III. INTERNATIONALAND OTHER RELEVANT MATERIALS

A. Vienna Convention on the Law of Treaties (1969)

36. Article 27 (“Internal law and observance of treaties”) of the Vienna Convention on the Law of Treaties reads as follows:

“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...”

B. Work of the United Nations International Law Commission

37. At its fifty-third session, in 2001, the International Law Commission (“the ILC”) adopted a text entitled “Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”. The text was submitted to the United Nations General Assembly as a part of the ILC’s report covering the work of that session. The report was published in the “Yearbook of the International Law Commission, 2001”, vol. II, Part Two, as corrected. In its relevant parts, the aforementioned text read as follows:

Article 3: Characterization of an act of a State as internationally wrongful

“The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.”

In its commentary to this article the ILC noted, in particular:

“(1) Article 3 makes explicit a principle ... that the characterization of a given act as internationally wrongful is independent of its characterization as lawful under the internal law of the State concerned ... [A] State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterization of that conduct as wrongful by international law...”

...

(3) That conformity with the provisions of internal law in no way precludes conduct being characterized as internationally wrongful is ... well settled... The principle was reaffirmed many times:

“...

...a State cannot adduce ... its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force [Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the DanzigTerritory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 24].”

...

(9) As to terminology, in the English version the term “internal law” ... covers all provisions of the internal legal order, whether written or unwritten and whether they take the form of constitutional or legislative rules, administrative decrees or judicial decisions.”

C. International Covenant on Civil and Political Rights(adoptedby the General Assembly of the United Nations on 16 December 1966)

38. The relevant provisions of the International Covenant on Civil and Political Rights read as follows:

Article 10

“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 ...”

Article 25

“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.”

D. United Nations Human Rights Committee

39. In its General Comment no. 25 (1996) on Article 25 of the International Covenant on Civil and Political Rights, the Human Rights Committee expressed the following view:

“14. In their reports, States parties should indicate and explain thelegislative provisions which would deprive citizens of their right to vote.The grounds for such deprivation should be objective and reasonable. Ifconviction for an offence is a basis for suspending the right to vote, theperiod of such suspension should be proportionate to the offence and thesentence. Persons who are deprived of liberty but who have not been convictedshould not be excluded from exercising the right to vote.”

40. In its views on the Yevdokimov and Rezanov v. Russian Federation case (21 March 2011, no. 1410/2005), the Human Rights Committee, referring to the Court’s judgment in Hirst (no. 2) [GC] (cited above), stated:

“7.5... the State party, whose legislation provides a blanket deprivation of the right to vote to anyone sentenced to a term of imprisonment, did not provide any arguments as to how the restrictions in this particular case would meet the criterion of reasonableness as required by the Covenant. In the circumstances, the Committee concludes there has been a violation of article 25 alone and in conjunction with article 2, paragraph 3, of the Covenant...”

E. Venice Commission Code ofGood Practice inElectoral Matters

41. This document, adoptedby the European Commission forDemocracy throughLaw (“the Venice Commission”)at its 51stplenary session (5-6 July 2002) and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002, lays down the guidelinesdeveloped by the Commission concerning the circumstances in which people may be deprived of the right to vote or to stand for election.The relevant passages read as follows:

“i. provision may be made for depriving individuals of their right to vote and to beelected, 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 individualsof 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 aserious offence;

v. Furthermore, the withdrawal of political rights or finding of mental incapacity mayonly be imposed by express decision of a court of law.”

F. Law and practice in the Contracting States

42. A comparative law study was carried out in the context of the proceedings before the Grand Chamber of the Court in the case ofScoppola v. Italy (no. 3)([GC], no. 126/05, §§ 45-48, 22 May 2012). Nineteen of the forty-three Contracting States examined in thatstudy place no restrictions on the right of convicted prisoners to vote: Albania, Azerbaijan, Croatia, Cyprus, Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania, Moldova, Montenegro, Serbia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine.

43. Seven Contracting States (Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and theUnited Kingdom) automatically deprive all convicted prisoners serving prison sentences of the right to vote.

44. The remaining seventeen member States (Austria, Belgium, Bosnia and Herzegovina, France, Germany, Greece, Italy, Luxembourg, Malta, Monaco, Netherlands, Poland, Portugal, Romania, San Marino, Slovakia and Turkey)have adopted an intermediate approach: disenfranchisement of prisoners depends on the type of offence and/or the length of the custodial sentence.

45. In some of the States in this category the decision to deprive convicted prisoners of the right to vote is left to the discretion of the criminal court (Austria, Belgium, France, Germany, Greece, Luxembourg, Netherlands, Poland, Portugal, Romania and San Marino). In Greece and Luxembourg, in the event of particularly serious offences disenfranchisement is applied independently of any court decision.

G. Other materials

46. For other relevant materials see Scoppola (no. 3) [GC], cited above,§§ 43, 49-60.

Date: 2015-01-11; view: 733