Communicated on 15 January 2019 and 25 November 2020
Published on 14 December 2020
FOURTH SECTION
Application no. 17504/18
Ioan-Dumitru MIRONESCU
against Romania
lodged on 23 March 2018
STATEMENT OF FACTS
1. The applicant, Mr Ioan-Dumitru Mironescu, is a Romanian national, who was born in 1973 in Piatra Neamţ, and has his place of residence in the same city. He is currently detained in Iaşi Prison. He is represented before the Court by Mr A. Hărătău, a lawyer practising in Bucharest.
2. The Government are represented by their Agent, most recently Ms O.F. Ezer of the Ministry of Foreign Affairs.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In a final decision of 5 February 2016 the High Court of Cassation and Justice convicted the applicant of involvement in organised crime and sentenced him to fifteen years in prison. His right to vote was not restricted. On 13 February 2013 he started serving his prison sentence. He was transferred several times, and spent time in prisons in Iaşi, Vaslui, and Găeşti, each belonging to a different electoral constituency.
5. According to the Government, in November 2016 the applicant requested to change his domicile from Bucharest to Piatra Neamţ. On 8 December 2016, in accordance with the relevant legislative requirements (see Article 28 § 1 (a) and (b) of the Population Records Act, quoted in paragraph 13 below), he produced a statement by the owner of a house in Piatra Neamţ confirming that he would be allowed to live there. On 9 December 2016 the administrative authorities issued him with a new identity card for his new address.
6. It appears from the information submitted by the applicant that his partner also lived in Piatra Neamţ, at a different address.
7. On 11 December 2016, while he was held in Iaşi Prison, the applicant was prevented from voting in the legislative elections as his address was not in the territory of the Iaşi Prison electoral constituency (see paragraphs 10 and 11 below).
8. On 12 December 2016 he lodged a complaint with the post‑sentencing judge, alleging a violation of his right to vote. On 21 December 2016 his complaint was forwarded to the prosecutor’s office attached to the Iaşi District Court (“the prosecutor’s office”). On 8 May 2017 the latter decided not to start an investigation as the matter complained of did not involve a criminal offence.
9. The applicant objected, and in a final interlocutory judgment of 23 November 2017 the Iaşi District Court upheld the prosecutor’s order.Relevant legal framework
10. The relevant provisions of Law no. 208/2015 on the elections for the Senate and Chamber of Deputies and on the organisation and functioning of the Permanent Electoral Authority (“the Legislative Elections Act”) read as follows:
Article 4
“Electoral constituencies shall be formed for the elections, one for each of the [forty-one] counties, one in Bucharest and one for Romanian nationals domiciled or resident abroad. The total number of electoral constituencies shall be [forty-three].”
Article 42
“1. No later than [forty-five] days before the date of the elections, a voter registered on the electoral roll with his or her address of domicile may ask the mayor of the territorial and administrative division where he or she has his or her place of residence, by post or in person, by means of a written request ..., to register his residential address on the electoral roll ...”
Article 51
“2. The president of the electoral bureau of the polling station shall record in supplementary electoral registers, used in the polling stations in the country and abroad, the following persons:
...
(c) persons who, on election day, are in a different territorial and administrative division to where they have their domicile or residence, and who can prove that their domicile or residence is within the electoral constituency of that polling station;
...”
Article 84
“1. Voters may only vote at the appropriate polling station for their address of domicile or residence, in accordance with [this Act]. If, on election day, voters are in a different territorial and administrative division in the same electoral constituency, they may vote at any polling station within the electoral constituency where they have their domicile or residence.”
Article 85
“10. For nationals with the right to vote who, because of illness or invalidity cannot go to the polling station, the president of the electoral constituency may authorise ... a team of at least two members of the electoral bureau [to] visit [them] at their location with a special ballot box ...
11. In the situation described in paragraph 10, the president of the electoral bureau shall draw up a special register ... The persons added to this register shall be deleted from the other electoral registers of that polling station.
12. The voting procedure stipulated in paragraphs 10 and 11 may only be used for persons domiciled in one of the electoral constituencies in the country.”
Article 117
“1. Persons deprived of their electoral rights by final court order may not vote, and shall not be taken into account when establishing the total number of voters, for as long as the restriction is in force.
2. The provisions of Article 85 §§ 11 and 12 concerning the special ballot box shall also apply to persons ... deprived of their liberty ... whose right to vote has not been restricted, if this voting method is requested. The procedure whereby this category of voters shall exercise the right to vote shall be decided by the Central Electoral Bureau.
