ITEMID: 001-83547
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: AL FAYED v. FRANCE
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: 1. The applicant, Mr Mohamed Al Fayed, is an Egyptian national who was born in 1933 and lives in London. He was represented before the Court by Maître B. Dartevelle, a lawyer practising in Paris.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant's son Emad Fayed was killed in a road traffic accident on 31 August 1997 in Paris. He was travelling in the car with: Lady Diana Spencer, the Princess of Wales, who was taken by ambulance to La Pitié-Salpêtrière Hospital, where she died a few hours later after intensive surgery; Henri Paul, the driver of the vehicle, who died on the spot; and Mr Fayed's bodyguard, Trevor Rees-Jones, who was seriously injured.
4. At the request of the public prosecutor and Professor D. Lecomte, the requisitioned forensic pathologist, Chief Inspector Mules, a senior police officer with the serious crime squad, was present when the body of Diana Spencer underwent an external forensic examination, at 5.30 a.m., with no taking of body samples, and the officer was provided with the pathologist's report at 5.45 a.m. During the day, following an official ceremony, the coffin was conveyed in a cortege to Villacoublay airport, after a burial permit had been issued and the British authorities had made the necessary arrangements for repatriation of the body to the United Kingdom.
5. The body of the applicant's son was taken to the Paris Institute of Forensic Medicine for an examination by Professor Lecomte, with the assistance of Chief Inspector Mules. The police officer's report mentioned that the pathologist's report had been given to him at 7.45 a.m. and that “blood, urine and other usual samples” had been taken.
6. The pathologist's report concerning the autopsy on the driver's body was given to Chief Inspector Mules at 10 a.m.
7. On 2 September 1997 the public prosecutor of Paris applied for the opening of a judicial investigation in respect of charges of unintentional homicide and wounding and failure to assist a person in danger. The case was assigned to an investigating judge at the Paris tribunal de grande instance and a second investigating judge was appointed later in the proceedings.
8. In a letter of the same date from one of his lawyers, the applicant applied to join the proceedings as a civil party.
9and in particular the press photographers' insistent and intense activity which culminated in their pursuit of the car in which the victims were travelling, ten photographers were placed under judicial investigation on charges of unintentional homicide and wounding and failure to assist a person in danger.
10. On 5 September 1997 Chief Inspector Mules drafted a report stating that, contrary to the indication on the report drawn up on the day of the autopsy, no samples had been taken from the body of the applicant's son and that the forensic pathologist had only carried out an external examination of the body in accordance with the instructions received.
11. On 20 October 1997 the investigating judge requested Professor Lecomte to provide all useful indications for the purpose of establishing whether or not the injuries on the bodies of the three victims had been such as to have resulted in their instantaneous death.
12. In a report of 6 November 1997 Professor Lecomte indicated that an external examination of the body of Emad Fayed could not by itself provide the answer to that question and that it would be necessary to examine the records of the emergency paramedics (the SAMU) present at the scene of the accident and the autopsy report. The expert pathologist also considered that the external examination of Diana Spencer's body and her surgical treatment were not sufficient either and that only an autopsy could provide additional information concerning organs.
13. It was also stated by the applicant that, from the beginning of the investigation, the investigating judge had decided to make enquiries in order to identify a vehicle and its driver that had been involved in the accident according to witnesses and in the light of technical analysis by the national gendarmerie. Those enquiries were discontinued in the course of the investigation.
14. On 25 February 1998 the investigating judge appointed Professors Lecomte and Lienhart as experts with the following assignments: to apprise themselves of all current and future material in the case file, documents from medical records to be obtained in France and any useful medical documents that might be forthcoming from the British authorities; to provide any useful medical indications, in particular on the exact causes, circumstances and precise time of the deaths and on the treatment dispensed at the scene of the crash; and, as regards Diana Spencer, to indicate what treatment was given to her in the ambulance and then at the hospital, and whether it was in conformity with current medical knowledge.
15. On 17 June 1998 the investigating judge supplemented the experts' assignment by authorising them to hear representations from any person other than those under judicial investigation and giving them the opportunity to consult specially qualified persons for the purpose of completing their assignment.
16. In their report of 11 November 1998 the two experts noted in particular that there had been no determination of blood group or biological examination in respect of Diana Spencer. They further indicated that they had visited London on 23 June 1998 to apprise themselves of the particulars of her autopsy and that they had met three doctors and a senior police officer during that visit. They had been informed by a forensic pathologist there that the description of the injuries had been made difficult by the fact that the body had been embalmed before departure from France. Moreover, the two French experts mentioned that copies of the autopsy reports had been given to them “on a personal basis”. The applicant indicated that since the documents had been supplied “on a personal basis” they had not been added by the experts to the case file.
17. The applicant further alleged that there had been a persistent rumour, relayed by numerous press articles and a certain number of published books that had been added to the investigation file, to the effect that the British and United States intelligence services had possessed material information on the circumstances surrounding the death of his son and the other passengers in the car. The applicant pointed out that, according to a number of documents in the investigation file, the judge had also received information to that effect from the French Embassy in Washington DC.
18. On 28 August 1998 the investigating judge examined R.T., a former officer of the British intelligence service MI6. R.T. complemented his statements by letters dated 7 October and 19 November 1998. In his letter of 19 November he mentioned the involvement of two counsellors at the British Embassy in Paris, who were presumed to be members of MI6. In another letter of 16 December 1998 he informed the judge that he had recently become aware of a new fact that might be of interest for the investigation into the deaths of Diana Spencer and Emad Fayed. That letter was not followed up and R.T.'s lawyer in turn wrote, without success, to the investigating judge to seek the examination of his client.
19. The investigating judge sent two letters, on 1 and 22 December 1998 to the Secretary for Political Affairs at the British Embassy in Paris. The Secretary replied on 16 December 1998 and 12 January 1999.
20. The applicant considered that there had not been any precise response, still less any statement under oath, concerning: the possibility, referred to by R.T., that Henri Paul had been a correspondent for British intelligence; the presence in Paris at the material time of the two above-mentioned counsellors to the British Embassy in Paris; and the presence of an unknown person, claiming to be a British photographer, seen in front of the Ritz before the departure of the vehicle by the photographers under investigation. Accordingly, he called for the examination of the two Embassy counsellors and the Secretary for Political Affairs, in order to shed light on certain questions. He also sought the examination of representatives from the United States National Security Agency (NSA), which he claimed had a file concerning surveillance of Diana Spencer. The applicant added that an official letter from the NSA confirmed the existence of such surveillance and of a 1,056-page file on the subject.
21. In a decision of 15 January 1999 the investigating judge dismissed a request for additional investigative measures made by the applicant on 15 December 1998 concerning the damaged vehicle, certain calls made by mobile phone at the material time and the area covered by cell sites. The judge also dismissed a request from Mr and Mrs Paul, submitted on 14 December 1998, also concerning mobile phones and the damaged vehicle but also seeking an additional expert's report on the level of carboxyhaemoglobin observed in their son's blood.
22. By notice of 29 January 1999 the judges investigating the unintentional homicide charges informed the applicant's counsel that their investigation appeared to be at an end and that they intended to transmit the case file to the public prosecutor. Counsel for the applicant replied in a letter and note dated 18 February 1999.
23. On 19 February 1999 the investigating judges dismissed the requests for examination of members of the British Embassy and the NSA. They also dismissed a request from Mr and Mrs Paul for a confrontation with experts. The applicant appealed.
24. In a judgment of 2 July 1999 the Indictment Division of the Paris Court of Appeal upheld the decisions of 15 January and 19 February 1999 dismissing the requests for investigative measures.
25. In another judgment of the same date, the Indictment Division of the Paris Court of Appeal upheld the decision of 19 February 1999.
26. On 3 September 1999 the investigating judges discontinued the proceedings against all the individuals under investigation. They also dismissed a request from Mr and Mrs Paul seeking the restitution of certain samples taken from their son's body.
27. On 28 June 2000 counsel for the applicant wrote a letter to the public prosecutor at the Paris tribunal de grande instance seeking to ascertain: the reasons why the case file did not contain Diana Spencer's autopsy report, which had been given to the French experts by their British counterparts and information as to its destination; the circumstances in which the Princess' body had been embalmed while still in France and the reasons for that measure, with its prejudicial consequences for a subsequent autopsy; whether or not samples had been taken from the body of his son, in view of the corrective statement of 5 September 1997, and from that of Diana Spencer, having regard to the examinations carried out in London.
