Limiting prisoners’ right to vote

Case of Soyler v Turkey, [2013] ECHR, Application No. 29411/07 (17 September 2013)

Summary

The European Court of Human Rights has held that Turkish laws which disenfranchise those convicted of intentional crimes are automatic and indiscriminate and thus a violation of article 3 of the European Convention on Human Rights.

Facts

Ahmet Soyler, a Turkish national and businessman, was convicted of drawing cheques without having sufficient funds in his bank account. This offence no longer carries a prison sentence under Turkish law.

As a result of this conviction, he was sentenced to almost five years in prison commencing on 11 April 2007. Two years later, he was released on probation.

Various Turkish laws, including section 67 of the Turkish Constitution, disenfranchise an individual convicted of an intentional crime (prisoners who commit crimes such as “negligence” and non-intentional crimes can still vote). This disenfranchisement continues until the end of the person’s original sentence, even if they are conditionally released from prison.

Under these laws, Soyler was not entitled to vote in the 2007 or 2011 general elections. He lodged an application to the European Court of Human Rights on 12 July 2007 protesting his disenfranchisement.

His main allegation was that his disenfranchisement while serving a prison sentence violated article 3 of Protocol No. 1 of the European Convention on Human Rights which is said to protect the right to vote.

Based on previous decisions of the European Court of Human Rights, he argued that the ban was automatic and thus disproportionate. In reply, the Government argued that the restriction was not a blanket ban as it only applied to those convicted of intentional offences.

Mr Soyler also alleged breaches of various other articles. These complaints were either not considered or rejected by the Court.

Decision

To determine whether there had been a violation of article 3, the Court asked "whether the measure in question pursued a legitimate aim and did so in a proportionate manner".

While the Court emphasised that the right to vote is not absolute, it found that in this case article 3 had been violated as the ban was "automatic and indiscriminate"; it did not take into account factors such as:

• the nature of the offence;
• the seriousness of the offence;
• the length of the sentence; or
• the prisoner's individual conduct or circumstances.

The fact that the law might disenfranchise an individual who had received a suspended sentence and thus never served any time in prison was used by the Court to illustrate the automatic nature of the laws.

What is influential, according to the Court, in determining whether a law restricting voting rights is automatic, is the presence of judicial discretion in reaching a decision.

The Court rejected the argument that the laws took into account the nature of the offence by applying only to offences committed intentionally.

It concluded that "the severe measure of disenfranchisement must not be resorted to lightly and that the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned".

It is yet to be seen whether the decision will be appealed to the Grand Chamber of the Court.

Commentary

This decision follows three decisions by the European Court of Human Rights examining the right to vote in the United Kingdom, Austria and Italy. As the Court notes in this case, the restrictions on prisoners in this situation in Turkey "are harsher and more far-reaching" than the restrictions that the Court has previously considered.

While it is accepted that the right to vote exists, what is contentious in these cases is how much it can be restricted by a domestic government. What this case illustrates is that while a domestic parliament can restrict a prisoner's right to vote, the restriction should not be automatic and should allow discretion.

The European case law reflects the approach that the Australian High Court has taken in identifying limits on the power of the legislature to disenfranchise prisoners. In Roach v Electoral Commissioner [2007] HCA 43, the High Court struck down the Howard government amendments to the Commonwealth Electoral Act which prohibited all prisoners from voting.

The words that the High Court used in Roach were that a law preventing prisoners from voting must be "appropriate and adapted … to the maintenance of representative government".

 A copy of the decision is available online at: http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=001-126350

Anastasia Smietanka is a law graduate at Lander and Rogers.