European Court of Human Rights retreats but doesn’t surrender on prisoner votes

CASE OF SCOPPOLA v. ITALY (No. 3)(Application no. 126/05) – Read judgment / press release / press release on UK implications

The Grand Chamber of the European Court of Human Rights has ruled that states must allow for at least some prisoners to vote, but that states have a wide discretion as to deciding which prisoners. This amounts to a retreat on prisoner votes, but certainly no surrender. As I predicted, the court reaffirmed the principles set out in Hirst No. 2, that an automatic and indiscriminate bans breach the European Convention on Human Rights, but also reaffirmed that it was up to states to decide how to remove those indiscriminate bans.

I have compared the prisoner voting issue to a ping-pong ball in a wind tunnel. Today’s ruling means that the ball is now back on the UK’s side of the table.

Although Scoppola is a case which arose in Italy, the decision is of critical important to the UK for two reasons. First, the Court has made clear to the UK Government that it now has six months from today to bring forth legislative proposals which will end the blanket disenfranchisement of prisoners – see the Court’s helpful press release which explains the effect on the UK. Secondly, the Grand Chamber has now clarified the basic outline of how it expects states to comply with the original prisoner votes ruling, also of the Grand Chamber, in Hirst No. 2. For the full background, see my post from last week or Joshua Rozenberg’s excellent article on Guardian.co.uk.

Retreat but no surrender

The Grand Chamber reversed the Court’s Chamber’s ruling in Scoppola No. 3on the basis that a life-long ban on certain prisoners voting still fell within Italy’s wide margin of appreciation to decide which criminals are allowed to vote. In short, because some Italian prisoners are allowed to vote, Italy does not have an “automatic and indiscriminate” ban which the Court rejected in Hirst No. 2. This was because it was applied only in connection with certain offences against the State or the judicial system, or with offences which the courts considered to warrant a sentence of at least three years.

Importantly, the Grand Chamber has now clarified its until now somewhat contradictory position on what states must do to ensure they do not breach Article 1 of Protocol 3 of the European Convention on Human Rights, the obligation to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature“.

It chose not to deviate from the decision in Hirst No. 2, as the UK had argued for. Indeed, the UK’s argument received short shrift; see paragraph 93 to 96. The Grand Chamber stated that there was even more reason now to support its 2005 decision:

93. In its observations, the third-party intervener affirmed that the Grand Chamber’s findings in the Hirst (no. 2) case were wrong and asked the Court to revisit the judgment. It argued in particular that whether or not to deprive a group of people – convicted prisoners serving sentences – of the right to vote fell within the margin of appreciation afforded to the member States in the matter.

[...]

95. It does not appear, however, that anything has occurred or changed at the European and Convention levels since the Hirst (no. 2) judgment that might lend support to the suggestion that the principles set forth in that case should be re-examined. On the contrary, analysis of the relevant international and European documents… and comparative-law information… reveals the opposite trend, if anything – towards fewer restrictions on convicted prisoners’ voting rights.

As to the famous ‘margin of appreciation’, that the right of states in certain situations to decide for themselves how to incorporate controversial rulings involving social policy, the court affirmed – indeed, following Frodl v Austria, effectively put back in place – the principle that states should be able to decide for themselves how to remove indiscriminate bans on prisoners voting. These are the crucial paragraphs, and forgive me for quoting at length as they are important (emphasis added):

In addition, according to the comparative-law data in the Court’s possession (see paragraphs 45-48 above), arrangements for restricting the right of convicted prisoners to vote vary considerably from one national legal system to another, particularly as to the need for such restrictions to be ordered by a court…

102. This information underlines the importance of the principle that each State is free to adopt legislation in the matter in accordance with “historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into their own democratic vision” (see Hirst (no. 2) [GC], cited above, § 61). In particular, with a view to securing the rights guaranteed by Article 3 of Protocol No. 1 (see Hirst (no. 2) [GC], cited above, § 84, and Greens and M.T., cited above, § 113), 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. It will then be the role of the Court 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. 

