Tuesday, 22 May 2012

Prisoner voting ~ Strasbourg has spoken

Updated 23rd May:

As was said in another case, Strasbourg has spoken !  ("Argentoratum locutum" - per Lord Rodger in Home Secretary v AF No.3 at para 98).  This time, the Grand Chamber of the European Court of Human Rights has handed down judgment in Scoppola v Italy No.3 which this blog recently considered and argued that - "Perhaps the most likely outcome is that the essentials of Hirst will survive but the court will give greater guidance as to the factors to be considered in deciding nationally where the line should be drawn between those prisoners to be allowed a vote and those who are not."

Press release Scoppola v. Italy (no. 3) and judgment

The Court (by a majority of 16 to 1) found no violation of the Convention in relation to the voting ban imposed, under Italian Law, on Mr Scoppola.   Hirst No.2 has survived
since, in Scoppola, the court has reiterated that general, automatic and indiscriminate disenfranchisement of prisoners is incompatible with Protocol 1 Article 3 (Right to free elections).  The court also stated that each State has a wide discretion as to how it regulates the ban - both as regards the types of offence that should result in the loss of the vote and as to whether disenfranchisement should be ordered by a judge in an individual case or should result from general application of a law.

Under Italian Law, only prisoners convicted of certain offences against the State or the judicial system or sentenced to at least 3 years imprisonment lost the right to vote.  There was no general, automatic, indiscriminate measure of the kind found in the UK and held, in Hirst No. 2, to be a violation of the Protocol.

The UK government must now act to bring forward legislation to remove the automatic ban on prisoner voting.  This must be done by 23rd November.  The court has not laid down any definite scheme for States to adopt and it could not do so having held that States have a wide discretion in this matter.  Considerable leeway is therefore given to determine where the precise lines are to be drawn.

For an interesting viewpoint on the Scoppola decision see Carl Gardner's Head of Legal blog - "European Court of Human Rights Grand Chamber judgment: Scoppola v Italy."  Given that Italian law sometimes extends a voting ban beyond the actual term of imprisonment, the thought is mooted that the UK could actually bring in a Convention-compliant regime which was more stringent than at present.  Further analysis and comment on the judgment is by Adam Wagner at UK Human Rights Blog - "European Court of Human Rights retreats but doesn't surrender on prisoner voting." and yet more interesting material at EJIL: Talk! "Prisoner Voting and Strategic Judging."

The EJIL blog considers that "political dynamic" which exists between Strasbourg and the various States.

" ... most of the Strasbourg judges are sensitive to the underlying political dynamic and the potential that the whole thing might blow up in their faces. They thus wanted to find a solution that would both preserve Hirst and give enough way to the UK to provide the UK political elite with cover that would allow what remains of Hirst to be complied with, and thus defuse a damaging row between the Court and one very influential European state. And this is in fact what the GC judgment in Scoppola does. On one hand it explicitly refuses to overrule Hirst; on the other it finds that while a blanket ban on prisoner voting is disproportionate, proportionality does not require individual determination by a judge on a case by case basis. The line on which prisoners exactly may be denied the right to vote may be drawn by the legislator on the basis of very vague criteria, and in fact the Italian system passes muster. Indeed, the Italian system passes muster even though in many, if not most cases the results it produces are actually worse than the UK one – thus, for instance, in the UK prisoners may not vote only while they are in prison, while in Italy anyone sentenced to more than 5 years in prison will get a lifetime ban on voting."

Decision of the Court:

The Court pointed out that the rights guaranteed by Article 3 of Protocol No. 1 were crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law, but that they were not absolute and the Contracting States were to be afforded a margin of appreciation in the limitations they applied to them. 

It was not disputed by the parties that Mr Scoppola’s disenfranchisement amounted to an interference with his right to vote. Having established that the interference pursued the legitimate aims of preventing crime and enhancing civic responsibility and respect for the rule of law and ensuring the proper functioning and preservation of the democratic regime, the Court had to examine the proportionality of the interference.
The United Kingdom Government, intervening as a third party, considered that the Court’s findings in Hirst (no. 2) v. the United Kingdom were wrong. In that case the Court had found a violation of Article 3 of Protocol No. 1 because of the general, automatic and indiscriminate nature of the measure depriving convicted prisoners of the right to vote. 

The Court noted that, if anything, the trend was towards fewer restrictions on convicted prisoners’ voting rights. The Court accordingly reaffirmed the principles set out in the Hirst (no. 2) judgment.  In particular,  the court held that disenfranchisement was not compatible with Article 3 of Protocol No. 1 when it affected a group of people generally, automatically and indiscriminately, based solely on the fact that they were serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances.

However, it was not necessary that a judge determine whether a ban should apply to any particular prisoner.  The Grand Chamber pointed out that the Hirst (no. 2) judgment made no explicit mention of the intervention of a judge among the essential criteria for determining the proportionality of a disenfranchisement measure.
The wide variety of approaches taken by the different domestic legal systems in this field confirmed that the States could decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied.

The legal provisions in Italy defining the circumstances in which individuals could be deprived of the right to vote showed the legislature’s concern to adjust the application of the measure to the particular circumstances of the case in hand, taking into account such factors as the gravity of the offence committed and the conduct of the offender. It was applied only in connection with certain offences against the State or the judicial system, or with offences which the courts considered to warrant a sentence of at least three years’ imprisonment.

Mr Scoppola had been found guilty of serious offences and sentenced to life imprisonment, a sentence subsequently commuted to 30 years. In the circumstances the Court could not conclude that the disenfranchisement provided for in Italian law had the general, automatic and indiscriminate character that had led it, in the Hirst (no. 2) case, to find a violation of Article 3 of Protocol No. 1. As a result, the Court
pointed out, a large number of convicted prisoners in Italy were not deprived of the right to vote in parliamentary elections.

Furthermore, three years after having finished serving his sentence, it was possible for a convicted person who had displayed good conduct to apply for rehabilitation and to recover the right to vote. The application for rehabilitation could even be lodged sooner where early release was granted in connection with a re-education scheme.

The Court accordingly found that there had been no violation of Article 3 of Protocol No. 1, as the margin of appreciation afforded to the Italian Government in this sphere had not been overstepped.

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