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 subjectmatter considered here, these elements make eminent sense.

Date: 2015-01-29; view: 743