512
6.10.2005
GRAND CHAMBER JUDGMENT HIRST v. THE
The European Court of Human Rights has
today delivered at a public hearing a Grand Chamber judgment[1] in the case of Hirst v.
the
The Court held:
· by 12 votes to five, that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights; and,
· unanimously, that no separate issue arose under Article 10 (freedom of expression) or Article 14 (prohibition of discrimination) of the Convention.
Under
Article 41 (just satisfaction), the Court held, unanimously, that the finding
of a violation constituted in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant and, by twelve votes to five, awarded
the applicant 23,200 euros (EUR)
for costs and expenses. (The judgment is available in English and French.)
1. Principal
facts
The applicant, John
Hirst, is a British national, aged 54, who was serving a sentence of life imprisonment in HM Prison
On
As a convicted prisoner, Mr Hirst is barred by section 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections. According to the United Kingdom Government’s figures, some 48,000 other prisoners are similarly affected.
Mr Hirst issued proceedings in the High Court, under section 4
of the Human Rights Act 1998, seeking a declaration that section 3 was
incompatible with the European Convention on Human Rights. On 21 and
2. Procedure
and composition of the Court
The application was lodged with the European
Court of Human Rights on
The case was referred to the Grand Chamber
at the Government’s request, under Article 43 (referral to the Grand Chamber),
and, on
Judgment was given by the Grand Chamber of
17 judges, composed as follows:
Luzius Wildhaber (Swiss), President,
Christos Rozakis (Greek),
Jean-Paul Costa (French),
Nicolas Bratza (British),
Giovanni Bonello
(Maltese),
Lucius Caflisch (Swiss)[2],
Françoise Tulkens
(Belgian)
Peer Lorenzen
(Danish),
Nina Vajić
(Croatian),
Kristaq Traja (Albanian),
Anatoli Kovler
(Russian),
Vladimiro Zagrebelsky (Italian),
Antonella Mularoni (San Marinese),
Ljiljana Mijović (Citizen of Bosnia and Herzegovina),
Sverre Erik Jebens (Norwegian),
Danute Jočienė (Lithuanian),
Ján Šikuta (Slovakian), judges,
and also Erik Fribergh, Deputy
Registrar.
3. Summary
of the judgment[3]
Complaints
The applicant
alleged that, as a convicted prisoner in detention, he was subject to a blanket
ban on voting in elections. He relied on Article 3 of Protocol No. 1, Article
14, as well as Article 10 of the Convention.
Decision
of the Court
Article 3 of Protocol No. 1
General Principles
The Court stressed that the rights
guaranteed under Article 3 of Protocol No. 1 were crucial to establishing and
maintaining the foundations of an effective and meaningful democracy governed
by the rule of law and also that the right to vote was
Nonetheless, the rights bestowed by Article
3 of Protocol No. 1 were not absolute. There was room for implied limitations
and States which had ratified the European Convention on Human Rights
(Contracting States) had to be given a margin of appreciation in that sphere.
There were numerous ways of organising and running electoral systems and a
wealth of differences, among other things, in historical development, cultural
diversity and political thought within
However, any limitations on the right to vote had to be imposed in pursuit of a legitimate aim and be proportionate. Any such conditions had not to thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risked undermining the democratic validity of the legislature elected and its laws. Exclusion of any groups or categories of the general population had therefore to be reconcilable with the underlying purposes of Article 3 of Protocol No. 1
Concerning prisoners in particular, the Court emphasized that they generally continued to enjoy all the fundamental rights and freedoms guaranteed under the Convention, except for the right to liberty, where lawfully imposed detention expressly fell within the scope of Article 5 (right to liberty and security). There was, therefore, no question that prisoners forfeit their Convention rights merely because of their status as detainees following conviction. Nor was there any place under the Convention system, where tolerance and broadmindedness were the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.
That standard of tolerance did not prevent
a democratic society from taking steps to protect itself against activities
intended to destroy the rights or freedoms set out in the Convention. Article 3
of Protocol No. 1, which enshrined the individual’s capacity to influence the
composition of the law-making power, did not therefore exclude that
restrictions on electoral rights be imposed on an individual who had, for
example, seriously abused a public position or whose conduct threatened to
undermine the rule of law or democratic foundations. However, the severe
measure of disenfranchisement was not to be undertaken lightly and the
principle of proportionality required a discernible and sufficient link between
the sanction and the conduct and circumstances of the individual concerned. As
in other contexts, an independent court, applying an adversarial procedure,
provided a strong safeguard against arbitrariness.
Legitimate Aim
The Court recalled that Article 3 of Protocol No.1 did not specify or limit the aims which a measure must pursue. The United Kingdom Government had submitted that the measure aimed to prevent crime, by sanctioning the conduct of convicted prisoners, and to enhance civic responsibility and respect for the rule of law. The Court accepted that section 3 might be regarded as pursuing those aims.
Proportionality
The Government submitted that the ban was in fact restricted in its application as it affected only around 48,000 prisoners, those convicted of crimes serious enough to warrant a custodial sentence and not including those detained on remand, for contempt of court or default in payment of fines.
However, the Court
considered that 48,000 prisoners was a significant figure and that it could not
be claimed that the bar was negligible in its effects. It also included a wide
range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity.
Also, in sentencing, the criminal courts in
As to the weight
to be attached to the position adopted by the legislature and judiciary in the
It was also evident that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote was in general seen as a matter for Parliament and not for the national courts. The domestic courts did not therefore undertake any assessment of the proportionality of the measure itself.
Regarding the
existence or not of any consensus among Contracting States[4],
the Court noted that, although there was some disagreement about the state of
the law in certain States, it was undisputed that the
Therefore, while the Court reiterated that the margin of appreciation was wide, it was not all-embracing. Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remained a blunt instrument. It stripped of their Convention right to vote a significant category of people and it did so in a way which was indiscriminate. It applied automatically to convicted prisoners in prison, 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 had to 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. The Court therefore held, by 12 votes to five, that there has been a violation of Article 3 of Protocol No. 1.
Considering that
the Contracting States had adopted a number of different ways of addressing the
question of the right of convicted prisoners to vote, the Court left the
Article 10 and 14
Like the Chamber, the Grand Chamber found
that no separate issue arose either under Article 10 or Article 14.
Judge Caflisch
expressed a concurring opinion, Judges Tulkens and Zagrebelsky expressed a joint concurring opinion, Judges Wildhaber, Costa, Lorenzen,
Kovler and Jebens expressed a joint dissenting
opinion and Judge Costa expressed a separate dissenting opinion. Those opinions
are annexed to the judgment.
***
The Court’s judgments are accessible on its
Internet site (http://www.echr.coe.int).
F – 67075 Strasbourg Cedex
Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
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Fax: +00 33 (0)3 88 41 27 91
The European Court of Human
Rights was set up in
[1] Grand Chamber judgments are final (Article 44 of the Convention).
[2] Elected in respect of
[3] This summary by the Registry does not bind the Court.
[4] Prisoners may vote in 16 countries: Albania, Bosnia and Herzegovina (unless serving a sentence imposed by the International Tribunal for the former Yugoslavia), Cyprus (though they must happen to be out of prison on the day of the elections) Croatia, the Czech Republic, Denmark, Finland, the former Yugoslav Republic of Macedonia, Iceland, Lithuania, Portugal, Slovenia, Spain, Sweden, Switzerland and Ukraine.
Prisoners may frequently/sometimes
vote in 13 countries:
Prisoners cannot vote in 13 countries: