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Hirst v United Kingdom (No 2), 6 October 2005 [ECtHR]

Case no 74025/01

Prisoners

63. The present case highlights the status of the right to vote of convicted prisoners who are detained.

64. The case-law of the Convention organs has, in the past, accepted various restrictions on certain convicted persons.

65. In some early cases, the Commission considered that it was open to the legislature to remove political rights from persons convicted of “uncitizen-like conduct” (gross abuse in their exercise of public life during the Second World War) and from a person sentenced to eight months’ imprisonment for refusing to report for military service, where reference was made to the notion of dishonour that certain convictions carried with them for a specific period and which might be taken into account by the legislature in respect of the exercise of political rights (see X v. the Netherlands, no. 6573/74, Commission decision of 19 December 1974, Decisions and Reports (DR) 1, p. 87, and H. v. the Netherlands, no. 9914/82, Commission decision of 4 July 1983, DR 33, p. 246). In Patrick Holland v. Ireland (no. 24827/94, Commission decision of 14 April 1998, DR 93-A, p. 15), where, since there was no provision permitting a serving prisoner to vote in prison, the applicant, who was sentenced to seven years for possessing explosives, was de facto deprived of the right to vote, the Commission found that the suspension of the right to vote did not thwart the free expression of the opinion of the people in the choice of the legislature and could not be considered arbitrary in the circumstances of the case.

66. The Court itself rejected complaints about a judge-imposed bar on voting on a member of Parliament convicted of fiscal fraud offences and sentenced to three years’ imprisonment with the additional penalty of being barred from exercising public functions for two years (see M.D.U. v. Italy (dec.), no. 58540/00, 28 January 2003).

67. The Government argued that the Chamber judgment finding a violation in respect of the bar on this applicant, a prisoner sentenced to life imprisonment, was an unexpected reversal of the tenor of the above cases.

68. This is, however, the first time that the Court has had occasion to consider a general and automatic disenfranchisement of convicted prisoners. It would note that in Patrick Holland (cited above), the case closest to the facts of the present application, the Commission confined itself to the question of whether the bar was arbitrary and omitted to give attention to other elements of the test laid down by the Court in Mathieu-Mohin and Clerfayt (cited above), namely, the legitimacy of the aim and the proportionality of the measure. In consequence, the Court cannot attach decisive weight to the decision. The Chamber’s finding of a violation did not, therefore, contradict a previous judgment of the Court; on the contrary, the Chamber sought to apply the precedent of Mathieu-Mohin and Clerfayt to the facts before it.

69. In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. For example, prisoners may not be ill-treated, subjected to inhuman or degrading punishment or conditions contrary to Article 3 of the Convention (see, among many authorities, Kalashnikov v. Russia, no. 47095/99, ECHR 2002‑VI, and  Van der Ven v. the Netherlands, no. 50901/99, ECHR 2003‑II); they continue to enjoy the right to respect for family life (Płoski v. Poland, no. 26761/95, 12 November 2002, and X  v. the United Kingdom, no. 9054/80, Commission decision of 8 October 1982, DR 30, p. 113); the right to freedom of expression (Yankov v. Bulgaria, no. 39084/97, §§ 126-45, ECHR 2003‑XII, and T. v. the United Kingdom, no. 8231/78, Commission’s report of 12 October 1983, DR 49, p. 5, §§ 44-84); the right to practise their religion (Poltoratskiy v. Ukraine, no. 38812/97, §§ 167-71, ECHR 2003‑V); the right of effective access to a lawyer or to a court for the purposes of Article 6 (Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no. 80, and Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18); the right to respect for correspondence (Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61); and the right to marry (Hamer v. the United Kingdom, no. 7114/75, Commission’s report of 13 December 1979, DR 24, p. 5, and Draper v. the United Kingdom, no. 8186/78, Commission’s report of 10 July 1980, DR 24, p. 72). Any restrictions on these other rights must be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment (see, for example, Silver and Others, cited above, pp. 38-41, §§ 99-105, where broad restrictions on the right of prisoners to correspond fell foul of Article 8, but the stopping of specific letters containing threats or other objectionable references was justifiable in the interests of the prevention of disorder or crime).

70. There is no question, therefore, that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.

71. This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol No. 1, which enshrines the individual’s capacity to influence the composition of the law-making power, does not therefore exclude that restrictions on electoral rights could be imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations (see, for example, X v. the Netherlands, cited above, and, mutatis mutandis, Glimmerveen and Hagenbeek v. the Netherlands, nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, DR 18, p. 187, where the Commission declared inadmissible two applications concerning the refusal to allow the applicants, who were the leaders of a proscribed organisation with racist and xenophobic traits, to stand for election). The severe measure of disenfranchisement must not, however, be resorted to lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. The Court notes in this regard the recommendation of the Venice Commission that the withdrawal of political rights should only be carried out by express judicial decision (see paragraph 32 above). As in other contexts, an independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.

Application in the present case

72. Turning to this application, the Court observes that the applicant, sentenced to life imprisonment for manslaughter, was disenfranchised during his period of detention by section 3 of the 1983 Act which applied to persons convicted and serving a custodial sentence. The Government argued that the Chamber had erred in its approach, claiming that it had assessed the compatibility of the legislation with the Convention in the abstract without consideration of whether removal of the right to vote from the applicant as a person convicted of a serious offence and sentenced to life imprisonment disclosed a violation. The Court does not accept this criticism. The applicant’s complaint was in no sense an actio popularis. He was directly and immediately affected by the legislative provision of which he complained, and in these circumstances the Chamber was justified in examining the compatibility with the Convention of such a measure, without regard to the question whether, had the measure been drafted differently and in a way which was compatible with the Convention, the applicant might still have been deprived of the vote. The Divisional Court similarly examined the compatibility with the Convention of the measure in question. It would not in any event be right for the Court to assume that, if Parliament were to amend the current law, restrictions on the right to vote would necessarily still apply to post-tariff life prisoners or to conclude that such an amendment would necessarily be compatible with Article 3 of Protocol No. 1.

73. The Court will therefore determine whether the measure in question pursued a legitimate aim in a proportionate manner having regard to the principles identified above.

     Legitimate aim

74. The Court points out that Article 3 of Protocol No. 1 does not, like other provisions of the Convention, specify or limit the aims which a restriction must pursue. A wide range of purposes may therefore be compatible with Article 3 (see, for example, Podkolzina, cited above, § 34). The Government have submitted that the measure pursues the aim of preventing crime by sanctioning the conduct of convicted prisoners and also of enhancing civic responsibility and respect for the rule of law. The Court notes that, at the time of the passage of the latest legislation, the Government stated that the aim of the bar on convicted prisoners was to confer an additional punishment. This was also the position espoused by the Secretary of State in the domestic proceedings brought by the applicant. While the primary emphasis at the domestic level may have been the idea of punishment, it may nevertheless be considered as implied in the references to the forfeiting of rights that the measure is meant to act as an incentive for citizen-like conduct.

75. Although rejecting the notion that imprisonment after conviction involves the forfeiture of rights beyond the right to liberty, and especially the assertion that voting is a privilege not a right (see paragraph 59 above), the Court accepts that section 3 may be regarded as pursuing the aims identified by the Government. It observes that, in its judgment, the Chamber expressed reservations as to the validity of these aims, citing the majority opinion of the Canadian Supreme Court in Sauvé (no. 2) (see paragraphs 44-47 of the Chamber judgment). However, whatever doubt there may be as to the efficacy of achieving these aims through a bar on voting, the Court finds no reason in the circumstances of this application to exclude these aims as untenable or incompatible per se with the right guaranteed under Article 3 of Protocol No. 1.

     Proportionality

76. The Court notes that the Chamber found that the measure lacked proportionality, essentially as it was an automatic blanket ban imposed on all convicted prisoners which was arbitrary in its effects and could no longer be said to serve the aim of punishing the applicant once his tariff (that period representing retribution and deterrence) had expired.

