AS TO THE ADMISSIBILITY OF
Application No. 24827/94
by Patrick HOLLAND
against Ireland
The European Commission of Human Rights sitting in
private on 14 April 1998, the following members being pres-
ent:
MM S. TRECHSEL, President
J.-C. GEUS
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on
21 February 1994 by Patrick HOLLAND against Ireland and
registered on 5 August 1994 under file No. 24827/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of
Procedure of the Commission;
- the observations of the parties dated 14 February 1997
and those of the applicant received on 12 December
1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen, was born in 1939 and is
currently in prison in Portlaoise, Ireland.
A. Particular facts of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 27 June 1989 the applicant was convicted of possession of
explosive substances for an unlawful object and he was sentenced to
ten years imprisonment. On appeal the sentence was reduced to seven
years imprisonment to run from 28 June 1989. The applicant was
released in or around early 1996. He was again arrested in April
1997 on different charges, convicted in late 1997 and is currently
serving the consequent prison sentence.
1. Correspondence
On 10 February 1993 the applicant gave a letter, directed to
another prisoner's father and containing a High Court application
drafted by the applicant on behalf of that other prisoner, to the
prison authorities for posting. That letter was handed back to him
on 12 February 1993 bearing the Censor's stamp. The applicant made
an application (against the Governor, the Minister for Justice, the
Attorney General and Ireland) for leave to seek judicial review
concerning that incident and another allegation in relation to a
letter from a member of parliament being put into his locker instead
of being handed directly to him. The applicant sought an order of
mandamus directing the respondents to refrain from interfering with
his correspondence. He claimed that that interference was in
violation of his constitutional rights and of his rights under
Article 8 of the Convention.
On 19 March 1993 the High Court (Lynch J) rejected the
applicant's application. That court allowed the applicant to rely on
an unsworn affidavit since he had claimed that he could not afford
the necessary £10.00 for a Commissioner for Oaths. The judgment
confirmed that Rule 63 "is not invalidated by the Constitution
applying as it does only to persons lawfully imprisoned" and that
the respondents were within their rights in not posting the letter.
On 9 July 1993 the Supreme Court gave leave to apply for judicial
review for an order directing the Governor of the prison to inform
the applicant of the reason for non-transmission of his letter. On
28 January 1994 the High Court heard the applicant but rejected the
application on the basis that the applicant's letter had been, by
then, transmitted. On 13 May 1994 the Supreme Court rejected the
applicant's appeal.
The applicant has submitted a schedule of all outgoing
correspondence between 9 February 1993 and 17 July 1994. He has also
submitted copy and original outgoing and incoming correspondence
which has been stamped by the prison authorities either "Censored"
or "Please insert your full name and unit no. on all outgoing mail"
which includes correspondence:
- to the Commission dated 21 and 28 February 1994, 4 March 1994,
18 April 1994, 16 and 27 May 1994, 7 July 1994 and 29 August 1994
and from the Commission dated 18 and 29 April 1994, 16 June 1994 and
8 August 1994;
- from the applicant's solicitors (Garrett Sheehan and Co. dated
23 November 1989 and Ferrys dated 14 April 1994);
- to the Council of Europe dated 11 August 1993 in relation to the
work of the Committee for the Prevention of Torture and Inhuman or
Degrading Treatment;
- from the Australian Law Reform Commission dated 9 November 1993
(referring briefly to, inter alia, the Commission and to the UN
Human Rights Committee);
- from Dáil Eireann (the parliament) dated 22 January 1991,
10 January 1992 (attaching a letter from the Minister for Justice),
23 January 1992 (attaching a letter from the Minister for the
Environment) and 15 June 1994;
- from the Office of the Minister for the Environment (dated
4 December 1991, 10 and 18 August 1993), from the Office of the
Secretary to the President (dated 17 December 1991), from the
Minister for Justice (dated 8 October 1993 and 22 June 1994), from
the Office of the Minister for Equality and Law Reform (dated 16 and
27 June 1994, the latter enclosing a letter from the Minister for
Justice) and from the Minister of State of the Department of the
Prime Minister (including a letter dated 31 May 1993, an undated
letter attaching a letter from the Minister for Justice dated 2 June
1993, letters dated 3 and 17 August 1993, an undated letter in
relation to constituency office arrangements and a letter dated 15
October 1993);
- from the Chief State Solicitor dated 13 April 1994 (which related
to certain proceedings as regards the applicant's voting rights) and
