Information Note on the Court’s case-law No. 151
April 2012
Boulois v. Luxembourg [GC] - 37575/04
Judgment 3.4.2012 [GC]
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Prison board’s repeated refusal, with no right of appeal to the administrative courts, to grant prisoner temporary leave: no violation
Facts – The applicant was sentenced to fifteen years’ imprisonment. Between 2003 and 2006 he submitted six requests for temporary leave of absence (“prison leave”) on the grounds, in particular, that he wished to carry out administrative tasks and take courses in order to gain qualifications. His requests were all refused by the Prison Board. The applicant lodged an application for judicial review of the first two refusals with the Administrative Court, which declined jurisdiction to examine the application. That judgment was upheld by the Higher Administrative Court.
In a judgment of 14 December 2010 (see Information Note no. 136), a Chamber of the Court held, by four votes to three, that there had been a violation of Article 6 § 1 on the grounds that the absence of any decision on the merits of the application for judicial review had nullified the effect of the administrative courts’ review of the Prison Board’s decisions. Furthermore, the legislation in force did not provide prisoners with any other remedy.
Law – Article 6 § 1: Article 6 § 1 of the Convention was not applicable under its criminal head, as the proceedings concerning the prison system did not relate in principle to determination of a “criminal charge”. The Court therefore had to consider whether the applicant had had a “civil right”, in order to assess whether the procedural safeguards afforded by Article 6 § 1 were applicable to the proceedings concerning his requests for prison leave. It first had to be determined whether the applicant had possessed a “right” to prison leave. The domestic legislation defined prison leave as permission to leave prison either for part of a day or for periods of twenty-four hours. This was a “privilege” which “[might] be granted” to prisoners in certain circumstances. It had clearly been the legislature’s intention to create a privilege in respect of which no remedy was provided. The competent authorities enjoyed discretion as to whether or not to grant leave, even where the prisoner concerned formally met the required criteria. As to the interpretation of the legislation by the domestic courts, the administrative courts had declined jurisdiction to examine the applicant’s application for judicial review. Accordingly, the applicant could not claim, on arguable grounds, to possess a “right” recognised in the domestic legal system.
Furthermore, although the Court had recognised the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment, neither the Convention nor the Protocols thereto expressly provided for a right to prison leave. The same was true in relation to a possible principle of international law. Lastly, no consensus existed among the member States regarding the status of prison leave and the arrangements for granting it. In any event, the respondent State was far from indifferent to the issue of resettlement of prisoners, as testified by the existence of prison leave and the legislative reform which was under way concerning the execution of sentences.
In view of all these considerations, the applicant’s claims did not relate to a “right” recognised in Luxembourg law or in the Convention. Accordingly, Article 6 was not applicable.
Conclusion: no violation (fifteen votes to two).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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