77. The Government have argued that the measure was proportionate, pointing out, inter alia, that it only affected some 48,000 prisoners (not the 70,000 stated in the Chamber judgment which omitted to take into account that prisoners on remand were no longer under any ban) and submitting that the ban was in fact restricted in its application as it affected only those convicted of crimes serious enough to warrant a custodial sentence and did not apply to those detained on remand, for contempt of court or for default in payment of fines. On the latter point, the Latvian Government have also placed emphasis on the fact that, in Contracting States, imprisonment is the last resort of criminal justice (see paragraph 55 above). Firstly, the Court, firstly, does not regard the difference in numbers identified above to be decisive. The fact remains that it is a significant figure and it cannot be claimed that the bar is negligible in its effects. Secondly, while it is true that there are categories of detained persons unaffected by the bar, it nonetheless concerns a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity. Further, the Court observes that, even in the case of offenders whose offences are sufficiently serious to attract an immediate custodial sentence, whether the offender is in fact deprived of the right to vote will depend on whether the sentencing judge imposes such a sentence or opts for some other form of sanction, such as a community sentence. In this regard, it may be noted that, when sentencing, the criminal courts in England and Wales make no reference to disenfranchisement and it is not apparent, beyond the fact that a court considered it appropriate to impose a sentence of imprisonment, that there is any direct link between the facts of any individual case and the removal of the right to vote.

78. The breadth of the margin of appreciation has been emphasised by the Government who argued that, where the legislature and domestic courts have considered the matter and there is no clear consensus among Contracting States, it must be within the range of possible approaches to remove the right to vote from any person whose conduct was so serious as to merit imprisonment.

79. As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament 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. It is true that the question was considered by the multi-party Speaker’s Conference on Electoral Law in 1968 which unanimously recommended that a convicted prisoner should not be entitled to vote. It is also true that the working party which recommended the amendment to the law to allow unconvicted prisoners to vote recorded that successive governments had taken the view that convicted prisoners had lost the moral authority to vote and did not therefore argue for a change in the legislation. It may be said that, by voting the way they did to exempt unconvicted prisoners from the restriction on voting, Parliament implicitly affirmed the need for continued restrictions on the voting rights of convicted prisoners. Nonetheless, 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 for maintaining such a general restriction on the right of prisoners to vote.

80. It is also evident from the judgment of the Divisional Court that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote was generally seen as a matter for Parliament and not for the national courts. The court did not, therefore, undertake any assessment of proportionality of the measure itself. It may also be noted that the court found support in the decision of the Federal Court of Appeal in Sauvé (no. 2), which was later overturned by the Canadian Supreme Court.

81. As regards the existence or not of any consensus among Contracting States, the Court notes that, although there is some disagreement about the legal position in certain States, it is undisputed that the United Kingdom is not alone among Convention countries in depriving all convicted prisoners of the right to vote. It may also be said that the law in the United Kingdom is less far-reaching than in certain other States. Not only are exceptions made for persons committed to prison for contempt of court or for default in paying fines, but unlike the position in some countries, the legal incapacity to vote is removed as soon as the person ceases to be detained. However, the fact remains that it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no provision allowing prisoners to vote. Even according to the Government’s own figures, the number of such States does not exceed thirteen. Moreover, and even if no common European approach to the problem can be discerned, this cannot in itself be determinative of the issue.

82. Therefore, while the Court reiterates that the margin of appreciation is wide, it is not all-embracing. Further, although the situation was somewhat improved by the 2000 Act which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.

83. Turning to the Government’s comments concerning the lack of guidance from the Chamber as to what, if any, restrictions on the right of convicted prisoners to vote would be compatible with the Convention, the Court notes that its function is in principle to rule on the compatibility with the Convention of the existing measures. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II, and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV). In cases where a systemic violation has been found the Court has, with a view to assisting the respondent State in fulfilling its obligations under Article 46, indicated the type of measure that might be taken to put an end to the situation found to exist (see, for example, Broniowski v. Poland [GC], no. 31443/96, §§ 193-94, ECHR 2004-V). In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze, cited above, § 202).

84. In a case such as the present one, where Contracting States have adopted a number of different ways of addressing the question of the right of convicted prisoners to vote, the Court must confine itself to determining whether the restriction affecting all convicted prisoners in custody exceeds any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1 (see, for example, the cases concerning procedures governing the continued detention of life prisoners, where Court case-law and domestic legislation have evolved progressively: Thynne, Wilson and Gunnell v. the United Kingdom, judgment of 25 October 1990, Series A no. 190-A; Singh v. the United Kingdom, judgment of 21 February 1996, Reports 1996‑I; and Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002‑IV).

85. The Court concludes that there has been a violation of Article 3 of Protocol No. 1.

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