FOURTH SECTION
Application no. 19840/09
by Harry SHINDLER
against the United Kingdom
lodged on 26 March 2009
STATEMENT OF FACTS
THE FACTS
1. The applicant, Mr Harry Shindler, is a British national who was born in 1921 and lives in Porto D’Ascoli, Italy.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is the representative in Italy of a British ex-serviceman’s organisation, the Italy Star Association 1943-1945. It is not known when the applicant moved to Italy, but he has now been resident outside the United Kingdom for more than fifteen years.
4. As a result of his residence abroad, at some point the applicant became ineligible to vote in parliamentary elections in the United Kingdom. This was a consequence of provisions of primary legislation (see below). He was accordingly unable to vote in the general election of 5 May 2010.
B. Relevant domestic law
1. General provisions on voting in parliamentary elections
5. Section 1 of the Representation of the People Act 1983 (“the 1983 Act”) provides:
“(1) A person is entitled to vote as an elector at a parliamentary election in any constituency if on the date of the poll he—
(a) is registered in the register of parliamentary electors for that constituency;
....”
6. Section 4(1) provides:
“(1) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he—
(a) is resident in the constituency or that part of it;
...”
7. Section 4(4) provides:
“The preceding provisions have effect—
...
(b) (as respects registration as a parliamentary elector) without prejudice to section 2(1) of the Representation of the People Act 1985 (registration of British citizens overseas).”
2. Provisions regarding persons with a service qualification
8. Sections 14-17 of the 1983 Act allow certain categories of persons otherwise eligible to vote who do not fulfil the normal residence requirements to continue to register to vote by making a “service declaration”. Section 14(1) provides:
“A person has a service qualification for the purposes of this Act who—
(a) is a member of the forces,
(b) (not being such a member) is employed in the service of the Crown in a post outside the United Kingdom of any prescribed class or description,
(c) is employed by the British Council in a post outside the United Kingdom,
(d) is the spouse or civil partner of a member of the forces,
(e)is the spouse or civil partner of a person mentioned in paragraph (b) or paragraph (c) above and is residing outside the United Kingdom to be with his or her spouse or civil partner,
and where a person leaves the United Kingdom to take up employment or residence as mentioned above or returns to the United Kingdom at the end of such employment or residence, the employment or residence shall be deemed to begin from the time of leaving or to continue until the time of returning, as the case may be.”
9. Section 17 provides that where a person’s service declaration is in force when he applies for registration, he shall be regarded for the purposes of section 4 of the 1983 Act as a resident on the date of the declaration at the address specified in it (current or former address in the United Kingdom).
3. Provisions regarding overseas voters
a. Current legislation
10. Section 1(1) of the Representation of the People Act 1985 as amended (“the 1985 Act”) provides:
“(1) A person is entitled to vote as an elector at a parliamentary election in any constituency if—
(a) he qualifies as an overseas elector in respect of that constituency on the date on which he makes a declaration under and in accordance with section 2 of this Act (“the relevant date”);
(b) on that date and on the date of the poll—
(i) he is not subject to any legal incapacity to vote, and
(ii) he is a British citizen; and
(c) on the date of the poll he is registered in a register of parliamentary electors for that constituency.”
11. Under section 1(2), a person qualifies as an overseas elector in respect of a constituency on the relevant date if:
“(a) on that date he is not resident in the United Kingdom, and
(b) he satisfies one of the following sets of conditions.”
12. The relevant set of conditions in the present case is set out in section 1(3):
“The first set of conditions is that—
(a) he was included in a register of parliamentary electors in respect of an address at a place that is situated within the constituency concerned,
(b) that entry in the register was made on the basis that he was resident, or to be treated for the purposes of registration as resident, at that address,
(c) that entry in the register was in force at any time falling within the period of 15 years ending immediately before the relevant date, and
(d) subsequent to that entry ceasing to have effect no entry was made in any register of parliamentary electors on the basis that he was resident, or to be treated for the purposes of registration as resident, at any other address.”
13. Section 2(1) provides that a person is entitled to be registered in a register of parliamentary electors in pursuance of an “overseas elector’s declaration” made by him if:
“(a) the register is for the constituency or part of the constituency within which is situated the place in the United Kingdom specified in the declaration in accordance with subsection (4) below as having been the address—
(i) in respect of which he was registered, or
(ii) at which he was resident,
as the case may be, and
(b) the registration officer concerned is satisfied that, on the relevant date, he qualifies as an overseas elector in respect of that constituency for which that register is prepared.”
14. Under section 2(2), where the entitlement of a person to remain registered as an overseas voter terminates, the registration officer concerned shall remove that person’s entry from the register.
15. Section 2(3) requires that an overseas elector’s declaration state the date of the declaration, that the declarant is a British citizen, that the declarant is not resident in the United Kingdom on the relevant date, and the date on which he ceased to be so resident.
16. Section 2(4) stipulates that an overseas elector’s declaration must show which set of conditions in section 1 of the Act the declarant claims to satisfy and, in the case of the first set of conditions, specify the address in respect of which he was registered.
b. Former legislation
17. Prior to the enactment of the 1985 Act, no British citizen living overseas could vote in a general election in the United Kingdom (other than members of the armed forces or Crown servants). The 1985 Act as originally enacted extended the right to vote to British citizens resident overseas but who had been resident in the United Kingdom within the previous five years. This period was extended to twenty years by virtue section 1 of the Representation of the People Act 1989, subsequently repealed and replaced, with retention of the twenty-year period, by section 8 and Schedule 2 of the Representation of the People Act 2000. It was reduced to fifteen years pursuant to section 141(a) of the Political Parties, Elections and Referendums Act 2000.
C. Relevant Council of Europe activities
1. The Parliamentary Assembly
18. The Parliamentary Assembly of the Council of Europe (“the Assembly”) has adopted a number of resolutions and recommendations regarding migration issues, including implications for the right to vote.
19. In 1982 it adopted Recommendation 951 (1982) on voting rights of nationals of Council of Europe member states. The recommendation began:
“1. Noting that an estimated 9 million nationals of Council of Europe member states do not reside in their country of origin, but in some other member state of the Council;
2. Considering that these citizens cannot normally take part in elections or referenda held in their country of residence because they are not nationals of that country;
3. Noting that many of them are also unable, under national legislation, to take part from the territory of their country of residence in elections and referenda held in their country of origin because they have no domicile there;
4. Noting that some member states impede or even prohibit participation by aliens in elections and referenda held in their country of origin, even if legislation in that country permits such participation;
5. Considering that millions of nationals of Council of Europe member states are thereby deprived of all civic rights;
6. Mindful that one of the major concerns of the Council of Europe is to preserve and strengthen democracy and civic rights in member states;
7. Emphasising the importance it attaches to the rights guaranteed by the European Convention on Human Rights and the First Protocol thereto, particularly freedom of expression, freedom of peaceful assembly and freedom of association, as well as the obligation for member states to hold free elections at regular intervals ;
8. Believing that steps should, therefore, be taken to ensure that every national of a member state is able to exercise his political rights, at least in his country of origin, when he resides in another Council of Europe member state ...”
20. The Assembly called on the governments of Council of Europe member States to facilitate and not to prevent or hinder, by administrative measures, participation and the free exercise of voting rights from their territories by other member States’ nationals in elections and referenda held in the countries of origin of those nationals. It further recommended that the Committee of Ministers:
“a. support the Assembly’s appeal to member states’ governments regarding the free exercise of the voting rights of other member states’ nationals;
b. study the most appropriate instrument for establishing a European legal guarantee of the free exercise of the voting rights of member states’ nationals living in another member state;
c. consider the possibility of harmonising member states’ laws in the interests of maintaining the voting rights of their nationals living in another member state with regard to nation-wide elections and referenda, especially with a view to enabling votes to be cast by post or through diplomatic or consular missions;
d. envisage, if appropriate, the drawing up of a protocol to the European Convention on Human Rights whereby member states would undertake to respect such voting rights for their nationals living in another member state and refrain from hindering the exercise thereof by any measure whatever.”
21. In its Resolution 800 (1983) on the principles of democracy, the Assembly noted that the concept of democracy derived from a belief in the inalienable dignity and equal value of every individual human being and meant that citizens should be given every opportunity to influence, through voluntary participation, social, professional and political life in a spirit of solidarity.
22. In Recommendation 1410 (1999) on links between Europeans living abroad and their countries of origin, the Assembly noted that “several tens of millions” of Europeans were living outside their countries of origin. It continued:
“3. The Assembly believes that it is in the interest of states to ensure that their nationals continue actively to exercise their nationality, so that it does not become merely passive or essentially a matter of feelings and emotions, and that those nationals can in fact play an important go-between role in host countries, working for better political, cultural, economic and social relations between their country of origin and the country where they live.”
23. It recommended that the Committee of Ministers:
“iii. prepare a recommendation to the member states with the intention of fostering voluntary participation of expatriates in political, social and cultural life in their country of origin, by instituting and harmonising arrangements for specific representation, such as the unrestricted right to vote or specific parliamentary and institutional representation through various consultative councils ...
...
v. invite member states:
a. to take account of the phenomenon of expatriation, its benefits and challenges, in their emigration policies, notably with a view to introducing support measures in the cultural, educational, political and social spheres based on the criterion of nationality rather than territoriality;
...
c. to draw up, at national level, an in-depth, systematic analytical description of the respective situations of expatriates, with a view to co-ordinating expatriate relations policies at European level and harmonising arrangements for the institutional and political representation of expatriates, for example by creating a real expatriate status through appropriate legal instruments;
d. to take account of their expatriates’ interests in policy-making and in national practices concerning:
i. the movement of individuals, visa arrangements for them and their relatives as well as border formalities;
ii. naturalisation in the host country, resulting in dual nationality;
iii. the right to vote in loco in the country of origin;
iv. the right to vote of expatriates in embassies and consulates in their host countries;
v. the right of expatriates to vote in local elections in the host country;
vi. the guaranteed right of expatriates to vote in and to be elected to European bodies ...”
24. In Recommendation 1500 (2001) on participation of immigrants and foreign residents in political life in the Council of Europe member States, the Assembly stressed that democratic legitimacy required equal participation by all groups of society in the political process, and that the contribution of legally resident non-citizens to a country’s prosperity further justified their right to influence political decisions in the country concerned. It further noted that restrictive criteria could prevent legally resident non-citizens from acquiring the citizenship of the host country, depriving them of full participation in the life of the community and, in the worst case, pushing them to the margins of society. It called on the Committee of Ministers to urge the governments of member States to grant the right to vote and stand in local elections to all migrants legally established for at least three years irrespective of their origin and to review national legislation with a view to making it more flexible and adequate to the needs of immigrants and foreign residents, giving particular attention to, inter alia, the criteria for granting citizenship.
25. In Recommendation 1650 (2004) on links between Europeans living abroad and their countries of origin, the Assembly noted that the question of links between countries of origins and their expatriates was a relatively new problem, particularly in central and eastern Europe, that relations varied from strong and institutionalised to loose and informal and that there was no harmonisation in this respect at the pan-European level. It continued:
“4. The Parliamentary Assembly believes that it is in the interest of states to ensure that their expatriate nationals continue to actively exercise their rights linked to nationality and contribute in a variety of ways to the political, economic, social and cultural development of their countries of origin.”
26. The Recommendation further noted that expatriation was the outcome of increasing globalisation and should be viewed as a positive expression of modernity and dynamism, bringing real economic benefit for both host countries and the countries of origin. It continued:
“It is essential for all parties concerned that the right balance between the process of integration in the host country and the links with the country of origin is defined and maintained.”
27. In the Recommendation, the Assembly regretted the lack of follow-up to Recommendation 1410 (1999) and recommended that the Committee of Ministers invite member states:
“a. to review their emigration policies and solutions in the field of relations with their expatriates with a view to improving and strengthening them;
b. to establish institutional links with expatriate communities if this has not already been done, in order to enable them to defend their rights, express their opinions and influence any decisions which might concern them;
c. to take account of their expatriates’ interest in policy making, in particular concerning questions of nationality; political rights, including voting rights; economic rights, including taxation and pension rights; social rights, including social schemes; and cultural rights ...”
28. It further recommended that the Committee of Ministers:
“ii. promote an exchange of views and co-operation between Council of Europe member states as regards political, legal, economic, social and cultural measures aimed at strengthening the links between European expatriates and their countries of origin;
iii. review the existing models of relations between expatriates and their countries of origin, with a view to making proposals for the introduction of legally-binding measures at the European level ...”
29. In Resolution 1459 (2005) on abolition of restrictions on the right to vote, the Assembly stressed at the outset the importance of the right to vote and to stand in elections as a basic precondition for preserving other fundamental civil and political rights upheld by the Council of Europe. It noted that electoral rights were the basis of democratic legitimacy and representativeness of the political process and considered that they should, therefore, evolve to follow the progress of modern societies towards ever inclusive democracy. It continued:
“3. The Assembly considers that, as a rule, priority should be given to granting effective, free and equal electoral rights to the highest possible number of citizens, without regard to their ethnic origin, health, status as members of the military or criminal record. Due regard should be given to the voting rights of citizens living abroad.
4. In line with the case-law of the European Court of Human Rights, any exceptions to this rule must be prescribed by law, pursue a legitimate aim and not be arbitrary or disproportionate.”
30. The Assembly considered that the right to vote and to stand as candidates in local elections should be granted to all legal residents who had lived long enough in the country, regardless of their nationality or ethnic origin. The Resolution continued:
“6. In view of the possible conflict of loyalties between the country of which a person is a national and the country of residence, the right to vote and stand as a candidate in national elections (parliamentary or presidential) should generally be attached to nationality. Persons having several nationalities should be allowed to choose freely in which country they wish to exercise their right to vote.
7. Given the importance of the right to vote in a democratic society, the member countries of the Council of Europe should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems. They should take appropriate measures to facilitate the exercise of such voting rights as much as possible ... Member states should co-operate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories.”
31. In conclusion, the Assembly invited the Council of Europe member and observer states concerned to:
“b. grant electoral rights to all their citizens (nationals), without imposing residency requirements;
c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures ...”
32. In its follow-up Recommendation 1714 (2005) on abolition of restrictions on the right to vote, the Assembly called upon the Committee of Ministers to appeal to member and observer States to, inter alia, review existing instruments with a view to assessing the possible need for a Council of Europe convention to improve international co-operation with a view to facilitating the exercise of electoral rights by expatriates.
33. In Resolution 1591 (2007) on distance voting (i.e. the exercise of the right to vote when absent from the country) the Assembly noted:
“ ... The right to vote is an essential freedom in every democratic system. The Assembly considers it one of the chief prerogatives of a democratic system for all citizens to have the right to vote. Safeguarding this right is an integral part of the Assembly’s mission.”
34. It continued:
“2. Population movements for economic, social or other reasons have been disruptive, both nationally and internationally, to the concept of national community in the Council of Europe member states. Both on its national territory and abroad, the national community nevertheless retains fundamental democratic rights in respect of its country, like the right to vote. The Assembly considers that distance voting constitutes a significant means for the persons concerned to exercise this right.
...
4. The Assembly therefore considers that distance voting can open up avenues for extending the right to vote and guaranteeing universal suffrage. At the same time, it acknowledges that these voting methods may present challenges in terms of security of the ballot, surveillance and control of the procedures, and results of voting.
5. Voting remains a crucial stage in any democratic process. As the principal means for populations to decide their political future, voting also serves to legitimise institutions and to ground democracy in stability and security by creating a climate of confidence between the people’s representatives and citizens.”
