In the recent judgment of Boulois v. Luxembourg, the Grand Chamber denied a prisoner his right of access to court (Art. 6, § 1 ECHR) in a case concerning the refusal to grant him prison leave. The Grand Chamber’s reasoning is tainted by legal formalism and fails to do justice to the importance of social reintegration prospects for prisoners.
The applicant in Boulois v. Luxembourg was serving a fifteen year prison sentence. He repeatedly submitted requests for prison leave of one day, which were all refused by the prison board. Paradoxically, the main reason for these refusals was that he had not yet compensated his victim, while the purpose of the intended prison leave was exactly to put his affairs in order, as to allow him to start paying damages to the victim as quickly as possible. His applications for judicial review against two of these decisions were dismissed, because the administrative courts declined jurisdiction. He complained to the Strasbourg Court that this violated his right of access to court, as guaranteed under Art. 6, § 1 ECHR. However, unlike the Chamber judgment, the Grand Chamber dismissed his claim by ruling that Art. 6, § 1 ECHR in its civil limb was not applicable, as the case did not concern a ‘right’.
According to the Court’s case-law, Art. 6, § 1 ECHR in its civil limb is only applicable when there is a dispute over a ‘right’ “which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention.” The Court has further held that “Article 6 § 1 does not guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned.”
Luxembourgian law ‘on certain means of executing custodial sentences’ holds that prison leave is a ‘privilege’ which ‘may be granted’ to first offenders once a third of their sentence has been served. As the prison board enjoys a certain discretion in deciding whether a prisoner may enjoy prison leave, the Court held that “the applicant could not claim, on arguable grounds, to possess a ‘right’ recognised in the domestic legal system.” Therefore the Court ruled that Art. 6, § 1 ECHR was not applicable.
The Grand Chamber judgment is hard to reconcile with the Court’s earlier finding that “the mere fact that the wording of a legal provision affords an element of discretion does not in itself rule out the existence of a right” (Lambourdière v. France). According to the Court’s case-law, what is relevant is that the authorities “did not have an unfettered discretion” (Pudas v. Sweden). In the case at hand, the Luxembourgian authorities did not enjoy such ‘unfettered discretion’, as the domestic law clearly indicated which elements they had to take into account: “consideration shall be given to the personality of the prisoner, his or her progress and the risk of a further offence.”
Furthermore, regardless how wide the discretion of a state authority may be, it can never be absolute, as it is limited by the prohibition of arbitrariness, which is an inherent element of the rule of law. Therefore, the fact that prison leave was allowed for by law at the very least indicates that there must be a right not to be arbitrarily denied this ‘privilege’. While it may well be legitimate that state authorities have a considerable leeway in deciding on prison leave, and while a state may decide not to make the feasibility of a decision on prison leave subject to judicial review, access to court should nonetheless be granted to a prisoner who wishes to challenge the alleged arbitrary nature of a refusal of prison leave. Admittedly, it may not be beyond dispute what amounts to prohibited arbitrary use of power, but arguably it covers at least the following cases in which there are serious reasons to question the acceptability of the authorities’ motives (cf. a reason-blocking model of rights, such as Dworkin’s Rights as Trumps): discriminatory decisions; decisions that do not give any reasons; decisions that give reasons which are pretext for unacceptable motives; manifestly inconsistent decisions; decisions that manifestly disregard criteria established by the law; and decisions that blatantly ignore arguments in favour of the individual’s position.
Finally, the distinction between ‘right’ and ‘privileges’ is fundamentally problematic, as the more discretion is given to a certain state authority (‘privilege’ instead of ‘right’), the greater the risk of abuse and hence the greater the need for judicial safeguards. By endorsing this distinction, the Court creates the possibility for states to cherry-pick their obligations under Art. 6, § 1 ECHR. The dissenting Judges Tulkens and Yudkivska are very much aware of this risk:“[i]n the same way as the concept of a ‘criminal’ charge, the term ‘right’ in Article 6 is an autonomous concept which should be defined in the light of the object and purpose of the Convention and does not necessarily depend on the classification adopted in domestic law. Otherwise, this issue would be determined differently in different member States in relation to the same measure.” In their view “[t]he right in question is ‘civil’ in nature, particularly on account of the importance of the measures assisting the prisoner’s reintegration into society. What was at stake in the proceedings concerning his various requests for prison leave was therefore his interest in making new arrangements for his professional and social life on his release from prison, a matter falling within the sphere of personal rights.” The dissenters further clearly identified the risks related to allowing social reintegration to take place in a legal limbo: “[w]here the first stages of the prisoner’s return to the community depend on another person’s good will (or lack of it), the entire resettlement plan can be thwarted.”
However, unlike the dissenters, the majority ignored the importance of what was at stake for the applicant. When the right to access of court was introduced in the Golder v. United Kingdom judgment, the text of the Convention had to yield for its ‘object and purpose’. However, in Boulois v. Luxembourg, legal formalism is back with a vengeance. By denying prisoners access to court, based upon a formalistic interpretation of the term ‘right’, the Grand Chamber gives prison authorities a carte blanche to hamper a prisoner’s prospects of social reintegration. Although the Grand Chamber recognized “the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment”, it’s a pity that it did not seize the opportunity to effectively advance this aim. This is particularly regrettable in the light of reoffending statistics which sadly illustrate the failure of European prison policies to achieve social reintegration.