28. In a letter of 7 July 2000 the public prosecutor declared the requests inadmissible, having regard to the judicial investigation, the discontinuance decision and the referral of the case to the Indictment Division.
29. In a judgment of 31 October 2000 the Indictment Division of the Paris Court of Appeal upheld the discontinuance decision. Moreover, it held that the samples taken for analysis in the course of judicial proceedings were not covered by the provisions on restitution in the Code of Criminal Procedure. After noting that the request called into question the blood analyses, the court found that the requested action was not necessary for discovery of the truth, since the results of those analyses were not such as to exonerate from criminal responsibility any third party or parties that may have contributed to the damage.
30. In a judgment of the same date the Investigation Division ordered the return to the investigating judge of the case file opened on the basis of a complaint, with civil-party application, for unlawful invasion of privacy, requiring the judge to continue his investigation speedily as “the court [could not] but deplore the lack of activity for nearly three years”.
31. In a decision of 16 March 2001 the urgent applications judge of the Paris tribunal de grande instance dismissed a similar request from the Ritz Hotel, on the ground that only the criminal court which had ordered that those samples be administered by the courts was competent to order their restitution or to appoint an expert for their examination. The applicant considered that this decision contained a contradiction as it referred to a letter dated 10 October 2002 from the Principal Public Prosecutor at the Paris Court of Appeal to the parents of Henri Paul in which they had been assured that the samples would be retained for the subsequent proceedings, whilst it also quoted the said expert's comment on “the total unreliability of the blood alcohol analyses more than nine months after the samples were taken”.
32. On 14 December 2001 the Paris Court of Appeal upheld the decision. An appeal on points of law was lodged.
33. On 7 January 2002 Mr and Mrs Paul filed a criminal complaint with civil-party application for the falsification of data by the two court-appointed experts responsible for analysing the samples taken from their son's body, on account of failure to comply with the statutory procedures for taking samples and with conservation requirements, and in respect of subsequent work. Their complaint was based above all on the statements of one of those experts in the course of civil proceedings and on the results of a private analysis carried out by Professors Eisenmenger, Krompecher and Mangin, who had indicated a certain number of major shortcomings in the forensic examinations.
34. In a judgment of 3 April 2002, of which notice was given on 19 April 2002, the Court of Cassation declared inadmissible the applicant's appeal on points of law in respect of the third and fourth grounds of appeal (challenging the judgment upholding the dropping of charges of unintentional homicide and failure to assist a person in danger), on the basis of Article 575 of the Code of Criminal Procedure. The Court of Cassation dismissed the first ground of appeal (concerning the fact that the principal investigating judge and his deputy were joint signatories of the discontinuance decision) and the second (concerning the refusal to join these proceedings to those arising from the applicant's criminal complaint and civil-party application of 9 October 1997 for the offence of unlawful invasion of privacy committed against his son and the Princess of Wales).
35. On 29 August 2002 a decision refusing investigative measures was made in the context of the investigation opened following the criminal complaint filed by Mr and Mrs Paul on 7 January 2002 for falsification of data, proceedings in which the applicant had applied for civil-party status. Subsequently, in a judgment of 29 June 2004 the Investigation Division of the Paris Court of Appeal reclassified a discontinuance decision of 26 March 2003 as a decision not to open an investigation and ordered the continuation of the investigation by the judge assigned to the case. On 5 January 2005 the Court of Cassation granted an application by the applicant to disqualify the court from hearing the case on grounds of apprehended bias and transferred the case to the Versailles tribunal de grande instance for the judicial investigation, which is still in progress.
36. On 2 September 1997, in the letter in which the applicant applied for civil-party status in the judicial investigation opened that same day in respect of unintentional homicide and wounding and failure to assist a person in danger, he further indicated as follows:
“... presumably because a public prosecution may only be brought on the basis of a criminal complaint by the victim, his representative or his heirs, in accordance with the provisions of Article 226-6 of the [Criminal] Code, the originating application for a judicial investigation does not refer to the offence of attempted invasion of privacy, as provided for and punishable under Articles 226-1 and 226-5 of the Criminal Code, whereas it appears to me that such a charge is made out, as the photographers who were pursuing the vehicle before it crashed clearly intended to take photographs invading the privacy of Emad Fayed and Diana Spencer.
The prosecution of that offence is crucial, in so far as it had continuously been committed by the photographers throughout the day, but also, and above all, after the couple had left the Ritz Hotel and during the pursuit, of which the route, via the Alma underpass in particular, can be attributed solely to that pursuit.
The acts constituting that offence, in so far as they played a major part in the organisation of the departure from the hotel and in the driving of the car, form the initial and decisive element in the causal chain that led to the death of the three victims.
I therefore submit to you an additional application by Mr Mohamed Al Fayed, in his capacity as heir of Mr Emad Fayed, to be granted civil-party status in respect of the charge of attempted invasion of privacy, on the basis of Article 226-6 of the Criminal Code, kindly requesting you to transmit the file to the public prosecutor with a view to obtaining his authorisation for the extension of the judicial investigation to encompass that charge ...”
37. On 9 October 1997, as no reply to that request had been received, the applicant lodged with the senior investigating judge a criminal complaint, together with a civil-party application, for the criminal offence of unlawful invasion of privacy. He reiterated his arguments, emphasising the close connection between the subject-matter of this complaint and that of the investigation by the investigating judges, opened on 2 September 1997, and indicated “that it [would] therefore [be] particularly appropriate, for the proper administration of justice”, to entrust the complaint to the same judges by joining the two sets of proceedings.
38. The judicial investigation in respect of that complaint was entrusted to one of the two judges responsible for the investigation opened on 2 September 1997, but the two sets of proceedings were not joined.
39. On 12 March 1998 representations from the applicant were heard.
40. On 10 February 1999 the applicant's counsel wrote to the investigating judge to point out that the judge's inactivity in the investigation in respect of the complaint of 9 October 1997 “could be understood to the extent that the joinder of those proceedings with the main set of proceedings [had been] envisaged”, and to reiterate his request for joinder, in view of the lack of investigative measures, informing the judge that he would otherwise refer the matter to the Indictment Division.
41. On 15 February 1999 the investigating judge issued a warrant for purposes of “making enquiries to determine comprehensively the particulars of the offence and to identify all perpetrators, co-perpetrators and accomplices”, without any other indication as to the required measures.
42. In a note of 18 February 1999, drafted in response to the notice of 29 January 1999 in the other proceedings, the applicant's counsel dwelt at length on the facts that characterised the offence of unlawful invasion of privacy with which the photographers could be charged, and pointed out the case-law to the effect that such a charge was made out when photographs were taken through the windows of a private vehicle, adding that, on account of the inseverable nature of the facts, it was necessary to join the proceedings, as had been requested on several occasions, and that joinder would likewise be justified “if the investigating judges were to consider that the charge of unlawful invasion of privacy was actually made out by the findings of their principal investigation”.
43. The police officers to whom the warrant had been addressed reported back to the investigating judge on 20 September 1999, a few days after the discontinuance decision of 3 September 1999 in the investigation concerning the unintentional homicide charge. From 23 February 1999, the date of referral to them, until 20 September 1999, the date of their transmission report, the police officers drew up four reports simply concerning the contacts they had had with the investigating judge.
44. On 16 June 2000 the applicant requested the examination of the photographers whose presence at the scene of the accident had been established in the first investigation. His request having remained unanswered, he referred the matter to the Investigation Division by an application of 27 July 2000.
45. That Division examined the case file on 15 September 2000. In the course of the hearing the applicant learned from the public prosecutor's submissions that the case file contained only a copy of the discontinuance decision of 3 September 1999 and, moreover, that it had not been accompanied by a record of joinder of documents.
46. Furthermore, the case file having been transmitted to the Investigation Division without a copy first being made or kept, the applicant's counsel was unable to consult the file in the investigating judge's office after the hearing of 15 September 2000 in the Court of Appeal.
47. On 17 October 2000 the applicant brought proceedings against the Government Law Officer (agent judiciaire du Trésor) to obtain a ruling that the State's responsibility was engaged on account of gross negligence and denial of justice in the handling of his criminal complaint of 9 October 1997.
