DISSENTING OPINION OF JUDGE COSTA

(Translation)

1. I voted the same way as my colleagues Judges Wildhaber, Lorenzen, Kovler and Jebens and readily subscribe to their opinion, which is therefore our joint opinion.

2. I should, however, like to add one or two brief comments of my own to their reasoning, with which I concur.

3. Firstly, while I readily agree with my colleagues (see point 3 in our joint opinion) that there is no need to pursue the question of whether the statutory restriction on the right of prisoners to vote served a “legitimate aim” any further, I confess to having doubts about the legitimacy – or rationality – of that aim. It is perfectly conceivable, for example, that a person who has been convicted of electoral fraud, of exceeding the maximum permitted amount of electoral expenditure or even of corruption should be deprived for a time of his or her rights to vote and to stand for election. The reason for this is that there exists a logical and perhaps even a natural connection between the impugned act and the aim of the penalty (which, though ancillary, is important) that serves as punishment for such acts and as a deterrent toothers. The same does not hold true, at least not in any obvious way, of a ban on voting and/or standing for election that is imposed for any offence that leads to a prison sentence.

4. However, I do not propose to press this point, firstly, because, in common with the other dissenting judges and, indeed, those in the majority, I consider that when applying Article 3 of Protocol No. 1, which, unlike Articles 8 to 11 of the Convention, does not contain an exhaustive list of “legitimate aims”, it is necessary to make an exception to the general rule and to construe such aims broadly. Secondly, limiting the States’ room to manoeuvre in this sphere as regards the aims they are free to pursue in their legislation could, paradoxically, lead me to rejoin the majority by another route (indeed, I have to admit that on reading the careful concurring opinion of my colleague Judge Caflisch,I was tempted to follow a similar path).

5. However, once I had rejected that approach and accepted that the States have a wide margin of appreciation to decide on the aims of any restriction, limitation or even outright ban on the right to vote (and/or the right to stand for election), how could I, without being inconsistent, reduce that margin when it came to assessing the proportionality of the measure restricting universal suffrage (a concept which, of course, remains the democratic ideal)?

6. How would I be able to approve of the Pyv. Francejudgment of 11 January 2005 (which I am all the more at liberty to cite in that I did not sit in the case)[13]? In that judgment, the Court unanimously (as indeed theUnited Nations Human Rights Committee had donein its Views dated 15July 2002, which were cited under the section on “Relevant domestic law and international case-law” andin paragraph 63) held that the minimum ten-year-residence qualifying period for being eligible to vote in elections to Congress in New Caledonia did not impair the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, and that there had been no violation of that provision. How, then, could I approve of that judgment and at the same time agree with the judgment in the present case when it states in paragraph 82:“while ... the margin of appreciation is wide, it is not all-embracing”, which in practice means that a prisoner sentenced to a discretionary life sentence would have the right to vote under Article 3 of Protocol No. 1 (but when would the right become effective?). Are there not two “standards”?

7. It might perhaps be objected that the Pyjudgment took into account “local requirements”, within the meaning of Article 56 § 3 of the Convention. That is true. But what of the decision inHilbev. Lichtenstein (7 September 1999, ECHR1999-IV)? In holding that a Lichtenstein national who was resident in Switzerland did not have the right to vote in Liechtenstein parliamentary elections (Article 56 was not, as far as I am aware, applicable in the case), the Court noted: “the Contracting States have a wide margin of appreciation to make the right to vote subject to conditions” before going on simply to conclude that the residence requirement “cannot be regarded as unreasonable or arbitrary or, therefore, as incompatible with Article 3 of Protocol No. 1”.

8. As stated in point 4 of our joint opinion, the Court’s case-law permits restrictions on the right to vote that are of a general character, such as conditions concerning age, nationality, or residence (provided they are not arbitrary and do not affect the free expression of the opinion of the people). With due respect, I see no convincing arguments in the majority’s reasoning that could persuade me that the measure to which the applicant was subject was arbitrary, or even that it affected the free expression of the opinion of the people.

9. The point is that one must avoid confusing the ideal to be attained and which I support –which is to make every effort to bring the isolation of convicted prisoners to an end, even when they have been convicted of the most serious crimes, and to prepare for their reintegration into society and citizenship – and the reality of Hirst (no. 2), which on the one hand theoretically asserts a wide margin of appreciation for the States as to the conditions in which a subjective right (derived from judicial interpretation!) may be exercised, but goes on to hold that there has been a violation of that

right, thereby depriving the State of all margin and all means of appreciation.

[1]. Where the period of disqualification mayin fact extend beyond the end of the prison term.

[2]. There is no bar but no arrangements are made to enable prisoners to vote.

[3]. The right to vote is removed from prisoners sentenced to terms exceeding one year and if they committed the crime with intent.

[4]. A restriction on voting applies to prisoners accused of serious violations of international law or indicted before the international tribunal.

[5]. Prisoners may vote if the right is given by the court.

[6]. Restrictions apply to prisoners sentenced to terms of over ten years, while life imprisonment attracts a permanent deprivation of the right to vote. For terms of one to ten years, courts may also restrict the right to vote for one to five years where a prisoner’s conduct shows moral perversity.

[7]. Serious offenders and bankrupts sentenced to terms of five years or more automatically lose the right to vote, while minor offenders debarred from holding public office lose this right at the discretion of the judge.

[8]. Unless the sentencing court removes civil rights as part of sentencing.

[9]. Prisoners convicted of a serious crime lose the right to vote.

[10]. The right to vote may be revoked by a court, although this is very rare and possibly restricted to treason and national security cases.

[11]. Prisoners sentenced to terms of three years or more where the crime is blameworthy (very serious) may lose the right to vote.

[12]. Unless, as occurs only rarely, the sentencing judge expressly removes the right to vote.

[13]. No. 66289/01, ECHR 2005-I.

Date: 2015-01-29; view: 739