8 August 1994 (enclosing certain pleadings in proceedings issued
against, inter alia, the Governor of the applicant's prison);
- from the Clerk of the High Court (dated 20 April 1994, stamped
"The Wheatfield Prison - 22 April 1994 - received" and relating to
the procedure for lodging a plenary summons in the High Court
central office) and from the registrar of the Supreme Court dated
10 August 1994;
- from the legal correspondent of the Guardian newspaper dated
15 June 1993 (giving the applicant the name of a solicitors' firm in
England);
- from Dublin Corporation dated 11 October 1993 (in relation to the
applicant's registration for voting) and 31 August 1994, the latter
of which enclosed a copy of Dublin Corporation's letter to the
applicant dated 4 May 1994;
2. Voting
On 7 November 1990 the election for the President of Ireland
took place. The applicant did not vote. On 19 March 1991 the High
Court refused the applicant's application for judicial review in
relation to his inability to vote from prison stating that there was
no statutory right for voting by prisoners and suggesting that the
applicant wait until an election is imminent if he wished to pursue
the matter. On 28 June 1991 the Supreme Court refused the appeal
noting that the applicant had not even applied to register himself
to vote in the relevant constituency in accordance with section 5(5)
of the Electoral Act 1963. It was also noted that the additional
question of permission or authority to vote is clearly within the
discretion of the Governor of the prison and there was no suggestion
that the applicant had made such a request.
On 25 November 1992 the election for Dáil Eireann and a
constitutional referendum (relating to the provision guaranteeing
the right to life of the unborn) took place. The applicant did not
vote. On 11 October 1993 the applicant was informed by Dublin
Corporation that his name would be included in the register of
electors at his home address in Dublin.
In or around 1993 the applicant applied for leave to institute
judicial review in relation to the refusal of the prison authorities
to grant him a postal vote for local elections, the European
Parliament elections, Presidential elections, constitutional
referenda and elections for Dáil Eireann (the parliament) relying
on, inter alia, Articles 16, 12 and 27 of the Constitution, the
European Assembly Elections Act 1977 and the local election
legislation. On 18 November 1993 the High Court found as follows:
"The applicant seeks an order of Mandamus directing the
Respondent to grant him a postal vote. I am treating the
application as an application for leave to institute judicial
review proceedings to obtain an order of Mandamus. The
applicant admits that there is no statutory provision
permitting postal votes for prisoners. Accordingly I must
refuse the application. If the applicant considers that he can
mount a constitutional challenge to the relevant enactments in
the Electoral Acts, he should do so by plenary proceedings. In
the circumstances judicial review would not be appropriate."
On 28 January 1994 the applicant's appeal was refused by the
Supreme Court.
Subsequently, the applicant applied to the High Court for an
order directing the Governor to take him to the central office of
the High Court to issue a plenary summons to commence proceedings as
to the constitutionality of his being prevented from voting. On
5 May 1994 the High Court refused the application as personal filing
of the summons was not necessary. On appeal, the Supreme Court noted
that the applicant had already been escorted on 11 May 1994 to the
central office to file the plenary summons. The court also found, as
regards the applicant's claim that he could not personally serve the
Chief State Solicitor, that postal service was sufficient in that
respect and it dismissed the appeal.
On 20 May 1994 the applicant applied for an injunction to
suspend the European Parliament elections due to take place on 9
June 1994 in order to allow him to pursue his constitutional
proceedings. This was refused by the High Court on 7 June 1994. The
election for the European Parliament took place and the applicant
did not vote. On 29 July 1994 the Supreme Court dismissed the
applicant's appeal on the basis that that election had, by then,
taken place.
The plenary summons issued by the applicant on 11 May 1994
made no reference to a violation of a constitutional right to vote.
He referred to various international instruments and his position as
a citizen of the European Union. The Chief State Solicitor entered
an appearance on 11 July 1994. The applicant did not pursue the
proceedings further. On 25 November 1995 a constitutional referendum
(relating to divorce) took place and the applicant did not vote.
B. Relevant domestic law and practice
1. Prisoners' correspondence
The rules for the government of prisons are contained in the
Prison Rules 1947 ("the 1947 Rules") and were enacted by the
Minister for Justice by way of Statutory Instrument 320 of 1947.
Rule 63 is entitled "Prisoners' letters" and it reads as follows:
"Every letter to or from a prisoner shall be read by the
Governor, or other responsible officer deputed by the
Governor, and initialled by him; and if the contents are
objectionable, it shall not be forwarded, or the objectionable
part shall be erased, according to discretion. The Governor
shall use his discretion in communicating to or withholding
from a prisoner at any time the contents of any letter
addressed to the prisoner, but shall note in his journal every
case in which he thinks it proper to withhold a letter which,
according to the rules, might be communicated to or written by
a prisoner."
Article 40(3) of the Constitution reads as follows:
"1. The State guarantees in its laws to respect, and, as far
as practicable, by its laws to defend and vindicate the
personal rights of the citizen.
2. The State shall, in particular, by its laws protect as best
it may from unjust attack and, in the case of injustice done,
vindicate the life, person, good name, and property rights of
every citizen."
The domestic courts recognise the existence of further
personal rights which are protected by Article 40(3) of the
Constitution either as rights ancillary or corollary to those
expressly mentioned in Article 40(3)(2) or as latent in the
expression "personal rights" in Article 40(3)(1). One of these
"unenumerated rights" recognised by the courts is the right to
communicate - Attorney General v. Paperlink Limited [1984] ILRM 343
and McKenna v. An Taoiseach, High Court (Costello J) 8 June 1992.
The domestic courts also recognise that an inevitable
practical and legal consequence of imprisonment is that a great many
of the constitutional personal rights of the prisoner are for the
period of imprisonment suspended or placed in abeyance (The State
(Richardson) v. the Governor of Mountjoy Prison [1980] ILRM 82).
Accordingly (and apart from breaches of constitutional rights of
such a nature as would affect the lawfulness of his detention for
which a habeas corpus action would be appropriate), the domestic
courts recognise the prisoner's right of access to court to complain
of an interference with constitutional rights which is not necessary
to give effect to the sentence of the court (The State (Fagan) v.
Governor of Mountjoy Prison, High Court, 6 March 1978).
The High Court in the Kearney case (Kearney v. the Minister
for Justice [1986] IR 116) considered, inter alia, the
constitutionality of Rule 63 of the 1947 Rules further to a plenary
summons seeking, inter alia, a declaration that Rule 63 of the 1947
Rules was unconstitutional. The plaintiff's principal objection was
that his letters to and from his solicitor were read by the Governor
or his deputy - he submitted that the power to interfere with his
right of communication with his solicitor, relatives and friends
could only be interfered with in exceptional circumstances (for
example, proven security issues) and in such cases he should be
present when letters were opened for inspection.
The High Court held that the constitutional right to
communicate could be regulated by law and that prisoners retained
only those constitutionally protected rights which did not depend on
a prisoner's liberty and which were compatible "with the reasonable
requirements of the place in which he is imprisoned". The High Court
found that the evidence in the case established that the restriction
on the right to communicate which involved reading all letters to
and from prisoners (including legal correspondence) could reasonably
be justified on the grounds of security and was not therefore
unconstitutional. In reaching this conclusion the High Court noted
that in the case of legal correspondence addressed to and from the
prison, "staff are instructed to read the letter only to the extent
necessary to ensure that it relates to the prisoner's legal affairs.
Staff are expected to treat as confidential all information obtained
as a result of the operation of Rule 63". Moreover, the High Court
considered the plaintiff's suggestion that a prisoner should be
present every time his correspondence was opened as "unreasonably
burdensome".
As regards the Golder and Silver judgments of the European
Court of Human Rights to which the High Court was referred "in
passing" (Eur. Court HR, Golder v. the United Kingdom judgment of
21 February 1975, Series A no. 18 and Silver and Others v. the
United Kingdom judgment of 25 March 1983, Series A no. 61), the High
Court noted that the facts of those cases were very different from
those of the Kearney case. The High Court noted, however, that both
cases made clear that some interference with prisoners'
correspondence was permitted according to the ordinary and
reasonable requirements of imprisonment. Since, however, it was
established that certain correspondence had not been passed on to
the prisoner, in breach of Rule 63, he was awarded £25 nominal
damages against the State in that latter respect. The plaintiff did
not pursue an appeal to the Supreme Court.
2. Prisoners' right to vote
Articles 12(2), 16(1) and 47(3) of the Irish Constitution
guarantee to, inter alia, all citizens, who are not disqualified by
law and comply with the provisions of the law relating to the
election of members of Dáil Eireann, the right to vote in a
Presidential election, a general election for members of Dáil
Eireann and a constitutional referendum.
Section 5(5) of the Electoral Act 1963 provided that a
prisoner was deemed to be resident on the relevant date in the
constituency of the prison for the purpose of being registered to
vote. This was amended by the Electoral Act 1992 (section 11(5)) and
such a prisoner is now deemed to be resident in the place where he
would have been resident but for his having been so detained in
legal custody. The purpose of the change in the 1992 Act is to allow
newly released prisoners or prisoners on temporary release to be
ready to vote should an election be called rather than await the
next annual review of the voting register before they can vote. The
1992 Act does provide for postal voting for, inter alia, the police,
members of the defence forces, certain civil servants and for people
with disabilities.
COMPLAINTS
The applicant complains about interferences with his
correspondence and he invokes Articles 8 and 10 of the Convention in
this respect. He also complains that he was not able to vote while
he was in prison and invokes Articles 6, 8, 9, 10, 13, 14 and 17 of
the Convention and Article 3 of Protocol No. 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 February 1994 and was
registered on 5 August 1994.
On 25 November 1996 the Commission decided to communicate the
applicant's complaints in relation to his correspondence and his
voting rights. The Government observations are dated 14 February
1997 and the applicant's observations in response were received on
12 December 1997.
THE LAW
1. The applicant complains about interferences with his
correspondence namely, about the systematic opening, reading and
copying onto his prison file of his correspondence together with two
specific incidents of delay. In this latter respect, the applicant
refers to a letter from an elected representative which arrived at
the prison in March 1992 and a letter from him written on behalf of
a fellow prisoner concerning legal matters. While the applicant
invokes Articles 8 and 10 (Art. 8, 10) of the Convention, the
Commission considers that this complaint falls to be considered
under Article 8 (Art. 8) of the Convention (Eur. Court HR, Silver
and Others v. the United Kingdom judgment of 25 March 1983, Series A
no. 61, p. 41, para. 107). Article 8 (Art. 8), insofar as relevant,
reads as follows:
"1. Everyone has the right to respect for ... his
correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the
interests of national security, public safety ..., for the
prevention of disorder or crime, ... or for the protection of
the rights and freedoms of others."
As to the two specific allegations of delay, the Government
point out that putting correspondence in a prisoner's locker to
which the applicant could have access on request does not constitute
an interference. Insofar as the applicant claims that he was not
told that there was correspondence in his locker, the prison
authorities overlooked that the relevant letter was among copies of
voter registration forms which had also arrived for the applicant.
In any event, the applicant had access to the locker within two days
of the letter being lodged therein. Secondly, and as regards the
letter written on behalf of a fellow inmate, the applicant was told
that he would have to ask the Governor to send the letter and he
never did.
The Government assert, as to the complaint about the operation
of Rule 63, that this complaint is inadmissible on grounds of non-
exhaustion. They argue that the purpose of the proceedings initially
instituted by the applicant was to compel the respondents to give
reasons for the non-transmission of a particular letter. It was at
all times open to him to bring fresh judicial review proceedings
seeking a declaration that he was entitled to correspond without
interference with all persons or, alternatively, to commence
proceedings by way of plenary summons asserting an infringement of
his constitutional rights. The judgment in the Kearney case (loc.
cit.) is a High Court judgment which the applicant could challenge
before the Supreme Court.
Alternatively, the Government submit that if there has been an
interference with the applicant's rights under Article 8 (Art. 8) it
is justified in view of the risk that letters are used to pass and
receive unauthorised material which could pose a threat to good
order and discipline in the prison and facilitate attempts at
escape, drug dealing and other criminal activities. However, since 2
August 1996 and 8 November 1996 the prison governors were informed
by the Minister for Justice that all prisoners could communicate by
letter on a confidential basis with the European Committee for the
Prevention of Torture and Inhuman and Degrading Treatment and with
the European Commission for Human Rights, respectively.
