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Cite as:  ECHR 681, 42 EHRR 41, (2006) 42 EHRR 41,  1 Prison LR 220, 19 BHRC 546
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CASE OF HIRST v. THE UNITED KINGDOM (No. 2)
(Application no. 74025/01)
6 October 2005
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,
Mrs L. Mijović,
Mr S.E. Jebens,
Mrs D. Jočienė,
Mr J. Šikuta, judges,
and Mr E. Fribergh, Deputy Registrar,
Having deliberated in private on 27 April and 29 August 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
There appeared before the Court:
(a) for the Government
Ms E. Willmott, Agent,
Mr R. Singh QC, Counsel,
Ms M. Hodgson,
Mr M. Rawlings,
Mr B. Daw, Advisers;
(b) for the applicant
Ms F. Krause, Counsel,
Mr E. Abrahamson, Solicitor.
The Court heard addresses by Mr Singh and Ms Krause.
I. THE CIRCUMSTANCES OF THE CASE
“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 twenty 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 (see Richardson v. Ramirez  418 United States: Supreme Court Reports 24). Some considerable attention was given to Canadian precedents, which were relied on by both parties, in particular that of the Canadian Supreme Court which, in Sauvé v. Canada (no. 1) ( 2 Supreme Court Reports 438), struck down the disenfranchisement of all prisoners as too widely drawn and infringing the minimum impairment rule, and that of the Federal Court of Appeal which, in Sauvé (no. 2) ( 2 Federal Court Reports 117), upheld the subsequent legislative provision restricting 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 Divisional Court commented that the judgment of Linden JA in the second case in the Federal Court of Appeal contained helpful observations, in particular as regards 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 Divisional 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.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“(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.”
“(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. The International Covenant on Civil and Political Rights
“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 ...”
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. ...”
“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. The European Prison Rules (Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe)
“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 Rec(2003)23 of the Committee of Ministers to member States on the management by prison administrations of life sentence and other long-term prisoners
- 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.”
“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
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 depriving 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
, Bulgaria, Cyprus, Estonia, Georgia, Hungary, Ireland, Russia, Serbia, Slovakia, Turkey and the United Kingdom), while in twelve countries prisoners’ right to vote could be limited in some other way (Austria, Bosnia and Herzegovina, France, Greece, Italy, Luxembourg, Malta, Norway, Poland, Romania and Spain).
F. Relevant case-law from other States
“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.”
As regards 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 enhanced 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.
With regard to 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.
2. South Africa
“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.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1
“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
“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. The parties’ submissions
1. The applicant
2. The Government
3. Third-party interveners
B. The Court’s assessment
1. General principles
3. Application in the present case
(a) Legitimate aim
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
“The Court has considered below the applicant’s claims for his own costs in the proceedings. As regards non-pecuniary damage, the Court notes that it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment. In the circumstances, it considers that this may be regarded as providing the applicant with just satisfaction for the breach in this case.”
B. Costs and expenses
“The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). This may include domestic legal costs actually and necessarily incurred to prevent or redress the breach of the Convention (see, for example, I.J.L. and Others v. the United Kingdom (just satisfaction), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). Since however in the present case the costs of the applicant’s legal representation in his application to the High Court and Court of Appeal contesting his disenfranchisement were paid by the legal aid authorities, it cannot be said that he incurred those expenses and he has not shown that he was required, or remains liable, to pay his representatives any further sums in that regard. This application before the Court cannot be used as a retrospective opportunity to charge fees above the rates allowed by domestic legal aid scales.
As regards the costs claimed for the proceedings in Strasbourg, the Court notes the Government’s objections and finds that the claims may be regarded as unduly high, in particular as regards the claim for three days for a hearing which lasted one morning and the lack of itemisation of work done by the solicitor. While some complaints were declared inadmissible, the applicant’s essential concern and the bulk of the argument centred on the bar on his right to vote, on which point he was successful under Article 3 of Protocol No. 1. No deduction has therefore been made on that account. Taking into account the amount of legal aid paid by the Council of Europe and in light of the circumstances of the case, the Court awards 12,000 euros (EUR) inclusive of VAT for legal costs and expenses. In respect of the applicant’s own claim for expenses in pursuing his application, the Court notes the lack of any itemisation but accepts that some costs have been incurred by him. It awards to the applicant himself EUR 144.”
C. Default interest
FOR THESE REASONS, THE COURT
1. Holds by twelve votes to five that there has been a violation of Article 3 of Protocol No. 1;
2. Holds unanimously that no separate issue arises under Article 14 of the Convention;
3. Holds unanimously that no separate issue arises under Article 10 of the Convention;
4. Holds unanimously that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
5. Holds by twelve votes to five
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into pounds sterling at the rate applicable at the date of settlement:
(i) EUR 23,000 (twenty three thousand euros) in respect of costs and expenses incurred by the applicant’s legal representatives in the Strasbourg proceedings;
(ii) EUR 200 (two hundred euros) in respect of his own costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 6 October 2005.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Caflisch;
(b) joint concurring opinion of Mrs Tulkens and Mr Zagrebelsky;
(c) joint dissenting opinion of Mr Wildhaber, Mr Costa, Mr Lorenzen, Mr Kovler and Mr Jebens;
(d) dissenting opinion of Mr Costa.
CONCURRING OPINION OF JUDGE CAFLISCH
1. On the whole I agree with both the Court’s finding and its reasoning. I should like, however, to comment on some of the arguments made by the respondent State and by one of the third-party interveners. I shall add a few words on what restrictions may or may not be imposed on the individual rights secured by Article 3 of Additional Protocol No. 1.
2. There may well be, in contemporary democratic States, a presumption of universal suffrage. This does not mean, however, that the State is unable to restrict the right to vote, to elect and to stand for election, and it may well be that the Contracting States enjoy a “wide” margin of appreciation in this respect - although this expression carries little meaning, except to suggest that States have some leeway. There must, however, be limits to those restrictions; and it is up to this Court, rather than the Contracting Parties, to determine whether a given restriction is compatible with the individual right to vote, to elect and to stand for election. To make this determination, the Court will rely on the legitimate aim pursued by the measure of exclusion and on the proportionality of the latter (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 23, § 52). In other, more general words, more would have been said by asserting that measures of exclusion must be “reasonable” than by referring to a “wide” margin of appreciation.
3. This has not, it seems, been fully appreciated by the respondent State and even less by the Latvian Government as a third-party intervener. The United Kingdom Government argued that the Chamber’s judgment was inconsistent with the Convention organs’ settled approach and that there was no prior hint of any problem with the kind of restrictions adopted by the United Kingdom (see paragraph 47 of the present judgment); they also pointed out that the matter had been fully considered by the domestic courts applying Convention principles under the Human Rights Act 1998. Accordingly, they criticised the Chamber for having drawn its own conclusions instead of relying on national traditions or the views of the national courts. This argument was taken up and carried one step further by the Latvian Government who asserted (see paragraph 55 of the judgment) that this Court was not entitled to replace the views of a democratic country by its own view as to what was in the best interests of democracy. This assertion calls for two comments. Firstly, the question to be answered here is one of law, not of “best interests”. Secondly, and more importantly, the Latvian thesis, if accepted, would suggest that all this Court may do is to follow in the footsteps of the national authorities. This is a suggestion I cannot and do not accept. Contracting States’ margin of appreciation in matters relating to Article 3 may indeed, as has been contended, be relatively wide; but the determination of its limits cannot be virtually abandoned to the State concerned and must be subject to “European control”.
4. The United Kingdom Government also suggested that the policy behind the relevant legislation rested on a tradition explicitly supported by Parliament, most recently in the Representation of the People Act 2000. They criticised the Chamber for having assessed that legislation in abstracto without taking account of the facts of the case: even if the United Kingdom were to reform the law and limit its application to those who have committed the most serious crimes, the applicant, as he had been convicted of homicide and sentenced to life imprisonment, would still be disenfranchised. Accordingly, concluded the Government, the finding of a violation would be a surprise and offensive to many (see paragraphs 47 and 49 of the judgment). That may well be so, but the decisions taken by this Court are not made to please or displease members of the public, but to uphold human rights principles.
5. The United Kingdom Government further contended that disenfranchisement in the present case was in harmony with the objectives of preventing crime and punishing offenders, thereby enhancing civic responsibility (see paragraph 50 of the judgment). I doubt that very much. I believe, on the contrary, that participation in the democratic process may serve as a first step towards reintegrating offenders into society.
