Prevention of terrorism
RELEVANT DOMESTIC LAW 21. In respect of an individual who has been convicted of acts of terrorism and related offences, only the post-sentencing judge at the Paris tribunal de grande instance, the Paris Sentence Enforcement Court and the sentence - enforcement division at the Paris Court of Appeal have jurisdiction, irrespective of the convicted person ’ s place of detention or residence. In urgent cases, the post-sentencing judge with jurisdiction for terrorism cases issues orders regarding, among other areas, escorted leave without seeking the opinions of the post-sentencing judge who has territorial jurisdiction and the sentence - enforcement board. Such orders may be contested on appeal within twenty-four hours of their notification. An appeal on points of law may be lodged against orders and judgments concerning, in particular, escorted leave, within five days of notification; such an appeal does not have suspensive effect. 22. Persons sentenced to a prison term who are serving the minimum period in relation to their sentence are not entitled to unescorted leave. They may only be granted escorted leave on an exceptional basis. 23. The relevant provisions of the Code of Criminal Procedure (CPP) as in force at the material time, read as follows: Article 706-16 “The acts of terrorism established as crimes under Articles 421-1 to 421-6 of the Criminal Code, and the related offences, shall be prosecuted, investigated and tried in accordance with the rules of the present Code, subject to the provisions of the present Part. ...” Article 706-22-1 “By derogation from the provisions of Article 712-10, only the post-sentencing judge of the Paris tribunal de grande instance, the Paris Sentence Enforcement Court and the post-sentencing division of the Paris Court of Appeal shall have jurisdiction to take decisions regarding persons convicted of an offence falling within the scope of Article 706-16, irrespective of the convicted person ’ s place of detention or residence. These decisions shall be taken after obtaining the opinion of the post- sentencing judge who would have jurisdiction under Article 712-10...” Article 712-5 “Except in urgent situations, decisions on reduction of sentences, requests for leave under escort and day-release shall be taken after obtaining the opinion of the sentence - enforcement board. ...” Article 712-11 “The decisions of the post- sentencing judge and of the sentence enforcement court may be contested on an appeal by the prisoner, by the public prosecutor and by the Principal Public Prosecutor, from the point that they are notified : 1. Within twenty-four hours as regards the orders mentioned in Articles 712-5 and 712-8 ...” Article 712-12 “An appeal against the orders referred to in Articles 712-5 and 712-8 shall be brought before the president of the Post-sentencing Division of the Court of Appeal, who shall decide by means of a reasoned order in the light of the written observations of the public prosecutor and of the prisoner or his or her lawyer.” Article 712-15 “An appeal on points of law may be lodged within five days after the orders and judgments mentioned in Articles 712-12 and 712-13 have been served. Such an appeal shall not have suspensive effect.” Article 723-3 “Authorisation for leave permits a prisoner to be absent from a detention facility for a certain fixed period of time which is set off against the length of the sentence that is being served. It is intended to prepare the prisoner for professional and social reintegration, to maintain his or her family ties or to enable him or her to fulfil an obligation at which his or her presence is required.” Article 723-6 “Every prisoner may, under the conditions laid down in Article 712-5, obtain, on an exceptional basis, authorisation for escorted leave.” Article D49-79 “In urgent cases, the Paris post- sentencing judge may rule without obtaining the opinion of the post- sentencing judge who would have jurisdiction in application of Article 712 ‑ 10.” Article D142-1 “The conditions for the time-period provided for in Articles D. 143 to D. 146 shall only be applicable if the prisoner is not serving the minimum term imposed.” Article D144 “In the event of the serious illness or death of a close relative, leave may be granted for a maximum period of three days, both to prisoners who have been sentenced to a prison term not exceeding five years, and to prisoners serving a prison term of over five years, where they have served half of their sentence.” Article D145 “Leave of a maximum duration of three days may be granted, with a view to maintaining family ties or preparing them for social reintegration, to prisoners who have served half of their sentence and who have a remaining period of less than three years to serve in detention...” Article D146 “Convicted prisoners who are being held in detention centre may be granted leave as provided for in Article D. 145 where they have served a third of their sentence.” Article D425 “In application of the provisions of Article 723-3 concerning leave authorisations, and under the conditions set out in Article D. 144, prisoners may be authorised to travel to a close relative who is seriously ill or had died.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 24. The applicant complained about the judicial authorities ’ refusal to grant her escorted leave from prison in order to travel to the funeral home and pay her last respects to her deceased father. She relied on Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ arguments 26. The applicant submitted firstly that the provisions of Article 723-6 of the Code of Criminal Procedure were not sufficiently foreseeable, in that they did not enable her to predict the possible grounds for refusing her request for escorted leave. 27. She further argued that the judicial authorities ’ refusal to grant escorted leave to travel to the funeral home did not pursue a legitimate aim and was neither justified nor necessary in a democratic society. She submitted that her journey under escort to the Basque Country would not have been likely to lead to a public-order disorder disturbance, given that ETA had announced an end to the armed struggle in October 2011. Furthermore, there had also been no risk of her absconding, since she had served the greater part of her prison sentence and was entitled to request conditional release four months after her father ’ s death, that is, on 24 May 2014. In view of her illness and her father ’ s death, her physical and psychological state could not be used to substantiate a risk of absconding. 28. The applicant also challenged the Government ’ s argument that it had not been feasible in practice to organise an escort. She submitted that her family had arranged for her father ’ s cremation to be held six days after his death, so that the authorities could take the necessary measures. Indeed, she had asked only to be able to travel to the funeral home, and not the crematorium. She added that her state of health had not been an obstacle to transfers between prisons. In particular, the last inter-prison transfer, from Roanne to Rennes, had not required any specific measures although the travelling time, about six hours, was comparable to what would have been necessary to travel to the funeral home in Bayonne. 29. She added that she had not seen her father for four years on account of his health, which had prevented him from travelling to her distant place of detention, and that she had had to wait until 12 April 2014 to see her sister, mother and daughter, that is, almost three months after her father ’ s death. 30. The Government did not dispute that the judicial authorities ’ refusal to grant the applicant ’ s request for escorted leave in order to travel to her father ’ s funeral had amounted to interference in her right to respect for her family life. 31. However, they considered that this interference had been in accordance with the law. They pointed out, firstly, that, under the applicable domestic law, the applicant could not claim to be entitled to unescorted leave, since on the date she submitted her request she had been serving the minimum period attached to her sentence. They further indicated that, in accordance with the provisions of Article 723-6 of the Code of Criminal Procedure, permission to leave prison under escort was not a right and a convicted person was entitled to it only exceptionally. They added that the basis of this type of measure was essentially humanitarian and that, in consequence, it had been sufficiently foreseeable that the applicant ’ s request could be refused on public order grounds. 32. They added that the interference had pursued legitimate aims, namely the interests of public safety and the prevention of disorder or crime. 33. They alleged that the refusal to grant the applicant ’ s request had been necessary in a democratic society, had corresponded to a pressing social need, namely that of preventing the risk of absconding and of public disturbance, and lastly, that it had been proportionate to the aims pursued. They specified that the criminal profile of the applicant, who had been convicted of terrorist acts and continued to assert her membership of ETA and for whom completion of her prison term was still distant (17 June 2019), indicated a serious risk of absconding. They considered that this risk had not been mitigated by the cessation of ETA ’ s armed struggle. In their view, the risk of public disturbance was high, given the location and context of the funeral of the applicant ’ s father. It was due to take place in Bayonne, in the Basque Country, where ETA organised its activities. In addition, the applicant ’ s brother and sister, who were themselves identified as being active in the Basque movement, were due to be present. According to the Government, the high risk of public-order disturbances and of absconding implied a reinforced escort team, which it had not been physically possible to organise, given the time available and the geographical distance involved. They added that surveillance of a prisoner by an escort during authorised leave was more complicated than during transfers from one prison to another (on these latter occasions, prisoners did not exit into open public areas). 34. They considered that the domestic courts had balanced the right to respect for the applicant ’ s family life, in acknowledging the justified nature of her request in human terms at a painful time for her, against the security constraints. 35. They added that, in contrast to the situations in the cases of Lind v. Russia (no. 25664/05, 6 December 2007) and Płoski v. Poland (no. 26761/95, 12 November 2002), it had not been possible to offer the applicant an alternative measure to escorted leave. 36. They specified that the prison authorities had made every effort to maintain the applicant ’ s family ties; she had received visits from members of her family and had been able to communicate, particularly by telephone, with her father once his health had prevented him from continuing to make long journeys to the prison. They submitted a list of the persons who had visited the applicant in the prison visiting rooms between 16 November 2013 and 16 November 2014, and a calculation of the periods that the applicant had spent with family members or with her partner in a family unit. 2. The Court ’ s assessment 37. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the authorities enable him or, if need be, help him, to maintain contact with his close family (see Messina v. Italy (no. 2), no. 25498/94, § 61, ECHR 2000 ‑ X, and Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015). 38. At the same time, the Court recognises that some measure of control of prisoners ’ contacts with the outside world is called for and is not of itself incompatible with the Convention (see Schemkamper v. France, no. 75833/01, § 30, 18 October 2005). In addition, the right to prison leave is not guaranteed as such by the Convention (see Marincola and Sestito v. Italy (dec.), no. 42662/98, 25 November 1999; Kanalas v. Romania, no. 20323/14, § 66, 6 December 2016; and Vonica v. Romania [committee ], no. 78344/14, § 68, 28 February 2017). Indeed, Article 8 of the Convention does not guarantee a detained person a right to leave, and the Court has held on numerous occasions that existence of a system for requesting leave is not in itself open to criticism (see, inter alia, Sannino v. Italy (dec.), no. 72639/01, 3 May 2005). 39. It is not disputed in the present case that the decision not to grant the applicant ’ s request for escorted leave to travel to the funeral home and pay her respects to her deceased father amounted to an interference in her right to respect for family life as guaranteed by Article 8 of the Convention (see Płoski v. Poland, no. 26761/95, § 32, 12 November 2002, and Kanalas, cited above, § 54, 6 December 2016). 40. Such interference is not in breach of the Convention if it is in accordance with the law, pursues one or more of the legitimate aims contemplated in paragraph 2 of Article 8 and may be regarded as a measure which is necessary in a democratic society (see Płoski, cited above, § 30). 41. The Court notes that the contested refusal to grant escorted leave was in accordance with the law, namely Article 723-6 of the Code of Criminal Procedure, and that the risks of escape and public disorder were inherent in granting temporary leave, on an exceptional basis, to a convicted prisoner, with or without an escort. Except in urgent situations, decisions on requests for leave under escort were taken after obtaining the opinion of the sentence enforcement board. The Court considers that the possible grounds for refusing a request by a prisoner, such as the applicant, were sufficiently foreseeable. 42. It further considers that the interference, the purpose of which was to prevent the risk of escape and public disorder, was intended to ensure public safety and the prevention of disorder and crime (see Kanalas, cited above, § 57). 43. It remains to be determined whether the decision in question was “necessary in a democratic society”. 44. The Court reiterates that when assessing the obligations imposed on the Contracting States by Article 8 in this area, regard must be had to the ordinary and reasonable requirements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner ’ s contact with his family (see Lavents v. Latvia, no. 58442/00, § 141, 28 November 2002). It is the duty of the State to demonstrate that the inherent restrictions on a prisoner ’ s rights and freedoms are nonetheless necessary in a democratic society and that they are based on a pressing social need (see Płoski, cited above, § 35). 45. The Court notes that the judicial authorities, at first instance and on appeal, examined the applicant ’ s request with care and found that her father ’ s death constituted an exceptional ground which could justify granting escorted leave. Furthermore, the judge in the post-sentencing division took account of the fact that the applicant had not seen her father since 2009 in finding that her request was justified on the human level. 46. It notes that the authorities nevertheless refused the applicant ’ s request, on the grounds, firstly, of her criminal profile, in that she was serving several prison terms for terrorist acts and continued to assert her membership of the organisation ETA, and, secondly, that it was impossible to organise a reinforced escort within the time available. 47. The Court is aware of the problems of a financial and logistical nature caused by escorted leaves (see Płoski, cited above, § 37, and Kubiak v. Poland, no. 2900/11, § 26, 21 April 2015). It notes that the national authorities duly examined the applicant ’ s profile, the seriousness of the crimes committed (punished by a long prison sentence), the context of the trip that would have to be organised, the factual considerations (in particular the geographical distance of almost 650 km), and concluded that the escort would be to be a particularly robust one. The Court notes that the applicant submitted her request for leave promptly, allowing the authorities a period of six days to organise an escort. However, it finds no grounds to contest the Government ’ s assessment that the time available, once final permission for escorted leave was granted, was insufficient to arrange an escort comprising officers who were specially trained in the transfer and supervision of prisoners convicted of terrorist offences and to organise the prior inspection of premises. 48. The Court notes that in the circumstances of the case there was no practicable means of acceding to the applicant ’ s request other than by granting escorted leave (see, a contrario, Kanalas, cited above, § 64, with further references). 49. It notes that the applicant had not seen her father since 2009, but that she had regular visits from members of her family and from friends, as submitted by the Government (see paragraph 36 above). 50. In consequence, the Court considers that the judicial authorities carried out a balancing exercise between the interests at stake, namely the applicant ’ s right to respect for her family life on the one hand and public safety and the prevention of disorder and crime on the other (see, a contrario, Kanalas, cited above, § 65). It therefore finds that the respondent State did not overstep the margin of appreciation afforded to it in this area. 51. Having regard to the above considerations, the Court finds that, in the circumstances of the case, the decision not to grant the applicant ’ s request for escorted leave in order to travel to the funeral home and pay her last respects to her deceased father was not disproportionate to the legitimate aims pursued. 52. There has accordingly been no violation of Article 8 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the French State had not exceeded the margin of appreciation afforded to it in this area and that the refusal to grant the applicant’s request had not been disproportionate and had pursued legitimate aims. It noted in particular that the authorities had rejected the request on the grounds, firstly, of the applicant’s criminal profile – she was serving several prison sentences for terrorist offences and continued to assert her membership of ETA – and, secondly, because it was impossible to organise a reinforced security escort within the time available.