EHRM, 22-05-2012, nr. 126/05

In 1992 the Supreme Court of Canada unanimously struck down a legislative provision barring all prisoners from voting (Sauvé v. Canada (no. 1), Supreme Court Report, 1992, vol. 2, p. 438). Amendments were introduced limiting the ban to prisoners serving sentences of two years or more. The Federal Court of Appeal upheld that provision. However, on 31 October 2002 the Supreme Court held by five votes to four, in the case of Sauvé v. Attorney General of Canada (no. 2), that section 51 (e) of the 1985 Canada Elections Act, denying the right to vote to all persons serving sentences of two years or more in a correctional institution, was unconstitutional as it infringed Articles 1 and 3 of the Canadian Charter of Rights and Freedoms, which provide:

The majority opinion given by Beverly McLachlin CJ considered that the right to vote was fundamental to democracy in Canada and the rule of law and could not be lightly set aside. Limits on this right required not deference, but careful examination. The majority found that the Government had failed to identify the 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 of enhancing civic responsibility and respect for the rule of law and imposing appropriate punishment.

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 (for further details of these opinions, particularly concerning the objectives of the impugned measure, see Hirst (no. 2) [GC], cited above, §§ 36–37).

The High Court of Australia found by four votes to two against the general voting ban that had been introduced in the place of the previous legislation, which had provided for the loss of the right to vote only in connection with prison sentences of three years or more (see Roach v. sElectoral Commissioner [2007] HCA 43 (26 September 2007)).

The High Court noted, inter alia, that the earlier legislation took into account the seriousness of the offence committed as an indicium of culpability and temporary unfitness to participate in the electoral process, beyond the bare fact of imprisonment (see paragraph 98 of the judgment).

The Government essentially reiterated the submissions they made to the Chamber (Scoppola v. Italy (no. 3), no. 126/05, §§ 29–33, 18 January 2011 — hereinafter ‘the Chamber judgment’).

They pointed out that the Contracting States enjoyed a wide margin of appreciation where the right to vote was concerned (referring to Hirst (no. 2) [GC], cited above, §§ 61–62) and that, as the Court had implicitly assumed in paragraph 45 of its Chamber judgment, the denial of the applicant's right to vote pursued the legitimate aims of preventing crime and upholding the rule of law.

It also met the proportionality requirement, the Government argued: the Court had already made a similar finding in M.D.U. v. Italy ((dec.), no. 58540/00, 28 January 2003), where disenfranchisement was provided for, as in the instant case, by Article 29 of the Criminal Code.

The Government further observed that unlike in the United Kingdom legal system, in which the Hirst (no. 2) case had been set, in Italian law the loss of the right to vote did not depend on a subjective condition like detention, but on judgments in criminal cases becoming final.

In addition, the ban from public office that led to the disenfranchisement was the result of the assessment made by the trial court, which, based on the penalty prescribed by law (pena edittale), fixed the penalty applicable to a particular case, as prescribed by Articles 132 and 133 of the Criminal Code (see paragraph 37 above), taking into account any aggravating and mitigating circumstances.

In the Government's opinion, therefore, disenfranchisement could not be said to be a measure that was applied automatically.

Furthermore, the Government noted that under Articles 178 and 179 of the Criminal Code (see paragraph 38 above), an application for rehabilitation could be made three years after the date on which the principal penalty had been completed. If the application was accepted, any ancillary penalties ceased to apply. The Government also pointed out that when a convicted prisoner was granted early release (under section 54 of Law no. 354 of 1975 — see paragraph 39 above), the length of the sentence could be reduced by forty-five days for every six months served.

Lastly, the Italian legal system was designed, according to the Government, to avoid the discrimination that could arise if courts were free to make decisions on a case-by-case basis in such a sensitive area as that of political rights.

The applicant also reiterated the submissions he made to the Chamber (see paragraphs 34–36 of the Chamber judgment).

In addition, he noted that disenfranchisement, as an ancillary penalty, should serve the purpose of reforming the convicted person. Here, however, it was merely an expression of moral indignation and social opprobrium that clashed with the generally accepted principle of respect for human dignity.

Applied in a general, automatic manner to any individual sentenced to five years' imprisonment or more, the measure had no direct link with the type of crime committed by the applicant or the particular circumstances of his case; it therefore served no preventive or deterrent purpose. In addition, as it was not the result of a discretionary decision by the court, it did not meet the proportionality requirement.

Lastly, the applicant disputed that his situation resembled that in the M.D.U. decision (cited above). In that case the disenfranchisement had been the result of the application of section 6 of Law no. 516 of 1982, providing for a ban from public office of between three months and two years in the event of conviction for certain tax offences. The duration of the ban had thus been fixed by the court in the light of the circumstances of the particular case.

Referring to the Hirst (no. 2) [GC] judgment (cited above, § 61), to the joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens in that case, and to the Greens and M.T. v. the United Kingdom judgment (nos. 60041/08 and 60054/08, § 113–114, 23 November 2010), the third-party intervener first stressed the wide margin of appreciation afforded to the Contracting States in respect of the right to vote. Each State should be free to adopt its own legal system in keeping with its social policy, and to choose which arm of the State (legislature, executive or judiciary) should have the power to take decisions concerning prisoners' voting rights.

A system that stripped all convicted prisoners of the right to vote for as long as they were serving their sentence was not a ‘blunt instrument’ (Hirst (no. 2) [GC], cited above, § 82). First, there was no doubt that the impugned measure pursued a legitimate aim, namely enhancing civic responsibility and respect for the rule of law and encouraging citizen-like conduct (ibid., § 74). Also, because only those individuals guilty of offences serious enough to warrant imprisonment were deprived of the right to vote, the correlation between the offence committed and the aim pursued was established.

In that sense the system in the United Kingdom, where a group of people — convicted prisoners serving sentences — were deprived of the right to vote, fell within the margin of appreciation afforded to the States in the matter. So their disenfranchisement could not be classified as manifestly arbitrary.

Accordingly, the third-party intervener submitted that the Court's findings in the Hirst (no. 2) [GC] judgment (cited above) were wrong and that the Court should revisit its decision.

On this point, they indicated that the compatibility of the legislation of the United Kingdom with the guidelines established in that case had been debated on 10 February 2011 in the House of Commons. The House had voted by 234 to 22 against narrowing the scope of section 3 of the Representation of the People Act 1983.

The third-party intervener also noted that there was no requirement under Article 3 of Protocol No. 1 for the courts to make a decision on voting rights on a case-by-case basis. In the Frodl v. Austria judgment (no. 20201/04, 8 April 2010), the Court had never suggested that it was seeking to expand or develop Hirst (no. 2), as was apparent from paragraph 28, where it was expressly stated that a disenfranchisement measure should ‘preferably’ be imposed not by operation of a law but by the decision of a judge following judicial proceedings. This was also confirmed in the Greens and M.T. judgment (cited above, § 113).

The Court reiterates that Article 3 of Protocol No. 1 guarantees subjective rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46–51, Series A no. 113).

It further notes that the rights guaranteed by this Article are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst (no. 2) [GC], cited above, § 58). In addition, 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 and universal suffrage has become the basic principle (see Mathieu-Mohin and Clerfayt, cited above, § 51, and Hirst (no. 2) [GC], cited above, § 59). The same rights are enshrined in Article 25 of the International Covenant on Civil and Political Rights (see paragraph 40 above).

Nevertheless, the rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and the Contracting States must be afforded a margin of appreciation in this sphere. The Court has repeatedly affirmed that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews v. the 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 its own democratic vision (see Hirst (no. 2) [GC], cited above, § 61).

However, it is 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 and Clerfayt, cited above, § 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 the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws 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 Hirst (no. 2) [GC], cited above, § 62).

The Court examined the question of the right of convicted prisoners to vote in Hirst (no. 2). It considered that where Contracting States had adopted a number of different ways of addressing the question, the Court must confine itself ‘to determining whether the restriction affecting all convicted prisoners in custody exceed[ed] any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1’ (see Hirst (no. 2) [GC], cited above, § 84; see also Greens and M.T., cited above, §§ 113 and 114).

In examining the particular circumstances of the Hirst (no. 2) case, the Court considered that the legislation of the United Kingdom depriving all convicted prisoners serving sentences of the right to vote (section 3 of the 1983 Act) was ‘a blunt instrument [which stripped] of their Convention right to vote a significant category of persons and it [did] so in a way which [was] indiscriminate’. It found that the provision ‘impose[d] a blanket restriction on all convicted prisoners in prison. It applie[d] automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances.’ It concluded that ‘such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1’ (see Hirst (no. 2) [GC], cited above, § 82). The Court also noted that ‘[the voting bar] concern[ed] a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity’ (ibid., § 77).

Lastly, the Court reiterates that it was later called upon, in the Frodl case, to examine the compatibility of the disenfranchisement of a convicted prisoner in Austria with Article 3 of Protocol No. 1. On that occasion it expressed the view that it was an ‘essential element’ when assessing the proportionality of such a measure that the decision on disenfranchisement should be taken by a judge and accompanied by specific reasoning (see Frodl, cited above, §§ 34–35).

The Court must ascertain whether, in the instant case, depriving Mr Scoppola of the right to vote was compatible with Article 3 of Protocol No. 1. To do this it must first determine whether there was interference with the applicant's rights under that provision. In the affirmative, it will then have to consider whether that interference pursued one or more legitimate aims and whether the means employed to achieve them were proportionate.

Taking the above considerations into account, the Court finds that, in the circumstances of the present case, the restrictions imposed on the applicant's right to vote did not ‘thwart the free expression of the people in the choice of the legislature’, and maintained ‘the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage’ (see Hirst (no. 2) [GC], cited above, § 62). The margin of appreciation afforded to the respondent Government in this sphere has therefore not been overstepped.

Accordingly, there has been no violation of Article 3 of Protocol No. 1.