Tag Archives: ECtHR

Should Government Intervene in the Judicial Process? — Home Secretary criticises judges on application of right to family life

Theresa May stated today that judges must follow stricter rules on the application of human rights laws in relation to immigration and deportation of criminals. She also claimed that Article 8 of the European Convention on Human Rights (ECHR) – the right to family life, is not an absolute right and must be weighed up against public interest. The cross government agreement approved by Ken Clarke encourages judges to interpret Article 8 in a way that would put the state before the right to family life.

On the BBC’s Andrew Marr show the Home Secretary revealed plans to tighten immigration laws and to prevent criminals using Article 8 to avoid deportation.  The UK is introducing “financial independence” rules which will make it more difficult for tens of thousands of families to bring relatives into Britain. When the measures come into force next month, individuals must earn at least £18,600 to bring in a non-EU  spouse into the UK and additional income for each child. May is emphasising that this will prevent foreign partners from “relying on benefits” for when they settle in the UK. She claims that these moves seek to largely reduce net migration as well as ensuring integration and economic independence of immigrants.

She also referred to plans to introduce “Britishness tests” which will consist of English language as well as a “life in the UK” tests. Marr pointed out the challenges that may arise in relation to Article 8 ECHR, however May argued that states have the ability to “qualify” the right to family life i.e. apply their own interpretation. She argued that the courts have not been correctly qualifying that right “not even in the way stated by the Convention”. Ultimately she is pressuring judges to enforce more stringent legal controls on the immigration of relatives of British residents as well as making it easier to deport foreign criminals.

The Home Secretary stated that she will outline the rules and guidelines in qualifying the right in the courts. “[I am going to] set out the rules that say this is what parliament, this is what the public, believe is how you balance the public interest against the individual’s interest” According to May the ECtHR has actually been tougher than some English courts in this area, she claimed that in many European cases judges differentiate between a foreign nationals who have been in the country illegally  or legally.

Her proposal for tighter rules emphasises the governments view that the right to family life doesn’t necessarily take precendence over other factors. The government plans to introduce legislation if the judges do not follow the motion set out by the Commons. She warned: “I would expect that judges will look at what parliament will say and that they will take into account what parliament has said. If they don’t then we will have to look at other measures and that could include primary legislation.”

It is unclear how exactly the government is to assess whether or not judges have taken on board the government’s wishes. For May to publicly criticise the work of judges for not being in line with the governments policies seems a  little worrying as surely judges should be expected to act within the framework of the law rather than according to the interests of the government. Lawyers have stated that implementing legislation to amend the human rights act or to change its proper application would most likely be contrary to the convention.

Critics have argued that it is not the job of Parliament to interpret the law but that of the judges. May’s comments on the Marr show could be seen to be labelling immigrants as benefit scroungers or criminals who are abusing human rights laws such as Article 8 in order to stay in the country. The governments intervention on the current approach taken by judges seems both unnecessary and inappropriate. While many judges inevitably reflect public opinion to a degree they should primarily base their judgments on the law. Government has no place to enforce their political agenda onto court decisions, and judges should act in the public interest to uphold a fair and legitimate legal system that upholds human rights.

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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