In
his reply, the applicant stated further:
“... Unfortunately, the civil damages are still
far from being paid, as I have not even had enough funds to make a
down-payment. At the moment I am still busy repaying my loans and
other debts to the various authorities under the arrangements entered
into with the legal departments in order to avoid an unending series
of seizures of my property. ...”
On
29 October 2003 a psychologist issued a certificate stating that the
applicant had begun a course of psychotherapy on 19 May 1999 which
had been discontinued on 30 September 2002 for reasons beyond his
control. She stressed that the applicant was anxious to understand
what had driven him to commit the offences and to do everything
possible to avoid reoffending. On 25 November 2003 a second
psychologist, who certified that he had had regular meetings with the
applicant since the beginning of 2003, agreed with the comments made
in the certificate of 29 October 2003.
On
5 November 2003 the Attorney General’s representative sent a
memorandum to the prison governor stating, in particular, as follows:
“...please inform the prisoner Thomas Boulois
that by decision of the Prison Board
[the] request for prison leave ... [is] refused in view
of the risk of deportation (an application was made to the Ministry
of Justice on 25 June 2003, but no decision has yet been taken).
There is also a risk that the prisoner might abscond, given that he
has failed to reflect on his crime. Before being allowed any
privileges he must begin to pay the civil party.”
B. The second request for prison leave
On
17 January 2004 the applicant reiterated his request, giving the same
reasons and the same programme for the day’s prison leave. On
27 January 2004 his lawyer confirmed the request and added,
inter alia, the following:
“... granting [the applicant] a day’s prison
leave during which he could begin to put his affairs in order with a
view to leading an independent life [outside] prison, [would] not
only aid [the applicant’s] rehabilitation and reintegration
into society, but [would] also enable him to start paying damages to
the civil party as quickly as possible. ...”
On
17 March 2004 the Attorney General’s representative sent a
memorandum to the prison governor containing the following passage:
“... please inform the prisoner Thomas Boulois
that by decision of the Prison Board
the decision of 5 November 2003 refusing his request for
prison leave ... remains valid.”
C. Application to the administrative courts following
the refusal of the two requests for prison leave
On
25 May 2004 the applicant lodged an application with the
Administrative Court (tribunal administratif) for judicial
review of the decisions of the Prison Board of 5 November 2003 and 17
March 2004.
At
a hearing held on 6 December 2004 the Administrative Court raised of
its own motion the question whether it had jurisdiction to examine
the application for judicial review. The Government, who had not
raised an objection alleging lack of jurisdiction, left the matter to
the discretion of the court. The applicant pleaded that the latter
had jurisdiction.
On
23 December 2004 the Administrative Court declined jurisdiction to
examine the application for judicial review, for the following
reasons:
“... A distinction must be made between
administrative measures relating to the treatment of prisoners in
prison (such as a decision to place them in a more secure wing of the
prison, and in particular imposing a strict confinement regime –
see Administrative Court ruling no. 14568 of 10 July 2002), which are
administrative decisions taken in the context of the running of the
prison service, and decisions which may alter the nature or scope of
a sentence imposed by the ordinary courts, which should be regarded
as judicial rather than administrative decisions.
In the instant case it should be noted that the granting
or refusal of the privilege of prison leave constitutes a measure
which alters the ‘scope’ of the sentence imposed on the
applicant by the ordinary court.
Hence, the two decisions in question are judicial in
nature.
Accordingly, having regard to their nature as identified
above, the impugned decisions cannot be the subject of an application
to the administrative courts... .”
On
14 April 2005 the Higher Administrative Court (cour
administrative) upheld that ruling in the following terms:
“The [applicant] submitted that the court had
erred in declining jurisdiction to examine his application for
judicial review, arguing that: no other remedy existed in respect of
such refusal, with the result that section 2(1) of the Law of 7
November 1996 on the organisation of the administrative courts should
be applied; the impugned decisions did not alter the scope of the
sentence; the court had denied him justice in breach of Article [6 §
1] of the [Convention] by depriving him of a fair hearing.
... The [applicant]’s case concerns a request for
prison leave, in other words, a decision which alters the terms of
execution of the sentence imposed by the ordinary courts and which
should therefore be classified as a judicial rather than an
administrative decision.
The expression ‘the scope of the sentence
imposed’, used by the court, is not to be understood in the
present case as the length of the sentence but as the manner of its
execution in a broad sense.
The Administrative Court was therefore correct in
declining jurisdiction to examine the application.
A finding by the administrative courts that they lack
jurisdiction cannot be construed as a declaration of unwillingness on
their part to rule on the issue; the allegation of a denial of
justice should therefore be dismissed as unfounded.
Article [6 § 1] of the [Convention] is not
applicable in respect of a body which has no power to rule on the
merits. ...”
D. Further requests for prison leave submitted by the
applicant and refused by the Prison Board
On
11 August 2004 the applicant submitted a third request for prison
leave, stating, inter alia, as follows:
“... I have successfully attended several classes
run by the CEP-L [Chamber of Employees] and would like to continue
with a view to obtaining the corresponding diplomas.
The diplomas concerned are in accounting and computer
(PC) use. I completed the previous courses successfully, but if I am
to achieve my aim it is now essential for me to be able to attend the
classes of the autumn session at the CEP-L itself. ...”
In
a decision of 21 September 2004 the request was refused on the ground
that the applicant could attend courses in prison and that he had as
yet made no substantial efforts towards paying compensation to the
victim. The decision also referred to the reasoning of the decision
of 5 November 2003.
On
14 October 2004 the applicant submitted a fourth request for prison
leave – which he produced for the first time before the Grand
Chamber – seeking permission to spend a day with his children
over the Saint Nicolas weekend.
In
a decision dated 14 December 2004 the request was refused, on the
ground that the applicant’s visiting rights in respect of his
children had not yet been clearly established.
In
a fifth request, submitted on 24 February 2005, the applicant stated,
among other things, that he could not understand why, in view of the
need for him to reintegrate into society, he had been refused
permission to attend the final classes required in order to obtain
the diplomas in accounting and computing. He added that the reason he
had requested prison leave was to renew his identity papers and
driving licence and find a solution regarding the repayment of his
debts to the various institutions and the civil party.
On
23 March 2005 his request was refused for failure to give reasons.
On
12 July 2005 a sixth request for prison leave was refused on the
ground that there was a risk that the applicant would not return to
prison.
On
4 May 2006 a seventh request for prison leave was refused on the
grounds that the applicant had been making no efforts, especially
with regard to paying compensation to the civil party, and had been
refusing to abide by the conditions imposed on him.
E. Subsequent developments until the applicant’s
release from prison
Following
the refusal of 4 May 2006, the applicant applied to the Attorney
General’s Department on five occasions between 10 May and
29 October 2006. He requested assistance in putting in place a
repayment plan appropriate to his circumstances and the demands of
the civil party, and sought an explanation of the conditions imposed
on him with a view to his reintegration into society, so that he
could comply with them. On 6 November 2006 the Attorney
General’s representative wrote to the applicant informing him
that, as matters stood, he did not intend to reply to the various
letters, which, in his view, did not call for any comment.
On
20 November 2006 the Attorney General acknowledged receipt of a
request from the applicant for an interview and said that he would
meet him during one of his forthcoming visits to the prison.
According to the applicant, the meeting never took place.
On
31 October 2008 the Prison Board granted the applicant one day’s
prison leave, subject to the condition that he would be collected
from the prison and brought back there by his new girlfriend, at
whose home he was to spend the day.
Between
12 December 2008 and 19 June 2009 the applicant was granted five
periods of prison leave of two consecutive days, to be spent with his
girlfriend.
On
20 March 2009 the applicant was transferred to Givenich semi open
prison. The same day, in a separate decision, he was granted ten
days’ prison leave in order to look for work and complete
various administrative formalities; it was also decided to place him
under the semi custodial regime once he had found work.
On
24 June 2009 the applicant signed a vocational rehabilitation
contract as a cook.
On
25 September 2009 his request for conditional release was granted.
In
three decisions (dated 25 September and 11 December 2009 and 26
February 2010), the requests made by the applicant for suspension of
his sentence, due to end on 12 October 2010, were refused.
On
10 February 2010 the applicant started up a business as a sole
trader.
On
15 July 2010 the applicant’s sentence was suspended. According
to his submissions, he left Givenich Prison definitively on that
date.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legislation concerning the execution of custodial
sentences
Section
1 of the Law of 26 July 1986 on certain means of executing custodial
sentences (“the 1986 Law”) lists the various arrangements
which execution of a custodial sentence may entail:
“The execution of a custodial sentence may entail
one of the following: serving of the sentence in instalments,
semi-custodial regime, prison leave, suspension of sentence, early
release.”
1. Definition of prison leave
Section
6 of the 1986 Law defines prison leave as follows:
“Prison leave shall consist of permission to leave
prison either for part of a day or for periods of twenty-four hours.
The time shall count towards the length of the sentence.”
2. Eligibility for prison leave
Section
7 of the 1986 Law provides as follows with regard to the objectives
of prison leave:
“This privilege may be granted to prisoners who
are domiciled or resident in the country, either for family reasons
or to make preparations for their rehabilitation and reintegration
into professional life, or on a trial basis with a view to their
conditional release.”
Section
8 of the 1986 Law provides that this measure may be granted to first
offenders once a third of their sentence has been served.
Section
13 of the 1986 Law provides as follows:
“In applying the arrangements provided for by
this Law, consideration shall be given to the personality of the
prisoner, his or her progress and the risk of a further offence.”
According
to the comments on this provision accompanying the relevant Bill when
it was submitted, the granting of measures relating to the means of
executing a sentence “will never be automatic and will
ultimately remain at the discretion of the post sentencing
authority, which will decide freely on the basis of the information
it has obtained concerning the prisoner”.
Under
the terms of the Grand-Ducal Regulation of 19 January 1989 laying
down, inter alia, detailed arrangements for the granting of
prison leave, such leave may be granted at the request of the
prisoner concerned or his or her representative (Article 4); the
request must be made in writing, unless the prisoner is unable or
does not know how to write. The interval between periods of leave
must be at least one month, except in special circumstances
(Article 5). Where a request for prison leave is refused, no new
request may be made within two months, unless new evidence comes to
light (Article 6).
3. Procedure applicable to prison leave requests
Section
12 of the 1986 Law states as follows:
“In the case of custodial sentences of over two
years ... the measures provided for by this Law ... shall be taken by
the Attorney General or his or her representative in accordance with
the majority decision of a board comprising, in addition to the
Attorney General or his or her representative, a judge and a public
prosecutor. ...
The board shall be convened by the Attorney General or
his or her representative and shall be chaired by the judge.
With the exception of the Attorney General or his or her
representative, the full members and their substitutes shall be
appointed by ministerial order for a renewable three-year term.”
4. Recommendation No. 30 of the Ombudsman of the Grand
Duchy of Luxembourg on changes to the division of powers in respect
of the execution of custodial sentences, and the follow-up thereto
In
Recommendation No. 30, set out in his activity report on the year
from 1 October 2007 to 30 September 2008, the Ombudsman
expressed the view that the system for the execution of sentences in
Luxembourg needed to be overhauled, and advocated the creation of the
office of post-sentencing judge. The latter would give decisions,
open to appeal, on applications for prison leave following
adversarial proceedings.
In
his activity report on the year from 1 October 2009 to 30 September
2010 the Ombudsman took note of the fact that the Minister of
Justice, in an article published in a Luxembourg daily newspaper, had
spoken in favour of handing over to a judicial body some of the
powers currently exercised by the Attorney General’s
representative with responsibility for the execution of sentences or
by the Prison Board. On 22 December 2011 the Minister of Justice
presented the broad outlines of the planned prison reform, which
included a Bill approved by the Government at a Cabinet meeting on 16
December 2011 reforming the system of execution of sentences by
establishing, inter alia, a post sentencing court. The
Bill must now go through the different stages of the legislative
procedure.
B. Practice concerning prison leave: statistics
supplied by the Government
There
are two prisons in Luxembourg, with a prison population of around
700. Most prisoners are held in Luxembourg Prison, which is a closed
institution. There is also a semi open prison (Givenich Prison)
which mainly houses prisoners approaching the end of their sentences
or serving shorter sentences. Most leave the prison each day to go to
work.
The
Government stated that a distinction needed to be made between
requests for prison leave made by inmates in Luxembourg Prison and
those in Givenich.
1. Requests for prison leave made by persons detained
in Luxembourg Prison
In
2009, 146 requests for prison leave were granted and 169 were
refused; for 2010, the figures were 114 and 128 respectively.
The
Government observed that numerous requests for prison leave were
bound to fail as they were submitted before expiry of the statutory
period. In other words, the prisoners concerned had not yet served a
third of their sentence (in the case of a first offender) or half
their sentence (in the case of a repeat offender), or the request was
made less than two months after notification of the refusal of a
previous request.
2. Requests for prison leave made by persons detained
in Givenich semi-open prison
In
2009, 376 requests for prison leave were granted and 192 were
refused; for 2010, the figures were 409 and 191 respectively.
III. RELEVANT INTERNATIONAL LAW
A. Recommendation No. R (82) 16 of the Committee of
Ministers to member states on prison leave (adopted on 24 September
1982)
The
Recommendation states, inter alia, as follows:
“The Committee of Ministers, under the terms of
Article 15.b of the Statute of the Council of Europe,
...
Considering that prison leave is one of the means of
facilitating the social reintegration of the prisoner;
Having regard to experience in this field,
Recommends the governments of member states:
1. to grant prison leave to the greatest extent possible
on medical, educational, occupational, family and other social
grounds;
2. to take into consideration for the granting of leave:
- the nature and seriousness of the offence, the length
of the sentence passed and the period of detention already completed,
- the personality and behaviour of the prisoner and the
risk, if any, he may present to society,
- the prisoner’s family and social situation,
which may have changed during his detention,
- the purpose of leave, its duration and its terms and
conditions;
3. to grant prison leave as soon and as frequently as
possible having regard to the aforementioned factors;
4. to grant prison leave not only to prisoners in open
prisons but also to prisoners in closed prisons, provided that it is
not incompatible with public safety;
...
9. to inform the prisoner, to the greatest extent
possible, of the reasons for a refusal of prison leave;
10. to provide the means by which a refusal can be
reviewed; ...”
B. Recommendation Rec(2003)23 of the Committee of
Ministers to member states on the management by prison
administrations of life sentence and other long-term prisoners
(adopted on 9 October 2003)
The
Recommendation, in its relevant parts, reads as follows:
“The Committee of Ministers, under the terms of
Article 15.b of the Statute of the Council of Europe,
Bearing in mind the relevance of the principles
contained ... in particular [in]:
– Recommendation No. R (82) 16 on prison leave;
...
...
1. For the purposes of this recommendation, a ...
long-term prisoner is one serving a prison sentence or sentences
totalling five years or more.
...
2. The aims of the management of ... long-term prisoners
should be:
...
– to increase and improve the possibilities for
these prisoners to be successfully resettled in society and to lead a
law-abiding life following their release.
...
23 b. Particular efforts should be made to allow for the
granting of various forms of prison leave, if necessary under escort,
taking into account the principles set out in Recommendation No. R
(82) 16 on prison leave.
...”
C. Recommendation Rec(2006)2 of the Committee of
Ministers to member states on the European Prison Rules (adopted on
11 January 2006)
The
Recommendation reads, inter alia, as follows:
“The Committee of Ministers, under the terms of
Article 15.b of the Statute of the Council of Europe,
...
Stressing that the enforcement of custodial sentences
and the treatment of prisoners necessitate taking account of the
requirements of safety, security and discipline while also ...
offer[ing] ... treatment programmes to inmates, thus preparing them
for their reintegration into society;
...
Endorsing once again the standards contained in the
recommendations of the Committee of Ministers of the Council of
Europe, ... and in particular ... Rec(2003)23 on the management by
prison administrations of life sentence and other long-term
prisoners;
...
103.2 As soon as possible after such admission, reports
shall be drawn up for sentenced prisoners about their personal
situations, the proposed sentence plans for each of them and the
strategy for preparation for their release.
103.3 Sentenced prisoners shall be encouraged to
participate in drawing up their individual sentence plans.
103.4 Such plans shall as far as is practicable include
... preparation for release.
...
103.6 There shall be a system of prison leave as an
integral part of the overall regime for sentenced prisoners.
...
107.1 Sentenced prisoners shall be assisted in good time
prior to release by procedures and special programmes enabling them
to make the transition from life in prison to a law-abiding life in
the community.
107.2 In the case of those prisoners with longer
sentences in particular, steps shall be taken to ensure a gradual
return to life in free society.
...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The
applicant submitted that he had been deprived of
his right to a fair hearing and his right of access to a court in
connection with the refusal of his requests for prison leave. He
alleged a violation of Article 6 § 1 of the Convention, the
relevant parts of which provide:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a ... hearing ... by [a] ... tribunal...”
A. The Chamber judgment
In
its judgment of 14 December 2010 the Chamber held that Article 6
of the Convention was not applicable under its criminal head.
However, it ruled that the applicant’s complaint was compatible
ratione materiae with the provisions of the Convention, in so
far as it related to Article 6 under its civil head. In the Chamber’s
view, the applicant could arguably maintain that, as a prisoner, he
was entitled to be granted prison leave once he satisfied all the
requirements laid down by the legislation. The Chamber further
observed that the restrictions on the right to a court to which the
applicant claimed to have been subjected in the context of his
requests for prison leave related to a set of prisoners’ rights
which the Council of Europe had recognised by means of the European
Prison Rules, adopted by the Committee of Ministers and clarified in
three Recommendations. The Chamber therefore concluded that a dispute
over “rights” within the meaning of Article 6 § 1
could be said to have existed. As to whether the rights in question
were “civil” rights, it pointed out that the proceedings
concerning the applicant’s various requests for prison leave
had raised the issue of his interest in reorganising his professional
and social life on his release from prison. In the Chamber’s
view, the applicant’s requests for prison leave had been
motivated by his wish to attend classes with a view to obtaining
diplomas in accounting and computer use and to complete certain
administrative formalities with his bank and various institutions
(including the renewal of his driving licence and his consular
registration card). The Chamber considered that the restriction
alleged by the applicant, in addition to its pecuniary implications,
related to his personal rights, in view of the significance of his
interest in resettling in society. It took the view that the
applicant’s social rehabilitation was crucial to the protection
of his right to lead a private life and develop his social identity.
It therefore concluded that the proceedings in question had related
to a civil right.
The
Chamber held that there had been a violation of Article 6 of the
Convention, on the grounds that the Prison Board had not satisfied
the requirements of a “tribunal” within the meaning of
Article 6 § 1 and that the lack of any decision on the merits
had nullified the effect of the administrative courts’ review
of the Prison Board’s decisions.
B. The parties’ submissions
1. The Government
(a) Applicability of Article 6 of the
Convention
The
Government submitted that Article 6 of the Convention was not
applicable to the present case.
Referring
to the principles established in the Court’s case-law in this
sphere, they submitted that the applicant had not had a “right”
within the meaning of Article 6 § 1 of the Convention.
In
the Government’s submission, it was clear from the wording of
the national legislation that the granting of prison leave was merely
a privilege to which there was no automatic entitlement.
A
Court of Appeal judgment of 9 February 2000 had ruled indirectly on
the nature of decisions relating to the granting of prison leave. The
case in question concerned the issue of State liability for damage
caused by a prisoner during his prison leave. The Court of Appeal had
specified that, in providing that prisoners might be eligible
for certain measures contributing to the maintenance of their family
ties and to making preparations for their resettlement into society,
the legislature had created a particular risk for third parties which
gave rise to a State duty to afford redress.
Furthermore,
the Prison Board had full discretion in the matter. The legislature
had not imposed an absolute obligation to grant prison leave: even
assuming that the various criteria established by section 7 of the
1986 Law were met, the Prison Board was entirely free to assess
whether the person concerned merited the privilege. The Government
inferred from this that the Chamber had been incorrect in ruling that
the applicant could claim entitlement to prison leave once he
satisfied the criteria. They took the view that, even in such
circumstances, the law authorised the members of the Prison Board to
refuse a request. Each case was examined with reference to the nature
and circumstances of the offence committed and the prisoner’s
personality.
The
Government added that the Chamber had wrongly concluded that the
applicant possessed rights on the basis of the European Prison Rules
adopted by the Committee of Ministers. The relevant Recommendations
laid down guidelines for the member States with a view to harmonising
the rules in force, and as such did not constitute a source of
domestic or international law. They left member States a wide margin
of appreciation when it came to granting prison leave and were not
intended to create an absolute right to prison leave, without
specific conditions attached, each time a prisoner requested it. In
the Government’s view, while member States were required to
make provision in their legal systems for the resettlement of
prisoners, the manner in which they did so was for them to decide.
The
Government further disputed the assertion that the “right”
claimed by the applicant was in any sense a “civil”
right.
In
their submission, the Chamber had rightly dismissed the family
reasons cited by the applicant, since his requests for prison leave
had not been based on a wish to see his children. Nor could the
applicant claim that the refusal of his requests for prison leave had
hampered his efforts to resettle outside prison, as the system in
Luxembourg afforded prisoners a wide range of possibilities in that
regard, including psychological counselling and training, of which
the applicant had been able to take advantage.
Lastly,
the Government argued that the case of Enea v. Italy ([GC],
no. 74912/01, 17 September 2009) was distinguishable from the instant
case, in which the applicant had been detained under the standard
regime and had been subjected only to the restrictions inherent in
any custodial sentence.
(b) Merits
In
the Government’s view, the Prison Board satisfied the
requirements of Article 6 § 1 of the Convention, in terms of
both independence and impartiality. Neither the creation of such a
body nor the fact that the administrative courts had declined
jurisdiction to examine the applicant’s application had
impaired the very essence of any right he might have had. The Prison
Board issued decisions refusing or granting prison leave on the basis
of objective factors and giving reasons, and prisoners could submit
as many requests for prison leave as they wished.
2. The applicant
(a) Applicability of Article 6 of the
Convention
The
applicant submitted that he had possessed a “right”
within the meaning of Article 6 of the Convention.
He
pointed out that prison leave was not automatically granted merely
because the objective criteria set out in sections 7 and 8 of the
1986 Law had been met, as section 13 required that the personality of
the prisoner, his or her progress and the risk of a further offence
also be taken into account. Since the minimum “punitive”
period – in other words, the period during which the applicant
had to be kept in detention without being eligible for release –
had expired on completion of one third of his sentence (section 8),
he could, from that point onwards, claim the right to be granted
prison leave, although the Board could still take the view that the
criteria of section 13 were not met. While the Government were right,
in terms of section 13, to characterise the decision taken by the
Board as “discretionary”, the existence of this power,
which was legitimate with regard to the execution of sentences, was
perfectly consistent with the principle of the rule of law provided
it was subject to review. However, where there was no such review,
the power became arbitrary. The applicant concluded that once he had
met the conditions listed in sections 7 and 8 of the 1986 Law, he had
had, at least on arguable grounds, the right to have his request for
prison leave considered in the light of the subjective criteria of
section 13 of the Law. Hence, the discretionary power of the Prison
Board in no sense ruled out the characterisation of the measure in
question as a “right” (the applicant cited, mutatis
mutandis, H. v. Belgium, 30 November 1987, § 43,
Series A no. 127-B).
In
support of this claim the applicant cited the fact that the Chairman
of the Bar had granted him legal aid in the proceedings before the
Prison Board and the administrative courts (he referred, mutatis
mutandis, to Z and Others v. the United Kingdom ([GC], no.
29392/95, § 89, ECHR 2001-V), and the fact that the
Government’s representative had agreed without reservation to
discuss the merits of the case brought before the Administrative
Court. He added that the Ombudsman, in making a case for the creation
of the office of post sentencing judge, appeared to recognise
the right to prison leave. The applicant also cited a passage from
the preparatory texts of the 1986 Law which placed the emphasis on
sentences that prepared prisoners for a future outside prison where a
return to the community was possible.
The
applicant added that prison leave also constituted a right in
Luxembourg because it was a measure that reflected a principle of
international law generally recognised by the member States of the
Council of Europe and even by the United Nations. In his view, the
Chamber had correctly referred to the Court’s ruling in Enea
v. Italy (cited above) as confirmation of the recognition of a
“right” under domestic law. That judgment cited the
Recommendations of the Committee of Ministers, which, while they were
non-binding, identified a set of prisoners’ rights recognised
by the member States.
The
applicant further submitted that his right had been a “civil”
right. He criticised the fact that he had been deprived of any
prospect of reintegration over the five-year period during which his
requests for prison leave had been refused. He stressed that prison
leave should promote and encourage the resettlement efforts of
convicted prisoners who had been temporarily removed from the
community.
(b) Merits
In
the applicant’s submission, none of the guarantees of Article 6
of the Convention had been afforded to him, either before the Prison
Board or in the administrative courts. He called into question, in
particular, the independence and impartiality of the Prison Board,
which included two members of the public prosecution service. He
stressed the fact that the Attorney General’s representative
responsible for the execution of sentences who had sat on the Prison
Board that refused his first two requests for prison leave had been
the same person who, in her capacity as advocate general
exercising the functions of a public prosecutor, had sought his
conviction before the Court of Appeal. From a procedural angle, the
applicant complained of the fact that no hearings had been held or
oral submissions heard.
C. The Grand Chamber’s assessment
1. Applicability of Article 6 of the Convention
In
the Court’s view, the Government’s preliminary objection
that Article 6 of the Convention is inapplicable is so closely linked
to the substance of the applicant’s complaint that it should be
joined to the merits of the case.
2. Merits
(a) General considerations
The
Court reaffirms its settled case-law to the effect that prisoners in
general continue to enjoy all the fundamental rights and freedoms
guaranteed under the Convention save for the right to liberty, where
lawfully imposed detention expressly falls within the scope of
Article 5 of the Convention. It is inconceivable that a prisoner
should forfeit those rights and freedoms merely because of his status
as a person detained following conviction (see Hirst v. the United
Kingdom (no. 2) [GC], no. 74025/01, §§ 69-70,
ECHR 2005-IX; Dickson v. the United Kingdom [GC],
no. 44362/04, § 67, ECHR 2007 V; and Stummer v.
Austria [GC], no. 37452/02, § 99, 7
July 2011).
83. The
Court has also had occasion to recognise the
legitimate aim of a policy of progressive social reintegration of
persons sentenced to imprisonment (see Mastromatteo v.
Italy [GC], no. 37703/97, § 72, ECHR 2002 VIII;
Maiorano and Others v. Italy, no. 28634/06, § 108,
15 December 2009; and Schemkamper v. France, no.
75833/01, § 31, 18 October 2005).
In
the instant case the Court observes that the applicant relied on
Article 6 of the Convention in complaining of the refusal of his
requests for prison leave. The Court’s first task is therefore
to examine whether the applicant’s complaint is compatible
ratione materiae with Article 6.
Like
the Chamber, the Grand Chamber considers that Article 6 § 1 of
the Convention is not applicable under its criminal head, as the
proceedings concerning the prison system did not relate in principle
to determination of a “criminal charge” (see Enea,
cited above, § 97).
The
Court must therefore consider whether the applicant had a “civil
right”, in order to assess whether the procedural safeguards
afforded by Article 6 § 1 of the Convention were applicable to
the proceedings concerning his requests for prison leave.
According
to the Court’s traditional case-law, the examination of
requests for temporary release or of issues relating to the manner of
execution of a custodial sentence do not fall within the scope of
Article 6 § 1 (see Neumeister v. Austria,
27 June 1968, §§ 22 and 23, Series A no. 8; Lorsé
and Others v. the Netherlands (dec.), no. 52750/99, 28 August
2001; and Montcornet de Caumont v. France (dec.),
no. 59290/00, ECHR 2003-VII).
It
is true that the Court has recently found a “civil” right
to be in issue in relation, for instance, to a prisoner’s
family visits or correspondence (see Enea, cited above, §
119, and Ganci v. Italy, no. 41576/98, §§ 20 26,
ECHR 2003-XI). In the Court’s view, however, this line of
case-law does not concern the situation under consideration in the
present case.
In
order to ascertain whether, in the present case, the civil limb of
Article 6 § 1 of the Convention was applicable to the
proceedings concerning the applicant’s requests for prison
leave, it must first be determined whether he possessed a “right”
within the meaning of that provision.
(b) Existence of a “right”
(i) Recapitulation of the case-law
The
Court reiterates that for Article 6 § 1 in its “civil”
limb to be applicable, there must be a dispute (“contestation”
in the French text) over a “right” which can be said, at
least on arguable grounds, to be recognised under domestic law,
irrespective of whether it is protected under the Convention. The
dispute must be genuine and serious; it may relate not only to the
actual existence of a right but also to its scope and the manner of
its exercise; and, finally, the result of the proceedings must be
directly decisive for the right in question, mere tenuous connections
or remote consequences not being sufficient to bring Article 6 §
1 into play (see, among other authorities, Micallef v. Malta
[GC], no. 17056/06, § 74, 15 October 2009).
Article
6 § 1 does not guarantee any particular content for (civil)
“rights and obligations” in the substantive law of the
Contracting States: the Court may not create by way of interpretation
of Article 6 § 1 a substantive right which has no legal basis in
the State concerned (see, for example, Fayed v. the United
Kingdom, 21 September 1994, § 65, Series A no. 294 B,
and Roche v. the United Kingdom [GC], no. 32555/96, §
119, ECHR 2005 X). The starting-point must be the provisions of
the relevant domestic law and their interpretation by the domestic
courts (see Masson and Van Zon v. the Netherlands, 28
September 1995, § 49, Series A no. 327-A, and Roche,
cited above, § 120). This Court would need strong reasons to
differ from the conclusions reached by the superior national courts
by finding, contrary to their view, that there was arguably a right
recognised by domestic law (ibid.).
In
carrying out this assessment, it is necessary to look beyond the
appearances and the language used and to concentrate on the realities
of the situation (see Van Droogenbroeck v. Belgium, 24 June
1982, § 38, Series A no. 50, and Roche, cited above, §
121).
Whether
or not the authorities enjoyed discretion in deciding whether to
grant the measure requested by a particular applicant may be taken
into consideration and may even be decisive. Hence, in Masson and
Van Zon (cited above, § 51), the Court concluded that no
right existed, whereas in Szücs v. Austria (24 November
1997, § 33, Reports of Judgments and Decisions 1997 VII),
it recognised the existence of a right. Nevertheless, the Court has
had occasion to state that the mere fact that the wording of a legal
provision affords an element of discretion does not in itself rule
out the existence of a right (see Camps v. France (dec.),
no. 42401/98, 23 November 1999, and Ellès and
Others v. Switzerland, no. 12573/06, § 16, 16
December 2010).
Other
criteria which may be taken into consideration by the Court include
the recognition of the alleged right in similar circumstances by the
domestic courts or the fact that the latter examined the merits of
the applicant’s request (see Vilho Eskelinen and Others v.
Finland [GC], no. 63235/00, § 41, ECHR 2007 II).
(ii) Application of these principles to
the present case
The
Court notes first of all that a “dispute” existed in the
present case, concerning the actual existence of the right to prison
leave claimed by the applicant.
As
regards the issue whether such a “right” could be said,
at least on arguable grounds, to be recognised in domestic law, the
Court observes that section 6 of the 1986 Law defines prison leave as
permission to leave prison either for part of a day or for periods of
twenty-four hours. Section 7 states that this is a “privilege”
which “may be granted” to prisoners in certain
circumstances (see paragraphs 47 to 49 above).
The
notion of “privilege” may have different meanings in
different contexts; it may refer either to a concession that can be
granted or refused as the authorities see fit, or to a measure which
the authorities are bound to grant once the person concerned
satisfies certain prior conditions.
In
the instant case the Court is of the view that the term “privilege”
as characterised by the legislature should be analysed in conjunction
with the phrase “may be granted” and in the light of the
comments accompanying the relevant Bill, according to which the
granting of measures relating to the means of executing a sentence
“will never be automatic and will ultimately remain at the
discretion of the post-sentencing authority” (see paragraph 49
above). Thus it was clearly the legislature’s intention to
create a privilege in respect of which no remedy was provided. Unlike
the case of Enea (cited above), which concerned a restriction
on the existing scope of rights, the present case concerns a benefit
created as an incentive to prisoners.
