Draft Law on the execution of criminal sentences: Will Luxembourg’s criminal justice system finally have a judge specifically dedicated to the enforcement of sentences?


REAL, Avocats à la Cour

When the Tribunal d’arrondissement or the Court of Appeal pronounces a criminal sentence, this sentence must subsequently be executed and enforced by the public prosecutor’s office. In fact, the execution of the sentence is a generic expression which covers the execution of the penal sentence, the application of the sentence and also post-sentencing.

The application of the penal sentence covers more precisely the last phase of the trial and gives a true meaning to the judicial activity which has already taken place. What, indeed, would be the point of an unenforced or unexecuted sentence?

In Luxembourg, a draft law n°7041 on the execution of sentences was proposed on August 31st 2016 with the aim of reforming and modernizing the system of execution of sentences. At a press conference on September 22nd 2016, the Minister of Justice, Mr Félix Braz, presented the broad outline of this reform, namely the major innovation of the introduction of a sentence enforcement chamber competent to rule on appeals lodged by convicted people against decisions taken by the state attorney general and his delegate in the enforcement of sentences.

Although this reform, long-awaited in the crucial field of the execution of sentences, is welcome, it is clear that certain points could still be improved, compared to our European neighbours, particularly France, which has an established and appropriate system for the enforcement of sentences.  In particular, as expressed by the Advisory Commission on Human Rights (the “CCDH“) in its opinion n°02/2017 and by the Luxembourg Association of Criminal Lawyers in its opinion of October 13th 2017, the reform does not take into account the main criticism of the current system of the execution of sentences, which is that decisions on the adjustment of sentences, both custodial and non-custodial adjustments, are taken by the prosecutor who initiated the proceedings against the person who has been sentenced, and not by a judicial body.

The European Court of Human Rights has, in fact, declared in a judgment that a member of the public prosecutor’s office cannot be qualified as a judge or magistrate and cannot be authorized to exercise judicial functions (Medvedyev v. France judgment of March 29th 2010 and Moulin v. France judgment of December 15th 2010).

From this perspective, it would seem that the best solution for the current system to comply with such requirements would be to entrust the execution of sentences to a single judge, whose decisions could be appealed in front of the Court of Appeal. Such solutions would also solve the problem, raised by the CCHR, that the current draft law aims to create a recourse action in front of the Court of Appeal against decisions taken by the public prosecutor or by the director of the prison service, which are not to be considered as judicial decisions.

It’s important to note here that France was subject to a strong legislative and regulatory inflation, which resulted in the creation of a special judicial department for executing sentences.  In fact, France has a judge dedicated specifically to this matter: the judge responsible for the execution of sentences, whose role is to set the terms of the custodial sentences by directing and by controlling the execution and the enforcement of sentences.

Moreover, the main purpose of this judge is to reintegrate convicted people.  In addition to that, judgments made by the judge responsible for the enforcement of sentences or by a court specifically dedicated to this purpose (composed of three judges) may be appealed in front of a special chamber. Appeal judgments held by this special chamber would then be subject to an appeal in front of the Cour de Cassation.

Unlike the French model, the draft law would not guarantee the principle of the double degree of jurisdiction, as laid down in Article 5§4 of the European Convention on Human Rights.

The establishment of a judge who alone would be competent to apply and enforce criminal sentences will thus enable Luxembourg to finally comply with the standards of the European Court of Human Rights, creating a better separation of powers between the prosecution and the judiciary.

The draft law n°7041, combined with the prison administration draft law (n°7042), is therefore undeniably a major step forward in the crucial area of ​​the enforcement of sentences by reintegrating the convicted person into society. However, it is only a small step towards creating an established judicial department for the enforcement of sentences.