Information Note on the Court’s case-law No. 62
March 2004
Hirst v. the United Kingdom (no. 2) - 74025/01
Judgment 30.3.2004 [Section IV]
Article 3 of Protocol No. 1
Vote
Exclusion of convicted prisoners from voting in parliamentary and local elections: violation
Facts: The applicant, who was sentenced to a term of discretionary life imprisonment for manslaughter, is barred by the Representation of the People Act of 1983 from voting in parliamentary or local elections. With a view to obtaining a declaration that this provision was incompatible with the Convention, the applicant issued proceedings in the High Court, together with an application for judicial review by two others prisoners who had applied for registration as electors. His application was heard by the Divisional Court, which acknowledged that whilst it was not easy to articulate the legitimate aim of disqualifying a convicted prisoner from his right to vote while serving a sentence, the view had been taken that for the period in custody prisoners have forfeited their right and lost the moral authority to vote. The applicant’s claims were accordingly rejected, as were those of the other prisoners. His applications for leave to appeal were refused.
Law: Article 3 of Protocol No.1 – Whilst States had a wide margin of appreciation in the sphere of the right to vote, any restrictions in this area should pursue a legitimate aim, be proportionate and should not impair the essence of the right (Mathieu-Mohin and Clerfayt v. Belgium). The margin of appreciation could not justify restrictions which had not been the subject of considered debate in the legislature and which derived, essentially, from unquestioning and passive adherence to a historic tradition. Bearing in mind the divergent political and penal philosophies and policies that could be invoked in this context, the Court refrained from ruling whether the aims invoked by the Government (prevention of crime, punishment of offenders and enhancement of civic responsibility) were legitimate or not. The Court considered that in any event there was no evidence in support of the claim that disenfranchisement deterred crime. Moreover, the removal of the vote could in fact be seen to run counter to the rehabilitation of the offender. As regards the proportionality of the measure, the Court noted that the provision automatically stripped a large number of convicted prisoners (70,000) of their right to vote. The restriction applied irrespective of the length of their sentence or the gravity of the offence. In practice, the actual effect of the ban would depend, somewhat arbitrarily, on whether there were elections during the period when the prisoner was serving the sentence. Moreover, if disqualification was seen as part of a prisoner’s punishment, there was no logical justification for it in the present case given that the punishment element of the applicant’s sentence had expired. In conclusion, whilst acknowledging that national legislatures were to be granted a wide margin of appreciation in determining restrictions on prisoner’s rights, there was no evidence that the legislature in the United Kingdom had sought to assess the proportionality of the ban as it affected convicted prisoners. A blanket restriction on all convicted prisoners did not fall within the State’s margin of appreciation, and since the applicant had lost his right to vote as a result of such a ban, he could claim to be a victim of the measure.
Conclusion: violation (unanimously).
Article 41 – The finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage sustained by the applicant. The Court made an award in respect of costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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