Prisoners’ voting rights and the European Court of Human Rights
Scoppola v Italy (No 3), (Application No 126/05), European Court of Human Rights 22 May 2012, The Times, June 12 2012 Dr Steve Foster* Introduction On 22 May 2012 the Grand Chamber of the European Court of Human Rights delivered its long awaited judgment in the case of Scoppola v Italy, an appeal from the Chamber’s decision in 2009.1 In that case it was decided that Italian law that provided for lifetime disenfranchisement of those sentenced to more than five years imprisonment was contrary to article 1 of the First Protocol to the European Convention on Human Rights. Italy appealed that judgment to the Grand Chamber and the United Kingdom was allowed to make representations in this case as it had an interest in the outcome, as the Grand Chamber and the Court had already made judgments against the United Kingdom with respect to its domestic law.2 In particular, pending the outcome of the Scoppola appeal, the UK government had been allowed a further extension of the time limit set by the Court to amend its inconsistent domestic legislation; having already ignored the limits set by the Court in its previous cases. The Grand Chamber has now held that the decisions in the UK cases are still good law and must be complied with. Accordingly, it has given the UK government six months to make legislative proposals to amend the existing law so that it complies with the Convention and those previous rulings. However, the decision has wider ramifications in this area, as it has been held that member states have a wider margin of appreciation in this area than had been ruled in previous cases. This means that states who wish to persist with disenfranchisement will be allowed a broader area of discretion as to which prisoners they allow, and do not allow, to vote. The case is important in that it clarifies these broader issues, but also more specific issues as to whether there needs to be a judicial input into the decision to disenfranchise the prisoner. The decision of the Grand Chamber in Scoppola v Italy The case concerned a complaint made by an Italian national, Franco Scoppola, who is currently detained in Parma prison, having been sentenced in 2002 to life imprisonment for, inter alia, murder and attempted murder. Under article 29 of the Italian Criminal Code, a life sentence, and a sentence of at least five years, entails a lifetime ban from public office, which in turn amounts to a permanent forfeiture of the prisoner’s right to vote. His appeal against the ban was unsuccessful and the applicant claimed that the ban
Principal Lecturer in Law, Coventry Law School Scoppola v Italy (No 3), decision of the European Court of Human Rights 18 January 2011 2 Hirst v United Kingdom (No 2) (Grand Chamber) (2006) 42 EHRR 41 and MT and Greens v United Kingdom (2011) 53 EHRR 21
was in violation of article 3 of the first protocol. A chamber of the European Court decided that the automatic and indiscriminate nature of the ban meant that it was in violation of article 3,3 and the Italian government was given permission to appeal to the Grand Chamber against that judgment.4 The Grand Chamber began by stressing that the right to vote was crucial to establishing an effective and meaningful democracy,5 but that such a right was not absolute and that the Contracting Parties were to be afforded a margin of appreciation in the limitations that they applied to that right.6 The Grand Chamber accepted that there was no dispute as to whether there had been an interference with the applicant’s rights in this case, or whether that interference pursued the legitimate aims of preventing crime and enhancing civic responsibility and respect for the rule of law. The question for the Court, therefore, was as to the proportionality of that interference. 7 As the United Kingdom had intervened as a third party, the Court was requested to consider the Grand Chamber’s decision in Hirst (No 2), and noted that since that judgment nothing appeared to have changed at the European and Convention levels that might justify the re-examination of the principles laid down in that case; indeed, the Court noted that, on the contrary, if anything, the trend was towards fewer restrictions on convicted prisoners’ voting rights.8 Accordingly, the Court reaffirmed the principles in Hirst, in particular the fact that: ‘‘ when disenfranchisement affected a group of people generally, automatically and indiscriminately, based solely on the fact that they were serving a prison sentence, irrespective of the length of sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it was not compatible with Article 3 of protocol No 1.’’9 The Grand Chamber then considered the requirement of judicial intervention in the decision to disenfranchise the prisoner. It noted that in the present case the Chamber had followed the decision in Frodl v Austria,10 and found a violation of article 3 because the nature or gravity of the offence committed by the applicant had not been examined by a judge. However, in the Grand Chamber’s view, while the intervention of a judge was clearly likely, in principle, to guarantee the proportionality of the restrictions on prisoners’ voting rights, such restrictions would not necessarily be automatic, general and indiscriminate simply because they had not been ordered by a judge.11
Note 1 above The United Kingdom was joined as a third party as it would be affected by the outcome with respect to the decisions in Hirst v United Kingdom (No 2), note 23 below 5 Scoppola v Italy (No 3), (Application No 126/05), European Court of Human Rights 22 May 2012, at para. 82 6 Ibid, at para. 83 7 Ibid, at para. 92 8 Ibid, at para. 95 9 Ibid, at para. 93 10 (2011) 52 EHRR 5 11 Scoppola v Italy (Grand Chamber), at para. 99
The Grand Chamber also pointed out that such a requirement was not expressly mentioned in the Grand Chamber’s judgment in Hirst (No 2) as part of the essential criteria in determining the proportionality of any disenfranchisement matter; the factor of judicial intervention being regarded as merely preferable.12 Accordingly, the Grand Chamber in the present case stated that the wide variety of approaches taken by the different legal systems in this area meant that States could decide either to leave it to the courts to determine the proportionality of any measure restricting prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied.13 The Grand Chamber then considered the compatibility of the relevant Italian Law as it affected the applicant’s case with article 3 of the first protocol. In this respect it noted that the provisions showed the national legislature’s concern to adjust the application of the measure to the particular circumstances of the case in hand, taking into account factors such as the gravity of the offence which had been committed and the conduct of the offender. Further, the measures were only applied in connection with certain offences against the State or the judicial system, or to offences which the courts considered to warrant a sentence of at least three years’ imprisonment.14 On the facts, the Grand Chamber noted that the applicant had been found guilty of serious offences and sentenced to life imprisonment,15 and in those circumstances it could not conclude that the disenfranchisement provided by Italian law had the general, automatic and indiscriminate character that had let it, in Hirst (No 2), to find a violation of article 3.16 As a result the Grand Chamber noted that, unlike the position highlighted in Hirst (No 2) a large number of convicted prisoners in Italy were not deprived of the right to vote in parliamentary elections.17 Furthermore, the Grand Chamber stated that under Italian law a prisoner could, three years after finishing their sentence and displaying good conduct, could apply for rehabilitation so as to recover the right to vote.18 Accordingly, the Grand Chamber found that the government’s margin of appreciation in this sphere had not been overstepped and that therefore there had been no violation of article 3.19
The decision in Scoppola in the context of prisoner enfranchisement and the European Convention
Ibid, at para. 100 Ibid, at para. 102 14 Ibid, at para. 106 15 Ibid, at para.107; this sentence had in fact been subsequently commuted to 30 years. 16 Ibid, at para. 108 17 Ibid 18 Ibid, at para. 109. This rehabilitation request can be lodged earlier where early release was granted in connection with a re-education scheme. 19 Ibid, at para. 110
The first case relevant to the present case was the decision in Hirst v United Kingdom (No2,).20 In that case the European Court considered s.3 of the Representation of the Peoples Act 1983, which provides that: ‘‘A convicted prisoner during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election.’’21 The European Court of Human Rights held that the blanket ban was disproportionate as it applied to every prisoner irrespective of their sentence and was thus beyond the government’s margin of appreciation in this area. The government’s appeal to the Grand Chamber of the European Court was unsuccessful,22 the Grand Chamber stressing that the right to vote was crucial to the foundations of a meaningful democracy and was a right, and not a privilege.23 Further, it stressed that there was no question that prisoners forfeited their Convention rights merely because of their status as prisoners; there was no place under the Convention for automatic disenfranchisement based purely on what might offend public opinion.24 In the Grand Chamber’s view: ‘ …although the Convention did not exclude the imposition of restrictions on individuals who, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations, the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and the circumstances of the individual concerned.25 However, the Grand Chamber accepted that the domestic provision might be regarded as pursuing the aims pleaded by the government, in so far as it was aimed at preventing crime, enhancing civic responsibility and respect for the rule of law, and of conferring a punishment in addition to the sentence.26 However, it noted that the domestic provisions affected approximately 48,000 prisoners and that it applied in a blanket fashion to the full range of offences which warranted imprisonment. The criminal courts made no reference to disenfranchisement during sentencing, and it was not apparent that there was any direct link between the facts of any individual case and the removal of the right to vote.27 Further, the Grand Chamber noted that any issue of justification appeared to be regarded as a matter for the legislature, thus excluding the courts from any assessment as to the proportionality of the measure.
(2004) 38 EHRR 40 Further, s.8 of the European Parliamentary Elections Act 2002 extends that restriction to elections to the European Parliament. 22 (2006) 42 EHRR 41. 23 Ibid, at para. 59 of the Court’s judgment. 24 Ibid, at para. 69 25 Ibid, at para. 71 26 Ibid, at para. 74 27 Ibid, at para. 77. In addition, there had been no substantive debate by the legislature on the continued justification of the policy in the light of modern day penal policy and of current human rights standards.
This decision offered little guidance to the government, or other states, as to what measures were necessary to comply with article 3 and the judgment, but stressed that the domestic legislature had never sought to weigh the competing interests or to assess the proportionality of the ban as it affected convicted prisoners. Thus, the United Kingdom government was left to decide on the best means of securing compliance, but the possible content of any such statutory change was further informed by another decision of the European Court of Human Rights. In Frodl v Austria,28 the Court held that there had been a violation of article 3 when a prisoner had been disenfranchised under a law that provided that anyone committing an offence with intent that carried a sentence of more than one year would forfeit the right to vote. Although the European Court accepted that the ban was less restrictive than the one considered in Hirst, it found that the lack of judicial input into the decision to disenfranchise the particular prisoner led to a violation of article 3.29 This suggested that any legislative measure passed in England and Wales would need to include this impartial judicial safeguard, although the judgment in Hirst indicated that such a safeguard was merely desirable rather than compulsory. In addition, the Frodl judgment re-iterated the dicta in Hirst, that prisoner disenfranchisement should only follow where there is a direct link between the offence and disenfranchisement, suggesting further that there may have to be a link between the offence and democracy: ‘‘…it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions.30 (Author’s italics) Whether that suggests that the offence would need to be related to electoral offences or the like, or whether that is just an example of such, in any case the Court stressed: ‘‘The essential purpose of [these] criteria is to establish disenfranchisement as an exception even in the case of convicted prisoners, ensuring that such a measure is accompanied by specific reasoning given in an individual decision explaining why in the circumstances of the specific case disenfranchisement was necessary...’’31 The fact that the Court refused Austria’s request to appeal that decision to the Grand Chamber, meant that the opportunity to clarify those issues was lost, although as we have seen, subsequently the Grand Chamber allowed the appeal in Scoppola v Italy (No 3), so many of the issues surrounding prisoners’ voting could be dealt with in that case. The effect of the decision in Scoppola (No 3) can be summarised in a number of points. First, and most specifically, the Grand Chamber has overruled the Court’s previous judgment in Frodl to the effect that judicial involvement in the decision to disenfranchise a prisoner was a pre-requisite for compatibility. It is now clear that the decision to
(2011) 52 EHRR 5 Ibid, at para. 36 of the judgment 30 Ibid, at para. 34 31 Ibid, at para. 35
disenfranchise a prisoner can be made by the legislature and/or the judiciary provided the rules are not arbitrary and disproportionate, as they were found to be in Hirst. Secondly, the Grand Chamber has made it clear that each state will be provided with a wider margin of appreciation with respect to choosing which prisoners they are going to disenfranchise. This wider margin is apparent in the Scopolla case itself, as the Grand Chamber have overruled the Court’s decision to the effect that a life time ban was arbitrary and thus in violation of article 3 of the first protocol. Thirdly, the Grand Chamber has stressed that any proposals must comply the basic requirements of legality and proportionality that it laid down in the Hirst case. In other words any exclusion must be sufficiently related to the legitimate aims of crime prevention and the rule of law, and to the prisoner’s crime, as well as satisfying the test of proportionality Hence the Grand Chamber will not tolerate a blanket ban based on the idea that all prisoners forfeit their right to vote, and although extensive bans are permitted – for example the lifetime ban in Italy – there should be sufficient safeguards to ensure that the ban does not operate in an arbitrary fashion. Thus in Scoppola the Grand Chamber noted that Italian law militated against the lifetime ban by allowing the prisoner to appeal against the decision in the future. Alternatives for the UK government Following the recent decision of the Grand Chamber in Scoppola the United Kingdom government must, within six months of that judgment, provide the Court with proposals that satisfy article 3 of the first protocol and the general criteria provided by the Grand Chamber, above. Thus, although the government appears to have a relatively broad discretion, it is clear that the current blanket ban is unacceptable and that any measures need to show a relationship between the nature and seriousness of the offence and the act of disenfranchisement. Thus, assuming the government intends to respond to the judgment, it will need to consider measures which are potentially acceptable to the Court and the governments’ Convention obligations. A review of its previous proposals, in response to Hirst (No 2) may be a useful starting point. After the decision in Hirst (No 2) the United Kingdom government issued a consultation document via the Department of Constitutional Affairs, setting out the principles of prisoner enfranchisement and the options available to the United Kingdom.32 This was followed by the Ministry of Justice’s second stage consultation document, outlining the government’s initial proposals.33 In these documents the government suggested a number of options of enfranchisement, but favoured the idea that prisoners sentenced to less than one years’ imprisonment would be automatically entitled to vote (subject to certain exceptions based on the type of offence for which the prisoner had been convicted). There followed a number of criticisms from both the Joint Select Committee on Human
Voting Rights of Convicted Prisoners Detained Within the United Kingdom – The UK Government’s Response to the Grand Chamber of the European Court of Human Right’s Judgment in Hirst v The United Kingdom. 33 Voting Rights of Convicted Prisoners within the United Kingdom, Consultation Paper CP6/09, April 8 2009).
Rights,34 and the Council of Europe,35 with respect to the government’s refusal to act on these recommendations and to introduce amending legislation. Then, after the judgment in MT and Greens, the government responded by suggesting, initially, that those serving sentences of four years or less would be enfranchised,36 but later proposing that only those sentenced to one year or less would be allowed to vote.37 These measures were then abandoned when in February 2011 the government proposed that there was to be an open vote in the House of Commons on prisoner voting. 38 This was preceded by a meeting of a parliamentary constitutional committee, which received advice on the legal implications of the government’s refusal to comply with Hirst and stressed that a blanket provision of any nature, irrespective of the length of the sentence would not be acceptable to the European Court of Human Rights.39 In particular Eric Metclafe of JUSTICE stressed that: ‘‘…the problem was the blanket nature of the ban, and of the individual decisionmaking of it, not the length. So there is not a magic figure that with one leap we are free.’’40 Pre-empting that vote the Justice Secretary, Kenneth Clarke, stressed that the government would comply with its obligations and that at least some prisoners would get the right to vote, promising that the government was going to do the ‘minimum necessary’ to comply with the ruling.41 However, as we now know, by a large majority it was decided to take no action to give prisoners the right to vote and to defy the European Court judgment in Hirst.42 The House of Commons was urged by senior Tory back bencher David Davis and former Labour Justice Secretary Jack Straw to defy the Court’s ruling and MP’s backed that motion by a majority of 234 to 22.43 This leaves us with the current situation and the question whether any of the government’s previous proposals, other than a total ban, would be acceptable to the European Court. With respect to the previous proposals, it would be likely that a ban for all prisoners other than those serving one year or less would be regarded as arbitrary by
‘Monitoring the Government’s response to Court’s Judgments Finding Breach of Human Rights‘ HL/128 HC 728; Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008; thirtyfirst Report of Session 2007-2008. Hl Paper 157; HC 1078, 31 October 2008. 35 Committee of Ministers Interim Resolution CM/ResDH (2009) 160. 36 ‘Thirty thousand prisoners will get the right to vote after victory in the European courts’ The Daily Telegraph, January 6 2011, page 2. See Cabinet Office, Government approach to prisoner voting rights, 17 December 2010: http://www.cabinetoffice.gov.uk/news/government-approach-prisoner-voting-rights 37 ‘Prisoner votes: climb down on the cards, http’://news.sky.com/skynews/Article/201009115900686; the Cabinet Office refused to confirm this 38 Tory ‘free vote’ on prisoner polls’ Independent on Sunday, February 1 2011 39 House of Commons Political and Constitutional Reform Committee: Voting by convicted prisoners, summary of evidence, Fifth Report of Session 2010-11 HC 776. 40 House of Commons Political and Constitutional Reform Committee: Voting by convicted prisoners, summary of evidence, Fifth Report of Session 2010-11 HC 776, at paragraph 12 41 Kirkup, J ‘Prisoners will get the vote, Kenneth Clark says’ The Daily Telegraph, 9 February 2011. 42 BBC News, 10 February 2011: www.bbc.uk/news/uk-politics-12409426 43 Hansard HC 10 February 2011, Column 584 (Division 199)