Furthermore,
the parties have both acknowledged that, even where the various
criteria laid down by section 7 of the 1986 Law are met, the Prison
Board enjoys a certain degree of discretion in deciding whether the
prisoner concerned merits the privilege in question. It is apparent
from the information provided to the Court that the 1986 Law and the
Grand-Ducal Regulation of 19 January 1989 lay down the arrangements
governing prison leave and the circumstances in which it may, where
applicable, be granted. It is within this legal framework that the
Prison Board, each time a request is submitted to it, examines the
report prepared by a committee (the “guidance committee”)
on the prisoner concerned. The Board takes into consideration the
personality of the prisoner, his or her progress and the risk of a
further offence, in order to assess whether he or she may be granted
prison leave. The statistics produced by the Government (see
paragraphs 54 to 58 above) confirm the discretionary nature of the
competent authorities’ powers. It follows that prisoners in
Luxembourg do not have a right to obtain prison leave, even if they
formally meet the required criteria.
As
to the question of the interpretation of the legislation by the
domestic courts, the Court observes that the administrative courts
declined jurisdiction to examine the applicant’s application
for judicial review. They held that, since they altered the terms of
execution of the sentence imposed by the ordinary courts, the
decisions contested by the applicant had been judicial rather than
administrative in nature. The parties were unable to produce any
other judicial or administrative decision determining an appeal
against a decision refusing prison leave (see, conversely, Vilho
Eskelinen and Others, cited above, § 41, and Rotaru
v. Romania [GC], no. 28341/95, § 78, ECHR 2000 V).
The Court observes that its findings in the Enea judgment
(cited above) cannot validly be transposed to the present case.
Whereas the Italian Constitutional Court had found sections 35 and 69
of the Prison Administration Act to be in breach of the Constitution
because they did not provide for judicial review of decisions liable
to infringe prisoners’ rights, the parties in the present case
have not produced any ruling by a judicial body in Luxembourg to the
same effect (see, conversely, Enea, cited above, § 100).
It
is thus apparent from the terms of the legislation in Luxembourg, and
from the information provided on the practice concerning prison
leave, that the applicant could not claim, on arguable grounds, to
possess a “right” recognised in the domestic legal
system.
Furthermore,
it must be pointed out that, although the Court has recognised the
legitimate aim of a policy of progressive social reintegration of
persons sentenced to imprisonment (see paragraph 83 above), neither
the Convention nor the Protocols thereto expressly provide for a
right to prison leave. The Court also notes that the right to prison
leave is likewise not recognised, as such, under any principle of
international law on which the applicant seeks to rely. Lastly, no
consensus exists among the member States regarding the status of
prison leave and the arrangements for granting it. In some countries,
the decision-making authority is obliged to grant leave once the
statutory conditions are met, while in others it enjoys complete
discretion in the matter. Similarly, not all States provide avenues
of appeal against decisions refusing prison leave. Hence, in this
respect also, the present case is distinguishable from Enea
(cited above).
In
any event, the Court observes that the Luxembourg authorities, far
from being indifferent to the issue of resettlement of prisoners,
provide other means of achieving this aim in addition to prison
leave. The legislation in Luxembourg draws its inspiration from,
among other sources, the Recommendation of the Committee of Ministers
on prison leave which, while it advocates providing “the means
by which a refusal can be reviewed”, also lists different
factors which the national authorities may take into consideration
when it comes to granting prison leave (see paragraph 59 above).
Furthermore, in addition to “a system of prison leave as an
integral part of the overall regime for sentenced prisoners”,
programmes have been put in place enabling the latter “to make
the transition from life in prison to a law-abiding life in the
community” (see paragraph 61 above). Lastly, the Court notes
with interest the legislative reform which is under way concerning
the execution of sentences (see paragraph 53 above).
In
view of all the foregoing considerations, the Court cannot consider
that the applicant’s claims related to a “right”
recognised in Luxembourg law or in the Convention. Accordingly, it
concludes, like the Government, that Article 6 of the Convention is
not applicable.
It
follows that the Government’s preliminary objection should be
allowed. There has therefore been no breach of Article 6.
FOR THESE REASONS, THE COURT
Joins to the merits, unanimously, the
Government’s preliminary objection;
Holds, by fifteen votes to two, that Article 6
of the Convention is not applicable;
Holds, by fifteen votes to two, that there has
therefore been no violation of Article 6 § 1 of the Convention.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 3 April 2012.
Vincent Berger Nicolas Bratza
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of
Judges Tulkens and Yudkivska is annexed to this judgment.
N.B.
V.B.
JOINT DISSENTING OPINION
OF JUDGES TULKENS AND
YUDKIVSKA
(Translation)
With
due respect, we do not share the majority’s view that Article 6
of the Convention is not applicable and, accordingly, has not been
breached.
Subject-matter
and issue at stake
It
is important to be clear from the outset as to the subject-matter of
this case. It concerned, from the standpoint of Article 6 of the
Convention, a prisoner’s right of access to a court and his
right to a fair procedure in order to complain about the decisions of
the Prison Board refusing his six requests for prison leave. Thus,
our Court’s task was in no sense to rule on whether those
requests were reasonable and well-founded but solely, in accordance
with the subsidiarity principle, to satisfy itself that a domestic
court could do so, which was not the position here. That is the issue
at stake in this case.
Background
The
issue before the Court should be seen against the background of the
development of the law on execution of sentences which can be
observed both at international level and in domestic law and which
has the role of providing a legal basis for all matters concerning
the execution of sentences which, until recently, fell almost
entirely within the responsibility of the executive and the competent
administrative authorities.
The
crucial issue in this case is that of the arrangements for execution
of a sentence and, more specifically, prisoners’ external legal
status, which encompasses the various measures whereby prisoners
retain or regain their liberty, whether fully or partially,
temporarily or permanently. The measures that may be ordered, from
the most limited to the most significant, are temporary leave of
absence and prison leave, interruption of the sentence, weekend
release, semi-custodial and limited detention regimes, compulsory
residence under electronic surveillance, temporary release and
conditional release.
In
the Grand-Duchy of Luxembourg, the Law of 26 July 1986 on certain
means of executing custodial sentences makes provision for
arrangements designed to mitigate the desocialising effects of
detention and to help prisoners maintain contact with the family, the
workplace and society as far as possible.
