JOINT DISSENTING OPINION OF JUDGESWILDHABER,COSTA,LORENZEN, KOVLER AND JEBENS

1. We are not able to agree with the conclusion of the majority that there has been a violation of Article 3 of Protocol No. 1 because convicted prisoners, under the legislation of the United Kingdom, are prevented from voting while serving their sentence. Our reasons for not finding a violation are as follows.

2. In accordance with Article 3 of Protocol No. 1, the Contracting States are obliged “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”. The wording of this Article is different from nearly all other substantive clauses in the Convention and its Protocols in that it does not directly grant individual rights and contains no other conditions for the elections, including in relation to the scope of a right to vote, than the requirement that “the free expression of the opinion of the people” must be ensured. This indicates that the guarantee of a proper functioning of the democratic process was considered to be of primary importance. This is also why the Commission in its early case-law did not consider that the Article granted individual rights (see X v. Germany, no. 530/59, decision of 4 January 1960, Collection 2, and X v. Belgium, no. 1028/61, decision of 18 September 1961, Collection 6, p. 78).The Commission then changed its approach, and the Court subsequentlyheld that the Article does grant individual rights, including the right to vote, while at the same time recognising that such individual rights are not absolute but are open to “implied limitations” leaving the Contracting States “a wide margin of appreciation”, which is nonetheless subject to the Court’s scrutiny. The Court must therefore satisfy itself that limitations do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness (see, firstly, Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 23, § 52, and, more recently, Py v. France,no. 66289/01, §§ 45-47, ECHR 2005-I). Even though Article 3 of Protocol No. 1 contains no clause stating the conditions for restrictions, such as can be found, for example, in the second paragraphs of Articles 8 to 11 of the Convention, the Court has further held that any restriction must pursue a legitimate aim and that the means employed must not be disproportionate. Like the majority, we will limit our examination to these two conditions, thus implicitly accepting that the United Kingdom legislation does not in itself impair the very essence of the right to vote and deprive it of its effectiveness, as was found in Aziz v. Cyprus(no. 69949/01, §§ 29-30, ECHR 2004-V), where an ethnic minority of the Cypriot population was barred from voting.

3. As Article 3 of Protocol No. 1 does not prescribe what aims may justify restrictions of the protected rights, such restrictions cannot in our opinion be limited to the lists set out in the second paragraphs of Articles 8 to 11. Furthermore, we would point out that the Convention institutions in their case-law have to date been very careful not to challenge the aims relied on by the respondent Government to justify the restriction of a right under the Convention or its Protocols. This has also been the case in respect of restrictions on the right to vote. Thus, in its decision of 4 July 1983 in H.v.the Netherlands (no. 9914/82, Decisions and Reports 33, p. 246) the Commission found that such a restriction concerning persons sentenced to a term of imprisonment exceeding one year could be explained “by the notion of dishonour that certain convictions carry with them for a specific period, which may be taken into consideration by legislation in respect of the exercise of political rights”. In M.D.U. v. Italy ((dec.), no. 58540/00, 28 January 2003) the Court accepted that a ban on voting for a two-year period imposed in connection with a conviction for tax fraud served “the proper functioning and preservation of the democratic regime”. Accordingly, we have no difficulty in accepting that the restriction of prisoners’ right to vote under the United Kingdom legislation was legitimate for the purposes of preventing crime, punishing offenders and enhancing civic responsibility and respect for the rule of law, as submitted by the respondent Government. However, since, unlike the Chamber, which left the question open, the majority accept that the restriction in question served legitimate aims, there is no need for us to pursue this question any further.

4. As stated above, the Court has consistently held in its case-law that the Contracting States have a wide margin of appreciation in this sphere. The Court has furthermore accepted that the relevant criteria may vary according to historical and political factors peculiar to each State. In the recent Py v. Francejudgment (cited above, § 46) the Court thus stated:

“Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another.”

In the light of such considerations, Article 3 of Protocol No. 1 cannot be considered to preclude restrictions on the right to vote that are of a general character, provided that they are not arbitrary and do not affect “the free expression of the opinion of the people”, examples being conditions concerning age, nationality, orresidence (see, for example, Hilbe v.Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Py, cited above). Unlike the majority, we do not find that a general restriction on prisoners’ right to vote should in principle be judged differently, and the case-law of the Convention institutions to date does not support any other conclusion, as appears from the analysis set out in the majority’s opinion (see paragraphs 65-69 of the judgment).Nor do we find that such a decision needs to be taken by a judge in each individual case. On the contrary, it is obviously compatible with the guarantee of the right to vote to let the legislature decide such issues in the abstract.

5. The majority have reaffirmed that the margin of appreciation in this area is wide, and have rightly paid attention to the numerous ways of organising and running electoral systems and the wealth of differences in this field in terms of, inter alia, historical development, cultural diversity and political thought within Europe. Nonetheless, the majority have concluded that a general restriction on voting for persons serving a prison sentence “must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be” (see paragraph 82 of the judgment). In our opinion, this categorical finding is difficult to reconcile with the declared intention to adhere to the Court’s consistent case-law to the effect that Article 3 of Protocol No. 1 leaves a wide margin of appreciation to the Contracting States in determining their electoral system. In any event, the lack of precision in the wording of that Article and the sensitive political assessments involved call for caution. Unless restrictions impair the very essence of the right to vote or are arbitrary, national legislation on voting rights should be declared incompatible with Article 3 only if weighty reasons justify such a finding. We are unable to agree that such reasons have been adduced.

6. It has been part of the Court’s reasoning in some cases in recent years to emphasise its role in developing human rights and the necessity to maintain a dynamic and evolutive approach in its interpretation of the Convention and its Protocols in order to make reforms or improvements possible (see, for example, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002-IV, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI). The majority have not made reference to this case-law, but that does not in our opinion change the reality of the situation that their conclusion is in fact based on a “dynamic and evolutive” interpretation of Article 3 of Protocol No 1.

We do not dispute that it is an important task for the Court to ensure that the rights guaranteed by the Convention system comply with “present-day conditions”, and that accordingly a “dynamic and evolutive” approach may in certain situations be justified. However, it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions. An “evolutive” or “dynamic” interpretation should have a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved. We fail to see that this is so in the present case.

The majority submit that “it is a minority of Contracting States in which a blanket restriction on the right of serving prisoners to vote is imposed or in which there is no provision allowing prisoners to vote” (see paragraph 81 of the judgment). The judgment of the Grand Chamber – which refers in detail to two recent judgments of the Canadian Supreme Court and the Constitutional Court of South Africa – unfortunately contains only summary information concerning the legislation on prisoners’ right to vote in the Contracting States.

According to the information available to the Court, some eighteen countries out of the forty-five Contracting States have no restrictions on prisoners’ right to vote (see paragraph 33 of the judgment). On the other hand, in some thirteen States prisoners are not able to vote either because of a ban in their legislation or de facto because appropriate arrangements have not been made. It is essential to note that in at least four of those States the disenfranchisement has its basis in a recently adopted Constitution (Russia, Armenia, Hungary and Georgia). In at least thirteen other countries more or less far-reaching restrictions on prisoners’ right to vote are prescribed in domestic legislation, and in four of those States the restrictions have a constitutional basis (Luxembourg, Austria, Turkey and Malta). The finding of the majority will create legislative problems not only for States with a general ban such as exists in the United Kingdom. As the majority have considered that it is not the role of the Court to indicate what, if any, restrictions on the right of serving prisoners to vote would be compatible with the Convention (see paragraph 83), the judgment in the present case implies that all States with such restrictions will face difficult assessments as to whether their legislation complies with the requirements of the Convention.

Our conclusion is that the legislation in Europe shows that there is little consensus about whether or not prisoners should have the right to vote. In fact, the majority of member States know such restrictions, although some have blanket and some limited restrictions.Thus, the legislation in the United Kingdom cannot be claimed to be in disharmony with a common European standard.

7. Furthermore, the majority attach importance to an alleged lack of evidence that the Parliament of the United Kingdom “has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote” (see paragraph 79 of the judgment). It is, however, undisputed that a multi-party Speaker’s Conference on Electoral Law in 1968 unanimously recommended that a convicted person should not be entitled to vote. We also note that the Government’s proposal to amend the Representation of the People Act 2000 to permit remand prisoners and unconvicted mental patients to vote was based on the opinion that it should be part of a convicted prisoner’s punishment to lose, inter alia, the right to vote. Had a majority of the members of Parliament disagreed with this opinion, it would have been open to them to decide otherwise. The majority of the Court have held – as did the Chamber – that no importance could be attached to this as “it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern-day penal policy and of current human rights standards” (see paragraph 79 of the judgment). We disagree with this objection as it is not for the Court to prescribe the way in which national legislatures carry out their legislative functions. It must be assumed that section 3 of the Representation of the People Act 2000 reflects political, social and cultural values in the United Kingdom.

8. Regarding in particular the requirement that any restrictions must not be disproportionate, we consider it essential to underline that the severity of the punishment not only reflects the seriousness of the crime committed, but also the relevance and weight of the aims relied on by the respondent Government when limiting voting rights for convicted persons. We do not rule out the possibility that restrictions may be disproportionate in respect of minor offences and/or very short sentences. However, there is no need to enter into this question in the circumstances of the present case. The Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention. It is, in our opinion, difficult to see in what circumstances restrictions on voting rights would be acceptable, if not in the case of persons sentenced to life imprisonment. Generally speaking, the Court’s judgment concentrates above all on finding the British legislation incompatible with the Convention in abstracto. We regret that despite this focus it gives the States little or no guidance as to what would be Convention-compatible solutions.Since restrictions on the right to vote continue to be compatible, it would seem obvious that the deprivation of the right to vote for the most serious offences such as murder or manslaughter, is not excluded in the future.Either the majority are of the view that deprivations for the post-tariff period are excluded, or else they think that a judge has to order such deprivations in each individual case. We think that it would have been desirable to indicate the correct answer.

9. Our own opinion whether persons serving a prison sentence should be allowed to vote in general or other elections matters little. Taking into account the sensitive political character of this issue, the diversity of the legal systems within the Contracting States and the lack of a sufficiently clear basis for such a right in Article 3 of Protocol No. 1, we are not able to accept that it is for the Court to impose on national legal systems an obligation either to abolish disenfranchisement for prisoners or to allow it only to a very limited extent.

Date: 2015-01-29; view: 693