In reestablishing the wide margin of appreciation for states, the Court rolled back on its much-criticised decision in Frodl v Austria. It did so by, first, limiting the conclusions in that case to the particular situation in Austria (para 87), but also rejected the notion that a judge must decide which prisoners to vote on a case-by-case basis:

9.  That reasoning takes a broad view of the principles set out in Hirst, which the Grand Chamber does not fully share. The Grand Chamber points out that the Hirst judgment makes no explicit mention of the intervention of a judge among the essential criteria for determining the proportionality of a disenfranchisement measure….While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.

So, the UK now has 6 months to “bring forward legislative proposals” to remove the indiscriminate ban on prisoners’ voting. It now seems clear that the UK could take a very minimalist approach as to which prisoners receive the vote, for example only those serving 6 month sentences or less, and still be compliant with the Hirst No 2 ruling.

What if the UK does not comply?

In short, it will be expensive. It is now almost 7 years since the ruling in  Hirst No 2, which by the terms of the Article 46 of the ECHR the UK has promised to “abide by”. In Greens and M.T. v. the United Kingdom the Court told the UK that if it did not make progress in implementing the Hirst judgment, around 2,500 cases brought by prisoners which the Court has before it including around 1,500 which had been registered, can be “unfrozen”, that is reinstated.

If it does not implement the judgment, the UK would face thousands of financial claims against it potentially totalling millions of pounds. For the full background, see my previous post.

The third way

There is another possibility. The Government may put a bill before Parliament by 22 November 2012 but do no more than that. That is, the bill would be presented as a means of satisfying the European Court but not a policy which the Government (or, arguably, the nation) supports. This will almost certainly result in the Bill being defeated, and the court being forced to unfreeze the other claims [update - another option has been suggested by the BBC’s Nick Robinson: “It may try to argue that the existing law does not involve a blanket ban since, for example, remand prisoners retain the right to vote.” In my view, this would almost certainly result in a further legal challenge].

However, is hard to see how this option would accord with the spirit or indeed the letter of the UK’s obligations under international law. The Government should now accept its responsibilities under the ECHR or risk poisoning public opinion even further against the court. Indeed, given the significant retreat of the Court, the UK can afford to take a minimalist and relatively pain-free approach. But in doing so, it must make the case for implementation of the ruling to Parliament and the public too. Any other reaction to today’s ruling may serve short-term political ends, but it will also probably do significant harm to the rule of law, which would be bad for prisoners, the public and even politicians too.

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8 thoughts on “European Court of Human Rights retreats but doesn’t surrender on prisoner votes

  1. Adam,

    Apologies if posted elsewhere previously on the blog – but what is your own opinion on the correct way to proceed? By that I mean, politics aside, where do you stand on the issue/interpretation of the case law? I think this is a case that makes even the most ardent defenders of the Court and human rights ask difficult questions about our relationship with Strasbourg.

  2. I sometimes wonder about the motivation of people who are vehemently opposed to prisoners voting and who will move heaven and earth to prevent it from happening – determined to bring in something which will profit them not one iota, but will take away from other people. It has the flavour of vengeance and vindictiveness rather than justice.

    As far as I am concerned, all of the arguments put forward so far to oppose prisoners’ votes are crooked. They tend to be ‘two wrongs make a right’ sort of arguments or a ‘hierarchy of rights’ argument in which it is pretended that prisoners’ human rights are in competition with those of the victims. One of the other favourites is the ‘he forfeits his rights when he commits a crime’ line which is also legally and logically unsound. Human rights is not about mollycoddling white middle/ upper class males, it is about having a bare minimum standard of decency for every single human being.