The Bill’s sponsors felt that preparation for release was
important. The explanatory memorandum is very clear on this point:
“for prisoners who may be expected to reintegrate into society,
instead of prison, which ‘disrupts the immediate past and the
present, sentences must be found which prepare for the future, a
future which will be lived in freedom’”.
Prison
leave forms part of this approach. As stated in the report by the
Legal Affairs Committee on the Bill, the aim of “this measure
is to be viewed in the context of individualised treatment and in the
light of a guidance plan. Need it be pointed out that granting such a
measure should encourage prisoners’ gradual social
rehabilitation and lessen the tensions caused by prison life? ...
Prison leave serves as a natural means of transition between prison
life and life in the community ... Prison leave is a useful
transitional measure which considerably increases the prisoner’s
prospects of social reintegration after serving the sentence”.
In this connection, prison leave consists initially of occasional
short periods of leave which, if the prisoner shows signs of
progress, are then granted on a more regular basis for periods of
several days, leading to a semi-custodial regime which may be
followed by conditional release.
The
competent authority for granting prison leave is the Attorney General
or his or her representative. For custodial sentences of more than
two years, as in the instant case, the decision to grant prison leave
is taken in accordance with a majority decision of a Prison Board
comprising, in addition to the Attorney General or his or her
representative, a judge and a public prosecutor (section 12 of the
Law of 26 July 1986). However, during the drafting of the Law of 26
July 1986, “the Government, not having envisaged amending the
regulations on this point, nevertheless took the view that a reform
appeared desirable to address criticisms of the quasi discretionary
powers enjoyed by the Attorney General or his or her representative
in ruling on the practical execution of custodial sentences”.
No specific appeal is provided for in the Law of 26 July 1986, for
instance to the criminal courts.
Lastly,
a study of the comparative law reveals that, whatever the competent
authority, reasons for the decision are usually required, as is the
possibility of review by an administrative or judicial body. In
France, for example, prior to the Law of 9 March 2004, which now
provides that orders concerning matters such as temporary leave of
absence may be challenged by means of an appeal to the
post-sentencing division of the Court of Appeal by the prisoner,
State Counsel or Principal State Counsel and even by means of an
appeal to the Court of Cassation, our Court noted in the Schemkamper
v. France judgment that, at the material time, orders concerning
temporary leave of absence could not be challenged by the prisoner,
resulting in a violation of Article 13 of the Convention “on
account of the absence in domestic law of a remedy by which the
applicant could have challenged the decision to refuse him leave of
absence”.
Article
6 of the Convention
Applicability
While
the Convention institutions have traditionally taken the view that
Article 6 is in principle not applicable to proceedings concerning
the execution of sentences, a certain trend can be observed in the
case-law regarding proceedings conducted in prison. Thus, the Court
recently held that Article 6 § 1 was applicable under its civil
head to disputes concerning security measures (placement in a
high-security cell or a high-supervision unit)
and disciplinary proceedings.
First
of all, as regards the existence of a “right”, the
majority dismisses it categorically on the grounds that prison leave
is classified in the Law of 26 July 1986 as a “privilege”
rather than a right. This argument does not appear to us to be
decisive.
In
the same way as the concept of a “criminal” charge, the
term “right” in Article 6 is an autonomous concept which
should be defined in the light of the object and purpose of the
Convention and does not necessarily depend on the classification
adopted in domestic law. Otherwise, this issue would be determined
differently in different member States in relation to the same
measure. In addition, the Court has already accepted “that the
mere fact that the wording of a legal provision affords an element of
discretion does not in itself rule out the existence of a right”
(see Lambourdière v. France, 2 August 2000, § 24,
and Camps v. France (dec.), 23 November 1999). Lastly, the
prevailing views of experts in criminal law and criminology have
changed radically regarding the purposes and functions of sentences.
Prison leave is not a special favour, or a privilege, or a
concession, or an indulgence; like any other arrangements for the
execution of custodial sentences, it is a necessary measure in terms
of preparing for and envisaging the prospect of the prisoner’s
release. If the measure proves a failure, it will not be renewed, and
continued supervision and surveillance will thus remain possible.
Accordingly, the fact that a post-sentencing measure is classified as
a “privilege” in domestic law is not sufficient, in our
view, to deprive persons laying claim to it of the right to have
their case heard in accordance with the principles enshrined in
Article 6 of the Convention.
In
the present case the existence of such a right has been implicitly
acknowledged in domestic law, since the applicant was able to lodge
an application with the administrative courts for judicial review of
the first two refusals by the Prison Board. Although the
administrative courts declined jurisdiction, this was for a different
reason, namely because the granting or refusal of the privilege of
prison leave was a measure which altered the scope of the sentence
imposed on the applicant. Accordingly, the impugned decisions, given
their nature, could not be the subject of an application to the
administrative courts. The Government’s representative had,
moreover, agreed, without any reservations, to discuss the merits of
the case brought before the Administrative Court. The situation
before us could be said to resemble, mutatis mutandis, the
Vilho Eskelinen and Others v. Finland [GC] judgment of 19
April 2007 concerning the applicability of Article 6 under its civil
head to civil servants and State officials, where the Court found
that “in very many Contracting States access to a court is
accorded to civil servants, allowing them to bring claims for salary
and allowances, even dismissal or recruitment, on a similar basis to
employees in the private sector” (§ 57). The Court
therefore concluded that “in order for the respondent State to
be able to rely before the Court on the applicant’s status as a
civil servant in excluding the protection embodied in Article 6 ...
the State in its national law must have expressly excluded access to
a court for the post or category of staff in question” (ibid.,
§ 62).
As
to the civil nature of the right, it is true that, in its Aerts
v. Belgium judgment of 30 July 1998, the Court held, in
relation to measures for the detention of mentally ill persons, that
the right to liberty was a civil right. Unfortunately, it did so with
very little explanation, which weakened the judgment’s impact.
However, we can apply in the instant case the reasoning adopted by
the Grand Chamber in the Enea v. Italy judgment of 17
September 2009 and reproduced in the Stegarescu and Bahrin
v. Portugal judgment of 6 April 2010, which has become
final. Firstly, the Court reiterates that “Article 6 § 1
extends to ‘contestations’ (disputes) over civil
‘rights’ which can be said, at least on arguable grounds,
to be recognised under domestic law, irrespective of whether they are
also protected under the Convention”. It further observes that
“some of the restrictions alleged by the applicant – such
as those restricting his contact with his family and those affecting
his pecuniary rights – clearly fell within the sphere of
personal rights and were therefore civil in nature” (§
103).
