ÎCCJ, decizie (scj.ro #86617)

ÎCCJ, decizie (scj.ro #86617) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE DES DROITS

DE L’HOMME

EUROPEAN COURT OF HUMAN

RIGHTS

GRAND CHAMBER

CASE OF HIRST v. THE

UNITED

KINGDOM

(NO. 2)

(Application no.

74025/01)

JUDGMENT

STRASBOURG

6 October

2005

This judgment is final

but may be subject to editorial revision.

In the case of Hirst v. the

United Kingdom

(no. 2),

The European Court of Human Rights, sitting as a Grand Chamber

composed of:

Mr

L.

Wildhaber

,

President

,

Mr

C.L.

Rozakis

,

Mr

J.-P.

Costa

,

Sir      Nicolas

Bratza

,

Mr

G.

Bonello

,

Mr

L.

Caflisch,

Mrs

F.

Tulkens,

Mr

P.

Lorenzen,

Mrs

N.

Vajić,

Mr

K.

Traja,

Mr

A.

Kovler,

Mr

V.

Zagrebelsky,

Mrs

A.

Mularoni,

Ms

L.

Mijović,

Mr

S.E.

Jebens,

Ms

D.

Joèienė

,

Mr

J.

Šikuta

,

judges

,

and Mr

E.

Fribergh

,

Deputy Registrar

,

Having deliberated in private on 27 April and on

29 August 2005

,

Delivers the following judgment, which was adopted on the last‑mentioned

date:

PROCEDURE

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

.

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

.

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.

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

.

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.

23 June 2004

the Government made a

request for the case to be referred to the Grand Chamber (Article 43 of the

Convention).

10 November 2004

a panel of the Grand

Chamber decided to accept the request for a referral (Rule 73).

according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule

24 of the Rules of Court.

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).

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

I.  THE CIRCUMSTANCES OF THE CASE

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.

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.

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.

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.

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.”

were those of the other prisoners.

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.

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.

25 May 2004

, the applicant was

released from prison on licence.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

1983 provides:

“(1)  A

convicted person during the time that he is detained in a penal institution in

pursuance of his sentence ... is legally incapable of voting at any

parliamentary or local election.”

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).

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).

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.

“(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.”

III.  RELEVANT INTERNATIONAL MATERIALS

A.  International Covenant on Civil and Political Rights

(“ICCPR”)

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

persons deprived of their liberty shall be treated with humanity and with

respect for the inherent dignity of the human person.

...

penitentiary system shall comprise treatment of prisoners the essential aim of

which shall be their reformation and social rehabilitation.”

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

)

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

9 October 2003

, noted the

increase in life sentences and aimed to give guidance to member states on the management

of long-term prisoners.

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.”

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).

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

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

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]).

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

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.”

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 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.

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."

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

I.   ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO

THE CONVENTION

invoking Article 3 of Protocol No. 1 which provides:

“The High

Contracting Parties undertake to hold free elections at reasonable intervals by

secret ballot, under conditions which will ensure the free expression of the

opinion of the people in the choice of the legislature.”

A.  The Chamber

judgment

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

interveners

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.

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.

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

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.

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).

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).

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

,

X. v. Germany

, no. 2728/66, Commission decision of 6

October 1967, Collection 25, pp. 38-41).

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.

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,

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.

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

,

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,

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).

to vote of convicted prisoners who are detained.

past, accepted various restrictions on certain convicted persons.

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.

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.

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,