48. In a judgment of 31 October 2000 the Investigation Division of the Paris Court of Appeal ordered the return of the case file to the investigating judge in Paris for the continuation of the judicial investigation, with in particular the examination of certain expressly named individuals. In its judgment the Court of Appeal found in particular as follows:
“An examination of the case file reveals that, with the exception of representations from the civil party and a warrant upon which no action was taken, the successive investigating judges took no other investigative measure.
Contrary to the indications of counsel for the civil party, this case file does not contain a copy of the investigation file in respect of the charges of unintentional homicide and wounding and failure to assist a person in danger, but only a copy of the discontinuance decision.
... Under these circumstances it is appropriate to return the case file to the investigating judge in order that, notwithstanding the workload of his office, he should continue the investigation speedily ... ; the court cannot but deplore the lack of activity for nearly three years ...”
49. On 7 November 2002 the Paris tribunal de grande instance, ruling in the context of the proceedings brought on 17 October 2000, dismissed the applicant's complaint. He appealed against this judgment.
50. On 19 November 2002 the investigating judge issued a decision of partial discontinuance in respect of five of the individuals under investigation and ordered that three other photographers be committed to stand trial before the Paris Criminal Court for unlawful invasion of privacy. The case was set down for hearing on 24 October 2003.
51. In a judgment of 28 April 2003 the Paris Court of Appeal reversed the judgment of 7 November 2002, finding that the responsibility of the State was engaged on account of gross negligence in the administration of justice and of a denial of justice. Its main findings read as follows:
“... from the outset, it was established that the two judicial investigations opened were connected; the Government Law Officer, who accepts this, also acknowledges that 'the results of one and its procedural developments naturally influenced the conducting of the other'.
Accordingly, whilst the investigating judge is not obliged, procedurally speaking, to order the joinder requested insistently by Mr Al Fayed, the decision not to join the investigations – a measure of judicial administration left to the judge's discretion – is nevertheless part of the series of facts relied upon by the appellant in support of his claims.
Mr Al Fayed is justified in observing that, in deciding on the discontinuance of the unintentional homicide investigation, the investigating judge made an assessment of the facts set out in the complaint submitted to him for the second investigation ...
As has been claimed quite rightly by Mr Al Fayed, it transpires that, in order to assess criminal responsibility in the first investigation, it was necessary to examine the reality of the facts involved in the second and the potential classification of those facts as a criminal offence could not be indifferent to the first. Accordingly, contrary to the argument of the Government Law Officer it was not appropriate to carry out two successive investigations.
...
The inactivity of the successive judges ... was noted by this court in its judgment of 31 October 2000, when it found that it could not 'but deplore the lack of activity for nearly three years'.
...
It transpires from these findings that the judges responsible for conducting the two investigations into connected facts, while refusing to join the investigations, omitted for three years to take any investigative measures in respect of Mr Al Fayed's complaint.
...
Contrary to the argument of the Government Law Officer and contrary to the findings of the court below, the conduct of the investigating judges cannot be explained by the fact that the investigations carried out in the first set of proceedings were capable of ensuring progress in the second set, and thus that it was out of a concern for efficiency in establishing the truth that the investigating judges gave priority to investigative measures concerning the unintentional wounding and homicide charges and adopted a strategy which resulted in their investigating the two cases successively.
It has been noted, first of all, that the outcome of the second investigation was not indifferent to the first. Contrary to the argument of the Government Law Officer, the results of the investigations opened on charges of unintentional homicide and wounding and failure to assist a person in danger were certainly not decisive for the continuation of the proceedings concerning unlawful invasion of privacy. In addition, if the investigations conducted were useful to both sets of proceedings, the refusal to join them cannot be explained. Moreover, if that were the case, it was necessary to add to the case file of the second investigation any documents from the first that might be useful for the judicial investigation into the allegation of unlawful invasion of privacy, but this was only done after the bringing of the present proceedings. In this connection, the fact that the discontinuance decision was added to the case file was not sufficient to enable the investigation to progress, absent any other document. Lastly, when the judges had informed Mr Al Fayed that they considered the investigation opened on the unintentional homicide charge to be at an end, and then gave a decision of discontinuance, they had still not taken any measures in the other proceedings, the warrant having been issued with no prospect of execution for the reasons mentioned above.
The above facts reveal the inability of the public service to fulfil the mission vested in it, in so far as they led the civil party to believe that the judicial investigation in respect of his complaint had been impeded and that not all the investigative measures required for the establishment of responsibility in the death of his son had been taken, especially as, far from losing interest in the case or obstructing the discovery of the truth, Mr Al Fayed, through the intervention of his lawyers, was proposing that the judges proceed with detailed analysis of the facts by making use, in particular, of evidence gleaned in the unintentional homicide investigation, and was complaining of the 'regrettable separation' between the two investigations, the joinder of which he did not cease to demand.
In particular, these facts reveal a breach by the judiciary of their obligation to ensure that victims are informed and that their rights are guaranteed throughout any criminal proceedings, as provided for by Article 1-II of the Law of 15 June 2000, together with an infringement of the right of all members of the public to have meaningful and effective access to a court and to have their case heard within a reasonable time.
Although in the present case the proceedings nevertheless continued, that does not make good the shortcomings observed, since it was only after the action to establish State responsibility and the decision of the Indictment Division, ruling on an application from the civil party following the investigating judge's refusal to take the requested investigative measures, that the judicial investigation was effectively pursued, such that the civil party is justified in believing that if he had not taken those procedural initiatives the inactivity of the judges, even though they had been properly seised of the case, would have continued.
In addition to the gross negligence there has been a denial of justice. Contrary to the findings of the court below, the fact 'that through the normal operation of the institutions and in particular of the appeal mechanism and the possibility of review by the Indictment Division, the complainant has secured vindication of his rights and the continuation of the proceedings in the proper conditions' and that, the proceedings having been resumed, the case has been set down for hearing in the Criminal Court on 24 October 2003, does not suffice to cure the denial of justice.
The latter is characterised by the unjustified inactivity of the judges for almost three years, which led to a delay in the investigation of the case assigned to them, bearing in mind that the proceedings were only resumed as a result of the complainant's initiatives. There was consequently a delay in the examination of the case by the court, which did not take place until more than six years after the filing of the complaint and civil-party application, a period that does not constitute a reasonable time in the present case.
The responsibility of the State is therefore engaged.
On account of Mr Al Fayed's inevitable loss of confidence in the judicial institution responsible for elucidating the circumstances of his son's death, as a result of the said shortcomings, even though they occurred in the context of the proceedings concerning the offence of unlawful invasion of privacy, he has sustained non-pecuniary damage for which full compensation is to be awarded in the sum of 15,000 euros ...”
52. On 28 November 2003 the Paris Criminal Court acquitted the three defendants, finding that the photographs taken after the accident, firstly, had not captured any intimate gesture or conduct, especially bearing in mind that the relationship between the applicant's son and Diana Spencer had been widely reported in the media and, secondly, could not be regarded as having been taken in a private place because the emergency services were present, tending to the wounded.
53. On 14 September 2004 the Paris Court of Appeal upheld that judgment.
54. On 12 April 2005 the Court of Cassation quashed the judgment on the basis of Article 226-1 of the Civil Code, finding in particular that the Court of Appeal had not sufficiently addressed the civil party's submissions concerning the lack of consent on the part of the victim, and that neither the presence of emergency services nor a crash victim's involuntary exposure to the public eye could deprive the vehicle carrying the victim of its private nature. It remitted the case to be heard by a different bench of the Paris Court of Appeal.
55. On 17 February 2006 the Paris Court of Appeal ordered the three photographers to pay the applicant the sum of one euro in damages and to have notice of the judgment published. One of the defendants lodged an appeal on points of law.
56. On 29 August 2005 the applicant brought proceedings against persons unknown by filing a criminal complaint and civil-party application with the senior investigating judge at the Paris tribunal de grande instance, alleging destruction of evidence and concealment of a body, on account of the embalming of Diana Spencer's body.
57. On 21 December 2005 the investigating judge ruled that the conditions for opening an investigation were not satisfied.
58. In a judgment of 3 July 2006 the Investigation Division of the Paris Court of Appeal upheld the decision of 21 December 2005. The applicant lodged an appeal on points of law, which is still pending.
59. On 5 March 2007 the applicant brought further proceedings against persons unknown by filing a criminal complaint and civil-party application with the senior investigating judge at the Paris tribunal de grande instance, alleging that an aggravated offence of concealment and removal of evidence had been committed. The applicant's complaint mainly concerned the alleged concealment, by representatives of Scotland Yard and of the British Embassy in Paris, during the investigation conducted in France, of a note drafted by Diana Spencer's personal legal representative after a meeting with her in which he recorded information “from reliable sources” that she had shared with him to the effect that she might be the victim of a pre-prepared road traffic accident.
60. On 8 August 2007 the applicant filed a fresh criminal complaint and civil-party application with the senior investigating judge at the Paris tribunal de grande instance against persons unknown, this time for premeditated murder.
61. By a writ of the same date, the applicant brought an action against the French State, in the person of the Government Law Officer, under Article L.141-1 of the Code of Judicial Organisation, seeking to obtain compensation for the defective operation of the judicial system on account of the conditions in which the forensic medical examinations had been carried out, the handling of the complaint of 7 January 2002, in respect of which the judicial investigation was still pending, the conditions of the autopsy, the taking of samples and the toxicological analyses concerning Henri Paul, and the embalming of Diana Spencer's body.


ITEMID: 001-88188
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KRAWCZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Päivi Hirvelä
TEXT: The applicant, Mr Janusz Krawczak, is a Polish national who was born in 1950 and lives in Poznań. He is represented before the Court by Ms M. Sykulska-Przybysz, a lawyer practising in Tczew. The Polish Government (“the Government”) are represented by their Agent, Mr J. Wolasiewicz of the Ministry of Foreign Affairs.
On 17 June 1999 the Gdańsk District Court remanded the applicant in custody on suspicion of armed robbery.
On 15 May 2001 the prosecution filed a bill of indictment with the Gdańsk Regional Court. The applicant was charged with several counts of armed robbery which had been committed in an organised armed criminal group. The first hearing in the case was held on 28 December 2001. The Gdańsk Regional Court held some 180 hearings and heard nearly 400 witnesses. However, a number of hearings in 2004-2005 were cancelled.
On 21 September 2005 the President of the Criminal Section IV of the Gdańsk Regional Court assigned a new judge rapporteur. Consequently, the trial had to be restarted.
On 18 October 2005 the Gdańsk Court of Appeal ordered the applicant’s release under police supervision. On 24 November 2005 the trial court made a further severance order and split the case into eleven separate cases. It appears that the charges against the applicant were to be examined in two separate sets of proceedings.
It appears that the proceedings against the applicant are still pending before the first-instance court.
On 30 January 2006 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”).
On 23 March 2006 the Court of Appeal dismissed his complaint as unfounded, having regard to the criteria set out in section 2 § 2 of the 2004 Act, namely the conduct of the court and of the parties, the nature of the case, its factual and legal complexity and what was at stake in the proceedings for the complainant. It held that there had been no unreasonable delays in the proceedings within the meaning of the 2004 Act. In respect of the proceedings in the applicant’s case, the Court of Appeal found that there had been no delays after the entry into force of the 2004 Act.
The legal provisions applicable at the material time as well as matters of practice are set out in paragraphs 12-23 of the decision given by the Court on 1 March 2005 in the case of Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005-V


ITEMID: 001-5478
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: KATANIC v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, a citizen of Bosnia-Herzegovina born in 1962, resides in Wettingen in Switzerland.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant entered Switzerland as a seasonal worker in 1987. In the same year he married J.S., a citizen of Bosnia-Herzegovina who arrived in Switzerland in 1983 and is currently working as head of department in a supermarket. As a result of the marriage, the applicant was granted an annual residence permit. Their son S. was born in 1989.
At a date not specified in the application the applicant suffered an accident while at work. Part of his left arm was amputated, and he now draws an invalidity pension.
On 25 January 1995 the Zurzach District Court (Bezirksgericht) sentenced the applicant to 33 months’ imprisonment, a fine of 4,000 Swiss Francs (CHF) and five years’ expulsion from Switzerland, inter alia, on account of professional insurance fraud and contravening the War Material Act (Kriegsmaterialgesetz), in particular gun-running firearms to Yugoslavia. The expulsion from Switzerland was suspended on probation for a period of five years. No appeal was filed against this judgment.
By letter dated 15 March 1995 the Aliens’ Police (Fremdenpolizei) of the Canton of Aargau informed the applicant that his annual residence permit (Aufenthaltsbewilligung) would only provisionally be prolonged until 31 August 1995, as the judgment of the Zurzach District Court had not yet entered into legal force. On 15 December 1995 the Aliens’ Police decided no longer to prolong the applicant’s residence permit in view of his criminal conviction. The applicant’s appeal against this decision was dismissed by the Government (Regierungsrat) of the Canton of Aargau on 3 September 1997.
On 31 July 1997 the Werdenberg District Office (Bezirksamt) fined the applicant 300 CHF for having contravened the Narcotics Act (Betäubungsmittelgesetz) while in prison.
On 30 September 1997 the applicant was released from prison on probation.
The applicant filed an appeal against the decision of 3 September 1997 which was upheld, on 21 January 1998, by the Administrative Court (Verwaltungsgericht) of the Canton of Aargau. The Court noted in particular that the Government of the Canton of Aargau had overlooked that the applicant’s wife had obtained as from 1 June 1997 a right to domicile in Switzerland (Niederlassungsbewilligung).
On 3 June 1998 the applicant’s wife and son were granted the right to domicile in Switzerland.
The applicant’s renewed appeals against the refusal to prolong his residence permit were dismissed by the Government of the Canton of Aargau on 16 December 1998 and by the Administrative Court of the Canton of Aargau on 21 April 1999.
The applicant filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht) dismissed on 8 November 1999. The Court relied in particular on Section 17 § 2 of the Aliens’ Domicile and Residence Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) according to which a foreigner will lose his right to a prolongation of a residence permit if he breaches public order. The Court then weighed the public interest in not renewing the applicant’s residence permit in view of his criminal conviction with his interest in remaining with his family in Switzerland.
The Court considered in particular that the applicant had shown considerable “criminal energy” in that he had regularly committed offences of the same type while in Switzerland. He had furthermore maintained regular contacts with his home country to which he had occasionally returned during his stay in Switzerland.
The Court furthermore found that the applicant’s wife would undoubtedly suffer in her professional activities if she followed the applicant to Yugoslavia, though this did not suffice as a reason to prolong his residence permit. Their son was of an adaptable age and could be expected to follow his parents. The issue furthermore arose whether the separation could still be regarded as being disproportionate since the wife had stated during the proceedings that she would in any event remain in Switzerland with their son, even if the applicant left Switzerland.
As a result, the Court did not find it disproportionate that the applicant’s residence permit had not been renewed.
On 6 December 1999 the Federal Aliens’ Office (Bundesamt für Ausländerfragen) informed the applicant that he had to leave Switzerland by 15 January 2000. By decision of the same date the Office prohibited the applicant from entering Switzerland for a period of five years, i.e. until 15 January 2005.
B. Relevant domestic law and practice
Section 17 of the Aliens’ Domicile and Residence Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) states:
“1. As a rule the authority shall at the outset only grant a residence permit to the alien, even if the latter envisages permanently to stay in the country. The Federal Aliens’ Office shall determine in each case the earliest date as from when it shall grant the right to domicile.
2. If this date has already been determined, or if the alien is entitled to the right to domicile, the spouse shall be entitled to a residence permit, or to have it prolonged, as long as the spouses live together. After a regular and uninterrupted residence of five years the spouse shall also be entitled to the right to domicile. Unmarried children below 18 years of age shall be included in the right to domicile if they live together with their parents. These rights expire if the entitled person has breached public order.”


ITEMID: 001-22065
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: H.G. v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, H.G., is a German citizen, born in 1958, and living in Altendorf (Switzerland). He is represented before the Court by Mr M. Ziegler, a lawyer practising in Lachen. The respondent Government are represented by their agent, Mr P. Boillat, Head of the International Affairs Division of the Federal Office of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a sales representative for a fashion company. From 1988 until 1993 he enabled a Hong Kong supplier to transfer funds to Switzerland. The supplier eventually informed the applicant’s superiors of the transfers, whereupon, on 24 March 1997, the company filed a criminal report (Strafanzeige) against the applicant on account of disloyal business conduct (ungetreue Geschäftsführung).
On 3 April 1997 the Investigating Office (Verhöramt) of the Canton of Schwyz issued a warrant of arrest against the applicant. He was suspected in particular of having induced his company to purchase merchandise from the Hong Kong supplier from which, in return, he had requested and obtained up to 200,000 Swiss francs.
On 9 April 1997 the applicant was remanded in custody. According to the order of arrest, there was a danger that he would collude with other persons during the investigations.
In the ensuing proceedings the applicant was represented by a lawyer, though he was not permitted freely to communicate with his lawyer until 28 April 1997. It furthermore appears that, after his arrest, his bank accounts were blocked.
During the applicant’s detention, he had the possibility of taking a daily walk around the town of Schwyz. During this walk he had to wear handcuffs.
On 10 April 1997 the applicant was questioned by the Investigating Office in the presence of his lawyer. On 11 April 1997 the applicant’s lawyer transmitted via fax a complaint about the detention on remand to the President of the Cantonal Court (Kantonsgericht) of the Canton of Schwyz. On the same day the applicant’s lawyer was informed in reply that a legal statement transmitted via fax lacked the necessary personal signature. The lawyer then forwarded a signed statement which reached the President on 14 April 1997. The latter fixed a hearing for 16 April. Also on 14 April 1997 the applicant filed a further complaint about the delay in fixing the hearing, as he had filed his complaint on 11 April.
On 15 April 1997 the applicant was heard by the Investigating Office in the presence of his lawyer.
On 16 April 1997 the President of the Cantonal Court heard the applicant, his lawyer and the investigating judge. The President also visited the applicant’s prison cell. On the same day, the President dismissed the request of 11 April, the decision being served on the applicant on 18 April 1997.
In his decision the President found that the delay in dealing with the applicant’s complaint resulted from the applicant’s failure personally to sign that document. Insofar as the applicant complained that he was unable to consult the case-file, the President noted that the applicant had seen certain annexes to the criminal report of 24 March 1997; the minutes of the applicant’s interrogations on 10 and 15 April; a letter of the Hong Kong firm of 1994; and part of the minutes of the interrogation of a certain Ch.R. To the extent that the applicant criticised that he was not able freely to communicate with his lawyer and was denied free legal aid, the President found that pursuant to Section 140 of the Code of Criminal Procedure (Strafprozessordnung) the applicant should have filed a complaint with the Public Prosecutor’s Office and, subsequently, with the Cantonal Court, rather than with its President.
In his decision, the President then examined, and confirmed, that there was an urgent suspicion that the applicant had committed the offence at issue. Finally, the President dismissed the applicant’s grievances about the conditions of imprisonment, namely the complaints that he lacked mineral water; that the food consisted of too much meat; and that there was insufficient light in the cell. To the extent that the applicant complained that upon his arrest he had not been able to consult a doctor about a suspected skin cancer, the President found that the applicant had meanwhile been examined by a prison doctor. The President also ordered that the applicant be issued a lamp and cleaning materials.
On 18 April 1997 the applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).
In his public law appeal the applicant complained, inter alia, of breaches of Article 5 §§ 3 and 4 of the Convention. He submitted that the President of the Cantonal Court had had the entire case-file at his disposal, whereas he had been refused access thereto. It did not suffice if, as the President stated, he, the applicant, had seen all relevant documents, since the President’s decision could also have been influenced by other documents. For instance, his decision of 16 April 1997 mentioned the date of the criminal report originally filed against him, a document which the applicant had never seen. The applicant further complained of the conditions of detention, namely in respect of the meals and of the doctor provided, who had been a general practitioner and not a skin cancer specialist.
The Federal Court transmitted the applicant’s public law appeal for observations to the Cantonal Court and the Investigating Office of the Canton of Schwyz.
On 24 April 1997 the applicant filed a request for consultation of the case-file. The request was refused by the Federal Court on 28 April 1997.
Also on 28 April 1997, the President of the Cantonal Court of the Canton of Schwyz dismissed the applicant’s further request for release from detention, though he ordered the prison administration to allow the applicant to take a daily walk of one hour without handcuffs. The decision considered that having to take walks with handcuffs was unacceptable from the point of view of human dignity, and that there was no danger that the applicant would abscond.
Another request filed by the applicant with the Federal Court for consultation of the case-file was dismissed by that court on 1 May 1997, though the applicant was forwarded a copy of the observations of the Cantonal Court and the Investigating Office.
On 5 May 1997 the applicant filed with the Federal Court his reply to the observations of the Cantonal Court and the Investigating Office, as well as further submissions. He complained, inter alia, that he had not been permitted to communicate with his lawyer until 28 April 1997; that he had been refused an officially appointed lawyer; and that, contrary to Article 3 of the Convention, he had been publicly led around in handcuffs and had been chained publicly together with a suspected violent criminal.
The applicant’s public law appeal was dismissed by the Federal Court on 20 May 1997, the decision being served on 27 May.
In its decision, the Federal Court found that the Investigating Office fulfilled the requirements under Article 5 § 3 of the Convention. It held that the Investigating Office was independent in that it was not effectively supervised by the Public Prosecutor’s Office. Insofar as the President of the Cantonal Court had only heard the applicant belatedly, on 16 April 1997, the court noted that the applicant was himself responsible for the delay as he had not personally signed his request. To the extent that the applicant complained about insufficient consultation of the case-file, the court considered that the applicant had been able to consult all documents upon which the decision of the President of the Cantonal Court of 16 April 1997 had been based.
The Federal Court furthermore considered that the applicant could no longer claim a practical interest in his complaint about the conditions of detention, as the latter had meanwhile been ameliorated. To the extent that he requested free legal aid and an officially appointed lawyer, the court considered that he was at most lacking funds temporarily.
Meanwhile, the applicant’s lawyer telephoned the Investigating Office about the applicant’s continuing walks in handcuffs. On 21 May 1997 the Investigating Office sent a fax to the prison administration according to which the “applicant’s lawyer had withdrawn his agreement to a walk in handcuffs outside the village, for which reason the operation is cancelled. The measures so far ordered for a walk without handcuffs shall apply again.” By a letter of 22 May 1997, the applicant’s lawyer pointed out to the Investigating Office that, when previously speaking with that Office, he had in fact referred to the decision of the President of the Cantonal Court of 28 April 1997 according to which there should no longer be any handcuffs. The lawyer requested compliance with this decision.
Following further requests for release from detention, the applicant was released on 9 June 1997.
The Code of Criminal Procedure of the Canton of Schwyz lists in Section 26 the grounds for detention on remand and in Section 27 provides, inter alia, that the investigating judge shall be competent to impose such detention. Section 140 envisages the possibility of a complaint in proceedings before the Investigating Office to the Public Prosecutor’s Office and subsequently to the Cantonal Court, though this remedy does not apply if other remedies are available. In this respect, Section 28 provides for an appeal to the President of the Cantonal Court against the warrant of arrest; the conditions of detention; and the refusal of release from detention.
Section 42 of the Judicial Organisation Act (Gerichtsordnung) of the Canton of Schwyz provides that the Government of the Canton of Schwyz shall elect the investigating judges, and Section 45 states that the Public Prosecutor’s Office shall supervise the Investigating Office. Section 44 § 2 states that the Investigating Office shall be competent for conducting the investigations. According to Section 37 § 1, the Public Prosecutor’s Office will raise the charges at the trial before the court.
According to the Federal Court’s case-law, a complaint about unlawfulness of detention may no longer be filed after release from detention. However, subsequent complaints may be raised in an action for compensation before the Federal Court (see Arrêts du Tribunal fédéral [ATF] 125 Ia 394; 110 Ia 140; 109 I a 170).


ITEMID: 001-58290
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF DOUIYEB v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1;No violation of Art. 5-4
JUDGES: Elisabeth Palm
TEXT: 8. The applicant is a Moroccan national and was born in 1960. He lives in Amsterdam.
9. On 26 February 1996, in the course of an investigation into offences against public decency following complaints filed with the police, the assistant public prosecutor (hulpofficier van justitie), in accordance with Articles 54 and 55 of the Netherlands Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter “CCP”), issued a warrant for the applicant’s arrest on suspicion of contravening Article 250 ter of the Netherlands Criminal Code (Wetboek van Strafrecht, hereinafter referred to as “CC”), which provision prohibits trafficking in persons (mensenhandel).
10. On the basis of this warrant the police arrested the applicant in his home on the same day at 1.05 p.m. and brought him to the police station. According to the formal police report on this arrest (proces-verbaal van aanhouding) of 26 February 1996, the police officers identified themselves and, upon request of the member of the applicant’s family who answered the door, showed the warrant for the applicant’s arrest when they entered the applicant’s home and arrested him in relation to an offence under Article 250 ter CC. This police report further states that the applicant was provided with a copy of the arrest warrant. The formal police report does not mention at what time the applicant was provided with this copy.
11. On 26 February 1996, at approximately 3 p.m., the applicant was questioned by two police officers. In so far as relevant, the formal police report on this questioning (proces-verbaal van verhoor) states as follows:
(Translation)
“After we had informed the suspect that he was not obliged to answer and also informed him what he was to be questioned about, he stated to us as follows:
‘I understand what I am suspected of. I understand you well. I do not understand for what I have been arrested. I have no statement to make, I want to speak to my lawyer first. I will not sign anything.’
After his statement had been read out to him, he agreed with it, but refused to sign it.”
12. At 3.05 p.m. on 26 February 1996, after the applicant had been brought before the assistant public prosecutor, the latter ordered the applicant’s detention in police custody (inverzekeringstelling) for a maximum of three days.
13. According to the wording of the custody order, the applicant’s custody had been ordered at 3.05 p.m. on suspicion of having contravened Article 250 CC. The relevant legal qualification was stated to be “living off immoral earnings” (koppelarij). The custody order further stated that the applicant and his lawyer had been provided with a copy of the custody order without delay (onverwijld). The custody order does not contain an indication as to the exact time the applicant and his lawyer were provided with a copy of this order.
14. On the cover page of the police investigation file and in the formal police report on the investigation in the present case, both dated 26 February 1996, it is recorded that the applicant, together with another person, was suspected of contravening Article 250 ter CC.
15. On 27 February 1996 the applicant was brought before the investigating judge (rechter-commissaris) in order to be heard and on the prosecution’s request to order the applicant’s detention on remand (inbewaringstelling), which written request was based on Article 250 ter CC and referred to the offence set out therein. During this hearing, the applicant was assisted by his lawyer.
16. The applicant denied the suspicions against him, explaining:
(Translation)
“I only run errands for the girls. I know girls from the Czech Republic, Lithuania, Russia and the Netherlands. I pick them up with the car and bring them home. I do so at their own request. I earn about 50 guilders per day with that [activity].”
In response to the public prosecutor’s demand, the applicant stated:
(Translation)
“Everything is falling apart on me, my marriage and my children. If my family becomes aware that I am involved in trafficking in women, they will kill me.”
17. The applicant’s lawyer submitted that the applicant had been placed in police custody on suspicion of contravening Article 250 CC, for which offence police custody cannot be ordered. He demanded the applicant’s immediate release.
18. According to the minutes of this hearing, the investigating judge ordered the applicant’s detention on remand, holding:
(Translation)
“I, investigating judge, inform the suspect, as I do not find the police custody unlawful, that as to the submissions – however well-founded in fact they may be – regard must be had to the nature of the infringed rule(s), the interest protected by such rule(s), the degree to which this interest may be considered as having been harmed and the relevant interests of society.”
19. The written order for the applicant’s detention on remand (bevel tot bewaring) issued by the investigating judge, in so far as relevant, reads:
(Translation)
“… as it is plausible that the suspect is to a considerable extent involved in trafficking in persons; that the pre-trial detention is in all reasonability necessary to … reveal the truth as [the] suspect denies [the offence] and (a) further witness(es) need(s) to be heard;
NOTING the contents of … Article(s) 250 ter Criminal Code/1/2;
ISSUES an order for detention on remand against [the] suspect for a period of ten days…”
20. Following the prosecution’s request for the applicant’s further detention on remand (gevangenhouding), the Regional Court (Arrondissementsrechtbank) of Amsterdam, after having heard the applicant and after having noted the grounds on which the applicant’s detention on remand had been ordered and having found these grounds still to be pertinent, on 5 March 1996 ordered the applicant’s further detention on remand for a period of thirty days. On 6 March 1996, the applicant was released for lack of space for further detainees in any remand centre.
21. By a judgment of 30 August 1996, the Regional Court of Amsterdam acquitted the applicant of the charges brought against him under Article 250 ter CC. On the same day, in a different set of proceedings concerning unrelated facts, the Regional Court of Amsterdam convicted him of unlawful possession of a firearm and sentenced him to six weeks’ imprisonment.
22. On 14 November 1996, the applicant filed a request under Article 89 CCP for compensation in respect of damage sustained on account of the time spent in pre-trial detention on suspicion of committing the offences of which he had been acquitted. Instead of seeking pecuniary compensation, the applicant requested the Regional Court to order the deduction of the time he had spent in pre-trial detention from the six weeks’ imprisonment to which he had been sentenced in the other set of criminal proceedings.
23. In its decision of 25 April 1997, the Regional Court noted that the applicant had been taken into police custody on 26 February 1996 on suspicion of committing an offence under Article 250 ter CC, that on 27 February 1996 the investigating judge had ordered the applicant’s detention on remand and that he had been released for lack of space on 6 March 1996. Pursuant to Article 27 § 2 CC and Article 90 § 4 CCP, the Regional Court ordered that ten days be deducted from the six weeks’ imprisonment imposed for the other offence (see paragraph 21 above). As to the remaining 32 days, the applicant has successfully sought a royal pardon, these 32 days having been commuted to 69 hours’ community work.
24. According to Article 54 CCP, a public prosecutor is competent to order the arrest of a person suspected of having committed a criminal offence in respect of which pre-trial detention (voorlopige hechtenis) may be ordered.
25. Pursuant to Article 57 CCP, a public prosecutor or assistant public prosecutor is competent to order a person’s detention in police custody, after having seen and heard that person, who is entitled to be assisted by a lawyer.
26. According to Article 58 CCP, a custody order can only be issued in respect of punishable offences for which pre-trial detention may be ordered. A custody order is only valid for a maximum of three days and may be prolonged once for a maximum period of three days. No appeal lies against a custody order.
27. Article 59a CCP requires that no later than three days and fifteen hours after being arrested, a suspect must be brought before an investigating judge in order to be heard. On that occasion the suspect may request the investigating judge, in accordance with Article 59a § 4 CCP, to order his or her release. Where the investigating judge finds the order for detention in police custody (inverzekeringstelling) unlawful, the suspect’s immediate release must be ordered (Article 59a § 5 CCP).
28. In order to prolong the detention of a suspect, the public prosecutor can request the investigation judge for a remand order (inbewaringstelling) under Article 63 CCP. Pursuant to Article 64 § 1 CCP this remand order is valid for a period of maximum ten days.
29. Although no direct appeal lies against a remand order, a person whose detention on remand has been ordered can, in accordance with Article 69 § 1 CCP, apply to the Regional Court for an order lifting the pre-trial detention (opheffing voorlopige hechtenis). Under Article 87 § 2 CCP, an appeal against a rejection by the Regional Court of a first request to lift pre-trial detention may be lodged with the Court of Appeal (Gerechtshof).
30. In order to prolong the detention of a suspect whose remand has been ordered by the investigation judge, the public prosecutor can request the Regional Court for an order for further detention on remand (gevangenhouding). Pursuant to Article 66 CCP this order is valid for a period of maximum thirty days. Under Article 71 CCP, an appeal against an order for further detention on remand lies with the Court of Appeal.
31. According to the established case-law of the Supreme Court (Hoge Raad), procedural defects occurring in respect of previous orders for pre-trial detention do not constitute independent grounds for dismissing an application for a subsequent category of pre-trial detention. A judge must examine for each category separately whether all conditions are fulfilled (see HR (Hoge Raad), 4 March 1975, NJ (Nederlandse Jurisprudentie), 1975, no. 241; HR, 10 November 1981, NJ 1982, no. 45; and HR, 7 October 1988, NJ 1989, no. 510). However, in deciding requests under Article 69 CCP, a judge may take procedural defects into consideration as a relevant factor (see HR, 16 March 1990, NJ 1990, no. 500).
32. Article 67 CCP reads as follows:
“1. An order for pre-trial detention can be issued in case of suspicion of:
(a) an offence which, according to the law, carries a punishment of imprisonment of four years or more;
(b) one of the offences defined in Articles 132, 250 bis, 285 § 1, 318, 321, 326, 326a, 326c, 395 and 417 bis of the Criminal Code;
(c) the misdemeanour described in Article 432, under 3°, of the Criminal Code;
(d) one of the offences defined in:
– Article 175 § 2 of the Road Traffic Act 1994;
– Article 27 § 2 of the Act on Extraordinary Competences of Civilian Authorities;
– Articles 52, 53 § 1 and 54 of the Act on Conscientious Objections to Military Service;
– Article 31 of the Act on Games of Chance;
– Article 11 § 2 of the Opium Act;
– Article 46 of the Stockbroking Control Act;
– Article 31 §§ 1 and 2 of the Act on Arms and Ammunition.
2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the courts and which, according to the law, is punishable by imprisonment.
3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.”
(“1. Een bevel tot voorlopige hechtenis kan worden gegeven in geval van verdenking van:
a. een misdrijf waarop naar de wettelijke omschrijving een gevangenisstraf van vier jaren of meer is gesteld;
b. een der misdrijven omschreven in de artikelen 132, 250 bis, 285, eerste lid, 318, 321, 326, 326a, 326c, 395 en 417 bis van het Wetboek van Strafrecht;
c. de overtreding omschreven in artikel 432, onder 3°, van het Wetboek van Strafvordering;
d. een der misdrijven omschreven in:
– artikel 175, tweede lid, van de Wegenverkeerswet 1994;
– artikel 27, tweede lid, van de Wet buitengewone bevoegdheden burgerlijk gezag;
– de artikelen 52, 53, eerste lid, en 54 van de Wet gewetensbezwaren militaire dienst;
– artikel 31 van de Wet op de kansspelen;
– artikel 11, tweede lid, van de Opiumwet;
– artikel 46 van de Wet toezicht effectenverkeer 1995;
– artikel 31, eerste en tweede lid, van de Wet wapens en munitie.
2. Het bevel kan voorts worden gegeven indien geen vaste woon- of verblijfplaats in Nederland van de verdachte kan worden vastgesteld en hij verdacht wordt van een misdrijf waarvan de rechtbanken kennis nemen en waarop, naar de wettelijke omschrijving, gevangenisstraf is gesteld.
3. De voorgaande leden van dit artikel vinden alleen toepassing wanneer uit feiten of omstandigheden blijkt van ernstige bezwaren tegen de verdachte.”)
33. Article 250 CC provides as follows:
“1. The following persons shall be punished:
1° any person who intentionally causes or encourages his minor child, foster child or adopted child, his ward, a minor entrusted to him for care, education or supervision, or a servant or subordinate who is a minor, to commit an indecent act with another person, shall be liable to a term of imprisonment not exceeding four years or a fourth-category fine.
2° any person who intentionally causes or encourages a minor who he knows to be or may reasonably be expected to know to be a minor to commit an indecent act with another person, other than in the cases defined under 1°, shall be liable to a term of imprisonment not exceeding three years or a fourth-category fine.
2. If the offender has made a profession or habit of committing the indictable offence, the terms of imprisonment may be increased by one third.”
(“1. Wordt gestraft:
1° met gevangenisstraf van ten hoogste vier jaren of geldboete van de vierde categorie, hij die het plegen van ontucht door zijn minderjarig kind, stiefkind of pleegkind, zijn pupil, een aan zorg, opleiding of waakzaamheid toevertrouwde minderjarige or zijn minderjarige bediende of ondergeschikte met een derde opzettelijk teweegbrengt of bevordert.
2° met gevangenisstraf van ten hoogste drie jaren of een geldboete van de vierde categorie, hij die, buiten de gevallen genoemd onder 1°, het plegen van ontucht door een minderjarige wiens minderjarigheid hij kent of redelijkerwijs moet vermoeden, met een derde opzettelijk teweeg brengt of bevordert.
2. Indien de schuldige van het plegen van het misdrijf een gewoonte maakt, kunnen de gevangenisstraffen met een derde worden verhoogd.”)
34. Article 250 ter CC states as follows:
“1. The following persons commit be the offence of trafficking in persons and are liable to a punishment of six years’ imprisonment or a fifth-category fine:
1° any person who induces another person to engage in prostitution by means of violence or any other physical action or by means of threats of violence or of any other physical action or by misusing authority or influence derived from the actual state of affairs, or by means of deception, or who under any of these circumstances undertakes any action which he or she knows or may reasonably be expected to know will lead to the other person becoming engaged in prostitution;
2° any person who recruits, takes with him or abducts any person with a view to inducing the latter to engage in prostitution in another country;
3° any person who induces another person to engage in prostitution, or who, as regards this other person, undertakes any action which he or she knows or may reasonably be expected to know will lead to the other person becoming engaged in prostitution, if the other person is a minor.
2. The penalty for the following offences shall be eight years’ imprisonment or a fifth-category fine:
1° trafficking in persons, committed by two or more persons acting in concert;
2° trafficking in persons, where the victim is aged less than sixteen years;
3° trafficking in persons, if violence or any other physical action referred to in paragraph 1 results in serious bodily harm.
3. Trafficking in persons, committed by two or more persons acting in concert, under circumstances set out in paragraph 2 under 2° or 3°, shall be punishable by ten years’ imprisonment or a fifth-category fine.”
(“1. Als schuldig aan mensenhandel wordt gestraft met gevangenisstraf van zes jaren of geldboete van de vijfde categorie:
1° degene die een ander door geweld of een andere feitelijkheid of door bedreiging met geweld of een andere feitelijkheid dan wel door misbruik van uit feitelijke verhoudingen voortvloeiend overwicht of door misleiding tot prostitutie brengt, dan wel onder voornoemde omstandigheden enige handeling onderneemt waarvan hij of zij weet of redelijkerwijs moet vermoeden dat die ander daardoor in de prostitutie belandt;
2° degene die een persoon aanwerft, medeneemt of ontvoert met het oogmerk die persoon in een ander land in de prostitutie te brengen;
3° degene die een ander tot prostitutie brengt, dan wel ten aanzien van een ander enige handeling onderneemt waarvan hij of zij weet of redelijkerwijs moet vermoeden dat die ander daardoor in de prostitutie belandt, indien die ander minderjarig is.
2. Met gevangenisstraf van acht jaren of een geldboete van de vijfde categorie wordt gestraft:
1° mensenhandel door twee of meer verenigde personen;
2° mensenhandel ten aanzien van een persoon die de leeftijd van zestien jaren nog niet heeft bereikt;
3° mensenhandel, indien geweld of een andere feitelijkheid als bedoeld in het eerste lid, zwaar lichamelijk letsel ten gevolge heeft.
3. Mensenhandel door twee of meer verenigde personen onder de omstandigheden, bedoeld in het tweede lid onder 2° or 3°, wordt gestraft met gevangenisstraf van tien jaren of geldboete van de vijfde categorie.”)
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-110164
LANGUAGEISOCODE: ENG
RESPONDENT: LUX
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF BOULOIS v. LUXEMBOURG
IMPORTANCE: 1
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations)
JUDGES: András Sajó;Christos Rozakis;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mark Villiger;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 12. The applicant, who was born in 1972, was detained in Schrassig (Luxembourg) Prison on the date the application was lodged. He is currently living in Peppange (Luxembourg).
13. On 15 December 1998 he was remanded in custody.
14. 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.
15. The applicant provided the Court with copies of several court decisions, given between 14 June 2001 and 13 April 2005, concerning the issue of his visiting rights in respect of his three minor children following his divorce, made final on 19 October 2000.
16. While in prison, the applicant submitted requests for conditional release, transfer to Givenich semi-open prison and temporary leave of absence (“prison leave”). The requests for prison leave are the subject of the present case.
17. The applicant stated that he had submitted a request for prison leave to the Attorney-General in October 2003.
18. 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 listed as follows:
“(i) go to a photographer or photo booth to obtain passport photos;
(ii) go to the Transport Ministry to renew my driving licence (medical certificate already obtained);
(iii) go to the embassy to renew my consular registration card;
(iv) go to see Mr [B.] at Luxembourg police station, investigations division, to pick up an envelope containing documents needed by a former client;
(v) go to see the manager of [B.] bank in Esch/Alzette;
(vi) go to the tax office in Esch/Alzette;
(vii) meet a group of friends in a restaurant near Esch/Alzette;
(viii) go to my flat in Differdange to collect the remaining documents for the same client;
(ix) take some measurements for items I might make in the [prison] workshop;
(x) go to Differdange town hall for a personal meeting with the mayor;
(xi) go to the home of Ms [S.] in Luxembourg to meet her husband;
(xii) go to my lawyer’s office to hand over the missing documents for my former client;
(xiii) if possible, go to the bookshop near [S.]’s house.”