3. Persons may only vote using the procedure stipulated in paragraph 2 if they are registered in the permanent electoral registers of the electoral constituency where the elections are taking place.”
11. By decision no. 72D of 21 October 2016, the Central Electoral Bureau decided that in the legislative elections of that year prisoners whose right to vote had not been restricted could vote in prison if their place of residence was in the same electoral constituency as the prison in which they were serving their sentence. The relevant provision reads as follows:
Article 1
“1. Prisoners... whose right to vote has not been restricted and who have their domicile or residence in the same electoral constituency ... as their detention facility, may vote using the special ballot box ...”
12. Law no. 254/2013 on sentencing and the execution of sentences and detention measures (“the Execution of Sentences Act”) stipulates the situations in which prisoners may be transferred:
Article 32
“3. The commission for [the execution of sentences] shall meet, as a general rule, once a week.”
Article 45
“2. Prisoners may be transferred to another prison in order to correspond to their detention regime or for other valid reasons, by decision of the director general of the National Prison Administration on a proposal made by the [commission for the execution of sentences] or at the prisoner’s request, with the approval of the [commission].”
Article 76
“1. Prisoners may vote unless they were deprived of their electoral rights by final court order.
2. The prison administration ensures the conditions for the exercise of the right to vote, in accordance with the law.”
13. The relevant provisions of Government Emergency Ordinance no. 97/2005 concerning population records, domicile, residence and identity papers of Romanian nationals (“the Population Records Act”) read as follows:
Article 15
“3. Requests for a new identity card must be accompanied only by documents providing proof, in accordance with the law, of the address of domicile and, if applicable, the residential address ...”
Article 22
“1. The identity card of a detained person ... shall be kept by the prison administration and be returned to its owner upon release.
...
3. A request for a new identity card made by a [detained] person ... shall be recorded and processed by the population records service for the territorial and administrative division in which the [prison] is situated.”
Article 27
“1. Domicile is where a person has his or her principal place of living.”
Article 28
1. Proof of address of domicile may be made with the following documents:
(a) a rental agreement drawn up in accordance with the applicable law;
(b) a statement made by the [person’s] host, accompanied by one of the documents provided for in sub-paragraph (a) or, where applicable, (d);
(c) for an individual who cannot produce the documents referred to in sub‑paragraphs (a) and (b), a statement made by him or her, accompanied by a report by a police officer certifying that the house exists and the individual is actually living at that address;
(d) a document issued by the public administration attesting that the individual or his or her host have an immovable property fit for housing registered in the land registry;
...
2. The host may give his or her statement in accordance with paragraph 1 (b), before a police ... officer, public notary or civil servant from a Romanian diplomatic or consular mission.”
Article 30
“Residence is where a person has a secondary place of residence other than his or her place of domicile.”
Article 31
“2. A declaration concerning residence ... shall be valid for as long as the person actually lives at the address indicated as his or her place of residence ...”
Article 32
“1. In order to register a place of residence, a person shall complete a request, which he or she shall submit together with a copy of his or her identity card and one of the documents referred to in Article 28.”
COMPLAINT
14. The applicant complains under Article 10 of the Convention that Iaşi Prison prevented him from voting in the legislative elections of 2016, even though his right to vote had not been restricted by court order.
QUESTIONS TO THE PARTIES
1. Has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to vote in free elections which have ensured the free expression of the opinion of the people in the choice of the legislature?
2. Would the detention facility be considered a prisoner’s residence for the purpose of voting in the legislative elections?
3. Is the vote by post organised in prison?
4. Is a special ballot box (urnă mobilă) brought in prison? If so, from which electoral constituency?
5. Are the prisoners advised or expected to request registration on, or modification of, the electoral role while in prison?
6. What action does a prisoner need to take in order to have the residence address changed to the constituency area where the prison is situated? The Government are invited to send, if relevant, examples of domestic practice in this respect.
7. How is voting organised for prisoners whose address is in an electoral constituency which does not have a detention facility?
8. How is the distance voting (including the postal vote) organised for residents, other than prisoners? In what conditions may distance voting take place and if at all, for which electoral constituency are the votes cast?
9. The Government is also invited to send:
(a) information and data on how the prisoners vote in the detention facilities, in particular those who have their residence address in an electoral constituency different from that where the detention facility is situated;
(b) information and domestic practice concerning requests made by prisoners to be transferred to a different detention facility for the purpose of participating in elections (for instance, by relying on Article 45 § 2 of the Execution of Sentences Act); and
(c) information and data on how the distance voting takes place.
Full & Egal Universal Law Academy