6. Finally, there is the argument that the situation in the United Kingdom was substantially improved by the passage of the Representation of the People Act 2000, especially because that Act enables remand prisoners to vote (see paragraph 51 of the judgment). This argument seems wrong. Detainees on remand enjoy the presumption of innocence under Article 6 § 1 of the Convention. To destroy that presumption by depriving detainees on remand of their voting rights amounts to a violation of that provision. All that the new legislation achieved in this respect was to remove a potential for violations of the presumption of innocence.
7. It might have been useful if the Court, in addition to finding a violation of Article 3 of Protocol No. 1, had indicated some of the parameters to be respected by democratic States when limiting the right to participate in votes or elections. These parameters should, in my view, include the following elements.
(a) The measures of disenfranchisement that may be taken must be prescribed by law.
(b) The latter cannot be a blanket law: it may not, simply, disenfranchise the author of every offence punished by a prison term. It must, in other words, be restricted to major crimes, as rightly pointed out by the Venice Commission in its Code of Good Practice in Electoral Matters (see paragraph 32 of the judgment). It cannot simply be assumed that whoever serves a sentence has breached the social contract.
(c) The legislation in question must provide that disenfranchisement, as a complementary punishment, is a matter to be decided by the judge, not the executive. This element, too, will be found in the Code of Good Practice adopted by the Venice Commission.
(d) Finally - and this may be the essential point for the present case - in those Contracting States where the sentence may comprise a punitive part (retribution and deterrence) and a period of detention based on the risk inherent in the prisoner’s release, the disenfranchisement must remain confined to the punitive part and not be extended to the remainder of the sentence. In the instant case, this would indeed seem to be confirmed by the fact that retribution is one of the reasons adduced by the United Kingdom legislator for enacting the legislation discussed here, and certainly a central one. This reason is no longer relevant, therefore, as soon as a person ceases to be detained for punitive purposes. This is, in my view, a major argument for holding that Article 3 of Protocol No. 1 was breached.
8. Two out of the above four elements are contained in the Code of Good Practice of the Venice Commission: I say this not because I consider that Code to be binding but because, in the subject matter considered here, these elements make eminent sense.
JOINT CONCURRING OPINION OF
JUDGES TULKENS AND ZAGREBELSKY
We share the view of the majority of the Court that the applicant’s disenfranchisement as a result of his serving a prison sentence constitutes a violation of Article 3 of Protocol No. 1. We agree entirely with the general principles set out in the judgment, which make a fundamental contribution to the question of the right of convicted prisoners to vote (see paragraphs 56-71 of the judgment). However, as regards the application of these principles in the present case, to some extent our reasoning differs from the one developed in the judgment.
At the time the applicant was deprived of his right to vote, the law provided for all prisoners to lose the right to vote. It was not until the 2000 reform that remand prisoners (and mental patients who had not been convicted) were allowed to vote. Since 2000 all convicted prisoners are banned from voting for as long as they remain in prison, irrespective of the offence they have been convicted of, with the minor exceptions of persons imprisoned for contempt of court or for defaulting on fines.
In our view, the real reason for this provision is the fact that the person is in prison. This was obvious before the 2000 reform, when even the question of conviction was irrelevant. But even after that reform the extremely wide range of criminal offences for which prisoners may be banned from voting, irrespective of the gravity or nature of the offence, shows that the rationale for their disqualification is the fact that they are serving a prison sentence. They would not lose the right to vote if they were not in prison.
We admit that a prison sentence may reflect a judge’s negative evaluation of the offence and the offender’s character, which may in turn exceptionally justify an additional penalty such as the loss of the right to vote. However, the reasons for not handing down an immediate custodial sentence may vary. A defendant’s age, health or family situation may result in his or her receiving a suspended sentence. Thus the same criminal offence and the same criminal character can lead to a prison sentence or to a suspended sentence. In our view this, in addition to the failure to take into consideration the nature and gravity of the offence, demonstrates that the real reason for the ban is the fact that the person is in prison.
This is not an acceptable reason. There are no practical grounds for denying prisoners the right to vote (remand prisoners do vote) and prisoners in general continue to enjoy the fundamental rights guaranteed by the Convention, except for the right to liberty. As to the right to vote, there is no room in the Convention for the old idea of “civic death” that lies behind the ban on convicted prisoners’ voting.
