CASE OF BOULOIS v. LUXEMBOURG
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Dean Spielmann;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto
10. The applicant was born in 1972. When the application was lodged he was being held in Schrassig Prison. He is currently being held under a semicustodial regime in Givenich Prison. 11. On 15 December 1998 the applicant was remanded in custody. 12. 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. 13. The applicant was granted a divorce on 19 October 2000. He provided the Court with various judicial decisions given between 14 June 2001 and 13 April 2005 concerning his right of contact with his three minor children. 14. While in prison the applicant submitted several requests for temporary leave of absence (“prison leave”), which are the subject of the present case. 15. The applicant stated that he had submitted a request for prison leave to the Attorney General in October 2003. 16. 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 detailed as follows: “- go to a photographer or photo booth to obtain passport photos; - go to the Transport Ministry to renew my driving licence (medical certificate already obtained); - go to the Embassy to renew my consular registration card; - go to see Mr [B.] at Luxembourg police station, Investigations Division, to pick up an envelope containing documents needed by a former client; - go to see the manager of [B.] bank in Esch/Alzette; - go to the taxation office in Esch/Alzette; - meet a group of friends in a restaurant near Esch/Alzette; - go to my flat in Differdange to collect the remaining documents for the same client; - take some measurements for items I might make in the [prison] workshop; - go to Differdange town hall for a personal interview with the mayor; - go to the home of Mrs [S.] in Luxembourg to meet her husband; - go to my lawyer’s office to hand over the missing documents for my former client; - if possible, go to the bookshop near [S.]’s house.” In his letter, 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 engaged in repaying my loans and other debts to the various authorities under the arrangements entered into with the legal service in order to avoid an unending series of seizures of my property. ...” 17. On 29 October 2003 a psychologist issued a certificate (confirmed on 25 November 2003 by a second psychologist) 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. The psychologist stressed that the applicant had been anxious to understand what had driven him to commit the offences and to do everything possible to avoid reoffending. 18. On 5 November 2003 the Attorney General’s representative sent a memorandum to the prison governor worded 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.” 19. On 17 January 2004 the applicant reiterated his request, stating that the reasons and the itinerary for the day’s prison leave remained the same. On 27 January 2004 his lawyer submitted arguments in support of the applicant’s request and concluded as follows: “... 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 compensation to the civil party as quickly as possible. ...” 20. On 17 March 2004 the Attorney General’s representative sent a memorandum to the prison governor containing the following passages: “... 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.” 21. 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. 22. 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, which had not raised an objection alleging lack of jurisdiction, left the matter to the discretion of the court. 23. On 23 December 2004 the Administrative Court ruled that it did not have 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 part of the prison, and in particular imposing a strict confinement regime – see Administrative Court ruling no. 14568 of 10 July 2002), which are taken in the context of enforcement by the prison service, and decisions which may alter the nature or scope of a sentence handed down by the ordinary courts, which are to be classified as judicial rather than administrative decisions. In the instant case it must be acknowledged 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, bearing in mind their nature as identified above, the impugned decisions cannot be the subject of an application to the administrative courts... .” 24. On 14 April 2005 the Higher Administrative Court (cour administrative) upheld this ruling, as follows: “The [applicant] submitted that the court erred in finding that it did not have 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 nature of the execution of the sentence handed down 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 ruling that it did not have 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 relation to a body which has no power to rule on the merits. ...” 25. On 11 August 2004 the applicant submitted a third request for prison leave, in the following terms: “... I have successfully attended several courses run by the CEP-L [Chamber of Commerce] 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 for the sake of feasibility it is now essential for me to be able to attend the courses of the autumn session at the CEP-L itself. ...” 26. 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 made no substantial efforts to date towards paying compensation to the victim. The decision also referred to the reasoning of the decision of 5 November 2003. 27. In a fourth request, submitted on 24 February 2005, the applicant observed, 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 make arrangements for the repayment of his debts to the various institutions and the civil party. 28. On 23 March 2005 his request was refused for failure to give reasons. 29. On 12 July 2005 a fifth request for prison leave (not provided to the Court) was refused on the ground that there was a risk that the applicant would not return to prison. 30. On 4 May 2006 a sixth request for prison leave (not provided to the Court) was refused on the ground that the applicant had been making no efforts, in particular with regard to paying the civil damages, and was refusing to abide by the conditions imposed on him. 31. Following the refusal of this request, 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 requirements he was expected to meet with a view to his reintegration in society, so that he could take steps to comply with them. On 6 November 2006 the Attorney General’s representative decided that he would not, as matters stood, reply to the various letters, which did not call for any comment. 32. 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. The applicant claimed that the meeting had never taken place. 33. According to the case file, in April 2009 the applicant was transferred to a semi-custodial regime in Givenich Prison, where he carried on paid work as a cook. On 10 February 2010 he started up a business as a sole trader. 34. Section 1 of the Law of 26 July 1986 on certain methods of execution of custodial sentences (hereafter “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: execution in instalments, semi-custodial regime, prison leave, suspension of sentence, early release.” 35. In the explanatory memorandum to the draft of the 1986 Law, the purpose of the legislation is explained as follows: “... the time seems right to provide a sound legal basis for arrangements for the execution of custodial sentences which, within certain limits, allow convicted prisoners to make trips outside prison or to serve their sentence in instalments, so that they can maintain or resume social and professional contacts. Since sentencing lost its expiatory character and took on an essentially sociological role with a neartherapeutic aspect, the efforts of the authorities responsible for the execution of sentences have been directed mainly at the social rehabilitation of prisoners and at helping them settle or resettle in a stable social environment. In striving to achieve this, it is important in particular to ensure that prisoners can maintain their family and social ties, where such exist, and to prepare them for release by enabling them, possibly by means of preparations for an occupation or profession, to find work and adapt to responsible life outside prison. ...” 36. Section 6 of the 1986 Law defines prison leave as follows: “Prison leave shall consist of permission to leave prison either for part of the day or for periods of twenty-four hours. The time shall count towards the length of the sentence.” 37. Section 7 of the 1986 Law provides: “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 release on licence.” 38. Section 8 of the 1986 Law provides that prison leave may be granted to prisoners convicted of a first offence once a third of their sentence has been served. 39. Under Section 13, consideration must be given to the personality of the prisoner, his or her progress and the risk of a repeat offence. 40. Under the terms of the Grand-Ducal Regulation of 19 January 1989 laying down the 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 incapacitated or unable 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). 41. Section 12 of the 1986 Law states: “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 a 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.” 42. Section 2 of the Law of 7 November 1996 on the organisation of the administrative courts provides as follows: “(1) The Administrative Court shall rule on applications alleging incompetence, excess or misuse of authority and breaches of the law or procedures designed to protect private interests, lodged in respect of any administrative decision for which no other remedy exists under the laws and regulations. ... (3) Unless otherwise provided by law, an appeal may be lodged with the Higher Administrative Court against the decisions of the Administrative Court referred to above.” 43. In his activity report on the year from 1 October 2007 to 30 September 2008 the Ombudsman outlined the terms of Recommendation No. 30, the relevant parts of which read as follows: “... the decision-making procedures regarding the execution of sentences, which are currently the sole responsibility of the Attorney General’s representative or the Prison Board ..., are no longer compatible with the adversarial principle and the right of appeal before an independent and impartial body; ... along the lines of what has been done in other countries, and in particular in France, a thorough overhaul of the system of execution of sentences is called for. ... [it is necessary] to review the organisation of the prison service as a whole and to consider creating the office of post-sentencing judge and an autonomous DirectorateGeneral of Prisons which is separate from the Attorney General’s Department. ... Each District Court would have a post-sentencing judge; for appeal cases before the Supreme Court of Justice there would be a post-sentencing adviser. These judicial officers would be responsible for ruling on all applications submitted to them under Article 100 of the Criminal Code, applications for transfer from [the closed prison] to the [semi-open prison], requests for prison leave... ... The adversarial procedure would be triggered by an application to be lodged by the prisoner or his or her lawyer. After hearing the public prosecutor’s address and the submissions of the prisoner, assisted by his or her representative if appropriate, the post-sentencing judge would give a decision against which the prisoner and the public prosecutor could appeal within a period to be specified. ...” 44. In his activity report on the year from 1 October 2009 to 30 September 2010 the Ombudsman described the following developments: “... On 20 September 2009 the new Minister of Justice proposed a meeting with the Ombudsman with a view to discussing the action to be taken in response to the latter’s recommendation. This invitation followed the undertaking given by the Government to examine in detail the various recommendations made by the Ombudsman concerning the functioning of the judicial system and in particular the introduction of a post-sentencing judge. ... On 17 March 2010 the Minister of Justice outlined to the press the planned reform of the prison system. The Ombudsman welcomes the initiative taken by the Minister towards a thorough reform of the prison system aimed at creating a prison environment conducive to the social rehabilitation of prisoners with a view to their future reintegration into society. The Ombudsman welcomes the Minister’s intention to act upon his recommendation... As regards the execution of sentences and more specifically the decisions falling within the remit of the representative responsible for the execution of sentences or the Prison Board, the Ombudsman intends to pursue the idea of instituting a post-sentencing judge. The Ombudsman notes that in a recent statement in a Luxembourg daily newspaper, the Minister spoke in favour of handing over to a judicial body some of the powers currently exercised by the Attorney General’s representative responsible for the execution of sentences or by the Prison Board.” 45. The relevant parts of the Recommendation read 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: ... d. 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. ...” 46. The relevant parts of the Recommendation read 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. ...” 47. The relevant parts of the Recommendation are worded 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; ...”