Case Watch: European Court Takes a Pragmatic Approach on Prisoner Voting Rights

In "Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

On May 22, 2012, the European Court of Human Rights (ECHR) issued its latest decision concerning prisoners voting bans. In Scoppola v. Italy, the ECHR affirmed that automatic and indiscriminate bans on prisoners voting breach Article 3 of Protocol No. 1 of the European Convention on Human Rights, but also gave states wide latitude to determine how to implement compatible laws. In so doing, the ECHR balanced its desire not to overrule itself with the need to preserve good relations with powerful member states and facilitate implementation of its decisions.

Article 3 of Protocol No. 1 protects individuals’ voting rights. It states that: "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."

Prior to Scoppola¸ the ECtHR had addressed prisoner voting bans in 2005 in Hirst v. the UK (No. 2), concerning a United Kingdom (UK) law banning any convicted prisoner from voting in any parliamentary or local election while detained in a penal institution. In that case, the ECHR held that the “blanket restriction” was “general, automatic and indiscriminate” and therefore incompatible with Article 3 of Protocol No. 1. It ordered the UK government to amend its prisoner voting laws to comport with the convention.

Despite initial steps towards doing so, the UK parliament did not reform its prisoner voting laws. The British House of Commons briefly debated the issue in February 2011, ending with a 234-22 vote in favor of a resolution that “supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.” Debate in the Commons focused primarily on whether the ECHR had exceeded its authority or was staffed with incompetent judges. As one member stated, “Is not the basic issue whether we in this country should decide our line on whether prisoners should be able to vote—or should it be decided by somebody else?”

As the UK did not change its laws, the ECHR took up another case in 2010, Greens and M.T. v. the UK, in which it again found the UK’s prisoner voting ban to be in violation of the convention. Having received 2500 similar applications, the ECtHR decided to adopt its pilot judgment procedure and issued a decision intended to bring the UK’s disputed laws into compliance with the convention that would resolve all outstanding applications. Without recommending any specific measures for the UK to take, the ECtHR gave the UK six months to introduce legislation reforming its laws, during which the similar applications were on hold. Though the UK effectively sought to appeal this decision to the Grand Chamber, the ECHR rejected this but extended the UK’s deadline to introduce legislative proposals.

In 2010, between Hirst and Greens, the ECtHR issued a decision in a similar case, Frodl v. Austria, in which it held that provisions disenfranchising prisoners were incompatible where they (i) were not taken by a judge, and (ii) had no link between the offence committed and the issues relating to elections and democratic institutions. This decision appeared to restrict states’ discretion to determine how to make prisoners voting bans compatible with Article 3 of Protocol No. 1.

In Scoppola, the applicant had been convicted of murder and related crimes, and sentenced to life in prison. Under Italian law, a sentence of more than three years’ imprisonment results in the offender losing the right to vote: where the sentence is not less than five years (or life in prison), the offender permanently loses the right to vote; and where the sentence is not less than three years, the offender is banned from voting for five years. Given the length of his sentence, the applicant was permanently disenfranchised, and thus lodged a complaint with the ECHR that the Italian laws violated Article 3 of Protocol No. 1.

The Chamber of the ECtHR initially seized with this case found Italy’s prisoner voting laws incompatible with the convention, citing both Hirst and Frodl. Italy subsequently requested that the case be referred to the Grand Chamber, which was accepted. Given its interests in the case, the UK sought, and was granted, the right to participate as a third party. The UK’s implementation of Hirst and Greens was also postponed until the resolution of Scoppola.

In its decision, the Grand Chamber began by stressing the importance of the right to vote in democratic society, but noted that the right was not absolute, and that states must be afforded a “margin of appreciation”— in other words, a certain degree of discretion—in determining how to organize and run their electoral systems.

Thus, the Grand Chamber listed general criteria that limits on voting must satisfy:

• They must not “curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness;”
• They must be imposed in pursuit of a legitimate aim; and
• They must employ means that are not disproportionate to the legitimate aims pursued.