We would conclude, therefore, that the failure of the United Kingdom legal system to take into consideration the gravity and nature of the offence of which the prisoner has been convicted is only one of the aspects to be taken into account. The fact that by law a convicted person’s imprisonment is the ground for his or her disenfranchisement is, in our view, conclusive. The lack of a rational basis for that provision is a sufficient reason for finding a violation of the Convention, without there being any need to conduct a detailed examination of the question of proportionality.
The different approach taken by the majority of the Court is, in our view, open to some of the criticism mentioned by Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens in their separate opinion. In particular, we note that the discussion about proportionality has led the Court to evaluate not only the law and its consequences, but also the parliamentary debate (see paragraph 79 of the judgment). This is an area in which two sources of legitimacy meet, the Court on the one hand and the national parliament on the other. This is a difficult and slippery terrain for the Court in view of the nature of its role, especially when it itself accepts that a wide margin of appreciation must be allowed to the Contracting States.
JOINT DISSENTING OPINION OF JUDGES WILDHABER, COSTA, LORENZEN, KOVLER AND JEBENS
1. We are not able to agree with the conclusion of the majority that there has been a violation of Article 3 of Protocol No. 1 because convicted prisoners, under the legislation of the United Kingdom, are prevented from voting while serving their sentence. Our reasons for not finding a violation are as follows.
2. In accordance with Article 3 of Protocol No. 1, the Contracting States are obliged “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”. The wording of this Article is different from nearly all other substantive clauses in the Convention and its Protocols in that it does not directly grant individual rights and contains no other conditions for the elections, including in relation to the scope of a right to vote, than the requirement that “the free expression of the opinion of the people” must be ensured. This indicates that the guarantee of a proper functioning of the democratic process was considered to be of primary importance. This is also why the Commission in its early case-law did not consider that the Article granted individual rights (see X v. Germany, no. 530/59, decision of 4 January 1960, Collection 2, and X v. Belgium, no. 1028/61, decision of 18 September 1961, Collection 6, p. 78). The Commission then changed its approach, and the Court subsequently held that the Article does grant individual rights, including the right to vote, while at the same time recognising that such individual rights are not absolute but are open to “implied limitations” leaving the Contracting States “a wide margin of appreciation”, which is nonetheless subject to the Court’s scrutiny. The Court must therefore satisfy itself that limitations do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness (see, firstly, Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 23, § 52, and, more recently, Py v. France, no. 66289/01, §§ 45-47, ECHR 2005-I). Even though Article 3 of Protocol No. 1 contains no clause stating the conditions for restrictions, such as can be found, for example, in the second paragraphs of Articles 8 to 11 of the Convention, the Court has further held that any restriction must pursue a legitimate aim and that the means employed must not be disproportionate. Like the majority, we will limit our examination to these two conditions, thus implicitly accepting that the United Kingdom legislation does not in itself impair the very essence of the right to vote and deprive it of its effectiveness, as was found in Aziz v. Cyprus (no. 69949/01, §§ 29-30, ECHR 2004-V), where an ethnic minority of the Cypriot population was barred from voting.
3. As Article 3 of Protocol No. 1 does not prescribe what aims may justify restrictions of the protected rights, such restrictions cannot in our opinion be limited to the lists set out in the second paragraphs of Articles 8 to 11. Furthermore, we would point out that the Convention institutions in their case-law have to date been very careful not to challenge the aims relied on by the respondent Government to justify the restriction of a right under the Convention or its Protocols. This has also been the case in respect of restrictions on the right to vote. Thus, in its decision of 4 July 1983 in H. v. the Netherlands (no. 9914/82, Decisions and Reports 33, p. 246) the Commission found that such a restriction concerning persons sentenced to a term of imprisonment exceeding one year could be explained “by the notion of dishonour that certain convictions carry with them for a specific period, which may be taken into consideration by legislation in respect of the exercise of political rights”. In M.D.U. v. Italy ((dec.), no. 58540/00, 28 January 2003) the Court accepted that a ban on voting for a two-year period imposed in connection with a conviction for tax fraud served “the proper functioning and preservation of the democratic regime”. Accordingly, we have no difficulty in accepting that the restriction of prisoners’ right to vote under the United Kingdom legislation was legitimate for the purposes of preventing crime, punishing offenders and enhancing civic responsibility and respect for the rule of law, as submitted by the respondent Government. However, since, unlike the Chamber, which left the question open, the majority accept that the restriction in question served legitimate aims, there is no need for us to pursue this question any further.
4. As stated above, the Court has consistently held in its case-law that the Contracting States have a wide margin of appreciation in this sphere. The Court has furthermore accepted that the relevant criteria may vary according to historical and political factors peculiar to each State. In the recent Py v. France judgment (cited above, § 46) the Court thus stated:
“Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another.”
In the light of such considerations, Article 3 of Protocol No. 1 cannot be considered to preclude restrictions on the right to vote that are of a general character, provided that they are not arbitrary and do not affect “the free expression of the opinion of the people”, examples being conditions concerning age, nationality, or residence (see, for example, Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Py, cited above). Unlike the majority, we do not find that a general restriction on prisoners’ right to vote should in principle be judged differently, and the case-law of the Convention institutions to date does not support any other conclusion, as appears from the analysis set out in the majority’s opinion (see paragraphs 65-69 of the judgment). Nor do we find that such a decision needs to be taken by a judge in each individual case. On the contrary, it is obviously compatible with the guarantee of the right to vote to let the legislature decide such issues in the abstract.
5. The majority have reaffirmed that the margin of appreciation in this area is wide, and have rightly paid attention to the numerous ways of organising and running electoral systems and the wealth of differences in this field in terms of, inter alia, historical development, cultural diversity and political thought within Europe. Nonetheless, the majority have concluded that a general restriction on voting for persons serving a prison sentence “must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be” (see paragraph 82 of the judgment). In our opinion, this categorical finding is difficult to reconcile with the declared intention to adhere to the Court’s consistent case-law to the effect that Article 3 of Protocol No. 1 leaves a wide margin of appreciation to the Contracting States in determining their electoral system. In any event, the lack of precision in the wording of that Article and the sensitive political assessments involved call for caution. Unless restrictions impair the very essence of the right to vote or are arbitrary, national legislation on voting rights should be declared incompatible with Article 3 only if weighty reasons justify such a finding. We are unable to agree that such reasons have been adduced.
6. It has been part of the Court’s reasoning in some cases in recent years to emphasise its role in developing human rights and the necessity to maintain a dynamic and evolutive approach in its interpretation of the Convention and its Protocols in order to make reforms or improvements possible (see, for example, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002-IV, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI). The majority have not made reference to this case-law, but that does not in our opinion change the reality of the situation that their conclusion is in fact based on a “dynamic and evolutive” interpretation of Article 3 of Protocol No 1.
We do not dispute that it is an important task for the Court to ensure that the rights guaranteed by the Convention system comply with “present-day conditions”, and that accordingly a “dynamic and evolutive” approach may in certain situations be justified. However, it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions. An “evolutive” or “dynamic” interpretation should have a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved. We fail to see that this is so in the present case.
The majority submit that “it is a minority of Contracting States in which a blanket restriction on the right of serving prisoners to vote is imposed or in which there is no provision allowing prisoners to vote” (see paragraph 81 of the judgment). The judgment of the Grand Chamber - which refers in detail to two recent judgments of the Canadian Supreme Court and the Constitutional Court of South Africa - unfortunately contains only summary information concerning the legislation on prisoners’ right to vote in the Contracting States.
According to the information available to the Court, some eighteen countries out of the forty-five Contracting States have no restrictions on prisoners’ right to vote (see paragraph 33 of the judgment). On the other hand, in some thirteen States prisoners are not able to vote either because of a ban in their legislation or de facto because appropriate arrangements have not been made. It is essential to note that in at least four of those States the disenfranchisement has its basis in a recently adopted Constitution (Russia, Armenia, Hungary and Georgia). In at least thirteen other countries more or less far-reaching restrictions on prisoners’ right to vote are prescribed in domestic legislation, and in four of those States the restrictions have a constitutional basis (Luxembourg, Austria, Turkey and Malta). The finding of the majority will create legislative problems not only for States with a general ban such as exists in the United Kingdom. As the majority have considered that it is not the role of the Court to indicate what, if any, restrictions on the right of serving prisoners to vote would be compatible with the Convention (see paragraph 83), the judgment in the present case implies that all States with such restrictions will face difficult assessments as to whether their legislation complies with the requirements of the Convention.
Our conclusion is that the legislation in Europe shows that there is little consensus about whether or not prisoners should have the right to vote. In fact, the majority of member States know such restrictions, although some have blanket and some limited restrictions. Thus, the legislation in the United Kingdom cannot be claimed to be in disharmony with a common European standard.
7. Furthermore, the majority attach importance to an alleged lack of evidence that the Parliament of the United Kingdom “has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote” (see paragraph 79 of the judgment). It is, however, undisputed that a multi-party Speaker’s Conference on Electoral Law in 1968 unanimously recommended that a convicted person should not be entitled to vote. We also note that the Government’s proposal to amend the Representation of the People Act 2000 to permit remand prisoners and unconvicted mental patients to vote was based on the opinion that it should be part of a convicted prisoner’s punishment to lose, inter alia, the right to vote. Had a majority of the members of Parliament disagreed with this opinion, it would have been open to them to decide otherwise. The majority of the Court have held - as did the Chamber - that no importance could be attached to this as “it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern-day penal policy and of current human rights standards” (see paragraph 79 of the judgment). We disagree with this objection as it is not for the Court to prescribe the way in which national legislatures carry out their legislative functions. It must be assumed that section 3 of the Representation of the People Act 2000 reflects political, social and cultural values in the United Kingdom.
8. Regarding in particular the requirement that any restrictions must not be disproportionate, we consider it essential to underline that the severity of the punishment not only reflects the seriousness of the crime committed, but also the relevance and weight of the aims relied on by the respondent Government when limiting voting rights for convicted persons. We do not rule out the possibility that restrictions may be disproportionate in respect of minor offences and/or very short sentences. However, there is no need to enter into this question in the circumstances of the present case. The Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention. It is, in our opinion, difficult to see in what circumstances restrictions on voting rights would be acceptable, if not in the case of persons sentenced to life imprisonment. Generally speaking, the Court’s judgment concentrates above all on finding the British legislation incompatible with the Convention in abstracto. We regret that despite this focus it gives the States little or no guidance as to what would be Convention-compatible solutions. Since restrictions on the right to vote continue to be compatible, it would seem obvious that the deprivation of the right to vote for the most serious offences such as murder or manslaughter, is not excluded in the future. Either the majority are of the view that deprivations for the post-tariff period are excluded, or else they think that a judge has to order such deprivations in each individual case. We think that it would have been desirable to indicate the correct answer.
9. Our own opinion whether persons serving a prison sentence should be allowed to vote in general or other elections matters little. Taking into account the sensitive political character of this issue, the diversity of the legal systems within the Contracting States and the lack of a sufficiently clear basis for such a right in Article 3 of Protocol No. 1, we are not able to accept that it is for the Court to impose on national legal systems an obligation either to abolish disenfranchisement for prisoners or to allow it only to a very limited extent.
DISSENTING OPINION OF JUDGE COSTA
1. I voted the same way as my colleagues Judges Wildhaber, Lorenzen, Kovler and Jebens and readily subscribe to their opinion, which is therefore our joint opinion.
2. I should, however, like to add one or two brief comments of my own to their reasoning, with which I concur.
3. Firstly, while I readily agree with my colleagues (see point 3 in our joint opinion) that there is no need to pursue the question of whether the statutory restriction on the right of prisoners to vote served a “legitimate aim” any further, I confess to having doubts about the legitimacy - or rationality - of that aim. It is perfectly conceivable, for example, that a person who has been convicted of electoral fraud, of exceeding the maximum permitted amount of electoral expenditure or even of corruption should be deprived for a time of his or her rights to vote and to stand for election. The reason for this is that there exists a logical and perhaps even a natural connection between the impugned act and the aim of the penalty (which, though ancillary, is important) that serves as punishment for such acts and as a deterrent to others. The same does not hold true, at least not in any obvious way, of a ban on voting and/or standing for election that is imposed for any offence that leads to a prison sentence.
4. However, I do not propose to press this point, firstly, because, in common with the other dissenting judges and, indeed, those in the majority, I consider that when applying Article 3 of Protocol No. 1, which, unlike Articles 8 to 11 of the Convention, does not contain an exhaustive list of “legitimate aims”, it is necessary to make an exception to the general rule and to construe such aims broadly. Secondly, limiting the States’ room to manoeuvre in this sphere as regards the aims they are free to pursue in their legislation could, paradoxically, lead me to rejoin the majority by another route (indeed, I have to admit that on reading the careful concurring opinion of my colleague Judge Caflisch, I was tempted to follow a similar path).
5. However, once I had rejected that approach and accepted that the States have a wide margin of appreciation to decide on the aims of any restriction, limitation or even outright ban on the right to vote (and/or the right to stand for election), how could I, without being inconsistent, reduce that margin when it came to assessing the proportionality of the measure restricting universal suffrage (a concept which, of course, remains the democratic ideal)?
6. How would I be able to approve of the Py v. France judgment of 11 January 2005 (which I am all the more at liberty to cite in that I did not sit in the case)? In that judgment, the Court unanimously (as indeed the United Nations Human Rights Committee had done in its Views dated 15 July 2002, which were cited under the section on “Relevant domestic law and international case-law” and in paragraph 63) held that the minimum ten-year-residence qualifying period for being eligible to vote in elections to Congress in New Caledonia did not impair the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, and that there had been no violation of that provision. How, then, could I approve of that judgment and at the same time agree with the judgment in the present case when it states in paragraph 82: “while ... the margin of appreciation is wide, it is not all-embracing”, which in practice means that a prisoner sentenced to a discretionary life sentence would have the right to vote under Article 3 of Protocol No. 1 (but when would the right become effective?). Are there not two “standards”?
7. It might perhaps be objected that the Py judgment took into account “local requirements”, within the meaning of Article 56 § 3 of the Convention. That is true. But what of the decision in Hilbe v. Lichtenstein (7 September 1999, ECHR 1999-IV)? In holding that a Lichtenstein national who was resident in Switzerland did not have the right to vote in Liechtenstein parliamentary elections (Article 56 was not, as far as I am aware, applicable in the case), the Court noted: “the Contracting States have a wide margin of appreciation to make the right to vote subject to conditions” before going on simply to conclude that the residence requirement “cannot be regarded as unreasonable or arbitrary or, therefore, as incompatible with Article 3 of Protocol No. 1”.
8. As stated in point 4 of our joint opinion, the Court’s case-law permits restrictions on the right to vote that are of a general character, such as conditions concerning age, nationality, or residence (provided they are not arbitrary and do not affect the free expression of the opinion of the people). With due respect, I see no convincing arguments in the majority’s reasoning that could persuade me that the measure to which the applicant was subject was arbitrary, or even that it affected the free expression of the opinion of the people.
9. The point is that one must avoid confusing the ideal to be attained and which I support - which is to make every effort to bring the isolation of convicted prisoners to an end, even when they have been convicted of the most serious crimes, and to prepare for their reintegration into society and citizenship - and the reality of Hirst (no. 2), which on the one hand theoretically asserts a wide margin of appreciation for the States as to the conditions in which a subjective right (derived from judicial interpretation!) may be exercised, but goes on to hold that there has been a violation of that
right, thereby depriving the State of all margin and all means of appreciation.
. Where the period of disqualification may in fact extend beyond the end of the prison term.
. There is no bar but no arrangements are made to enable prisoners to vote.
. The right to vote is removed from prisoners sentenced to terms exceeding one year and if they committed the crime with intent.
. A restriction on voting applies to prisoners accused of serious violations of international law or indicted before the international tribunal.
. Prisoners may vote if the right is given by the court.
. Restrictions apply to prisoners sentenced to terms of over ten years, while life imprisonment attracts a permanent deprivation of the right to vote. For terms of one to ten years, courts may also restrict the right to vote for one to five years where a prisoner’s conduct shows moral perversity.
. Serious offenders and bankrupts sentenced to terms of five years or more automatically lose the right to vote, while minor offenders debarred from holding public office lose this right at the discretion of the judge.
. Unless the sentencing court removes civil rights as part of sentencing.
. Prisoners convicted of a serious crime lose the right to vote.
. The right to vote may be revoked by a court, although this is very rare and possibly restricted to treason and national security cases.
. Prisoners sentenced to terms of three years or more where the crime is blameworthy (very serious) may lose the right to vote.
. Unless, as occurs only rarely, the sentencing judge expressly removes the right to vote.