I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1

40. The applicant complained that he had been disenfranchised. He relied on Article 3 of Protocol No. 1 which provides:

“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

41. The Chamber found that the exclusion from voting imposed on convicted prisoners in detention was disproportionate. It had regard to the fact that it stripped a large group of people of the vote; that it applied automatically irrespective of the length of the sentence or the gravity of the offence; and that the results were arbitrary and anomalous, depending on the timing of elections. Itfurther noted that, insofar as the disqualification from voting was to be seen as part of a prisoner’s punishment, there was no logical justification for the disqualification to continue in the case of the present applicant, who had completed that part of his sentence relating to punishment and deterrence. It concluded at paragraph 51:

“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

42. The applicant adopted the terms of the Chamber judgment, submitting that the Government’s allegation that it would require the radical revision of the laws of many Contracting States was misconceived as the judgment was based on the specific situation in the United Kingdom and directed at a blanket disenfranchisement of convicted persons which arose not out of a reasoned and properly justified decision following thorough debate but out of adherence to historical tradition. He also rejected the argument that the Chamber had not given appropriate weight to the margin of appreciation, submitting that on the facts of this case the concept had little bearing.

43. The applicant emphasised that there was a presumption in favour of enfranchisement, which was in harmony with the fundamental nature of democracy. It was not a privilege, as was sometimes asserted, even for prisoners, who continued to enjoy their inviolable rights which could only be derogated from in very exceptional circumstances. The restriction on voting rights did not pursue any legitimate aim. Little thought, if any, had in fact been given to the disenfranchisement of prisoners by the legislature, the 1983 Act being a consolidating Act adopted without debate on the point; nor had any thorough debate occurred during the passage of the 2000 Act. The domestic court did not examine the lawfulness of the ban either but decided the applicant’s case on the basis of deference to Parliament.

44. The reason relied on in Parliament was that the disenfranchisement of a convicted prisoner was considered part of his punishment. The applicant disputed, however, that punishment could legitimately remove fundamental rights other than the right to liberty and argued that this was inconsistent with the stated rehabilitative aim of prison. There was noevidence that the ban pursued the purported aims nor had any link been shown between the removal of the right to vote and the prevention of crime or respect for the rule of law. Most courts and citizens were totally unaware that loss of voting rights accompanied the imposition of a sentence of imprisonment. The purported aim of enhancing civic responsibility was raised ex post facto and was to be treated with circumspection. Indeed, the applicant argued that the ban took away civic responsibility and eroded respect for the rule of law, serving to alienate prisoners further from society.

45. The blanket ban was also disproportionate, arbitrary and impaired the essence of the right. It was unrelated to the nature or seriousness of the offence and varied in its effects on prisoners depending on whether their imprisonment coincided with an election. It potentially deprived a significant proportion of the population (over 48,000) of a voice or the possibility of challenging, electorally, the penal policy which affected them. In addition, the applicant submitted that, as he was a post-tariff prisoner, the punishment element of his sentence had expired and he was held on grounds of risk, in which case there could no longer be any punishment-based justification. He pointed to the recently introduced sentence of “intermittent” custody, whereby a person was able to vote during periods of release in the community while being unable to vote while in prison, as undermining the alleged aims of preventing other convicted prisoners from voting.

46. He further referred to a trend in Canada, South Africa and various European States to enfranchise prisoners, claiming that nineteen countries operated no ban while eight had only a partial or specific ban. He concluded that there was no convincing reason, beyond punishment, to remove the vote from convicted prisoners and that this additional sanction was not in keeping with the idea that the punishment of imprisonment was the deprivation of liberty and that the prisoner did not thereby forfeit any other of his fundamental rights save in so far as this was necessitated by, for example, considerations of security. In his view, the ban was simply concerned with moral judgment and it was unacceptable, as tantamount to the elected choosing the electorate, for the right to vote to be made subject to moral judgments imposed by the persons who had been elected.

Date: 2015-01-29; view: 811