Finally, the Government assert that legal correspondence
(including correspondence to and from the Commission prior to 1996)
was simply opened, stamped and cursorily examined in order to
establish that the letters were what they purported to be - no
attempt was made to examine or assess the contents thereof and it
was not read, delayed or suppressed by the prison authorities.
Further to the Commission's specific request, the Government
submitted copies of the applicant's mail which was on his prison
file. The copy correspondence is voluminous and comprises, for the
most part, the applicant's correspondence with his solicitors, the
courts and the Commission.
The applicant re-asserts that the domestic proceedings taken
by him were sufficient to exhaust domestic remedies. While he
denies that he was advised by prison personnel that correspondence
had been put in a locker and that he was told of the powers of the
Governor to which the Government refer as regards the letter written
on behalf of a fellow inmate, he does not dispute that he had access
to the letter from the member of parliament within 2 days of its
arrival at the prison.
The Commission notes that it is not required to decide whether
or not the facts alleged by the applicant, in respect of these
allegations, disclose any appearance of a violation of the
Convention, as under Article 26 (Art. 26) of the Convention, it may
only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of
international law.
The Commission recalls that in a legal system which provides
constitutional protection for fundamental rights, it is incumbent on
the aggrieved individual to test the extent of that protection and,
in a common law system, to allow the domestic courts to develop
those rights by way of interpretation (No. 18670/91, Dec. 1.12.93,
unpublished). In this respect, it is recalled that a declaratory
action before the High Court, with a possibility of an appeal to the
Supreme Court, constitutes the most appropriate method under Irish
law of seeking to assert and vindicate constitutional rights
(No. 15141/89, Dec. 15.2.90, D.R. 64, p. 203, No. 23156/94,
Dec. 31.8.94, unpublished and No. 28154/95, Dec. 2.7.97,
unpublished).
In the present case, the Commission notes that the sole
proceedings instituted by the applicant constituted judicial review
proceedings based on two alleged incidents of interference with his
correspondence. He has taken no declaratory action by way of Plenary
Summons joining the Attorney General claiming that the powers of
interception of his correspondence resulting from Rule 63 of the
1947 Rules violated his constitutional right to communicate.
It is true that the High Court in the Kearney case (loc. cit.)
found that Rule 63 of the 1947 Rules did not infringe the
constitutional right of prisoners to communicate protected by
Article 40(3) of the Constitution.
However, in the first place, the Commission notes that the
Supreme Court did not pronounce on the issue in that case and,
according to the parties' submissions, has not yet pronounced on the
constitutionality of the interception of prisoners' correspondence
permitted by Rule 63 of the 1947 Rules. It is also noted that the
Kearney judgment was handed down more than 12 years ago.
Secondly, while the Irish domestic courts cannot directly
apply the judgments of the European Court of Human Rights since the
Convention has not been incorporated into domestic law, the
Commission notes the reference to certain case-law of that Court in
the High Court judgment in the Kearney case. In this respect, the
Commission recalls that since that judgment there have been further
developments in the jurisprudence under the Convention and refers,
in particular, to the Campbell judgment decided six years after the
Kearney case (Eur. Court HR, Campbell v. the United Kingdom judgment
of 25 March 1992, Series A no. 233) and specifically to paragraphs
44-54 thereof.
The Court found in the Campbell case (against a background of
"routine scrutiny" of that applicant's correspondence) that prison
authorities may open a letter from a lawyer to a prisoner only when
they have reasonable cause to believe that it contains an illicit
enclosure; that even in such circumstances the letter should not be
read and suitable guarantees should be provided in this respect such
as opening the letter in the presence of a prisoner; and that the
reading of legal correspondence of a prisoner will only be
justifiable in exceptional circumstances. The Court also found that
there was "no compelling reason why such letters from the Commission
should be opened". In the present case, Rule 63 of the 1947 Rules
provides for the systematic opening and reading of all
correspondence including correspondence with the Commission, lawyers
and the domestic courts, a substantial amount of which
correspondence was copied onto the applicant's prison file.
Thirdly, the contents of the applicant's prison file would
appear to demonstrate a significant extension of the practice of the
prison authorities in applying Rule 63 in the applicant's case. It
is clear, from the voluminous copy correspondence to and from the
applicant on his prison file, that the prison authorities' control
of his correspondence went as far as the taking and retaining of
copies of a significant portion of his correspondence for a purpose
not outlined by the Government in its observations. Indeed, the
majority of the correspondence so copied constitutes legal
correspondence including letters to and from the Commission, his
application form to the Commission, correspondence to and from his
lawyers and pleadings in the above-described domestic proceedings.
The control exercised by the prison authorities is thus
substantially more extensive than that examined by the High Court in
the Kearney judgment, in which case the High Court noted that the
instructions to prison staff were to read legal correspondence only
to the extent necessary to ensure that it relates to the prisoner's
legal affairs and to treat as confidential all information obtained
as a result of the operation of Rule 63.
Moreover, the Commission does not consider that there exist
any special circumstances in the present case which would, in
accordance with the generally recognised rules of international law,
absolve the applicant from the obligation to exhaust a domestic
remedy (see, for example, No. 14556/89, Dec. 5.3.91, D.R. 69, p.
261). The present case can be distinguished from the O'Reilly case
against Ireland (No. 24196/94, Dec. 22.1.96, D.R. 84-A, p. 72), the
O'Reilly case concerning a complaint under Article 5 para. 5
(Art. 5-5) and a choice which Mrs O'Reilly "reasonably" made between
different domestic remedies open to her.
The Commission notes that on the basis of Rule 63 and of the
copy correspondence on the applicant's file, it is arguable that the
contents of the applicant's legal correspondence in respect of any
such constitutional action would have been read and copies retained
by the prison authorities. However, in view of the purpose of the
relevant proceedings (challenging the constitutionality of a
statutory instrument) and since the nature of those proceedings
would lead to submissions mainly of a legal character, the
Commission does not consider that the access by prison staff to his
legal correspondence requires that he be absolved from exhausting
the constitutional remedy outlined above.
Accordingly, the Commission finds the part of the applicant's
complaint which relates to the delay in forwarding to him a letter
from a member of parliament inadmissible as manifestly ill-founded
pursuant to Article 27 para. 2 (Art. 27-2) of the Convention. It
also finds the remainder of this complaint inadmissible pursuant to
Article 27 para. 3 (Art. 27-3) of the Convention on the basis of his
failure to exhaust domestic remedies as required by Article 26
(Art. 26) of the Convention.
2. The applicant also complains that he could not vote while he
was in prison and he invokes Articles 6, 8, 9, 10, 13, 14 and 17
(Art. 6, 8, 9, 10, 13, 14, 17) of the Convention together with
Article 3 of Protocol No. 1 (P1-3). The Commission considers that
this matter falls to be considered under Article 3 of Protocol No. 1
(P1-3) of the Convention, which Article reads as follows:
"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."
The Government point out that the applicant did not complete
the constitutional proceedings issued by him and he has not,
therefore, exhausted domestic remedies in this respect. In any
event, the Government refer to the margin of appreciation afforded
to States in this area and to the broad powers of States to
determine the conditions under which the right to vote may be
exercised. In this context, the Government argue that it is not
obliged under the Convention to provide temporary release to
prisoners to vote, ballot boxes in the prison or the right to a
postal vote. Release of all prisoners to vote would be far too high
a security risk and put an unfair burden on the prison system which
holds at any one time in the region of 2300 inmates. As a result of
the voting system in Ireland and the different areas in which
prisoners will be registered to vote, hundreds of ballot boxes would
be required in each prison to allow all prisoners to vote.
This leaves postal voting and the Government submit that this
is not a right guaranteed by the Constitution or by the Convention.
In addition, postal voting requires registration in
September/October in order to be a listed postal voter in the
revised electors list published annually the following February -
persons released in the meantime could not vote as prisoners or by
ordinary franchise.
The applicant maintains that he has exhausted domestic
remedies referring to the various domestic proceedings issued by him
in this respect. In the alternative, he submits that he had no
effective remedy to exhaust. As to the merits of his complaint, he
argues that since prisoners have not been exempted by statute, the
constitutional right to vote accorded to every citizen continues to
apply to prisoners. He points out that, despite this, the reason in
practice that prisoners do not vote is because the prison
authorities do not release them to vote. The applicant considers
that there is no good security reason not to allow prisoners to vote
referring to either a postal vote possibility or to a ballot box in
the prison itself. He points to the importance of the elections
which took place during his imprisonment namely, a Presidential
election held on 7 November 1990, a general election held on 25
November 1992, a constitutional referendum held on 25 November 1992
(relating to the provision guaranteeing the right to life of the
unborn), the European Parliament election held on 9 June 1994 and
certain local authority elections.
