DISSENTING OPINION OF JUDGE RAIMONDI JOINED BY JUDGES JOČIENĖ AND SAJÓ

( Translation )

1. To my considerable regret I cannot subscribe to the view of the majority in this case.

2. In my opinion, Article 6 § 1 of the Convention is not applicable to the facts submitted by the applicant for the Court ’ s consideration, either under its criminal head – a view shared by the majority (see paragraph 56 of the judgment) – or under its civil head.

3. I willingly acknowledge, like the majority, that the Court ’ s case-law concerning the applicability of the civil limb of Article 6 § 1 has evolved to some extent as regards the consideration of requests for temporary release and issues relating to the manner of execution of custodial sentences (see the case-law cited at paragraph 57 of the judgment). However, it is my opinion that the applicant could not arguably claim to possess a “right”.

4. The judgment quite correctly summarises the Court ’ s existing case ‑ law on the issue of whether or not a civil right exists. In particular, according to that case-law, there are two aspects to the question: whether there was a “dispute” ( con test ation ) over a “right” and whether that right was a “civil” right.

5. As to the first aspect, as the judgment rightly points out, Article 6 § 1 applies where there is a genuine and serious “dispute”. The dispute may relate not only to the actual existence of a right but also to its scope and the manner of its exercise , and the outcome of the proceedings must be decisive for the right in question .

6. This right may be recognised in the Convention or the Protocols thereto or in domestic law (see, among other authorities, Gutfreund v. France , no. 45681/99, § 39 , ECHR 2003 ‑ VII ). Article 6 § 1 of the Convention is not aimed at creating new substantive rights (as the respondent Government points out in its observations) , but at providing procedural protection of rights , whether they are recognised in the Convention or the Protocols thereto or in the domestic legal order (see Zehnalova and Zehnal v. the Czech Republic ( dec. ), no. 38621/97, 14 May 2002, and W. v. the United Kingdom , 8 July 1987, § 73 , Series A no. 121 ) . In the latter judgment the Court observed that “ Article 6 § 1 extends only to ‘ con test ations ’ (disputes) over (civil) ‘ rights and obligations ’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for (civil) ‘ rights and obligations ’ in the substantive law of the Contracting States ”.

7. In my view, it is in relation to this first aspect that the situation complained of by the applicant, that is to say, his requests for “prison leave”, fails to satisfy the test of applicability of Article 6 § 1 of the Convention; unlike the majority (see paragraph 61 of the judgment), I do not believe that this situation is indicative of the existence of a “right”.

8. It is beyond dispute that no such right is recognised in the Convention or the Protocols thereto. It therefore remains to be ascertained whether it exists in the Luxembourg legal system.

9. In the light of the legislative framework surrounding the system of prison leave in Luxembourg (see paragraphs 34 to 42 of the judgment), I do not believe that the applicant could arguably maintain that he was entitled to prison leave under Luxembourg law, despite the fact that he satisfied the basic requirements for the granting of such leave (being domiciled or resident in the country and having served at least a third of the sentence – see sections 7 and 8 of the 1986 Law) and the fact that the reasons he gave for requesting prison leave were covered by the aforementioned section 7.

10. In my view, the respondent Government were correct in pointing to the discretionary nature of decisions by the domestic authorities concerning requests for prison leave and in concluding that, where the authorities have discretion as to whether or not to grant a particular concession , that concession does not amount to a “right” and, accordingly, Article 6 § 1 of the Convention does not apply to proceedings concerning its granting or otherwise (see Gutfreund , cited above, § 43, and, conversely, Göç v. Turkey [GC], no. 36590/97, § 41 , ECHR 2002 ‑ V ).

11. This is the case with regard to prison leave as provided for by Luxembourg law, a concession which is even referred to as a “privilege” by section 7 of the 1986 Law.

12. The majority argue in favour of the existence of the right invoked by the applicant by stating that the – alleged – restrictions to which his right to a court was subjected in connection with his requests for prison leave “relate to a set of prisoners ’ rights which the Council of Europe has recognised by means of the European Prison Rules, adopted by the Committee of Ministers and elaborated up on in three Recommendations” (see paragraph 61 of the judgment). I cannot agree with this approach. Without wishing to underestimate the significance of these texts, which have the considerable merit of guiding the member States of the Council of Europe in devising and implementing increasingly modern and humanitarian penal policies, I would not go so far as to describe them as binding, which, by definition, they are not.

13. In this connection the majority cites the case of Enea v. Italy [GC], no. 74912/01, § 101 , ECHR 2009 ‑ ... ). In reality, however, that judgment, while reaffirming the non-binding nature, in particular, of Committee of Ministers Recommendation Rec(2006)2 elaborating on the above ‑ mentioned Prison Rules, confines itself to observing that the great majority of the member States recognise that prisoners enjoy most of the rights to which the Recommendation refers , and provide for remedies to protect them. The existence of a right to appeal before the courts against decisions liable to affect the rights of prisoners in the legal system of the respondent State in question – in that case, Italy – is based on a 1999 Italian Constitutional Court judgment which specifically held that certain parts of the Prison Administration Act , which did not allow prisoners to apply to the courts to complain of a violation of their rights, were in breach of the Constitution ( see Enea , cited above, § 100).

14. These are the reasons why I believe the Court should have found in the instant case that the applicant could not arguably claim to possess a “right”, that Article 6 § 1 was not applicable and that the application was, accordingly, inadmissible ratione materiae .