Information Note on the Court’s case-law 214

January 2018

Etute v. Luxembourg - 18233/16

Judgment 30.1.2018 [Section IV]

Article 5

Article 5-4

Review of lawfulness of detention

Inability to obtain review of order revoking release on licence: violation

Facts – In November 2010 the applicant was sentenced by the Court of Appeal to a thirty-month prison term for a drugs offence. He served part of his sentence before being released on licence in March 2013. The agreement reached in that connection between the Attorney General’s representative and the applicant set out various conditions to be met, including not frequenting drug users and not committing any offe nce. The agreement stated that, if those conditions were not met, the applicant’s licence would be revoked and he would have to serve the remainder of his sentence.

In October 2015 the applicant’s detention was ordered in connection with a further drugs of fence and he was remanded in custody.

In November 2015 the Attorney General’s representative revoked the licence on the grounds that the applicant, having been made the subject of a detention order, no longer complied with the conditions of the 2013 agreem ent.

Law – Article 5 § 4: The applicant’s release on licence had interrupted the execution of the sentence imposed in 2010. The time spent on licence had not been deducted from the length of the sentence.

The applicant’s recall to prison in November 2015 t o serve the portion of his sentence remaining to be served when he had been released on licence had been based on a fresh decision, namely the decision to revoke his licence. This had resulted solely from the finding that the applicant no longer fulfilled the conditions of his release on licence, and in particular the conditions stipulating that he must not commit any further offences and must no longer frequent drug users. In those circumstances, the issue of compliance with the applicant’s licence conditi ons had been decisive for the lawfulness of his detention from November 2015 onwards. This had been a new issue concerning the applicant’s recall to prison, arising out of the revocation of his licence. Accordingly, the domestic legal system had been requi red to afford the applicant access to a judicial remedy satisfying the requirements of Article 5 § 4 of the Convention, in order for that issue to be determined.

Under the Criminal Code, decisions concerning release on licence were taken by the Attorney General. According to the Court’s case-law, however, a public prosecutor could not be regarded as a “court” satisfying the requirements of Article 5 § 4.

The legisl ation to date made no provision for lodging an appeal in order to challenge the lawfulness of a decision to revoke a licence.

These considerations were sufficient for the Court to conclude that, from the point at which his licence had been revoked in Novem ber 2015, the applicant had not had a judicial remedy enabling him, as required by Article 5 § 4, to obtain a review of the lawfulness of his detention in that connection and, if it was found to be unlawful, to be released.

Conclusion : violation (unanimous ly).

Article 41: finding of a violation sufficient in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Ivan Todorov v. Bulgaria , 71545/11, 19 January 2017, Information Note 203 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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