Resolution CM/ ResDH (2010)47 [1]

Execution of the judgment of the European Court of Human Rights

Schemkamper against France

(Application No. 75833/01, judgment of 18 October 2005, final on 18 January 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concern the l ack of an effective remedy whereby the applicant might challenge a decision of the judge responsible for the execution of sentences (violation of Article 13) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examina tion of this case.

Appendix to Resolution CM/ ResDH (2010)47

Information about the measures to comply with the judgment in the case of

Schemkamper against France

Introductory case summary

This case concerns the lack of an effective remedy, in 2001, whereby the applicant, who was serving a 20 ‑ year criminal sentence, might challenge a decision of the judge responsible for the execution of sentences who rejected his request for temporary leave from prison for family reasons (violation of Article 13).

The European Court noted in particular that, at that time, orders on applications for prison leave delivered by the judge responsible for the execution of sentences were characterised, by the law itself, as being measures of judicial administration against which only the public prosecutor (i.e. not the detainee) had a right of appeal before criminal courts.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

793,13 EUR

793,13 EUR

Paid on 26/06/2006

b) Individual measures

The European Court rejected the applicant ’ s claims concerning alleged pecuniary damage, and deemed that the finding of the violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

No other individual measure appears necessary.

II. General measures

As it stands in the judgment, Law No. 2004-204 of 09/03/2004 provided full judicial control of the decisions of the judge responsible for the execution of sentences. Thus, since 31/12/2005, the decisions of this judge may also be contested by the convicted person through an appeal (in cases similar to the applicant ’ s, appeals to the President of the section of the Court of Appeal in charge of the execution of sentences). Furthermore, since 01/01/2005 it is possible to lodge an appeal on points of law against decisions delivered on appeal.

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies