December 01, 2023
by Dr Steve Foster
Disenfranchisement of convicted prisoners in Europe remains varied despite the Grand Chamber’s pivotal decision in Hirst v. United Kingdom No. 2 that any interference with a prisoner’s right to vote had to be necessary and proportionate. Thus, since Hirst the Court has upheld a number of State restrictions on prisoner voting rights and the recent decision in Myslihaka and Others v. Albania provides another example of the wide discretion given to States who continue to disenfranchise prisoners.
This blog will examine the decision in Myslihaka and assess its impact on Strasbourg jurisprudence, calling for a more robust approach from the Court in ensuring that the principal tenets of justice and the rule of law apply to these restrictions.
The applicants were all prisoners who either had served or were serving prison terms, having been convicted of various criminal offences including murder, organised criminal behaviour and drug-related offences.
In 2015, the Albanian Parliament passed the Decriminalisation Act (Law no. 138/2015), excluding criminal offenders from public office, but also barring convicted individuals from voting if, on the date of the election, they were serving a prison sentence for one of the criminal offences set out in that Act. The convicted individual should be informed about the restriction in the same judgment that found them guilty, although the restriction was valid even if it was not mentioned in the conviction and sentencing judgment. The Law also applied to prisoners already convicted of one of the listed criminal offences, and restricted on the voting rights of persons who have been sentenced to a term of imprisonment. Section 2(1)(a) and (b) and (4) of the Law set out the list of criminal offences of which conviction entails disenfranchisement, including murder, the manufacture and sale of narcotic drugs, drug trafficking and participation in an organised criminal group. It also included crimes against humanity, life or health sexual crimes, national sovereignty and constitutional order, State authority and public order, justice, and electoral offences.
When the parliamentary elections took place in 2017, the applicants were serving prison sentences. Four applicants had been sentenced before the Law entered into force and the fifth and sixth applicants after the Law came into force, but it was unclear whether the suspension of their voting rights was included in the judgments on their convictions. In June 2017, the prison confirmed that the applicants had not been included on the electoral roll, but no attempt was made to bring any action in the domestic courts, the applicants arguing that none of the available remedies could be effective in their cases. That was because earlier in 2017, the Albanian Constitutional Court had dismissed a complaint made by the Albanian Helsinki Committee against the Law, contending that it was in violation of the Constitution and Article 3 of Protocol No. 1. On 5 June 2017, the Constitutional Court found that the restrictions pursued legitimate aims – to ensure public confidence in the functioning of public institutions, to protect the system of democratic values, to reinforce crime prevention, increase civic responsibility and respect for the law, and protect public institutions from illegal influence – and were not disproportionate.
The applicants petitioned the Court, relying on Article 3 of Protocol No. 1, which provides a duty on states to hold free elections at reasonable intervals by secret ballot.
With respect to admissibility, the Government argued that as none of the applicants had attempted a domestic remedy they failed to exhaust all domestic remedies under Article 35 ECHR. However, given that the ban on voting rights stemmed directly from legislation, including the Constitution, the Court was not satisfied that any of the remedies suggested by the Government was apt to afford the applicants any reasonable prospects of success (paras 38-39).
As to the merits, Article 3 of Protocol No. 1 guarantees subjective rights, including the right to vote and to stand for election, but that those rights are not absolute. Further, States must be afforded a wide margin of appreciation in this sphere (para 54). Nonetheless, a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned must be shown, and exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 (para 55). 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 defining the circumstances in which such a measure should be applied. However, it was for the Court to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness (para 57).
The Court accepted both the lawfulness of the restrictions, as well as the arguments of the Albanian Constitutional Court with respect to the legitimate aims that they served (para 63). Turning to necessity and proportionality, it noted that the Parliament followed a careful procedure in the approval of the Law and had sought the opinion of the Venice Commission, and that the Law enjoyed a high degree of support from Parliament, demonstrating a consensus among all political factions (para 65).
The Court found that the legislature’s concern was to adjust the application of the measure to the particular circumstances of the case at hand. Hence, the Law considered factors such as the gravity of the offence, indirectly assessing the conduct of the offender through the determination of the final sentence. In contrast to Hirst, the restriction was not general and universal, applying only to certain serious offences for which the Law provides for severe sentences, such as offences against State institutions or the judicial system, crimes against the person, or organised crime. The Law also applies the restriction to any person who commits an electoral offence, thus displaying its link to democracy, and the right to vote was restored when the prisoner was released at the end of the sentence (para 68).
Although the Court noted that the matter of the applicants’ disenfranchisement was not examined by the trial court, nonetheless, it stressed that the reference to disenfranchisement in a judgment was only introduced to inform the convicted person of it, the restriction applying because it stems directly from the legislation (para 69).
The Court noted that the applicants had all been convicted of serious offences, and in its view there was no doubt that each of these offences constitutes a serious attack on the values of society and on social order. Further, those applicants who have served their respective sentences had had their voting rights restored on their release from prison (para 70). Accordingly, the requirement for the application of a restriction on prisoners’ right to vote to be conditional on the nature and the gravity of the offence committed was satisfied, and there was a discernible and sufficient link between the offences committed by each of the applicants and the withdrawal of his voting rights (para 72).
Finally, the fact that the legal restriction on voting in the 2017 parliamentary elections affected only 923 prisoners, compared to more than 5,300 prisoners enjoying the right to vote, showed that its application is limited (para 73). The Law had thus managed to balance the competing interests, and the proportionality of the suspension of the right to vote had been limited to a specific list of offences that affects a restricted number of individuals. Thus, the margin of appreciation afforded to the respondent State in this sphere had not been overstepped (para 74).
Case law in this area suggests that States may impose restrictions on broad grounds of public opinion and criminal justice, and allowing States discretion in deciding whether they wish to impose restrictions on prisoner voting rights. Accordingly, the Court will only interfere when the State has exceeded its broad and flexible discretion.
However, States must not impose an arbitrary and blanket ban on prisoner voting (Hirst, and Greens and M.T. v. United Kingdom) and should formulate disenfranchisement rules based on all relevant circumstances, including the offence for which the individual was incarcerated and the length and type of the sentence. Thus, in Hirst it observed that there was no evidence that the United Kingdom Parliament had ever sought to weigh the competing interests or to assess the proportionality of the ban as it affected convicted prisoners. See also the subsequent judgments in Anchugov and Gladkov v. Russia; Söyler v. Turkey; and Tingarov and Others v. Bulgaria.
Since Hirst, States have received extended discretion, from both the Court, and the Council of Europe. Thus, following calls from the Committee of Ministers to resolve the impasse created by the Government’s refusal to change the law following Hirst, the Committee accepted the government’s proposals allowing prisoners on Temporary Licence to vote: Ministry of Justice policy framework: Restrictions on Prisoner Voting Policy Framework. 11 August 2020. However one views the discretion granted by the Strasbourg Court to each Member State, UK domestic law appears clearly inconsistent with Hirst (No 2) and even Scoppola, below.
A wider margin of appreciation is also evident. Thus, in Scoppola v. Italy (No. 3), the Grand Chamber held that lifetime disenfranchisement of those sentenced to more than five years imprisonment was compatible with Article 3. The interference pursued the legitimate aims of preventing crime and enhancing civic responsibility and respect for the rule of law, and was proportionate. In particular, the Grand Chamber in Scoppola held that decision in Frodl v. Austria, which insisted on judicial involvement in the decision to disenfranchise prisoners, was no longer good law. Thus, Scoppala established 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 (Scoppola, at 102).
More generally, in contrast to Hirst (No. 2), the Court held in Scoppola 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 and the conduct of the offender. Further, the measures only applied to certain offences against the State or the judicial system, or to offences that the courts considered to warrant a sentence of at least three years’ imprisonment. Thus, unlike the position in Hirst (No. 2), a large number of convicted prisoners in Italy were not deprived of the right to vote in parliamentary elections. Further, under Italian law a prisoner could, three years after finishing their sentence, and displaying good conduct, apply for rehabilitation to recover the right to vote.
Subsequently, the Court has also accepted de jure blanket bans, where on the facts the prisoner’s offence would justify disenfranchisement. Thus, in Kalda v. Estonia (No. 2), the Court upheld a lifelong ban on a prisoner sentenced for murder as he was a particularly dangerous prisoner, and the national Supreme Court had considered the constitutionality of the application of the legal rule to the particular prisoner. Thus, although the Estonian Supreme Court ruled that the ban clearly violated the rights of many prisoners, it had considered it proportionate when applied to the applicant. This begs the question whether the Court should rule unlawful blanket legislative bans in this area, encouraging domestic legislatures to construct and maintain clear and Convention compliant rules in this area.
Insistence on the rule of law and clear legislative (or judicial) rules also question the Court’s acceptance in the present case of the retrospective application of national law to prisoners who had been convicted before the passing of the 2017 Act and of the fact that judicial pronouncement on disenfranchisement was absent in these applications. It is argued, therefore, that the Court in Myslihaka should have at least considered the compatibility with the Article 3 of the national law’s retrospective application to those prisoners sentenced before the law was passed. Equally, the Court should have insisted that safeguards such as the need to include disenfranchisement in the judgment are actually mandatory and not optional. In that case, the Court will at least ensure that wide bans on prisoner voting are compatible with procedural justice and not vulnerable to arbitrary discretion.
The case law in this area following the reasonably robust judgment in Hirst has become subjective and generous to each defendant State. This reflects the political and diplomatic view of the Court’s subsidiary role under the Convention. However, this should not excuse ignoring principal values of justice and the rule of law when overseeing State practices that infringe on fundamental democratic rights.