The Commission does not consider that it is necessary to
decide whether the applicant has exhausted all effective domestic
remedies or, consequently, whether this complaint has been
introduced in time in relation to all of the elections which took
place while he was in prison or whether all such elections related
to "legislatures" within the meaning of Article 3 of Protocol No. 1
(P1-3), since this complaint is inadmissible for the reasons set out
below.
The Commission recalls that the de facto deprivation of the
right to vote imposed on a prisoner has been found by the Commission
not to affect the expression of the opinion of the people in the
choice of legislature (No. 2728/66, Yearbook X, p. 340). It also
recalls its constant case-law to the effect that, although Article 3
of Protocol No. 1 (P1-3) implies a recognition of the principle of
universal suffrage (including the right to vote in elections for the
legislature), this right is neither absolute nor without limitations
but subject to such restrictions which are not arbitrary and which
do not affect the expression of the opinion of the people in the
choice of legislature (No. 6573/74, Dec. 19.12.74, D.R. 1, p. 87 and
Nos. 6745/74, 6746/74, Dec. 30.5.75, D.R. 2, p. 110 and No.
11391/85, Dec. 5.7.85, D.R. 43, p. 236).
Accordingly, the Commission has found that the deprivation of
the right to vote, pursuant to a conviction by a court for
uncitizenlike conduct or because of minimum age requirements of
potential candidates, does not affect the expression of opinion of
the people and is not arbitrary (Nos. 6573/74, 6745/74 and 6746/74,
loc. cit.).
The Commission also recalls the case of an applicant who had
been sentenced to eighteen months imprisonment and whose right to
vote was, accordingly, suspended by legislation during that sentence
and for three years thereafter (No. 9914/82, Dec. 4.7.83, D.R. 33,
p. 245). The Commission, in deciding whether such a restriction was
arbitrary and whether it restricted the free expression of the
opinion of the people, noted that the restriction in question was
imposed by law on a specific category of person. The Commission felt
bound to conclude that the legislator, in the exercise of its margin
of appreciation, may restrict the right to vote in respect of
convicted persons. Such restrictions could, in the Commission's
opinion, be explained by the notion of dishonour that certain
convictions carry with them for a specific period, which may be
taken into consideration by legislation in respect of the exercise
of political rights. Accordingly, the Commission concluded that the
suspension of the exercise of the right to vote was not arbitrary
and did not affect the expression of the opinion of the people in
the choice of legislature within the meaning of Article 3 of
Protocol No. 1 (P1-3).
In the present case, the applicant was convicted of possession
of explosive substances and his sentence was (after appeal) fixed at
seven years imprisonment to run from 28 June 1989. It appears that
he was released in or around early 1996 and that a number of
elections took place while he was in prison. However, the
Commission does not consider that the suspension of the right of the
applicant to vote while in prison affected the expression of the
opinion of the people in the choice of legislature - the fact that
all of the convicted prisoner population cannot vote does not affect
the free expression of the opinion of the people in the choice of
legislature (Nos. 6573/74, 6745/74 and 6746/74, loc. cit.).
As to whether the domestic position can be considered to be
arbitrary, the Commission notes that the applicant was not, in any
event, registered to vote until October 1993 pursuant to his
application for registration and that he does not complain about any
significant delay caused by others in that respect. The Commission
further notes that the Government chose in 1992 to allow
registration of prisoners to vote in the constituencies where they
would be otherwise ordinarily resident (were it not for their
detention). The aim was to facilitate the voting process for those
prisoners who had, on the date of an election, just completed their
sentence or who were on temporary release (for reasons unrelated to
voting). It is implicit in that amending legislation, therefore,
that prisoners who remained in detention would not vote. In view of
the afore-mentioned margin of appreciation and the above-cited
jurisprudence of the Convention organs, the Commission does not
consider that this choice of the legislature was arbitrary within
the meaning of Article 3 of Protocol No. 1 (P1-3).
Accordingly, and even assuming compliance with the
requirements of Article 26 (Art. 26) of the Convention and that the
complaint falls within the scope of Article 3 of Protocol No. 1
(P1-3), the Commission considers that this complaint of the
applicant is, in any event, manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE
M. DE SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy