The row over the right of prisoners to vote shows no sign of relenting, despite the ruling of the Grand Chamber of the European Court of Human Rights in Scoppola v Italy (No3). In the first of a two-part post, I set out the reasoning of the Court, particularly in distinguishing it from the situation it considered in Hirst v UK (no 2). In part 2, I consider the implications of the decision for the UK and consider the reasoning of the majority in more detail in light of the dissenting judgment of Judge Bjorgvinsson.
In summary
- It was agreed that the relevant ban infringed the applicant's right to vote under the European Convention of Human Rights
- The relevant rights under the Convention were not absolute. They could be subjected to limitations that were in accordance with the law, pursued a legitimate aim(s) and were a proportionate response to such an aim(s)
- Legitimate aims: preventing crime and enhancing civic responsibility and respect for the rule of law, the proper functioning and preservation of the democratic regime
- Proportionality: the Italian scheme did not apply indiscriminantly to all convicted persons but rather persons convicted of specified offences and/or offences carrying particular sentences
Background
The applicant had been sentenced by an Italian court to 30 years' imprisonment and a lifetime ban from voting after he killed his wife and seriously injured his son in a violent domestic dispute. He argued that his exclusion from voting unlawfully infringed his Convention rights. The Grand Chamber (Judge Bjorgvinsson dissenting) disagreed.
The right to vote
Article 3, Protocol 1 of the Convention 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.”
The loss of the right to vote
Under Italian law, anyone banned from public office is also banned from voting. The ban applies either to those who are convicted of specified offences, such as embezzlement of public funds, by a public official or "offences against the judiciary", such as perjury. It also extends to anyone convicted of an offence which is imprisonable by three years or more in prison since they too are banned from public office.
Importantly, where the sentence is only 3 years, the ban is for 5 years and even though any sentence in excess of 5 years involved a permanent loss of the right to vote, that right could be recovered under provisions on rehabilitation where the convicted person demonstrated a "consistent and genuine display of good conduct".
The Court's reasoning
The Court started by reiterating:
[81] that Article 3 of Protocol No. 1 guarantees subjective rights, including the right to vote and to stand for election....further the rights guaranteed by this Article are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst (no. 2). In addition, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion and universal suffrage has become the basic principle.
However, it continued by emphasising that:
"[83] the rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and the Contracting States must be afforded a margin of appreciation in this sphere...provided that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate."
The Italian scheme of disenfranchisement fell within that margin. Unlike the "blunt tool" of disenfranchising all prisoners, irrespective of the type of sentence or offence committed:
[105] The Italian.... measure....is applied to individuals convicted of a series of specific offences for which express provision is made by law, irrespective of the duration of the sentence imposed (offences against the interests of the State administration, for example, or to people sentenced to certain terms of imprisonment specified by law.
This more nuanced approach meant that the Italian law did not have the same indiscriminate, disproportionate and therefore unlawful effect of a blanket ban.
The application of the measure [is confined] to the particular circumstances of the case in hand, taking into account such factors as the gravity of the offence committed and the conduct of the offender. It is applied only in connection with certain offences against the State or the judicial system, or with offences which the courts consider to warrant a particularly harsh sentence, regard being had to the criteria listed in Articles 132 and 133 of the Criminal Code (see paragraph 37 above), including the offender’s personal situation, and also to the mitigating and aggravating circumstances. The measure is not applied, therefore, to all individuals sentenced to a term of imprisonment but only to those sentenced to a prison term of three years or more.
The possibility of recovering the right to vote under the rehabilitation provisions was also something that the court "cannot underestimate" ([109])
"This means that he can apply for rehabilitation and, where applicable, recover the right to vote at an earlier date. In the Court’s opinion this possibility shows that the Italian system is not excessively rigid."
And therefore:
"In the circumstances of the present case, the restrictions imposed on the applicant’s right to vote did not “thwart the free expression of the people in the choice of the legislature”, and maintained “the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage” (see Hirst (no. 2)). The margin of appreciation afforded to the respondent Government in this sphere has therefore not been overstepped. Accordingly, there has been no violation of Article 3 of Protocol No. 1."
Comment
The decision has been met with the typical consternation of a Conservative-led administration determined to cast the ECHR as a foreign imposition on British sovereignty whose powers and influence should be reduced. As I will consider further in part 2, this is based on (a deliberate) oversimplification of the role and approach of the Court in reaching its judgments, typified by this case.
In approaching this application, the Grand Chamber expressly acknowledged the importance of States' margin of appreciation and the "wealth of differences inter alia in historical development, cultural diversity and political thought within Europe" which has seen Convention States adopting a range of approaches to issues such as the right of prisoners or in this case, convicted criminals who have served their sentence, from voting. Finally, it was also keen to stress that the Court existed as a last resort to ensure that States did not abuse their margin of appreciation and violate the rights protected by the Convention.
Scoppola was the Government's last hope in avoiding the implementation of the judgment in Hirst. The decision now means that the Government has 6 months in which to bring forward legislation addressing how it intends to comply with that judgment. Our ban is essentially based on the Victorian principle of "civic death", the idea that once anyone goes to prison, they give up their civil rights. This is a crude approach for any state with any pretence of modernity. If the Government (as Labour did) continues to defy the decision it will simply cost us money as prisoners take class actions to recover damages for their disenfranchisement. This may suit the sabre-rattlers but it is an affront to the rule the law - a cost that we can ill-afford.
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