Information Note on the Court’s case-law 136

December 2010

Boulois v. Luxembourg - 37575/04

Judgment 14.12.2010 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Civil rights and obligations

Prison board’s repeated refusal, with no right of appeal to the administrative courts, to grant prisoner temporary leave: violation

Article 46

Respondent State required to take all necessary measures to ens ure that requests relating to execution of sentence can be examined by a court satisfying Article 6 § 1 requirements

[This case was referred to the Grand Chamber on 11 April 2011]

Facts – The applicant is currently serving a fifteen-year prison sentence. Between 2003 and 2006 he submitted six requests for temporary leave of absence (“prison leave”), stating, in particular, that he wished to carry out administrative formalities and to tak e courses to gain qualifications. All his requests were refused by the prison board. The applicant applied to the first-instance administrative court for judicial review of the first two refusals, but the court ruled that it lacked jurisdiction to examine the matter. The higher administrative court upheld that ruling.

Law – Article 6 § 1

(a) Admissibility – It was clear that a dispute (“ contestation ”) had arisen once the prison board had decided to refuse the various requests for prison leave submitted in connection with plans for the applicant’s occupational and social resettlement. The dispute, which had been genuine and serious, had related to the actual existence of the right to prison leave, and had been pursued before the administrative courts. The ou tcome of the proceedings before the prison board and the administrative courts had been directly decisive for the right alleged in the present case. Furthermore, in view of the existence of legislation and regulations on the subject, the applicant could ar guably maintain that, as a prisoner, he was entitled to prison leave, provided that he satisfied the necessary requirements. Moreover, the restrictions on the right to a court alleged by the applicant related to a set of prisoners’ rights which the Council of Europe had recognised by means of the European Prison Rules. Accordingly, a dispute over rights for the purposes of Article 6 § 1 could be said to have existed in the present case. In addition, the dispute had raised the issue of the applicant’s intere st in reorganising his professional and social life on leaving prison. The alleged restriction concerned personal rights, bearing in mind the importance of the applicant’s interest in resettling in society. His social rehabilitation was vital for the prote ction of his right to lead a private social life and to develop his social identity. Accordingly, the applicant’s complaint was compatible ratione materiae with the Convention in so far as it concerned the civil aspect of Article 6.

Conclusion : admissible (majority).

(b) Merits – It appeared from a 1986 law that decisions on requests for prison leave were taken by Principal State Counsel or his representative, in accordance with a majority decision by a prison board comprising, as well as Prin cipal State Counsel or his representative, a judge and a member of State Counsel’s Department. The law in question did not provide for public hearings before the board. After submitting each of his requests for prison leave, the applicant had been notified of the refusal through the prison governor, without the prison board having determined the matter after proceedings conducted in a prescribed manner. That finding was sufficient in itself to conclude that the prison board did not satisfy the requirements of a tribunal within the meaning of Article 6 § 1. However, there would not have been a violation of the Convention had the proceedings in question been subject to subsequent control by a judicial body with full jurisdiction providing the guarantees of Art icle 6. The applicant had applied for judicial review of the prison board’s first two refusals of his requests, but both the first-instance and the higher administrative courts had ruled that they lacked jurisdiction to deal with the matter. Since the admi nistrative courts had not considered the merits of the application for judicial review, it had to be concluded that the lack of any decision on the merits had nullified the effect of the administrative courts’ review of the prison board’s decisions. Furthe rmore, the 1986 law did not afford prisoners any other remedies in this sphere.

Conclusion : violation (four votes to three).

Article 41: EUR 5,000 in respect of non-pecuniary damage.

Article 46: The respondent State and all its authorities were called upon to take all necessary steps to ensure that applications concerning the execution of sentences could be examined by a court satisfying the requirements of Article 6 § 1.

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

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