This
position certainly corresponds to the present case since it is not
disputed that the applicant requested prison leave not only for
family reasons but also for professional and social reasons. The
right in question is “civil” in nature, particularly on
account of the importance of the measures assisting the prisoner’s
reintegration into society. What was at stake in the proceedings
concerning his various requests for prison leave was therefore his
interest in making new arrangements for his professional and social
life on his release from prison, a matter falling within the sphere
of personal rights. More specifically, the applicant’s requests
for prison leave in 2005 were intended to enable him to exercise
outside prison his right of contact with his children, who were
reluctant to visit him there. His other requests were made with a
view to his professional and social reintegration, his aim being to
prepare the ground for securing gainful employment, in particular
with a view to paying compensation to the victim and settling his
debts. The refusals by the Prison Board were directly decisive for
the civil right in question.
To
acknowledge, for the purposes of Article 6, that a prisoner has a
“civil right”, particularly in view of the importance of
measures to assist the prisoner’s social reintegration, does
not entail departing from previous case law but rather applying
and developing it in the context of the prisoner’s external
legal status, that is, in the context of measures concerning his
gradual return to the community (see paragraph 3 above). Where the
first stages of the prisoner’s return to the community depend
on another person’s good will (or lack of it), the entire
resettlement plan can be thwarted.
Lastly,
according to the settled case-law of the Convention institutions,
Article 6 § 1 is applicable only if there is a genuine and
serious “dispute” (see Sporrong and Lönnroth v.
Sweden, 23 September 1982, § 81). The dispute may
relate not only to the existence of a right but also to its scope and
the manner of its exercise (see, for example, Zander v. Sweden,
25 November 1993, § 22), and the outcome of the proceedings must
be directly decisive for the right in question, mere tenuous
connections or remote consequences not being sufficient to bring
Article 6 § 1 into play (see, for example, Masson and Van Zon
v. the Netherlands, 28 September 1995, § 44, and Fayed v.
the United Kingdom, 21 September 1994, § 56). In the present
case it seems clear that a “dispute” arose when the
Prison Board refused the various requests for prison leave based in
particular on the applicant’s plans for his reintegration into
society and the workforce. That dispute, which was genuine and
serious, related to the actual existence of a civil right, within the
meaning of the Convention, asserted by the applicant. By applying to
the administrative courts for judicial review, the applicant sought
to have the case referred to the competent authority so that the
latter could rule afresh on his requests for prison leave. The
outcome of the proceedings before the administrative courts was
therefore directly decisive for the right at stake.
Merits
Since
the dispute over the decisions taken in respect of the applicant has
to be regarded as a dispute relating to “civil rights and
obligations”, he was entitled to have his case heard by a
“tribunal” satisfying the conditions laid down in Article
6 § 1 (see Le Compte, Van Leuven and De Meyere v. Belgium,
23 June 1981, § 50). However, for the purposes of Article 6 §
1 a tribunal need not be a court of law integrated within the
standard judicial machinery. What is important to ensure compliance
with Article 6 § 1 are the guarantees, both substantive and
procedural, which are in place (see Rolf Gustafson v. Sweden,
1 July 1997, § 45). Thus, a “tribunal” is
characterised in the substantive sense of the term by its judicial
function, that is to say determining matters within its competence on
the basis of rules of law and after proceedings conducted in a
prescribed manner (see Argyrou and Others v. Greece, 15
January 2009, § 24). It must also satisfy a series of further
requirements – independence, in particular of the executive;
impartiality; duration of its members’ terms of office;
guarantees afforded by its procedure – several of which appear
in the text of Article 6 § 1 itself (see Demicoli v. Malta,
27 August 1991, § 39). With that proviso, in the case before us
the Prison Board could not in itself be said to satisfy the
requirements of a “tribunal” within the meaning of
Article 6 § 1.
Further
to each of the applicant’s requests for prison leave between
2003 and 2006, he was informed through the intermediary of the prison
governor of the decisions of 5 November 2003, 17 March 2004,
21 September 2004, 14 December 2004, 23 March 2005, 12 July 2005
and 4 May 2006 refusing the requests, without the Prison Board
having determined the matter “after proceedings conducted in a
prescribed manner” (see, conversely, Argyrou and Others,
cited above, § 25). One of the problems here lies in the reasons
given. As can be seen, the majority of the requests for prison leave
were refused for the reason, in particular, that the applicant had
not compensated the victim. This results in a vicious circle since,
if the prisoner is unable to engage in gainful employment, the
prospect of compensating the victim will become largely illusory. Of
course, it is not for our Court to assess the merits of the reasons
given, which is the task of the domestic court. However, and this is
precisely the problem, the reasons given in the present case were
brief in the extreme.
In
addition, the Attorney General’s representative responsible for
the execution of sentences (who had sat on the Prison Board that
refused the applicant’s first two requests for prison leave)
was the same person who, in her capacity as advocate-general
exercising the functions of a public prosecutor, had sought the
applicant’s conviction before the Court of Appeal. In more
general terms, the Attorney General or his or her representative,
who, according to the law, is the decision-making authority when it
comes to the execution of sentences, clearly cannot be considered to
be an independent and impartial judicial authority for the purposes
of Article 6 (see, mutatis mutandis, Medvedyev and Others
v. France [GC], 23 March 2010, and Moulin v. France,
23 November 2010).
There
is also the question of appeal. The Government emphasised the
discretionary nature of the domestic authorities’ decision on
requests for prison leave. This implies that even if all the
conditions/ criteria for granting prison leave are satisfied, the
Prison Board may still refuse the request. Even assuming that the
existence of such discretionary power is legitimate with regard to
the execution of sentences, it cannot be consistent with the
principle of the rule of law unless it is subject to review. Where
there is no such review, the power becomes arbitrary.
The
applicant made an application for judicial review of the first two
refusals by the Prison Board. The Administrative Court and the Higher
Administrative Court both found that they lacked jurisdiction to
examine the application on the ground that the granting or refusal of
the privilege of prison leave was a measure which altered the scope
of the sentence imposed on the applicant. Accordingly, the impugned
decisions, given their nature, could not be the subject of an
application to the administrative courts. This hints at the need to
have a specific post-sentencing judge or court, as is fortunately the
case today in many countries. In the present case, the lack of any
decision on the merits of the application meant that the
administrative courts’ review of the Prison Board’s
decisions was deprived of any effect (see, mutatis mutandis,
Enea v. Italy [GC], 17 September 2009, § 82, and Ganci
v. Italy, 30 October 2003, §§ 29 and 30).
In
conclusion, we are of the view that the application was admissible
and that there has been a violation of Article 6 of the Convention.