the Court and not in compliance with article 3. This would be so, particularly as those prisoners who would benefit from the relaxation would be so small as to question whether the very essence of the right in article 3 was being extended to prisoner. Thus, although such a measure may be politically popular, in the sense that it is felt to meet the bare minimum of the government’s obligations, it more than likely to be rejected by the Court in (inevitable) subsequent proceedings. The proposal to extend the franchise to those serving less than four years is, it is submitted, again likely to be unacceptable for the reasons stated by Eric Metcalfe, above; particularly if such a threshold is automatic and merely a convenient figure, and not informed by the nature and seriousness of the offence. Of course since that opinion, the Grand Chamber (in Scoppola) has widened the margin of appreciation available to States and it might be suggested therefore that a threshold of four years may fit within that margin. Nevertheless, as we have seen, above, the Grand Chamber in upholding relevant Italian law noted that the provisions showed the national legislature’s concern to adjust the application of the measure to the particular circumstances of the case in hand, taking into account factors such as the gravity of the offence which had been committed and the conduct of the offender. The Court also noted that the measures were only applied in connection with certain offences against the State or the judicial system, or to offences which the courts considered to warrant a sentence of at least three years’ imprisonment. Any measures, therefore, require some articulation of why these offences may justify a ban, or suspension, of the prisoner’s right to vote; and a blanket ban based entirely on the length of the sentence may not pass muster with the Court. What must not be forgotten, of course, is that the measures proposed by the government, may, in certain respects, be harsher than contained in the current legislative provisions. Thus, Italian law provides for a lifetime ban (albeit subject to appeal) for serious and life sentence prisoners, and for a suspension of the right beyond shorter sentences, whilst our domestic law gives back the right to vote automatically on release. This illustrates the arbitrary nature of the domestic law, which looks solely to the fact of incarceration, although ironically our laws impose a lesser penalty on offenders than those States who have had their provisions accepted by the Court as consistent with article 3. It would, therefore, be open for the government to justify longer bans for those convicted of very serious offences; especially if those offences have a relationship with the convicted person’s disregard for society and the rule of law. This then gives rise to further questions as to whether particular offences, such as electoral fraud or those involving abuse of public office, should be singled out for special treatment, perhaps in the form of an, appealable, lifetime ban. Conclusion It is clear that unless and until the government takes a measured and appropriate response to the judgments in Hirst, MT and Greens, and now Scoppola (No 3), it will continue to be in breach of its obligations under the European Convention on Human Rights. As
noted previously,44 the previous government’s continued illiberal and restrictive approach to the reform of prisoner enfranchisement laid it open to potential challenge in Strasbourg and in the domestic courts, and the refusal of successive governments to pass the necessary legislative measures to comply with the European Court’s ruling in Hirst then led, inevitably, to further challenges under the Convention and the Human Rights Act 1998. These difficulties have now re-surfaced after the Grand Chamber’s ruling in Scoppola v Italy. Unlike the situation after MT and Greens, the government now appears to have a wider margin of appreciation and an opportunity to introduce provisions which, in certain respects, are less generous to prisoner enfranchisement. However, any such provisions must take note of the basic principles set out in the recent judgment and must be informed by logic, proportionality and a desire only to disenfranchise individuals that are truly deserving of such a penalty. The simple fact that the individual is at the relevant time a lawfully incarcerated prisoner will not suffice, and ill thought our variations on that theme will also be unacceptable.
See Foster, S ‘The long and winding road: the long battle for the prisoner’s right to vote’ (2010) 16(1) Cov Law J 19, at 29