Hirst Strongly Resonates in Greens … and in Latvia

In what some have considered a “blunt ultimatum”, the Court has just given the United Kingdom a six-month deadline to introduce legislative proposals to amend its laws banning prisoners from voting. At the basis of the Court’s decision, is the government’s 5-year failure to execute the Grand Chamber judgment in Hirst (No. 2), the case concerning prisoners’ voting rights.

The lengthy delay to implement the Hirst judgment, the Court said this week in Greens and M.T. v. the United Kingdom, has resulted in around 2,500 new applications currently pending before the Court. The Court has warned that the number continues to grow with each election that passes noting that there are approximately 70,000 serving prisoners in the UK at any one time, all of whom are potential applicants. So at stake is not only the state’s responsibility under the Convention but also – and more fundamentally – the future effectiveness of the system which the Court rightly views as threatened by the UK government’s continuing non-compliance.

But let’s recapitulate. In 2005, the Court held in Hirst that the UK voting ban applied automatically to all prisoners irrespective of the length of their sentence, the gravity of their offence and their individual circumstances fell outside any acceptable margin of appreciation. Despite repeated calls from the Committee of Ministers, the UK has not amended its electoral law since Hirst. As a result, Mr. Greens and M.T. were ineligible to vote in the European Parliament Election of June 2009 and in the UK General Election of May 2010. The Court thus found a violation of Article 3 of Protocol 1.

Making use of its pilot judgment procedure, the Court also examined the case from the perspective of the general measures that need to be taken in the interest of other potentially affected persons. It observed it was clear that a legislative amendment was needed in order to render the UK electoral law compatible with the Convention but did not consider appropriate to specify what the content of the legislative proposals should be. The Court pointed nonetheless that the lengthy delay has demonstrated the need for a timetable to introduce such proposals.

So now, from the date Greens and M.T. becomes final, the government has six months to introduce legislative proposals to bring the disputed law/s in line with the Convention. The government is furthermore required to enact the relevant legislation within any time frame set by the Committee of Ministers. The examination of all registered applications will be discontinued pending compliance by the UK with the instruction to introduce legislative proposals. In the event of compliance, the Court has proposed to strike out registered applications. If the UK fails to comply, the Court retains the power to put them back on the list.

Hirst may not have resonated yet in the United Kingdom but its echo has definitely been heard in other Council of Europe Member State – Latvia. Last October, prisoners voted in Parliamentary elections for the very first time. Following Hirst, a complaint from a prisoner was lodged with the Constitutional Court of Latvia in 2008. Referring to the Hirst judgment, the applicant claimed that his human rights protected by the Constitution have been violated due to national laws prohibiting prisoners from voting.

At the time the Constitutional Court received the application, the government had already made a proposal to change the national laws and the proposal had already passed the first screening in Parliament. In its communication to the Constitutional Court, the Parliament explained that the government had made the proposal to amend the laws as a reaction to Hirst. During the proceedings before the Constitutional Court, the amendment was passed and entered into force. The Constitutional Court subsequently struck out the application, as the paragraph prohibiting prisoners from voting in elections was completely taken out of the provision.

The statistics show that 3,679 out of 4,726 prisoners used their newly granted right in the 2010 Parliamentary elections. This is the number of potential applications Latvia has saved the Court from by reacting promptly to the jurisprudence of the Strasbourg Court.

By Lourdes Peroni and Maris Burbergs