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European Court of Human Rights Voids UKs Blanket Bans On Prisoner Voting

European Court of Human Rights Voids UKs Blanket Bans On Prisoner Voting

by Matthew T. Clarke

On October 6, 2005, the European Court of Human Rights issued a Grand Chamber Judgment holding that Britains blanket ban on incarcerated prisoners voting in elections violated Article 3 of Protocol No. 1 of the European Convention on Human Rights (Article 3). The court, which was specifically set up in 1950 to enforce individual rights under the convention, is independent of the European Union.

On February 11, 1980, John Hirst, a British national, pleaded guilty and was convicted of manslaughter on the ground of diminished capacity. He was sentenced to life imprisonment, but released on parole on May 25, 2004. Several years prior to his release, Hirst began proceedings in the High Court, claiming that his disenfranchisement under section 3 of the British Representation of the People Act of 1983, violated his right to vote under the European Convention on Human Rights. This blanket ban on voting rights for incarcerated prisoners affected around 48,000 other similarly-situated prisoners. The ban did not include pre-trial detainees, those imprisoned while on remand, those imprisoned for contempt of court, or those imprisoned for failing to pay a fine. It also did not affect prisoners after their release from prison, even if they were still on parole.

The Divisional Court heard and rejected Hirst's claims. His appeal was also rejected. He then filed an application with the European Court of Human Rights on July 5, 2001. On March 30, 2004, a Chamber of the court unanimously held that there had been a violation of Article 3, but no separate issues arose under Articles 10 and 14. The government appealed the case to the Grand Chamber of the court.

The Grand Chamber began its opinion with a rundown of the state of prisoners' voting rights in Europe. Thirteen countries, including Britain, prevent convicted prisoners from voting, thirteen countries do not disenfranchise prisoners, and twelve countries have some restrictions on prisoner voting. The court also noted that Canada had recently struck down prisoner disenfranchisement (Sauvê v. Canada, 1992, 2 SCR 438) while the United States had upheld Californias blanket disenfranchisement in Richardson v. Ramirez, 418 U.S. 24 (1974).

The challenged law was an undebated re-enactment of the Representation of the People Act of 1969, which substantially dated back to the Forfeiture Act of 1870. That Act, in turn, reflected the civic death forfeiture of rights by convicted felons from the time of King Edward III. During the 2000 re-enactment of the Representation of the People Act, the government argued that disenfranchisement was a proper enhancement of punishment for a convicted felon.

The Grand Chamber specifically rejected the notion that imprisonment after conviction involves the forfeiture of rights beyond the right to liberty and especially the assertion that voting is a privilege not a right. It reiterated that there is no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion. The Grand Chamber allows that restricting disenfranchisement to prisoners convicted of specific notorious crimes might be allowable under the Convention. However, that question was not before it at this time. It affirmed that the blanket disenfranchisement violated Article 3 and that there were no separate issues under articles 10 and 14.

The Grand Chamber also upheld the award of attorney fees and personal expenses and increased them to 23,000 Euros and 200 Euros, respectively. This did not include attorney fees for the local court representation, which had been paid for by British legal aid. No other damages were awarded. A copy of the judgment is available on the PLN website. See: Hirst v United Kingdom (No 2), Application No. 74025/01, European Court of Human Rights (Grand Chamber), 6 Oct. 2005.

Other Sources: Guardian (U.K); BBC; European Court of Human Rights Press Release.

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