Information Note on the Court’s case-law No. 79
October 2005
Hirst v. the United Kingdom (no. 2) [GC] - 74025/01
Judgment 6.10.2005 [GC]
Article 3 of Protocol No. 1
Vote
Exclusion of convicted prisoners from voting in parliamentary and local elections: violation
Facts: The applicant was serving a sentence of life imprisonment for manslaughter but was released from prison on licence in 2004. As a convicted prisoner, he is barred by law from voting in parliamentary or local elections. Some 48,000 other prisoners are similarly affected. He issued proceedings in the High Court, under section 4 of the Human Rights Act 1998, seeking a declaration that the relevant legislation was incompatible with the Convention. His claim and subsequent appeal were both rejected.
Law: 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 a right and not a privilege. Nonetheless, the rights bestowed by this provision were not absolute and there was room for implied limitations. Any limitations on the right to vote had to be imposed in pursuit of a legitimate aim, be proportionate to that aim and not thwart the free expression of the people in the choice of the legislature. Prisoners 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. Article 3 of Protocol No. 1 nevertheless did not 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.
The Court accepted that the domestic legislation might be regarded as pursuing the legitimate aim of preventing crime and enhancing civic responsibility and respect for the rule of law. As to the proportionality of the voting ban, 48,000 prisoners barred from voting was a significant figure which included a wide range of offenders and sentences, from one day to lifeand from relatively minor offences to offences of the utmost gravity. Nor was it apparent that there was any direct link between the facts of any individual case and the removal of the right to vote. There was no evidence that Parliament had ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. The domestic courts, for their part, did not undertake any assessment of the proportionality of the measure itself.
It was undisputed that the United Kingdom was not alone among Convention countries in depriving all convicted prisoners of the right to vote. It might also be said that the law in the United Kingdom was less far-reaching than in certain other States. However, the fact remained that it was a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote was imposed or in which there was no provision allowing prisoners to vote. Moreover, and even if no common European approach to the problem could be discerned, that could not of itself be determinative of the issue. While the margin of appreciation in this field was wide, it was not all-embracing. The law in question remained a blunt instrument, 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 endorsed the Chamber’s finding under this provision.
Conclusion: violation (12 votes to five).
Articles 10 and 14: Like the Chamber, the Grand Chamber found that no separate issue arose either under Article 10 or Article 14 (unanimous).
Article 41: The finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. The applicant was awarded a certain amount for costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy