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 aprison sentenceconstitutes a violation of Article 3 of Protocol No. 1. We agreeentirely 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 exceptionsof 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, KovlerandJebens 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.

Date: 2015-01-29; view: 742