ÎCCJ — COUR EUROPÉENE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS GRAND CHAMBER CASE OF HIRST v

The case originated in an application (no. 74025/01) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr John Hirst (“the applicant”), on 5 July 2001 .

The applicant, who had been granted legal aid, was represented by Mr E. Abrahamson, a solicitor practising in Liverpool . The United Kingdom Government (“the Government”) were represented by their Agents, initially by Mr J. Grainger and subsequently by Ms E. Willmott, both of the Foreign and Commonwealth Office, London .

The applicant alleged that as a convicted prisoner in detention he had been subject to a blanket ban on voting in elections. He invoked Article 3 of Protocol No. 1 alone and in conjunction with Article 14, as well as Article 10 of the Convention.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 8 July 2003 it was declared partly admissible by a Chamber of that Section, composed of the following judges: Mr M. Pellonpää, Sir Nicolas Bratza, Mrs V. Strážnická, Mr R. Maruste, Mr S. Pavlovschi, Mr L. Garlicki, Mr J. Borrego Borrego, and also of Mr M. O’Boyle, Section Registrar .

A hearing took place in public in the Human Rights Building , Strasbourg , on 16 December 2003 (Rule 59 § 3). In its judgment of 30 March 2004 (“the Chamber judgment”), the Chamber held unanimously that there had been a violation of Article 3 of Protocol No. 1 and that no separate issues arose under Articles 14 and 10 of the Convention. It also held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

On 23 June 2004 the Government made a request for the case to be referred to the Grand Chamber (Article 43 of the Convention).

On 10 November 2004 a panel of the Grand Chamber decided to accept the request for a referral (Rule 73).

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court.

The applicant and the Government each filed a memorial. Observations were also received from the Prison Reform Trust, the AIRE Centre and the Government of Latvia, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to those comments at the hearing mentioned below (Rule 44 § 5).

A hearing took place in public in the Human Rights Building , Strasbourg , on 27 April 2005 (Rule 59 § 3). There appeared before the Court: (a) for the Government Ms E. W ilmott, Agent , Mr R. S ingh, q.c., Counsel, Ms M . Hodgson , Mr M. Rawlings , Mr B. Daw , Advisers ; (b) for the applicant Ms F. Krause , Counsel , Mr E. A brahamson, Solicitor. The Court heard addresses by Mr Singh and Ms Krause. THE FACTS

On 11 February 1980 , the applicant pleaded guilty to manslaughter on ground of diminished responsibility. His plea of guilty was accepted on the basis of medical evidence that the applicant was a man with a gross personality disorder to such a degree that he was amoral. He was sentenced to a term of discretionary life imprisonment.

The applicant’s tariff (that part of the sentence relating to retribution and deterrence) expired on 25 June 1994 . His continued detention was based on considerations relating to risk and dangerousness, the Parole Board considering that he continued to present a risk of serious harm to the public.

The applicant, who is barred by section 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections, issued proceedings in the High Court under section 4 of the Human Rights Act 1998, seeking a declaration that this provision was incompatible with the European Convention on Human Rights.

The applicant’s application was heard before the Divisional Court on 21 and 22 March 2001, together with the application for judicial review of two other prisoners, Mr Pearson and Mr Feal-Martinez, who had applied for registration as electors and been refused by the Registration Officer and who also sought a declaration of incompatibility.

In the Divisional Court judgment dated 4 April 2001 , Lord Justice Kennedy noted that section 3 had a long history and cited the Secretary of State’s reasons, given in the proceedings, for maintaining the current policy: "By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period. There is more than one element to punishment than forcible detention. Removal from society means removal from the privileges of society, amongst which is the right to vote for one’s representative." Examining the state of practice in other jurisdictions, he observed that in Europe only eight countries, including the United Kingdom , did not give convicted prisoners a vote, while 20 did not disenfranchise prisoners and eight imposed a more restricted disenfranchisement. Reference was made to the United States Supreme Court which had rejected a challenge to the Californian Constitution’s disenfranchisement of convicted prisoners ( Richardson v. Ramirez [1974] 418 US 24). Some considerable attention was given to Canadian precedents, which were relied on by both parties, in particular the Canadian Supreme Court which in the case of Sauvé v. Canada (No. 1) ([1992] 2 SCR 438) struck down the disenfranchisement of all prisoners as too widely drawn and infringing against the minimum impairment rule and the Federal Court of Appeal which upheld in Sauvé (No. 2) ([2000] 2 CF) the subsequent legislative provision which restricted the ban to prisoners serving a sentence of two years or more in a correctional institution. While it was noted that the Canadian courts were applying a differently phrased provision in their Charter of Rights and Freedoms, the court commented that the judgment of Linden JA in the second case in the Federal Court of Appeal contained helpful observations, in particular as regarded the danger of the courts usurping the role of parliament. The cases before the European Commission of Human Rights and this Court were also reviewed, the court noting that the Commission had been consistent in its approach in accepting restrictions on persons convicted and detained. Lord Justice Kennedy concluded: “... I return to what was said by the European Court in paragraph 52 of its judgment in Mathieu-Mohin. Of course as far as an individual prisoner is concerned disenfranchisement does impair the very essence of his right to vote, but that is too simplistic an approach, because what Article 3 of the First Protocol is really concerned with is the wider question of universal franchise, and ‘the free expression of the opinion of the people in the choice of the legislature’. If an individual is to be disenfranchised that must be in the pursuit of a legitimate aim. In the case of a convicted prisoner serving his sentence the aim may not be easy to articulate. Clearly there is an element of punishment, and also an element of electoral law. As the Home Secretary said, Parliament has taken the view that for the period during which they are in custody convicted prisoners have forfeited their right to have a say in the way the country is governed. The Working Group said that such prisoners had lost the moral authority to vote. Perhaps the best course is that suggested by Linden JA, namely to leave to philosophers the true nature of this disenfranchisement whilst recognising that the legislation does different things. The European Court also requires that the means employed to restrict the implied Convention rights to vote are not disproportionate, and that is the point at which, as it seems to me, it is appropriate for this court to defer to the legislature. It is easy to be critical of a law which operates against a wide spectrum (e.g. in relation to its effect on post-tariff discretionary life prisoners, and those detained under some provision of the Mental Health Act 1983), but, as is clear from the authorities, those states which disenfranchise following conviction do not all limit the period of disenfranchisement to the period in custody. Parliament in this country could have provided differently in order to meet the objectives which it discerned, and like McLachlin J in Canada , I would accept that the tailoring process seldom admits of perfection, so the courts must afford some leeway to the legislator. As [counsel for the Secretary of State] submits, there is a broad spectrum of approaches among democratic societies, and the United Kingdom falls into the middle of the spectrum. In course of time this position may move, either by way of further fine tuning, as was recently done in relation to remand prisoners and others, or more radically, but its position in the spectrum is plainly a matter for Parliament not for the courts. That applies even to the ‘hard cases’ of post-tariff discretionary life sentence prisoners... They have all been convicted and if, for example, Parliament were to have said that all those sentenced to life imprisonment lose the franchise for life the apparent anomaly of their position would disappear… If section 3 (1) of the 1983 Act can meet the challenge of Article 3 [of the First Protocol] then Article 14 has nothing to offer, any more than Article 10.”

The applicant’s claims were accordingly rejected as were those of the other prisoners.

On 2 May 2001 , an application for permission to appeal was filed on behalf of Pearson and Feal-Martinez, together with a 43-page skeleton argument. On 15 May 2001 , Lord Justice Buxton considered the application on the papers and refused permission on the grounds that the appeal had no real prospect of success.

On 19 May 2001 , the applicant filed an application for permission to appeal. On 7 June 2001 , his application was considered on the papers by Lord Justice Simon Brown who refused permission for the same reasons as Lord Justice Buxton in relation to the earlier applications. The applicant’s renewed application, together with the renewed applications of Pearson and Feal-Martinez, were refused on 18 June 2001 , after oral argument, by Lord Justice Simon Brown.

On 25 May 2004 , the applicant was released from prison on licence.

