EHRM, 23-11-2010, nr. 60041/08, nr. 60054/08

Section 3 of the Representation of the People Act 1983 (‘the 1983 Act’) provides:

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)).

Section 4 of the 1983 Act provides:

Sections 56–57 set out that there is a right of appeal against a decision of the registration officer. In Scotland, a further appeal lies on any point of law from a decision of the Sheriff to a court of three judges of the Court of Session (known as the ‘Registration Appeal Court’).

Section 8(1) of the European Parliamentary Elections Act 2002 (‘the 2002 Act’) provides that a person is entitled to vote at an election to the European Parliament if he is within any of subsections (2) to (5) of section 8. These subsections provide, in so far as relevant, as follows:

The Government argued that the applicants had failed to exhaust domestic remedies in that following the rejection of their appeals by the Sheriff (see paragraph 15 above), they had not requested that the Sheriff state a case for the consideration of the Registration Appeals Court or, subsequently, applied for an order from the Court of Session that the Sheriff state a case. The Government pointed out that Mr Beggs had taken these steps and that his application was still pending before the Court of Session (see paragraph 16 above).

The Government further referred to the judicial review proceedings commenced by Mr Chester in the High Court (see paragraphs 34–40 above). They relied on Mr Chester's claim for sympathetic interpretation of section 8 of the 2002 Act, in respect of which permission to appeal had recently been granted, as evidencing a potential effective remedy which the applicants had not exhausted. They added that the right to vote in European Parliament elections did not depend on the exercise of free movement rights but was guaranteed to all nationals of EU Member States. Accordingly, the applicants could have relied upon their rights under EU law, notwithstanding the fact that they had not exercised any free movement rights. The Government emphasised that the Scottish courts had not been given the opportunity to examine arguments based on EU law.

The Government accepted that applicants were not required to pursue remedies which did not in reality offer any chance of redressing the alleged violation but emphasised that where there was doubt as to the prospects of success of a particular case it should be submitted to the domestic courts for resolution prior to an application being made to the Court. In particular, this Court had had occasion to consider Hirst in the recent cases of Calmanovici v. Romania, no. 42250/02, 1 July 2008 and Frodl v. Austria, no. 20201/04, 8 April 2010; in the Government's view each of those judgments might have had a significant impact upon the approach adopted by the Scottish courts. Accordingly, the Government concluded that the remedies available were potentially effective and therefore required to be exhausted by the applicants.

The applicants disputed that any further remedy was open to them in respect of their complaint. In particular, they pointed out that Mr Beggs was an Irish citizen and that it appeared that his case was based upon the fact that in residing in the United Kingdom he was exercising his right of free movement under European Union law. He therefore sought to argue that he was entitled to rely directly upon his right to vote and stand as a candidate in European Parliament elections in his country of residence, as guaranteed by Article 20(2)(b) of the Treaty on the Functioning of the European Union (see paragraph 48 above). Mr Beggs' position was therefore to be distinguished from that of the applicants, who were both British nationals and were not exercising their free movement rights under EU law. Further, no right derived from EU law existed in respect of national elections. In any event, the judges of the Court of Session, sitting as the Registration Appeals Court in Smith v. Scott, had already stated unequivocally that the ERO had acted lawfully in refusing to enrol serving prisoners on the electoral register (see paragraph 29 above). The only possible relief which the applicants could have obtained had they sought to appeal the decision of the Sheriff in their cases was another declaration of incompatibility, which the applicants contended was not a remedy which they were required to exhaust before bringing their complaints to Strasbourg.

As to the Government's suggestion that a claim for a sympathetic interpretation of section 8 of the 2002 Act constituted a potential effective remedy which they had failed to exhaust, the applicants first emphasised that even if successful, such a claim would entitle them to vote only in the European elections and would have had no impact on their disenfranchisement in national elections or elections to the Scottish Parliament. Second, the applicants considered the Government's contention fanciful in light of the observations made by the judges of the Court of Session in Smith v. Scott (see paragraph 29 above). These observations made it clear that courts in Scotland would not even consider, let alone uphold, any further argument based on a sympathetic interpretation of unequivocal legislation banning prisoners from voting in any election. Any suggestion that the proceedings in Chester should be viewed as evidence that there remained an effective remedy which had not been exhausted was, the applicants contended, simply wrong given that the Scottish legal system remained distinct from the English legal system and that decisions of the English courts were not binding on the Court of Session. The Court of Session had made its own views on the matter clear and the fact that English courts might adopt more sympathetic views was irrelevant.

The Equality and Human Right Commission (‘EHRC’) noted that a declaration of incompatibility had been made by the Registration Appeal Court in Smith v. Scott and were of the view that once one declaration had been made, the courts would generally decline to offer any further relief. They pointed to the judgment of the Court of Session in Traynor and another and the High Court judgment in Chester (see paragraphs 32 and 37 above). They concluded that there was no possibility for prisoners to bring further applications to court seeking the right to vote.

The applicants referred to a number of cases against Italy decided by the Court in which, they argued, it had found that the absence of an effective remedy to challenge restrictions on undischarged bankrupts which were set out in primary legislation and applied to all those declared bankrupt amounted to a violation of Article 13 (citing, inter alia, Neroni v. Italy, no. 7503/02, 22 April 2004; Albanese v. Italy, no. 77924/01, 23 March 2006; Campagnano v. Italy, no. 77955/01, ECHR 2006-IV; and De Blasi v. Italy, no. 1595/02, 5 October 2006). They therefore contended that the fact that the violation in the present case arose as a result of primary legislation did not prevent a finding of a violation of Article 13.

They concluded that the only remedy available to prisoners complaining about their disqualification from voting was a declaration of incompatibility. The applicants argued that such a declaration did not constitute an effective remedy. In particular, they emphasised that they could not obtain damages for the violation of their Convention rights.

The Government contended that it was well-established that Article 13 did not require a remedy to be provided in order to allow individuals to challenge provisions of domestic legislation on the grounds that it was contrary to the Convention (citing Leander v. Sweden, 26 March 1987, § 77, Series A no. 116; and P.M. v. the United Kingdom, no. 6638/03, §§ 32–34, 19 July 2005). They argued that this was the position in the present case, where the applicants complained of the application of section 8 of the 2002 Act and section 3 of the 1983 Act. No remedy was therefore required under Article 13. The Italian cases could be distinguished as the complaints in those cases concerned individual measures of implementation of domestic legislation, rather than domestic legislation itself, and the key point for the purposes of Article 13 was that there was a means of challenge to the measures but the time limit for invoking the remedy was too short to be effective.

Further, notwithstanding the general principle that Article 13 did not require a remedy in cases concerning primary legislation, the Government contended that two remedies were in fact available to the applicants in respect of their complaint regarding their disqualification from voting in the European elections of June 2009, namely the possibility of requesting the domestic courts to ‘read-down’ section 8 of the 2002 Act and the possibility of relying on EU rights in order to challenge the ‘disproportionate’ restriction on their voting rights.

In respect of any complaint regarding the non-availability of legal aid for domestic proceedings, the Government submitted that there was no law or policy in place preventing the applicants from seeking legal aid in the circumstances of the present cases, the applicants did not apply for legal aid and, in the event that legal aid had been refused, the applicants could have appealed any such refusal. In any case, the Government argued that even if legal aid had been unavailable, this did not in itself give rise to a breach of Article 13 in the circumstances of the present cases, having regard to what was at stake for the applicants, the complexity of the proceedings and the applicants' capacity to represent themselves effectively. It was clear that the applicants had had the benefit of some legal advice: their appeals to the Sheriff contained cogently-argued legal submissions.

In conclusion, the Government invited the Court to find no violation of Article 13 in the applicants' cases.

The EHRC explained that as Article 46 of the Convention, which required Contracting States to abide by the final judgment of the Court in any case to which they were parties, was not included in the rights protected by the Human Rights Act 1998, the domestic courts were unable to enforce it directly due to the dualist nature of the British legal system.

In a case where the domestic human-rights challenge was based on a provision of primary legislation which could not be read in a Convention-compliant way, the EHRC considered it problematic that the only remedy available to claimants was a declaration of incompatibility under section 4(2) of the Human Rights Act. They pointed out that the Government was not obliged to reform legislation found to be incompatible and concluded that the mechanism was inadequate to satisfy the guarantees of Article 13.

The Court recalls the finding of the Grand Chamber in Hirst in its judgment of 2005 that the general, automatic and indiscriminate restriction on the right to vote imposed by section 3 of the 1983 Act must be seen as falling outside any acceptable margin of appreciation, however wide that margin may be. It emphasises that the finding of a violation of Article 3 of Protocol No. 1 in the present two cases was the direct result of the failure of the authorities to introduce measures to ensure compliance with the Grand Chamber's judgment in Hirst (see paragraphs 78–79 above).

One of the fundamental implications of the pilot judgment procedure is that the Court's assessment of the situation complained of in a ‘pilot’ case necessarily extends beyond the sole interests of the individual applicant and requires it to examine that case also from the perspective of the general measures that need to be taken in the interest of other potentially affected persons (see Broniowski (friendly settlement), cited above, § 36; and Hutten-Czapska (friendly settlement), cited above, § 33). As the Court has already indicated, the prevailing situation has given rise to the lodging of numerous subsequent well-founded applications. There are currently approximately 2,500 applications in which a similar complaint is made, around 1,500 of which have been registered and are awaiting a decision. The number continues to grow, and with each relevant election which passes in the absence of amended legislation there is the potential for numerous new cases to be lodged: according to statistics submitted by EHRC, there are approximately 70,000 serving prisoners in the United Kingdom at any one time (see paragraph 75 above), all of whom are potential applicants. The failure of the respondent State to introduce legislative proposals to put an end to the current incompatibility of the electoral law with Article 3 of Protocol No. 1 is not only an aggravating factor as regards the State's responsibility under the Convention for an existing or past state of affairs, but also represents a threat to the future effectiveness of the Convention machinery (see Broniowski, cited above, § 193).

The Court recalls that in Hirst, while finding a violation of the right to vote, the Grand Chamber left to the discretion of the respondent State the decision as to how precisely to secure the rights afforded by the Convention. Pursuant to Article 46 § 2, Hirst is currently under the supervision of the Committee of Ministers, which has regularly examined domestic developments and sought a speedy end to the prevailing situation of non-compliance (see paragraphs 44–47 above). It is not disputed by the Government that general measures at national level are called for in order to ensure the proper execution of the Hirst judgment. It is further clear that legislative amendment is required in order to render the electoral law compatible with the requirements of the Convention (see, inter alia, paragraphs 42–43 above). In light of the lengthy delay which has already occurred and the results of the delay in terms of follow-up applications, the Court, like the Committee of Ministers, is anxious to encourage the speediest and most effective resolution of the situation in a manner which complies with the Convention's guarantees. The question therefore arises whether it is now appropriate for the Court to provide the respondent Government with some guidance as to what is required for the proper execution of the present judgment.

The Court observes that it was recently held in Frodl, cited above, § 32, that, taking into account the particular circumstances, any decision on disenfranchisement should be taken by a judge and there must be a link between the offence committed and issues relating to elections and democratic institutions. On that basis, there was a violation of Article 3 of Protocol No. 1 in that case. However, the Court recalls that the Grand Chamber in Hirst declined to provide any detailed guidance as to the steps which the United Kingdom should take to render its regime compatible with Article 3 of Protocol No. 1, despite the Government's contention in that case that such guidance was necessary (see Hirst, § 52). As the Court emphasised in Hirst, 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 (see § 61 of its judgment). The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII; and Sukhovetskyy v. Ukraine, no. 13716/02, §§ 68–69, ECHR 2006-VI).

Like the Registration Appeal Court (see paragraph 29 above) and Burton J in the High Court (see paragraphs 35 and 39 above), the Court considers that a wide range of policy alternatives are available to the Government in the present context. In this regard, the Court observes that the Government of the respondent State have carried out consultations regarding proposed legislative change and are currently actively working on draft proposals (see paragraphs 42–44 and 47 above). Emphasising the wide margin of appreciation in this area (see Hirst, § 61), the Court is of the view that it is for the Government, following appropriate consultation, to decide in the first instance how to achieve compliance with Article 3 of Protocol No. 1 when introducing legislative proposals. Such legislative proposals will be examined in due course by the Committee of Ministers in the context of its supervision of the execution of the Hirst judgment. Further, it may fall to the Court at some future point, in the exercise of its supervisory role and in the context of any new application under Article 34 of the Convention, to assess the compatibility of the new regime with the requirements of the Convention.

However, while the Court does not consider it appropriate to specify what should be the content of future legislative proposals, it is of the view that the lengthy delay to date has demonstrated the need for a timetable for the introduction of proposals to amend the electoral law to be imposed. Accordingly, the Court concludes that the respondent State must introduce legislative proposals to amend section 3 of the 1983 Act and, if appropriate, section 8 of the 2002 Act, within six months of the date on which the present judgment becomes final, with a view to the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst according to any time-scale determined by the Committee of Ministers.

Given the findings in the present judgment and in Hirst, it is clear that every comparable case pending before the Court which satisfies the admissibility criteria will give rise to a violation of Article 3 of Protocol No. 1. It is therefore to be regretted that the Government did not act more quickly to rectify the situation before the elections to the European Parliament in 2009 and the general election in 2010. Further, while it is to be hoped that new legislation will be in place as soon as practically possible, it is far from apparent that an appropriate solution will be in place prior to the Scottish elections scheduled to take place in May 2011 and the likely consequence of this failure will be a wave of new applications to the Court from serving prisoners detained at that time who would otherwise be eligible to vote in those elections.

The Court has already emphasised the dual nature of the pilot judgment procedure: on the one hand, it is intended to assist respondent States in remedying an identified defect arising from a widespread or systemic problem; on the other, it aims to ensure the effective treatment of follow-up cases (see paragraphs 107–108 above). The question accordingly remains as to how to dispose of the numerous cases already lodged with the Court and how to deal with potential future applications lodged before the electoral law has been amended.

The Court observes that the circumstances of the present cases differ from those arising in previous pilot judgment cases. In previous cases the pilot judgment procedure has generally been employed to identify a violation of the Convention and to require the respondent State, usually within a given time-frame, to introduce some form of remedy or to offer adequate redress to all those affected. In the meantime, all pending applications before the Court were adjourned (see, for example, the approach in Broniowski, cited above, § 198; Burdov, cited above, § 146; and Olaru, cited above, § 61). However, those cases involved property complaints or complaints regarding non-enforcement of domestic judgments. In those circumstances, the benefits of requiring the domestic authorities to introduce a remedy or to offer specific redress in all pending cases were clear. In the present cases, the violation is of an entirely different nature. No individual examination of specific cases is required in order to assess the appropriate redress. Further, no financial compensation is payable: the relief available from this Court is of a declaratory nature. The only relevant remedy is a change in the law, which while no doubt affording satisfaction to all those who have been or may be affected by the current blanket ban is unable to undo past violations of the Convention in respect of particular individuals.

The Court recalls the terms of Article 37 § 1, which provides in so far as relevant:

In light of the considerations set out above (see paragraphs 116–118) and the six-month deadline fixed by the Court in the present judgment for the bringing forward of legislative proposals, the Court is of the view that the continued examination of every application asserting a violation of Article 3 of Protocol No. 1 as a result of the current blanket ban on voting applicable to serving prisoners is no longer justified. Such applications can be distinguished from cases where some form of individual measure might be necessary in order for any future judgment to be implemented. Examples of the latter type of case include applications complaining of non-enforcement of domestic judgments or length of domestic proceedings, where financial recompense is usually required. The Court emphasises that it has clearly established, both in the present judgment and in its judgment in Hirst, that the prevailing situation has given rise and continues to give rise to a violation of Article 3 of Protocol No. 1 in respect of every prisoner who is unable to vote in an election to the legislature and whose ineligibility arises solely by virtue of his status of prisoner. It has further declined to award non-pecuniary damages in respect of this violation. The award made in respect of costs in the present cases was limited to the proceedings before this Court and reflected the fact that extensive written submissions were lodged. In future follow-up cases, in light of the above considerations, the Court would be likely to consider that legal costs were not reasonably and necessarily incurred and would not, therefore, be likely to award costs under Article 41. As a consequence of the Court's approach to just satisfaction outlined above, an amendment to the electoral law to achieve compliance with the Court's judgment in Hirst will also result in compliance with the judgment in the present cases and with any future judgment handed down in any of the comparable cases currently pending before the Court. In these circumstances, the Court considers that it has discharged its obligation under Article 19 of the Convention, ‘to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto’ and concludes that nothing is to be gained, nor will justice be best served, by the repetition of its findings in a lengthy series of comparable cases, at a significant burden on its own resources and with the resulting impact on its considerable caseload. In particular, such an exercise would not contribute usefully or in any meaningful way to the strengthening of human rights protection under the Convention.

The Court accordingly considers it appropriate to discontinue its examination of applications registered prior to the date of delivery of this judgment and raising complaints similar to those in the case of Hirst pending compliance by the respondent State with the terms of point 6(a) of the operative part of this judgment. It would propose, in the event of such compliance, to strike out such complaints pursuant to Article 37 § 1 (c), without prejudice to the Court's power to decide, pursuant to Article 37 § 2, to restore such applications to the list should the respondent State fail to enact an amendment to the electoral law to achieve compliance with the Court's judgment in Hirst in accordance with point 6(b) of the operative part of this judgment.

The Court similarly considers it appropriate to suspend the treatment of any applications not yet registered at the date of delivery of this judgment, as well as future applications, raising such complaints, without prejudice to any decision to recommence the treatment of these cases in the event of any non-compliance with the terms of point 6(a) of the operative part of this judgment or in such other event as may justify such course.