Tag Archives: discretion

Guest Post by Professor Martine Herzog Evans: Is Prison Leave a Privilege?

Martine Herzog-Evans is a Law Professor at the University of Reims, France and specialises in criminology and prison law.

The Case – European Court of Human Rights, Grand Chamber, Boulois v. Luxembourg, applic. n° 33575/04

Mr Boulois, was imprisoned in Luxembourg, he filed several requests in order to obtain prison leave, which were all rejected by the Prison Board. He then lodged an application for judicial review with the Administrative Court. However, the Administrative Court denied it had jurisdiction to examine the application. In his application against the Grand Duchy of Luxembourg, Mr Boulois claimed that Article 6§1 of the ECHR had been violated arguing that he did not have access to a fair hearing or to a court. After the First Section of the ECtHR ruled in his favour, the government of Luxembourg requested for the case to be referred to the Grand Chamber.

The Ruling

« The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute… over a “right” which can be said… to be recognised under domestic law» (§90)

«  the Court observes that section 6 of the 1986 Law defines prison leave as… a “privilege” which “may be granted” to prisoners in certain circumstances» (§96)

« Thus it was clearly the legislature’s intention to create a privilege… the present case concerns a benefit created as an incentive to prisoners ». (§98)

« … the applicant could not claim, on arguable grounds, to possess a “right”» (§101)

« Furthermore… although the Court has recognised the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment… neither the Convention nor the Protocols thereto expressly provide for a right to prison leave» (§ 102).

« There has therefore been no breach of Article 6 » (§105).

Observations

In some European states, release and prison management decisions such as whether to grant prison leave, are deemed ‘administrative’ and are made by the executive. However, in France and other European countries such as Belgium, Spain, Italy, Germany, they are deemed to be of a ‘penal’ nature and a judge makes the decision. This often consists of a  hearing, where a lawyer can defend the inmate and, appeal, and even access to the highest court (Padfield and al. 2010). It appears that there is no clear consensus in Europe as to the very nature of what French law calls ‘sentence management measures’.

Despite ruling in Ganci v. Italy (30 Oct. 2003, n° 41576/98) that Article 6 applied to a disciplinary sanction if it affected civil rights such as family contacts; and in Enea v. Italy (Gd Chamber,  17 Sept. 2009, n° 74912/01), that a security prison regime affecting visitation did affect ‘civil rights’; in Boulois, the Grand Chamber analyses the request for prison leave as not being of a ‘civil’ nature. According to Luxembourg’s legal system, prison leave is a ‘privilege’ which aims at ‘encouraging’ prisoners, this corresponds to the historical view that prison leave is used to control prisoner’s behaviour. In view of modern penological goals, prison leave now serves two purposes: firstly, to allow prisoners to prepare their future and inevitably – except for lifers – release (e.g. by trying to find a job) ; secondly, to keep in contact with their families. Family rights are particularly important as they play a key role in deterring crime and are protected under Article 8 (Maruna, 2001; Farrall, 2002).

Prison leave should not be seen as a ‘privilege’. As stated above, in most modern nations, it is no longer seen as being a purely behavioural tool. It is true that most legal systems contain provisions which state that inmates ‘may’ or ‘can’ be granted prison leave. The ECtHR has itself ruled several times that by using the word ‘can’ does not mean that the authority or judge has full discretionary power ( Lambourdière v. France, 2 Aug. 2000, n° 37387/97 and Camps n. France, 23 Nov. 1999, n° 42401/98). It has been argued numerous times (e.g. in Herzog-Evans, 2012), that such legal provisions should be interpreted reasonably. Indeed when the law states that an offender ‘can’ be released or granted prison leave, it does not imply that he has an absolute right to either. Conversely, it does not mean that once all legal conditions and requirements are met, the court or governing authority can still deny the offender’s application simply ‘because it can’. One should not confuse discretion with whim. According to a fairer interpretation, when a legal system uses the verb ‘can’, it means that once all legal requirements are met – and this should include the protection of the public – then the authority or court should grant release or prison leave. In other words, even when ‘can’ is used, there is indeed a right to prison leave once its conditions are met.

According to the Grand Chamber, however, there is no such thing as a European principle of ‘reintegration’. The court only refers to the conventions and protocols, without mentioning recommendations. Recommendations may be deemed as being mere ‘soft law’; nonetheless, they do represent a consensus between European countries. Precisely, and to quote only a few, the European Prison Rules (2006, preamble), the European Probation Rules (2010, section 2), and Recommendation (2003)22 (preamble) all refer to reintegration as being a fundamental principle. In other words there is indeed a consensus amongst European member states relating to the importance of reintegration.

Finally, one must look at the bigger picture: the right to a fair trial as laid out in Art. 6, is not only a humanitarian procedural luxury that Western countries can afford.  Fair trial is first and foremost the mark of a democracy. In most modern democracies, the right to a fair trial conquers more and more legal territories. In France, for instance, it now applies to disciplinary sanctions, solitary confinement decision-making, release, recall, and other sanctions. Besides, from the criminological viewpoint, Art.6 is an essential component of the legitimacy of justice. As empirical studies have shown (Tyler, 1990; Tyler and Huo, 2002) it fosters compliance (Liebling, 2007) – probably substantive compliance as opposed to instrumental compliance (Robinson and McNeill, 2008) – in other words it is essential to grant leave from prison in order to prevent reoffending.

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Sentenced for looting? What about corporate fraud?

The sentencing of rioters this summer appeared to be  harsh, disproportionate and policy driven. The government tried to influence sentencing and the judiciary went along with it, handing down long sentences for crimes that would normally barely even reach the court. The damage caused by the riots, especially to small businesses, came at a high cost. The government and the public wanted there to be a consequence for all those involved. The courts proceeded to make an example of those who had looted goods, by giving them prison sentences of up to several years.

Andrew Wetherall outside the court with his wife, who due to her expensive tastes, he claims he committed fraud for

There was a father of two jailed for 18 months for stealing a flat screen tv, a 19 year old was sentenced to 2 years in a young offenders institution for drinking stolen champagne and picking up a pair of stolen trainers, and then the case of the 6 month sentence for stolen water from Lidl. What about ex Labour minister Elliot Morley? He was freed last year after serving only a quarter of his 16 month sentence for claiming 30,000 pounds in expenses. While Andrew Wetherall, the director of KPMG who stole 500,000 pounds by fiddling his expense claims. He was sentenced to 4 years, for a crime that vastly outweighs the cost of a flatscreen tv. The theft of the damage caused by the riots is not insignificant or justifiable, but a custodial sentence is in my opinion highly unsuitable for most of those involved in the riots (community service and restorative justice would be much more helpful in rebuilding communities). It is also completely inconsistent with the large scale theft committed by individuals in government or in charge of running large corporations.

Although figures show that the majority of those arrested for theft last summer were not in fact children, the rioters were still overwhelmingly young people. The media were quick to once again demonize the British youth, even last week there was debate about the discipline of children and whether restrictions on smacking children should be lifted. However, the public seems to ignore the great examples being set by adults in the form of fraudulent businessmen, MP’s and executives of large corporations. These individuals are portrayed in a completely different light to those who stole a tv, a pair of trainers or a bottle of water last summer.

Combined with the lack of prospects, how will the next generation gain respect for our society when those at the top are regularly looting assets to lead lavish lifestyles. When young people see the anarchic behaviour of the rich and the often mild consequences of this behaviour if any, how can we expect them to develop different values? Many people who got caught up in the moment and took part in the chaos, behaved as if it was their right to appropriate goods e.g. a pair of trainers, even trying them on before leaving the ransacked shop. The public were shocked by these details, but how is this different, in fact it is hardly comparable to the behaviour of  Bill Godley, Andrew Wetherall, Elliot Morley, Lord Taylor or the cases of Alstom, BAE etc… The recent corporate fraud cases are too numerous to name.

I’m not condoning stealing, but why is corporate fraud treated like a relatively harmless and victimless crime? On the UK’s Fraud Prevention Service (CIFAS) website, the Chief Executive, Peter Hurst states that although violent/aggravated burglary and scams are different crimes, their consequences are often the same. There are many different fraud cases and many different types theft, but the money stolen is also money lost by others. Those sentenced for looting or theft took goods as if they were entitled to it, just like those who have committed fraud. If judges are quick to make examples of those who looted during the summer riots, why are they not applying the same tactic to those who commit corporate fraud?