When is it permissible to limit the right to vote?

Scoppola v Italy (No 3) [2012] ECHR 868 (22 May 2012)

Summary

In this decision, the European Court of Human Rights found that an Italian legislative regime that disenfranchised persons who had been convicted of specific offences and persons sentenced to terms of imprisonment greater than three years did not contravene article 3 of Protocol No 1 to the European Convention on Human Rights, which protects the right to vote.

Facts

In November 2000, the applicant was convicted of murder, attempted murder, ill-treatment of his family and unauthorised possession of a firearm. After a violent family argument, the applicant had attempted to strangle his wife and subsequently fired several shots at her and one of his sons. He was sentenced to life imprisonment (later reduced to 30 years).

The Italian Criminal Code provided that a sentence of imprisonment of five years or more entailed, as an ancillary penalty, a lifetime ban from public office. Under presidential decree, a ban from public office resulted in a forfeiture of the right to vote for the duration of that ban. The consequence of the applicant’s sentence was, therefore, that he was permanently deprived of the right to vote.

The Italian legislation did not disenfranchise all prisoners. Under the Criminal Code, the ban from public office (which resulted in the disenfranchisement) attached to various specific offences (such as, for instance, embezzlement of public funds), regardless of the penalty. However, any person sentenced to more than three years’ imprisonment was also banned from public office (and therefore disenfranchised) for five years, while any person who, like the applicant, was sentenced to more than five years’ imprisonment was subject to a lifetime ban.

The issue before the Court was whether the Italian regime contravened article 3 of Protocol No 1 to the Convention, which states:

The High Contracting Parties undertake 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 is established that article 3 guarantees the rights to vote and to stand in elections.

Decision

The Court affirmed that the rights guaranteed by article 3 are “crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law”, and reiterated that “the right to vote is not a privilege”. However, it observed that the rights are “not absolute”, with states “afforded a margin of appreciation” to reflect their own “democratic vision”.

The Court had to determine whether the Italian government had interfered with the applicant’s rights under article 3; whether such an interference pursued a legitimate aim; and, if so, whether the means to achieve the aim were proportionate. It was clear that the applicant had been deprived of his right to vote, which was an interference with that right, and the Court accepted that the legislation could be considered to pursue the legitimate aims of enhancing civic responsibility and respect for the rule of law and ensuring the proper functioning and preservation of the democratic regime. The question, therefore, was whether the applicant’s disenfranchisement was a proportionate means to pursue those aims.

In his submissions, the applicant relied on Hirst v United Kingdom (No 2) [2005] ECHR 681, where the Court held that legislation disenfranchising all persons serving a term of imprisonment for the duration of that term violated the Convention. The Court affirmed Hirst, emphasising that

when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with Article 3 of Protocol No 1.

The applicant submitted that any decision to deprive prisoners of the vote that was not taken by a court was, in its nature, disproportionate, in the sense that it applied generally and indiscriminately; only a judge’s examination of a specific case could justify a penalty of disenfranchisement. The Court rejected this proposition. It held that disenfranchisement must be a proportionate penalty for the crime, but that that proportionality could be attained by a legislature determining the specific circumstances under which disenfranchisement is appropriate.

As to whether the Italian regime was disproportionate, the Court first observed that the ban on public office (with the concomitant disenfranchisement) was applied in specific instances: to persons convicted of certain offences, and to persons sentenced to certain terms of imprisonment. Moreover, it noted that the duration of the disenfranchisement depended on the severity of the crime or sentence. These conditions showed “the legislature’s concern to adjust the application of the measure to the particular circumstances of the case in hand, taking into account such factors as the gravity of the offence committed and the conduct of the offender.” The Court contrasted the Italian legislation with the UK law in Hirst that had removed the vote from all prisoners, regardless of crime or sentence. The Court further noted the possibility in Italian law that convicted persons may recover the right to vote through a process known as rehabilitation. The Court held that, therefore, the Italian system does not have the relevant “general, automatic and indiscriminate character” that generates disproportionality. As such, it held that there was no violation of article 3 of Protocol 1.

Significance and relevance to Victorian Charter

This decision is the latest in a line of European Court cases examining the right to vote. The finding of implied rights that relate to the democratic process in a grandly worded but imprecise provision is similar to the High Court’s explication of the phrase “directly chosen by the people” in sections 7 and 24 of the Australian Constitution. In Roach v Electoral Commissioner (2007) 233 CLR 162 (which was cited, albeit briefly, by the European Court in Scoppola) the High Court held that the Commonwealth does not have the power to disenfranchise all persons serving a term of imprisonment. The outcomes of Roach and Scoppola are in fact quite similar; both held that while a legislative regime that disenfranchised all prisoners was not permissible, a scheme that disenfranchised only those that had committed serious crimes, as determined by their sentences, could stand. Scoppola, however, upheld a law that was far more punitive than that left standing in Roach. Under the impugned legislation in Roach (and indeed that in Hirst) no prisoner could vote, but all regained the right after completing their sentence. In the Italian legislation, those convicted and sentenced to more than five years’ imprisonment received a lifetime ban on voting.

The right to vote is protected in section 18 of the Victorian Charter of Human Rights and Responsibilities. However, as the Court acknowledged in Scoppola and as the Victorian Parliament enunciated in section 7 of the Charter, that right has limits. In Scoppola, the European Court attempted to define those limits by permitting disenfranchisement when the penalty is sought for legitimate reasons and in specific, reasoned circumstances. The precise scope of the franchise, and the state’s power to determine it, will remain a contested question.

The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/868.html

Michael Keks is a law graduate at Allens.