In his reply, 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 busy repaying my loans and other debts to the various authorities under the arrangements entered into with the legal departments in order to avoid an unending series of seizures of my property. ...”
19. On 29 October 2003 a psychologist issued a certificate 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. She stressed that the applicant was anxious to understand what had driven him to commit the offences and to do everything possible to avoid reoffending. On 25 November 2003 a second psychologist, who certified that he had had regular meetings with the applicant since the beginning of 2003, agreed with the comments made in the certificate of 29 October 2003.
20. On 5 November 2003 the Attorney-General’s representative sent a memorandum to the prison governor stating, in particular, 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.”
21. On 17 January 2004 the applicant reiterated his request, giving the same reasons and the same programme for the day’s prison leave. On 27 January 2004 his lawyer confirmed the request and added, inter alia, the following:
“... 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 damages to the civil party as quickly as possible. ...”
22. On 17 March 2004 the Attorney-General’s representative sent a memorandum to the prison governor containing the following passage:
“... 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.”
23. 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.
24. 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, who had not raised an objection alleging lack of jurisdiction, left the matter to the discretion of the court. The applicant pleaded that the latter had jurisdiction.
25. On 23 December 2004 the Administrative Court declined 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 wing of the prison, and in particular imposing a strict confinement regime – see Administrative Court ruling no. 14568 of 10 July 2002), which are administrative decisions taken in the context of the running of the prison service, and decisions which may alter the nature or scope of a sentence imposed by the ordinary courts, which should be regarded as judicial rather than administrative decisions.
In the instant case it should be noted 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, having regard to their nature as identified above, the impugned decisions cannot be the subject of an application to the administrative courts ...”
26. On 14 April 2005 the Higher Administrative Court (cour administrative) upheld that ruling in the following terms:
“The [applicant] submitted that the court had erred in declining 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; and 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 terms of execution of the sentence imposed 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 declining 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 respect of a body which has no power to rule on the merits. ...”
27. On 11 August 2004 the applicant submitted a third request for prison leave, stating, inter alia, as follows:
“... I have successfully attended several classes run by the CEP-L [Chamber of Employees] 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 if I am to achieve my aim it is now essential for me to be able to attend the classes of the autumn session at the CEP-L itself. ...”
28. 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 as yet made no substantial efforts towards paying compensation to the victim. The decision also referred to the reasoning of the decision of 5 November 2003.
29. On 14 October 2004 the applicant submitted a fourth request for prison leave – which he produced for the first time before the Grand Chamber – seeking permission to spend a day with his children over the St Nicholas weekend.
30. In a decision of 14 December 2004, the request was refused on the ground that the applicant’s visiting rights in respect of his children had not yet been clearly established.
31. In a fifth request submitted on 24 February 2005, the applicant stated, 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 find a solution regarding the repayment of his debts to the various institutions and the civil party.
32. On 23 March 2005 his request was refused for failure to give reasons.
33. On 12 July 2005 a sixth request for prison leave was refused on the ground that there was a risk that the applicant would not return to prison.
34. On 4 May 2006 a seventh request for prison leave was refused on the grounds that the applicant had been making no efforts, especially with regard to paying compensation to the civil party, and had been refusing to abide by the conditions imposed on him.
35. Following the refusal of 4 May 2006, 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 conditions imposed on him with a view to his reintegration into society, so that he could comply with them. On 6 November 2006 the Attorney-General’s representative wrote to the applicant informing him that, as matters stood, he did not intend to reply to the various letters, which, in his view, did not call for any comment.
36. 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. According to the applicant, the meeting never took place.
37. On 31 October 2008 the Prison Board granted the applicant one day’s prison leave, subject to the condition that he would be collected from the prison and brought back there by his new girlfriend, at whose home he was to spend the day.
38. Between 12 December 2008 and 19 June 2009 the applicant was granted five periods of prison leave of two consecutive days, to be spent with his girlfriend.
39. On 20 March 2009 the applicant was transferred to Givenich semiopen prison. The same day, in a separate decision, he was granted ten days’ prison leave in order to look for work and complete various administrative formalities; it was also decided to place him under the semicustodial regime once he had found work.
40. On 24 June 2009 the applicant signed a vocational rehabilitation contract as a cook.
41. On 25 September 2009 his request for conditional release was granted.
42. In three decisions (dated 25 September and 11 December 2009 and 26 February 2010), the requests made by the applicant for suspension of his sentence, due to end on 12 October 2010, were refused.
43. On 10 February 2010 the applicant started up a business as a sole trader.
44. On 15 July 2010 the applicant’s sentence was suspended. According to his submissions, he left Givenich Prison definitively on that date.
45. Section 1 of the Law of 26 July 1986 on certain means of executing custodial sentences (“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: serving of the sentence in instalments, semi-custodial regime, prison leave, suspension of sentence, early release.”
46. Section 6 of the 1986 Law defines prison leave as follows:
“Prison leave shall consist of permission to leave prison either for part of a day or for periods of twenty-four hours. The time shall count towards the length of the sentence.”
47. Section 7 of the 1986 Law provides as follows with regard to the objectives of prison leave:
“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 conditional release.”
48. Section 8 of the 1986 Law provides that this measure may be granted to first offenders once one-third of their sentence has been served.
49. Section 13 of the 1986 Law provides as follows:
“In applying the arrangements provided for by this Law, consideration shall be given to the personality of the prisoner, his or her progress and the risk of a further offence.”
According to the comments on this provision accompanying the relevant bill when it was submitted, the granting of measures relating to the means of executing a sentence “will never be automatic and will ultimately remain at the discretion of the postsentencing authority, which will decide freely on the basis of the information it has obtained concerning the prisoner”.
50. Under the terms of the Grand-Ducal Regulation of 19 January 1989 laying down, inter alia, detailed 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 unable or does not know how 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).
51. Section 12 of the 1986 Law states as follows:
“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 the 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.”
52. In Recommendation No. 30, set out in his activity report on the year from 1 October 2007 to 30 September 2008, the Ombudsman expressed the view that the system for the execution of sentences in Luxembourg needed to be overhauled, and advocated the creation of the office of post-sentencing judge. The latter would give decisions, open to appeal, on applications for prison leave following adversarial proceedings.
53. In his activity report on the year from 1 October 2009 to 30 September 2010, the Ombudsman took note of the fact that the Minister of Justice, in an article published in a Luxembourg daily newspaper, had spoken in favour of handing over to a judicial body some of the powers currently exercised by the Attorney-General’s representative with responsibility for the execution of sentences or by the Prison Board. On 22 December 2011 the Minister of Justice presented the broad outlines of the planned prison reform, which included a bill approved by the government at a Cabinet meeting on 16 December 2011 reforming the system of execution of sentences by establishing, inter alia, a postsentencing court. The bill must now go through the different stages of the legislative procedure.
54. There are two prisons in Luxembourg, with a prison population of around 700. Most prisoners are held in Luxembourg Prison, which is a closed institution. There is also a semiopen prison (Givenich Prison) which mainly houses prisoners approaching the end of their sentences or serving shorter sentences. Most leave the prison each day to go to work.
55. The Government stated that a distinction needed to be made between requests for prison leave made by inmates in Luxembourg Prison and those in Givenich.
56. In 2009, 146 requests for prison leave were granted and 169 refused; for 2010, the figures were 114 and 128 respectively.
57. The Government observed that numerous requests for prison leave were bound to fail as they were submitted before expiry of the statutory period. In other words, the prisoners concerned had not yet served one-third of their sentence (in the case of a first offender) or half their sentence (in the case of a repeat offender), or the request was made less than two months after notification of the refusal of a previous request.
58. In 2009, 376 requests for prison leave were granted and 192 refused; for 2010, the figures were 409 and 191 respectively.
59. The Recommendation states, inter alia, 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;
...”
60. The Recommendation, in its relevant parts, reads 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.
...”
61. The Recommendation reads, inter alia, 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.
...”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1