The English Court of Appeal in Bourgass and others v Secretary of State for Justice has held that internal decisions made by prison governors and segregation review boards on confining a prisoner to his or her cell are not determinations of civil rights. As they are not determinations of civil rights, they therefore do not implicate Article 6 of the European Convention on Human Rights. Similarly, in Boulois v. Luxembourg, the Grand Chamber of the ECHR held that prison leave is not a right recognised and protected by the ECHR. The case concerned the refusal of leave for an applicant who had requested it numerous times and also the lack of a remedy to appeal such a refusal.
Article 6 of the ECHR states that, “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. This means that the protections afforded under Article 6 are only applicable to “civil rights”.
In Bourgass, the three applicants had argued that the procedures in force which led to their segregation from the prison population were not Article 6 compliant as they did not involve an independent and impartial tribunal. The preliminary issue therefore was whether their civil rights were in question in order to engage Article 6. The prisoners argued that their right to engage with their prison inmates was a civil right. Lord Justice Maurice Kay did not agree, holding that, “it seems to me that the correct analysis is to see association with other prisoners as a normal privilege rather than a right and that it is subject to withdrawal in accordance with the Rules, particularly those permitting cellular confinement or segregation, which invest governors with discretionary powers”.
The court then considered a hypothetical situation where Article 6 was engaged. It concluded that the availability of judicial review at later stages of the process meant that the process as a whole was Article 6 compliant.
In Boulois the applicant once again relied upon Article 6. Whether or not prison leave could be defined as a civil right was therefore of crucial importance. The court noted that Article 6 didn’t guarantee any particular content for the ‘civil rights and obligations’ within Article 6 and therefore the court could not create a substantive right. While the court recognised that social reintegration of prisoners pursues a legitimate aim, neither the ECHR nor any principle of international law recognises a right to prison leave.
The joint dissenting opinion of Judges Tulkens and Yudkivska held that there had been a violation of Aricle 6 and that “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”. The judges held that the right to prison leave is in fact civil in nature, “particularly on account of the importance of the measures assisting the prisoner’s reintegration into society”.
Click here for a blog post by the UK Human Rights blog on the Bourgass case.
Click here to read the full Bourgass judgment.
Click here for full Boulois judgment.
Click here for the ECHR press release in Boulois.
Meanwhile, a law is being put to a vote in the Greek parliament which would allow illegal immigrants to be detained indefinitely if they are considered to be a risk to public health. Greek authorities stated that immigrants liable for detention pose a risk “because they have contracted an infectious disease, or because they belong to groups vulnerable to such diseases, like intravenous drug users, persons involved in [prostitution] or people who reside in conditions that do not meet the elementary standards of hygiene". The draft legislation has been harshly criticised by numerous human rights groups, including Amnesty International who called the potential law “deeply alarming”.
The Guardian newspaper previously reported that the Greek authorities are planning to convert 30 former military sites to detention centres, each of which would be capable of holding up to 1,000 people. If the law comes into force, those detained “will be submitted to compulsory health examinations and corresponding treatments”. As stated by a spokesperson for Amnesty, “these deeply alarming measures specifically target the most vulnerable people based on discriminatory criteria".
Click here to see an article by the Guardian on the issue.