"Civic Death" Penalty Violates European Convention

The Contracting States to the European Convention are obligated 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.” An English statute dating back to 1870 provides that: “A convicted person 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 election.” Last week the ECHR held that the latter violates the former and must be repealed.

Notwithstanding that over 25 Contracting Parties to the European Convention currently limit the right of prisoners to vote in free elections, the ECHR has now declared that the “civic death” penalty violates the European Convention. The decision in Hirst v. United Kingdom is here and the press release summarizing the decision is here.

The Court held that “the severe measure of disenfranchisement must … not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.” (para. 71). Significantly, the Court selectively relied on comparative experiences, looking to decisions of Canada and South Africa, but not the United States (see Richardson v. Ramirez, 418 U.S. 24 (1974)) and others, in concluding that the civic death penalty violated fundamental human rights (paras. 35-39). The Court concluded that “The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.” (para. 82)

Five dissenting judges argued that “the wording of this Article is different from nearly all other substantive clauses in the Convention and its Protocols in that it does not directly grant individual rights and contains no other conditions for the elections, including in relation to the scope of a right to vote, than the requirement that ‘the free expression of the opinion of the people’ must be ensured.” (para. 2) The dissent also noted that a majority of Contracting States impose such a restriction, and therefore “the legislation in the United Kingdom cannot be claimed to be in disharmony with a common European standard.” (para. 7) The dissent concluded, “Taking into account the sensitive political character of this issue, the diversity of the legal systems within the Contracting States and the lack of a sufficiently clear basis for such a right in Article 3 of Protocol No. 1, we are not able to accept that it is for the Court to impose on national legal systems an obligation either to abolish disenfranchisement for prisoners or to allow it only to a very limited extent.” (para. 9)

The case is an alarming example of an international tribunal finding an individual right where none exists, interpreting that right broadly to require felon suffrage, ignoring historical roots, rejecting the democratic preferences in 60 percent of Contracting States, and selectively relying on comparative experiences to reach the desired result.

Jacco Bomhoff at the ComparativeLawBlog has more.

UPDATE: For another perspective lauding the decision, see here.