This section re-enacted without debate the provisions of section 4 of the Representation of the People Act 1969, the substance of which dated back to the Forfeiture Act 1870 of the previous century, which in turn reflected earlier rules of law relating to the forfeiture of certain rights by a convicted “felon” (the so-called “civic death” of the times of King Edward III).

The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)a) or to those imprisoned only for default in, for example, paying a fine (section 3(2)c).

During the passage through Parliament of the Representation of the People Act 2000, which permitted remand prisoners and unconvicted mental patients to vote, Mr Howarth MP, speaking for the Government, maintained the view that “it should be part of a convicted prisoner’s punishment that he loses rights and one of them is the right to vote”. The Act was accompanied by a statement of compatibility under section 19 of the Human Rights Act 1998, namely, a statement that in introducing the measure in Parliament the Secretary of State considered its provisions to be compatible with the Convention.

Section 4 of the Human Rights Act 1998 provides: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”

Relevant provisions of the ICCPR provide: Article 25 “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote...” Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person… 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”

In the General Comment (No. 25(57)) adopted by the Human Rights Committee under Article 40(4) of the ICCPR dated 12 July 1996, the Committee stated, inter alia , concerning the right guaranteed under Article 25: “14. In their reports, State parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.” B. European Prison Rules (Recommendation No. R (87)3 Council of Europe )

These set out the minimum standards to be applied in the conditions of imprisonment, including the principle below: “64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.” C. Recommendation No. R (2003)23 of the Committee of Ministers to member States on the management by prison administrations of life sentence and other long-term prisoners

This recommendation, adopted on 9 October 2003 , noted the increase in life sentences and aimed to give guidance to member states on the management of long-term prisoners.

The aims of the management of such prisoners should be “2… - to ensure that prisons are safe and secure places for these prisoners ...; - to counteract the damaging effects of life and long-term imprisonment; - to increase and improve the possibilities of these prisoners to be successfully resettled and to lead a law-abiding life following their release.”

General principles included the following: "3. Consideration should be given to the diversity of personal characteristics to be found among life sentence and long-term prisoners and account taken of them to make individual plans for the implementation of the sentence (individualisation principle). 4. Prison life should be arranged so as to approximate as closely as possible to the realities of life in the community (normalisation principle). 5. Prisoners should be given opportunities to exercise personal responsibility in daily prison life (responsibility principle)." D. Code of Good Practice in Electoral Matters

This document adopted by the European Commission for Democracy through Law (the Venice Commission) at its 51 st Plenary Session (5-6 July 2002) and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002 includes the Commission’s guidelines as to the circumstances in which there may be deprivation of the right to vote or to be elected: “d… i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions; ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for disenfranchising individuals of the right to stand for election may be less strict than for disenfranchising them; iv. the deprivation must be based on mental incapacity or a criminal conviction for a serious offence; v. furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.” E. Law and practice in Contracting States

According to the Government’s survey based on information obtained from its diplomatic representation, eighteen countries allowed prisoners to vote without restriction (Albania, Azerbaijan, Croatia, the Czech Republic, Denmark, Finland, the Former Yugoslav Republic of Macedonia, Germany, Iceland, Lithuania, Moldova, Montenegro, the Netherlands, Portugal, Slovenia, Sweden, Switzerland, Ukraine), in thirteen states all prisoners were barred from or unable to vote (Armenia, Belgium[1], Bulgaria, Cyprus, Estonia, Georgia, Hungary, Ireland, Russia, Serbia, Slovakia[2], Turkey, the United Kingdom), while in 12 states the right to vote of prisoners could be limited in some other way (Austria[3], Bosnia and Herzegovina[4], France[5], Greece[6], Italy[7], Luxembourg[8], Malta[9], Norway[10], Poland[11], Romania, Spain[12]).

Other material before the Court indicates that in Romania prisoners may be debarred from voting if the principal sentence exceeds two years, while in Latvia prisoners serving a sentence of imprisonment in penitentiaries are not entitled to vote, as are prisoners in Liechtenstein. F. Relevant case-law from other States 1. Canada

In 1992, the Canadian Supreme Court unanimously struck down a legislative provision barring all prisoners from voting ( Sauvé v. Canada (No. 1) [1992] 2 SCR 438). Amendments were introduced limiting the ban to prisoners serving a sentence of two years or more. The Federal Court of Appeal upheld the provision. However, following the decision of the Divisional Court in the present case, the Supreme Court on 31 October 2002 in Sauvé v. the Attorney General of Canada (No. 2) held by five votes to four that section 51(e) of the Canada Elections Act 1985, which denied the right to vote to every person imprisoned in a correctional institution serving a sentence of two years or more, was unconstitutional as infringing Articles 1 and 3 of the Canadian Charter of Rights and Freedoms: “1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” “3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

The majority opinion given by McLachlin C.J. considered that the right to vote was fundamental to their democracy and the rule of law and could not be lightly set aside. Limits on it required not deference, but careful examination. The majority found that the Government had failed to identify particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test, in particular as the Government had failed to establish a rational connection between the denial of the right to vote and its stated objectives. As regarded the objective of promoting civic responsibility and respect for the law, denying penitentiary inmates the right to vote was more likely to send messages that undermined respect for the law and democracy than messages that enhance those values. The legitimacy of the law and the obligation to obey the law flowed directly from the right of every citizen to vote. To deny prisoners the right to vote was to lose an important means of teaching them democratic values and social responsibility and ran counter to democratic principles of inclusiveness, equality, and citizen participation and was inconsistent with the respect for the dignity of every person that lay at the heart of Canadian democracy and the Charter. As regarded the second objective of imposing appropriate punishment, it was considered that the Government had offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of state punishment. Nor could it be regarded as a legitimate form of punishment as it was arbitrary – it was not tailored to the acts and circumstances of the individual offender and bore little relation to the offender’s particular crime – and did not serve a valid criminal law purpose, as neither the record nor common sense supported the claim that disenfranchisement deterred crime or rehabilitated criminals.

The minority opinion given by Gonthier J. found that the objectives of the measure were pressing and substantial and based upon a reasonable and rational social or political philosophy. The first objective, that of enhancing civic responsibility and respect for the rule of law, related to the promotion of good citizenship. The social rejection of serious crime reflected a moral line which safeguarded the social contract and the rule of law and bolstered the importance of the nexus between individuals and the community. The ‘promotion of civic responsibility’ might be abstract or symbolic, but symbolic or abstract purposes could be valid of their own accord and must not be downplayed simply for the reason of their being symbolic. As concerned the second objective, the enhancement of the general purposes of the criminal sanction, the measure clearly had a punitive aspect with a retributive function. It was a valid objective for Parliament to develop appropriate sanctions and punishments for serious crime. The disenfranchisement was a civil disability arising from the criminal conviction. It was also proportionate, as the measure was rationally connected to the objectives and carefully tailored to apply to perpetrators of serious crimes. The disenfranchisement of serious criminal offenders served to deliver a message to both the community and the offenders themselves that serious criminal activity would not be tolerated by the community. Society, on this view, could choose to curtail temporarily the availability of the vote to serious criminals to insist that civic responsibility and respect for the rule of law, as goals worthy of pursuit, were prerequisites to democratic participation. The minority referred to a need for deference to Parliament in its drawing of a line and to be sensitive to the fact that there may be many possible reasonable and rational balances. 2. South Africa

On 1 April 1999, in August and another v. Electoral Commission and others (CCT8/99: 1999 (3) SA 1), the Constitutional Court of South Africa considered the application of prisoners for a declaration and orders that the Electoral Commission take measures enabling them and other prisoners to register and vote while in prison. It noted that under the South African Constitution the right of every adult citizen to vote in elections for legislative bodies was set out in unqualified terms and underlined the importance of the right: "The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts."

The court found that the right to vote by its very nature imposed positive obligations upon the legislature and the executive and that the Electoral Act must be interpreted in a way that gave effect to constitutional declarations, guarantees and responsibilities. It noted that many democratic societies imposed voting disabilities on some categories of prisoners. Although there were no comparable provisions in the Constitution, it recognised that limitations might be imposed upon the exercise of fundamental rights, provided they were inter alia reasonable and justifiable. The question of whether legislation barring prisoners would be justified under the Constitution was not raised in the proceedings and it emphasised that the judgment was not to be read as preventing Parliament from disenfranchising certain categories of prisoners. In the absence of such legislation, prisoners had the constitutional right to vote and neither the Commission nor the court had the power to disenfranchise them. It concluded that the Commission was under the obligation to make reasonable arrangements for prisoners to vote. THE LAW

The Chamber found that the exclusion from voting imposed on convicted prisoners in detention was disproportionate. It had regard to the fact that it stripped a large group of people of the vote; that it applied automatically irrespective of length of sentence or the gravity of the offence; and that the results were arbitrary and anomalous, depending on the timing of elections. It further noted that as insofar as the disqualification from voting was to be seen as part of a prisoner’s punishment, there was no logical justification for the disqualification to continue in the case of the present applicant, who had completed that part of his sentence relating to punishment and deterrence. It concluded at paragraph 51: "The Court accepts that this is an area in which a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on prisoners’ right to vote can still be justified in modern times and if so how a fair balance is to be struck. In particular, it should be for the legislature to decide whether any restriction on the right to vote should be tailored to particular offences, or offences of a particular gravity or whether, for instance, the sentencing court should be left with an overriding discretion to deprive a convicted person of his right to vote. The Court would observe that there is no evidence that the legislature in the United Kingdom has ever sought to weigh the competing interests or to assess the proportionality of the ban as it affects convicted prisoners. It cannot accept however that an absolute bar on voting by any serving prisoner in any circumstances falls within an acceptable margin of appreciation. The applicant in the present case lost his right to vote as the result of the imposition of an automatic and blanket restriction on convicted prisoners’ franchise and may therefore claim to be a victim of the measure. The Court cannot speculate as to whether the applicant would still have been deprived of the vote even if a more limited restriction on the right of prisoners to vote had been imposed, which was such as to comply with the requirements of Article 3 of Protocol No. 1." B. Arguments of the parties 1. The applicant

The applicant adopted the terms of the Chamber judgment, submitting that the Government’s allegation that it would require the radical revision of the laws of many Contracting States was misconceived as the judgment was based on the specific situation in the United Kingdom and directed at a blanket disenfranchisement of convicted persons which arose not out of a reasoned and properly justified decision following thorough debate but out of adherence to historical tradition. He also rejected the argument that the Chamber had not given appropriate weight to the margin of appreciation, submitting that on the facts of this case the concept had little bearing.

The applicant emphasised that there was a presumption in favour of enfranchisement, which was in harmony with the fundamental nature of democracy. It was not a privilege, as was sometimes asserted, even for prisoners, who continued to enjoy their inviolable rights which could only be derogated from in very exceptional circumstances. The restriction on voting rights did not pursue any legitimate aim. Little thought, if any, had in fact been given to the disenfranchisement of prisoners by the legislature, the 1983 Act being a consolidating Act adopted without debate on the point; nor had any thorough debate occurred during the passage of the 2000 Act. The domestic court did not examine the lawfulness of the ban either but decided the applicant’s case on the basis of deference to Parliament.

The reason relied on in Parliament was that the disenfranchisement of a convicted prisoner was considered part of his punishment. The applicant however disputed that punishment could legitimately remove fundamental rights other than the deprivation of liberty and argued that this was inconsistent with the stated rehabilitative aim of prison. There was no evidence that the ban pursued the purported aims nor had any link been shown between the removal of the vote and the prevention of crime or respect for the rule of law. Most courts and citizens were totally unaware that loss of voting rights accompanied the imposition of a sentence of imprisonment. The purported aim of enhancing civic responsibility was raised ex post facto and was to be treated with circumspection. Indeed, the applicant argued that the ban took away civic responsibility and eroded respect for the rule of law, serving to alienate prisoners further from society.

The blanket ban was also disproportionate, arbitrary and impaired the essence of the right. It was unrelated to the nature or seriousness of the offence and varied in its effects on prisoners depending on whether their imprisonment coincided with an election. It potentially deprived a significant proportion of the population (over 48,000) of a voice or the possibility of challenging, electorally, the penal policy which affected them. In addition, the applicant submitted that, as a post-tariff prisoner, the punishment element of his sentence had expired and he was held on grounds of risk, in which case there could no longer be any punishment-based justification. He pointed to the recently introduced sentence of "intermittent" custody, whereby a person was able to vote during periods of release in the community while being unable to vote while in prison, as undermining the alleged aims of preventing other convicted prisoners from voting.

He further referred to a trend in Canada, South Africa and various European states to enfranchise prisoners, claiming that 19 countries operated no ban while eight had only a partial or specific ban. He concluded that there was no convincing reason, beyond punishment, to remove the vote from convicted prisoners and that this additional sanction was not in keeping with the idea that the punishment of imprisonment was the deprivation of liberty and that the prisoner did not thereby forfeit any other of his fundamental rights save in so far as this was necessitated by, for example, considerations of security. In his view, the ban was simply concerned with moral judgment and it was unacceptable, as tantamount to the elected choosing the electorate, for the right to vote to be made subject to the moral judgments imposed by the persons who had been elected. 2. The Government

The Government submitted that under Article 3 of Protocol No. 1 the right to vote was not absolute and that a wide margin of appreciation was to be allowed to Contracting States in determining the conditions under which the right to vote was exercised. They argued that the Chamber judgment failed to give due weight to this consideration. In their view, it wrongly thought that the law on voting by prisoners was the product of passive adherence to a historic tradition. They asserted that the policy has been adhered to over many years with the explicit approval of Parliament, most recently in the Representation of the People Act 2000, which was accompanied by a statement of compatibility under the Human Rights Act. The Chamber also failed to give due regard to the extensive variation between Contracting States on the issue of voting by convicted prisoners, ranging from no prohibition to bans extending beyond the term of the sentence. In some thirteen countries prisoners were unable to vote. A variety of approaches was also taken by democratic states outside Europe. The Chamber’s judgment was inconsistent with the settled approach of the Convention organs and there was no prior hint of any problem with the kind of restriction adopted by the United Kingdom.

Furthermore, the matter had been considered fully by the national courts applying the principles of the Convention under the Human Rights Act 1998, yet the Chamber paid little attention to this fact while concentrating on the views of a court in another country ( Sauvé No. 2, cited at paragraphs 35-37 above). As regarded the Canadian precedent, they pointed out that the second Sauvé case was decided by a narrow majority of 5 to 4, concerned a law, different in text and structure, interpreted by domestic courts to which the doctrine of margin of appreciation did not apply and that there was a strong dissent which was more in accord with the Convention organs’ case-law. The South African case ( August v. Electoral Commission , cited at paragraphs 38-39 above) was not relevant as it concerned practical obstacles to voting, not a statutory prohibition.

The Government also considered that the Chamber erred in effectively assessing the compatibility of national law in abstracto , overlooking that on the facts of this case, if the United Kingdom were to reform the law and only ban those who had committed the most serious offences, the applicant, convicted of an offence of homicide and sentenced to life imprisonment, would still have been barred. Thus, the finding of a violation was a surprising result, and offensive to many people. The Chamber had furthermore misstated the number of prisoners disenfranchised, including those who were on remand and not affected.

The Government argued that the disqualification in this case pursued the intertwined legitimate aims of preventing crime and punishing offenders and enhancing civic responsibility and respect for the rule of law by depriving those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence. Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country. The Council of Europe Recommendation concerning the management of life prisoners relied on by the AIRE Centre in its intervention was not binding and made no reference to voting and in any event the legislation was not incompatible with its principles.

The measure was also proportionate as it only affected those who had been convicted of crimes sufficiently serious, in the individual circumstances, to warrant an immediate custodial sentence, excluding those subject to fines, suspended sentences, community service or detention for contempt of court as well as fine defaulters and remand prisoners. Moreover, as soon as prisoners ceased to be detained the legal incapacity was removed. The duration was accordingly fixed by the court at the time of sentencing.

As regards the allegedly arbitrary effects, the Government argued that, unless the Court were to hold that there was no margin of appreciation at all in this context, it had to be accepted that a line must be drawn somewhere. Finally, the impact on this particular applicant was not disproportionate since he was imprisoned for life and would not, in any event, have benefited from a more tailored ban, such as that in Austria, affecting those sentenced for over one year. They concluded with their concern that the Chamber had failed to give any explanation as to what steps the United Kingdom would have to take to render its regime compatible with Article 3 of Protocol No. 1 and urged that in the interests of legal certainty Contracting States received detailed guidance. 3. Third party interveners

The Prison Reform Trust submitted that the disenfranchisement of sentenced prisoners was a relic from the nineteenth century which dated back to the Forfeiture Act 1870, the origins of which were rooted in a notion of civic death. It argued that social exclusion was a major cause of crime and re-offending and that the ban on voting militated against ideas of rehabilitation and civic responsibility, by further excluding those already on the margins of society and further isolating them from the communities to which they would return on release. It neither deterred crime nor acted as an appropriate punishment. Its recently launched campaign for restoring the vote to prisoners had received wide cross-party support and the idea was also backed by the Anglican and Catholic churches, penal reform groups and the current and former Chief Inspectors of Prisons for England and Wales, the President of the Prison Governors’ Association, as well as many senior managers in the Prison Service.

The AIRE Centre drew attention to the Council of Europe Recommendation on the management by prison administrations of life sentence and other long-term prisoners (see paragraphs 29-31 above), which aimed to give guidance to member States in counteracting the negative effects of long term imprisonment and preparing prisoners for life in the community on release. It referred to three principles contained in the Recommendation: the "normalisation principle", the "responsibility principle" and the "individualisation principle" (see paragraph 31 above). It argued that although there was no express reference to the right of prisoners to vote these principles supported the extension of the vote to prisoners by fostering their connection with society, increasing awareness of their stake in society and taking into account their personal circumstances and characteristics.

The Latvian Government were concerned that the Chamber’s judgment would have a horizontal effect on other countries which imposed a blanket ban on convicted prisoners voting in elections. They submitted that States should in this area be afforded a wide margin of appreciation, in particular taking into account the historical and political evolution of the country and that the Court was not competent to replace the view of a democratic country with its own view as to what was in the best interests of democracy. In their view the Chamber had failed to pay enough attention to the preventive aspect of the voting ban, namely in the general sense of combating criminality and in avoiding that those who have committed serious offences participate in decision-making that may result in bringing to power individuals or groups that are in some way related to criminal structures. Moreover, the Chamber failed to appreciate that in modern systems of criminal justice imprisonment was used as a last resort and that although the voting ban was automatic it still related to the assessment of the crime itself and the convict’s personality. B. The Court’s assessment 1. General principles

Article 3 of Protocol No. 1 appears at first sight to differ from the other rights guaranteed in the Convention and protocols as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom.

However, having regard to the preparatory work to Article 3 of the Protocol and the interpretation of the provision in the context of the Convention as a whole, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium , judgment of 2 March 1987, Series A no. 113, pp. 22-23, §§ 46-51). Indeed, it was considered that the unique phrasing was intended to give greater solemnity to the Contracting States’ commitment and to emphasise that this was an area where they were required to take positive measures as opposed to merely refraining from interference ( Mathieu-Mohin , § 50).

The Court has had frequent occasion to underline the importance of democratic principles underlying the interpretation and application of the Convention (see, among other authorities, United Communist Party of Turkey and Others v. Turkey , judgment of 30 January 1998, Reports of Judgments and Decisions 1998‑I, § 45 ) and it would use this occasion to emphasise that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see also the importance of these rights as recognised internationally, Relevant International Materials, paragraphs 26-39 above).

As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion, as may be illustrated, for example, by the parliamentary history of the United Kingdom and other countries where the franchise was gradually extended over the centuries from select individuals, elite groupings or sections of the population approved of by those in power. Universal suffrage has become the basic principle ( Mathieu-Mohin , § 51, citing X. v. Germany , no. 2728/66, Commission decision of 6 October 1967, Collection 25, pp. 38-41).

Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be given a margin of appreciation in this sphere.

There has been much discussion of the width of this margin in the present case. The Court would re-affirm that the margin in this area is wide ( Mathieu-Mohin , § 52, and more recently, Matthews v. United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV, and Podkolzina v. Latvia , no. 46726/99, § 33, ECHR 2002-II). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia , in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision.

It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin , § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of people through universal suffrage. For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned ( Hilbe v. Liechtenstein (dec.) no. 31981/96, ECHR 1999-VI, Melnychenko v. Ukraine , no. 17707/02, § 56, ECHR 2004-X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws which it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis , Aziz v. Cyprus , no. 669949/01, § 28, ECHR 2004-V). 2. Prisoners

The present case highlights the status of the right to vote of convicted prisoners who are detained.

The case-law of the Convention organs has, in the past, accepted various restrictions on certain convicted persons.

In some early cases, the Commission considered that it was open to the legislature to remove political rights from persons convicted of “uncitizenlike conduct” (gross abuse in their exercise of public life during the Second World War) and from a person sentenced to eight months’ imprisonment for refusing to report for military service, where reference was made to the notion of dishonour that certain convictions carried with them for a specific period and which might be taken into account by the legislature in respect of the exercise of political rights (no. 6573/74, Commission decision of 19 December 1974, Decisions and Reports (DR) 1, p. 87, and no. 9914/82, Commission decision of 4 July 1983, DR 33, p. 245). In Patrick Holland v. Ireland (no. 24827/94, Commission decision of 14 April 1998, DR 93, p. 15), where, since there was no provision permitting a serving prisoner to vote in prison, the applicant, who was sentenced to seven years for possessing explosives, was de facto deprived of the vote, the Commission found that the suspension of the right to vote did not thwart the free expression of the opinion of the people in the choice of the legislature and could not be considered arbitrary in the circumstances of the case.

The Court itself rejected complaints about a judge-imposed bar on voting on a Member of Parliament, convicted of fiscal fraud offences and sentenced to three years’ imprisonment with the additional penalty of being barred from exercising public functions for two years ( M.D.U. v. Italy, no. 58540/00, decision of 28 January 2003). 67 . The Government argued that the Chamber judgment finding a violation in respect of the bar on this applicant, a prisoner sentenced to life imprisonment, was an unexpected reversal of the tenor of the above cases. 68 . This is however the first time that the Court has had occasion to consider a general and automatic disenfranchisement of convicted prisoners. It would note that in Patrick Holland , the case closest to the facts of the present application, the Commission confined itself to the question of whether the bar was arbitrary and omitted to give attention to other elements of the test laid down by the Court in Mathieu-Mohin , namely, the legitimacy of the aim and the proportionality of the measure. In consequence, the Court cannot attach decisive weight to the decision. The Chamber’s finding of a violation was therefore not in contradiction of a previous judgment of the Court; on the contrary, the Chamber sought to apply the precedent of Mathieu-Mohin to the facts before it.

In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. For example, prisoners may not be ill-treated, subjected to inhuman or degrading punishment or conditions contrary to Article 3 of the Convention (see, among many authorities, Kalashnikov v. Russia , no. 47095/99, ECHR 2002‑VI; Van der Ven v. the Netherlands , no. 50901/99, ECHR 2003‑II); they continue to enjoy the right to respect for family life ( Ploski v. Poland , no. 26761/95, judgment of 12 November 2002; X. v. the United Kingdom , no. 9054/80, Commission decision of 8 October 1982, DR 30, p. 113), the right to freedom of expression ( Yankov v. Bulgaria , no. 39084/97, §§ 126-145, ECHR 2003‑XII , T. v. the United Kingdom , no. 8231/78, Commission report of 12 October 1983, DR 49, p. 5, §§ 44-84), the right to practise their religion ( Poltoratskiy v. Ukraine , no. 38812/97, §§ 167-171, ECHR 2003‑V ), the right of effective access to a lawyer or to court for the purposes of Article 6 ( Campbell and Fell v. the United Kingdom , judgment of 28 June 1984, Series A, no. 80; Golder v. the United Kingdom , judgment of 21 February 1975, Series A, no. 18), the right to respect for correspondence ( Silver and Others v. the United Kingdom , judgment of 25 March 1983,