    Conversely, the arguments put forward in support of prisoners being given the vote seem pretty strong to me. Voting is beneficial to rehabilitation; it teaches prisoners about responsibility. To withhold this right from prisoners is like saying ‘we have cut you off altogether from society.’ It fosters a ‘complete abandonment’ attitude. A bit of dignity and respect is always reciprocated

  3. Experience shows that if you do not stand up to a bully then it only makes the bully all the stronger. Yes, the ECtHR has acted cowardly to some extent with the Grand Chamber decision in Scoppola v Italy (No3). A dictatorship which also happens to be guilty of human rights violations picked a fight with a Human Rights Defender. It does appear as though the ECtHR bent under pressure. Does that make might is right?

    The Grand Chamber states that essentially both Scoppola and Italy’s submissions were the same as put to the Chamber. This being the case, why did the Grand Chamber then decide to allow an appeal? Could it be the vehicle to allow the UK another bite at the cherry? If so, not only did the UK abuse the process but also the GC.

    The UK argued that Member States should be allowed a wide margin of appreciation, this was already dealt with by the GC in Hirst No2. I am not clear what the UK was arguing here: “Each State should be free to adopt its own legal system in keeping with its social policy, and to choose which arm of the State (legislature, executive or judiciary) should have the power to take decisions concerning prisoners’ voting rights”. I thought States already adopts its own legal system and decides social policy. I don’t think the GC cares which arm of the State implements its decision as long as there is compliance.

    Contrary to the ECHR and Council of Europe and Committee of Ministers rules the UK argues that Hirst No2, Frodl and Greens and MT v UK were all wrongly decided. In effect, the GC allowed the UK to appeal against unappealable decisions. This is where the GC should have stopped the UK in its tracks, and told the UK to stick to the issues in Scoppola. It has all the signs of someone appeasing rather than tackling a bully. The ECtHR has now lost some credibility, integrity and legitimacy. It would have lost everything had it not had some courage to not retreat on Hirst No2.

  4. Ummm.

    I’m not a lawyer.

    Could someone tell me what the word “appreciation” means in this context.

    I’m wanting to write to my MP in support of this ruling. (But my MP is a Toxic Tory, and a barrister, and wants to repatriate human rights to Westminster, and proudly boasted on the Hirst ruling “Not one person had written to me in favour of votes for prisoners”)

  5. The fact that a serving prisoner sentenced to 3+ years ia automatically disenfranchised for the duration of the sentence is already a step back from judgments in Canada, SA and – importantly- both Hirst and Frodl.
    The rehabilitation clause applied only for post-release disenfranchisement- which in itself is a very rare practice outside the US, and I find it rather astonishing that the court would consider it reasonable as a default for serious offences.
    The dissenting opinion is far more moderate than the one I would have written but it still encapsulates the main flaws in the judgment.

  6. My own view is that a “minimalist” solution will only result in further (very costly) challenges. Such a regime would be little better than the present situation and would take no account of matters such as the type of offence, seriousness of offence etc. (If read carefully, various “factors” appear in the GC’s judgment).

    The UK ought to now honour its obligation in international law and ensure that a compliant regime is put in place. Failure to do this would raise questions about just what sort of “democratic vision” exists in the UK.

    The wide margin of appreciation in this area was almost certainly there anyway and hardly needed Scoppola to spell it out. Dominic Grieve’s argument was decisively rejected but he will be able to present the court’s comments about the margin of appreciation as something of a victory.

    Let us also remember that the Committee of Ministers is charged with supervising the implementation of a final judgment. Thus, it will not do for the UK government to merely “present a Bill” and then let it languish. There would have to be real progress within a sensible period of time.

  7. Sorry Tim but I must totally disagree. Voting is a Civil Right not a Human Right. Civil rights should imply civil duties. If a person commits an imprisonable offence then they have blatently ignored their civil duty.. Removal of the vote during their term of imprisonment, alongside other civil rights seems, seems eminently fair. Imprisonment is society’s way of showing disapproval of the prisoner’s abrogation of his/her civil duty.

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