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

1. 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

2. 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.

3. 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.

4. 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 family, the workplace and society as far as possible [1] . 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’” [2] .

5. 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” [3] . 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.

6. 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” [4] . No specific appeal is provided for in the Law of 26 July 1986, for instance to the criminal courts.

7. 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 Schemkamper v. France 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” [5] .

Article 6 of the Convention

Applicability

8. 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) [6] and disciplinary proceedings [7] .

9. 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.

10. 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 civil right” (see Lambourdière v. France , no. 37387/97, § 24, 2 August 2000, and Camps v. France (dec.), no. 42401/98, 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 arrangement 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.

11. 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 judgment ([GC], no. 63235/00, ECHR 2007-II) 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).

12. As to the civil nature of the right, it is true that in its Aerts v. Belgium judgment (30 July 1998, Reports of Judgments and Decisions 1998-V) 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 Enea and reproduced in Stegarescu and Bahrin (both cited above), 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” (see Enea , cited above, § 103).

13. 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.

14. 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.

15. 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, Series A no. 52). 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, Series A no. 279-B), 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, Series A no. 327-A, and Fayed v. the United Kingdom , 21 September 1994, § 56, Series A no. 294-B). 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

16. 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, Series A no. 43). 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, Reports 1997 ‑ IV). 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 , no. 10468/04, § 24, 15 January 2009). 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, Series A no. 210). 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.

17. 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, 21 September and 14 December 2004; 23 March and 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.

18. In addition, the Attorney-General’s representative responsible for the execution of sentences (who had sat on the Prison Board that had 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], no. 3394/03, ECHR 2010, and Moulin v. France , no. 37104/06, 23 November 2010).

19. 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.

20. 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 , § 82, and Ganci , §§ 29-30, both cited above).

21. 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.

[1] . See A. and D. Spielmann, Droit pénal général luxembourgeois , Brussels, Bruylant, 2nd ed., 2004, pp. 539 et seq.

[2] . Bill on certain means of executing custodial sentences, Explanatory memorandum, Doc. parl., no. 2870, Chamber of Deputies, ordinary session 1984-85, 27 February 1985, p. 4, citing a study by P. Graven, “La réforme pénale européenne et la révision partielle du C.P.S.”, Rev. pén. suisse, 1969, pp. 225 et seq.

[3] . Bill on certain means of executing custodial sentences, Report by the Legal Affairs Committee, Doc. parl., no. 2870, Chamber of Deputies, ordinary session 1985-86, 5 June 1986, p. 3.

[4] . A. and D. Spielmann, Droit pénal général luxembourgeois , op. cit., pp. 541-42. See also Bill on certain means of executing custodial sentences, Explanatory memorandum, Doc. parl., no. 2870, Chamber of Deputies, ordinary session 1984-85, 27 February 1985, p. 3.

[5] . Schemkamper v. France , no. 75833/01, § 44, 18 October 2005.

[6] . Ganci v. Italy , no. 41576/98, §§ 20-26, ECHR 2003-XI; Musumeci v. Italy , no. 33695/96, § 36, 11 January 2005; Enea v. Italy [GC], no. 74912/01, § 107, ECHR 2009; and Stegarescu and Bahrin v. Portugal , no. 46194/06, § 39, 6 April 2010.

[7] . Gülmez v. Turkey , no. 16330/02, §§ 27-31, 20 May 2008.