This guest post was written by Cesare Pitea, Researcher in International Law (Faculty of Law) and Assistant Professor of Interational Law (Faculty of Political Science), University of Parma (Italy).
1. Judging in a Heated Political Context
In the Scoppola v. Italy (no. 3) judgment ([GC], no. 126/05, 22 May 2012), the third chapter of the “Scoppola Saga” (See Scoppola v. Italy, no. 50550/06, 10 June 2008 and Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009), the Grand Chamber of the European Court of Human Rights (the Court) had the chance of reassessing the issue of prisoners’ deprivation of the right to vote under Art. 3 of Prot. No. 1. Indeed, the 2004 Grand Chamber judgment in Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, 30 March 2004) on this very same subject had caused an heated debate between defenders of national sovereignty and subsidiarity (see Lord Hoffman’s critical remarks here) and supporters of a more effective and incisive international judicial review by the Court, causing an on-going (see the post by L. Peroni and M. Burbergs) tension between the Court and one of its “founding fathers”, the United Kingdom. Echoes of this controversy have recently been heard in Brighton, where at the High-level conference convened by the British Government, the idea of narrowing the Court’s powers of review – inter alia by introducing the notion of the margin of appreciation in the text of the Convention – was initially flagged (see the UK Draft Brighton Declaration) and finally dropped (see the adopted Brighton Declaration).
2. What Was at Stake
Mr. Scoppola was convicted for the murder of his wife and for wilfully causing injuries to his son. He was initially sentenced to life imprisonment. Following a finding of violation of arts 6 and 7 of the Convention in Scoppola (no. 2), the penalty was reduced to thirty years.
In the Italian criminal law system, the ancillary penalty of the ban from public offices (interdizione dai pubblici uffici) is mandatorily imposed on any person convicted by a final judgement in two hypothesis: for certain defined offences (mainly, against the interests of the administration of the State or of justice), independently of the harshness of the main penalty; and when the offender is sentenced to a term of imprisonment exceeding three years, independently of the nature of the crime committed. The ban may be permanent or temporary depending on cases and entails the loss of the right to vote for the term of its duration. The ban may be terminated if and when the offender is granted rehabilitation. The assessment on the need for application of the ancillary penalty, and of its duration, is entirely made by the legislature, with little room left to judicial assessment. The judicial authorities can have only an indirect influence on the ban: ex ante by calibrating the sentence and ex post by examining whether the conditions for rehabilitation are met (Art. 179 of the (Italian) Criminal Code).
Therefore, in the applicant’s case, there was no question of avoiding disenfranchisement under domestic law. After having exhausted domestic remedies to no avail, he complained before the Court that his right to vote guaranteed under art. 3 of Prot. No. 1 had been violated.
As he had done before domestic courts, before the Court he relied on the controversial Hirst (no. 2) judgment, in which the Grand Chamber of the Court, by a majority vote, found that the “blanket” disenfranchisement imposed by English law on all convicted offenders in prison, “irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances”, was a “general, automatic and indiscriminate restriction” (§ 82) incompatible with Art. 3 of Prot. no. 1. This principle was applied in the Frodl v. Austria judgment (no. 20201/04, 8 April 2010), where a Chamber of the First Section of the Court stated that “[u]nder the Hirst test (…) it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances [of the case]” (§ 29).
On this basis, the Second Section’s Chamber considering Mr. Scoppola’s case did not need a long reasoning to find that the permanent disenfranchisement imposed by the law on the applicant, in the absence of a judicial assessment of the proportionality of the measure in the specific circumstances of the case, was in breach of Art. 3 of Prot. no. 1 (see the Chamber judgment, available only in French).
When the case was referred to the Grand Chamber, Italy maintained that the measure met the criteria of legality, legitimacy of the aim and proportionality required for implicit limitation to the right to vote to be consistent with art. 3 Prot. no. 1 (§§ 63-70 of the Judgment). The British Government, intervening as a third party, directly challenged the value of the Hirst jurisprudence and maintained that Frodl had expanded, rather than applied, the Hirst test by imposing a requirement of judicial determination of disenfranchisement on a case-by-case basis (§§ 75-80 of the Judgment).
3. The Formal Validation of the Hirst Precedent
Faced with a blunt challenge of a relatively recent jurisprudence, the Grand Chamber stands in defense of it. It dismisses the argument made by the UK, by reaffirming the value of continuity in its jurisprudence. Recalling the Christine Goodwin judgment, it reiterates that “evolving convergence [within contracting States] as to the standards to be achieved” may prompt a change in jurisprudence – admittedly even when this change is regressive in the protection of individual rights –, but observes that no such evolution had taken place since the Hirst judgment. Therefore, the principles set forth therein retain their full validity.
However, the validation does not extend to the application given to the Hirst test in Frodl. The Court, after recalling the broad margin of appreciation enjoyed by the contracting Parties and the difference in solutions adopted in their domestic legal systems, states that while proportionality of restrictions on prisoners’ voting rights is in principle guaranteed by the intervention of a judge, “such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.” Proportionality can be respected also when “the circumstances in which the right to vote is forfeited may be detailed in the law, making its application conditional on such factors as the nature or the gravity of the offence committed” (§ 99).
Thus “the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction” (§ 102).
The Court concludes that it will be its role to “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”.
4. Same Principle, Different Application: When Can the Court Review National Legislation?
On this basis, the Court notes that, despite the lack of judicial control of the proportionality of disenfranchisement measures, “the legal provisions in Italy defining the circumstances in which individuals may be deprived of the right to vote show the legislature’s concern to adjust the application of the measure to the particular circumstances of the case in hand” and that “it is possible for a convicted person who has been permanently deprived of the right to vote to recover that right” (§ 108).
The Court also underlines the gravity of the offences committed by the applicant, to conclude that “in the circumstances of the present case” the restrictions imposed on the applicant did not violate art. 3 Prot. no. 1 (ibid.).
The Courts’ reasoning shows a primary concern to ensure continuity in the jurisprudence, but it is somehow obscure and not entirely convincing. While confirming the “substantive” Hirst principles on prisoners’ deprivation of the right to vote, it seems to change the way these principles are applied. In attributing a different relevance to the “particular circumstances of the case”, it modifies one of the element that proved decisive in Hirst to find a violation.
Allegedly, in the Hirst judgment the “constitutional justice model” was expanded to its full potential: the Court held that, since the applicant was directly and immediately affected by the legislative provision of which he complained “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” (§72, emphasis added). In other words, the Court explicitly refrained from considering the case in the perspective of individual justice. It refused to make its finding dependent upon the answer to the following question: is the disenfranchisement measure applied to the applicant (i.e. for the duration of his actual imprisonment, following a sentence to a term of discretionary life imprisonment) respectful of proportionality having regard to the crime he had committed (manslaughter on diminished ground of responsibility)?
Admittedly, Hirst was by no means the first judgment in which the Court has examined the way a domestic law is drafted. However, it is not the Court’s role “to examine in abstracto the compatibility of national legislative or constitutional provisions with the requirements of the Convention” (McCann v. United Kingdom [GC], no. 18984/91, 27 September 1995, §153). An assessment of domestic law as such is thus relevant when a violation of protected rights in a specific case is caused by the inadequacy of the applicable legal framework (see, for example, Makaratzis v. Greece [GC], no. 50385/99, 20 December 2004 § 70). Thus, the “particular” (a violation in a specific case) is the hook for reaching the “general” (shortcomings in the legal framework) through the causal link established between the latter and the former. To this writer’s knowledge, Hirst was the first case in which the traditional approach was overturned, by denying the relevance of the effect of the law on the situation of the individual applicant.
In Scoppola the Court blurs its position. It does look at the relevant legal framework, but it seems to content itself of the effort made by the Italian legislator in differentiating various cases depending on the nature of the offence or the harshness of the sentence, without examining whether the solution adopted would lead to respect of proportionality in each and every case. Moreover, the Court’s reasoning shows a consistent concern in highlighting the relevance of the circumstances of the case, in particular of the gravity of the offences committed by the applicant.
The resulting scenario is puzzling and bears a potential for inconsistent outcomes that are difficult to understand. On the one hand one may speculate that, had Mr. Scoppola been convicted for the same crime and to the same sentence in England, he would possibly face a disenfranchisement measure “lighter” than the one he actually suffers in Italy. And that, this notwithstanding, he would have won his case before the Court! On the other hand the Court, by failing to clarify the precise relevance of an applicant’s specific situation in the reasoning leading to a certain conclusion as to the violation of the Convention, leaves open the question whether, under the same (Italian) legal framework, applicants in a position different from Scoppola could indeed win their case before the Court, arguing that in the particular circumstances of their case, taking into account the nature and gravity of the offence they committed, the disenfranchisement measure would not be proportional.
5. The Unsolved Tension between “Individual” and “Constitutional” Justice
Notwithstanding the formal validation of the principles contained in Hirst to assess proportionality of disenfranchisement of criminal offenders, in Scoppola the Court seems to have changed the way in which these principles are applied, by strengthening the role of the individual case before it in assessing the proportionality of a disenfranchisement measure. In particular, the Court’s reasoning leaves unresolved the tension between the (traditional) Court’s function of delivering individual justice and that, strongly advocated in recent times, of having a more discernible “constitutional” role. However, by not admitting that Hirst went too far towards constitutional justice and by not clarifying the conditions in which the compatibility of domestic legislation with the Convention may be reviewed, the Court did not render a good service to either individual or constitutional justice: potential applicant will not have a clear indication of whether they have a potentially winning case based on the Convention and contracting Parties are left with no firm guidance on how to design their domestic rules in order to comply with the minimum conventional standard in the field of deprivation of voting rights following conviction in criminal cases.