In articulating the law, the Grand Chamber affirmed Hirst, but noted that Hirst and Frodl do not require that a judge decide whether a prisoner’s right to vote may be revoked. Rather, the Grand Chamber held that each state was free to determine whether the judiciary or legislature should decide whether and how to restrict prisoners’ voting rights in compliance with Article 3 of Protocol No. 1. Thus, the UK House of Commons’ brief parliamentary debate after Hirst was insufficient because it was essentially only a political reaction to Hirst and did not result in any amendment of the UK prisoner voting law to comply with Article 3 of Protocol No. 1.

As to the Italian laws specifically, the Grand Chamber held that they satisfied the above criteria. The Grand Chamber noted that the Italian laws interfered with the applicant’s right to vote, but that the Italian laws legitimately aimed to prevent crime, enhance civic responsibility and respect for the rule of law, and the proper functioning and preservation of the democratic regime. As to whether the Italian laws were proportionate, the Grand Chamber ruled that the laws were adequately tailored to the circumstances of each case: because the imposition of voting restrictions depends on the length of prison sentences imposed, and because prison sentences accounted for a variety of case-specific factors (the gravity of the crime, the offender’s conduct and personal situation, and mitigating and aggravating circumstances), voting restrictions transitively also account for such factors, and are therefore adequately tailored to each case. The Grand Chamber also noted that Italian laws were not “excessively rigid” because they contain provisions allowing disenfranchised former convicts to regain the right to vote.

Thus, the Grand Chamber held that Italy’s prisoner voting laws do not violate Article 3 of Protocol No. 1.

Despite the ECHR’s disparate treatment of UK and Italian prisoner voting laws, these laws are not in fact so different. As Judge David Thór Björgvinsson noted in his dissenting opinion, that the main difference is that Italian laws only restrict the right to vote of those sentenced to more than three years’ incarceration, while the UK law disenfranchises all prisoners for the duration of their time in prison. However the Italian laws has harsher effects: while UK prisoners automatically regain the right to vote when released, Italian prisoners are deprived of their right to vote beyond the duration of their sentences and, for a large group of prisoners, for life.

Judge Björgvinsson also noted that the circumstances of the applicants in the two cases were remarkably similar: in both cases, the applicants were convicted of homicides, and lost their right to vote as a result of the imposition of sentences of life imprisonment. Based on these and other considerations, Judge Björgvinsson found the Italian laws to be as “automatic and indiscriminate” as the UK laws, and did not see reason to treat them differently.

Given these factors, what led the Grand Chamber to reach its decision in Scoppola? One commentator has suggested that the Grand Chamber was motivated at least in part by a need to balance competing political interests. On one hand, the ECHR had “no desire to diminish its own power” by overruling Hirst, as the UK had repeatedly urged it to do. On the other hand, the ECHR could not afford to issue a decision that would completely alienate the UK, a very influential European state. The ECHR’s previous rulings in Hirst and Greens were met with wide criticism in the UK, particularly on the grounds that these decisions opened the door for the ECHR to “overrid[e] national legislators on morally contested matters on which it was not necessarily any more competent”. Thus, the ECHR sought to issue a decision enabling the UK to comply with Hirst while treading as little as possible on the toes of domestic legislators. In its decision, the ECHR attempted to address the UK’s concerns, specifically stating that, where domestic legislatures set restrictions on prisoners voting, “it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction”, while the role of the court would only be “to examine whether, in a given case, this result was achieved and whether the wording of the law, or the judicial decision, was in compliance with Article 3 of protocol No. 1.”

Additionally, Scoppola suggests that the ECtHR will seek to avoid issuing decisions that influential member States are likely to overtly ignore. In this case, had the ECHR issued a decision with which the UK ultimately would not comply, the UK’s noncompliance would have highlighted the weaknesses of the ECHR’s ability to enforce implementation of its decisions.