ECHR Decree of 30 January 2018 in the case of Etute (Etute) v. Luxembourg (application No. 18233/16).
In 2016, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Luxembourg.
In the case, the applicant successfully complained that since the abolition of his conditional release, he had not had a judicial remedy that would enable him to obtain a review of the lawfulness of his detention and obtain release if the restriction of liberty is declared unlawful. In the case there was a violation of the requirements of paragraph 4 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In November 2010, the Court of Appeal sentenced the applicant to 30 months' imprisonment for crimes related to illicit trafficking in narcotic drugs. The applicant left part of the sentence and was released on probation in March 2013. In the agreement reached between the representative of the Prosecutor General and the applicant, the conditions for the release were set out for the applicant's conditional release, including the lack of meetings with persons who use drugs and the prohibition of participating in criminal activities. The agreement stated that if the conditions were not observed, the applicant's conditional release would be canceled, and the applicant would be sent to serve the remaining sentence.
In October 2015, a decision was made to deprive the applicant of his liberty in connection with his involvement in the crime of illicit trafficking in narcotic drugs, and the applicant was placed in custody.
In November 2015, the representative of the Attorney-General abolished the applicant's conditional release on the grounds that the applicant was placed in detention, which did not comply with the terms of the 2013 agreement.
ISSUES OF LAW
Concerning compliance with article 5, paragraph 4, of the Convention. The conditional release of the applicant interrupted the term of serving the sentence imposed on the applicant by the verdict of 2010. The period spent at liberty under the conditional release conditions was not deducted from the sentence imposed.
The applicant's return to the correctional facility in November 2015 to serve part of the sentence that remained at the time of the applicant's conditional release was based on the last decision, namely, on the decision to cancel the applicant's conditional release. This decision was based solely on the fact that the applicant's situation no longer met the provisions of the agreement on the conditional release of the applicant from further serving his sentence, in particular that the applicant should no longer commit crimes and meet with persons who use drugs. In these circumstances, the issue of compliance with the provisions of the conditional release agreement of the applicant was decisive for the legality of the applicant's detention since November 2015. The applicant's return to the correctional facility was a new circumstance, caused by the abolition of the applicant's conditional release from serving his sentence. Consequently, in order to resolve this issue, the domestic legal system had to grant the applicant access to a judicial remedy that met the requirements of Article 5 § 4 of the Convention.
According to the Criminal Code, decisions on conditional release from serving punishment were taken by the Prosecutor General. However, in accordance with the Court's case-law, the public prosecutor could not be considered a "court" within the meaning of Article 5 § 4 of the Convention.
The legislation in force at the time in question did not contain provisions on filing a complaint about the unlawfulness of the decision to abolish conditional release.
These arguments were sufficient to enable the Court to conclude that, since the release of probation in November 2015, the applicant had not had a judicial remedy that would enable him, as required by Article 5 § 4 of the Convention, to obtain a review the question of the lawfulness of his detention in connection with this circumstance and to obtain release in the event that the restriction of freedom is recognized as unlawful.
In the case there was a violation of the requirements of paragraph 4 of Article 5 of the Convention (unanimously adopted).
In application of Article 41 of the Convention, the Court held that the finding of a violation of the Convention would in itself constitute sufficient just satisfaction for non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.