35. It therefore invited member States to introduce distance voting.
36. In 2008, the Assembly adopted two resolutions and two corresponding recommendations on the state of democracy in Europe, one on specific challenges facing European democracies: the case of diversity and migration (Resolution 1617 (2008) and Recommendation 1839 (2008)); the other on measures to improve the democratic participation of migrants (Resolution 1618 (2008) and Recommendation 1840 (2008)). In these, the Assembly recalled that the essence of democracy was that all those concerned by a decision must be directly or indirectly part of the decision-making process, otherwise the dignity of a person was not respected. Accordingly, it considered representativeness to be of crucial importance and found it unacceptable that large groups of the population were excluded from the democratic process. It was of the view that this situation had to be remedied by facilitating access to citizenship or extending political rights, including voting rights, to non-citizens. It therefore recommended that the Committee of Ministers promote less restrictive access to citizenship and harmonisation of naturalisation systems, and harmonisation of rules regarding voting and political rights of foreigners across member States. It further observed that there were over 64 million migrants in Europe and that their increasing number resulted in a corresponding increasing need to ensure that they were given a “fair share” in the democratic process. It also noted that democratic participation for migrants in their countries of origin was also important.
37. Finally, in Resolution 1696 (2009) on engaging European diasporas: the need for governmental and intergovernmental responses, the Assembly noted that policies to manage the many challenges and opportunities that emerged with migration had not kept pace with the development of the phenomenon. It recalled that it had been engaged in dealing with the issue of Europeans living abroad and their links to their homelands for the last fifteen years. It continued:
“4. The Assembly considers it essential to strike and maintain a proper balance between the process of integration in the host societies and the links with the country of origin. It is convinced that seeing migrants as political actors and not only as workers or economic actors enhances the recognition of their capacity in the promotion and transference of democratic values. The right to vote and be elected in host countries and the opportunity to take part in democratically governed European non-governmental organisations can enable diasporas to endorse an accountable and democratic system of governance in their home countries. Policies that grant migrants rights and obligations arising from their status as citizens or residents in both countries should therefore be encouraged.
5. The Assembly regrets that, notwithstanding its long-standing calls to revise the existing models of relations between expatriates and their countries of origin, relations between member states of the Council of Europe and their diasporas are far from being harmonised. Many member states from central and eastern Europe are only beginning to recognise the potential development and other benefits of engaging their diasporas in a more institutionalised manner, especially in the context of the current global economic crisis.
6. The Assembly reiterates that it is in the interest of member states to ensure that their diasporas continue to actively exercise the rights linked to their nationality and contribute in a variety of ways to the political, economic, social and cultural development of their countries of origin. It is convinced that globalisation and growing migration may have an impact on host countries in many positive ways by contributing to building diverse, tolerant and multicultural societies.”
38. It encouraged member States, as countries of origin, to adopt a number of policy initiatives, including:
“9.1. civil and political incentives:
9.1.1. develop institutions and elaborate policies for maximum harmonisation of the political, economic, social and cultural rights of diasporas with those of the native population;
9.1.2. ease the acquisition or maintenance of voting rights by offering out-of-country voting at national elections;
9.1.3. involve diasporas in policy making, in particular concerning the issues of nationality and citizenship, as well as political, economic, social and cultural rights;
9.1.4. gather information on nationals living abroad and allow them to have their own representation in domestic politics, through the creation of ministries of representation for diasporas ...”
39. The corresponding Recommendation (1890 (2009)) recalled previous recommendations on the subject and instructed the European Committee on Migration to:
“5.2.1. define the status, rights and obligations of diasporas in Europe, both in their countries of origin and in host countries;
5.2.2. elaborate policy guidelines to encourage greater engagement of European diasporas in development projects in countries of origin;
5.2.3. carry out a study on the experience of member states in setting up government offices for diasporas and the experience of granting voting rights to diasporas and access to other political participation mechanisms;
5.2.4. help build national capacities in terms of knowledge and research, as well as human and administrative competences;
5.2.5. assist member states in developing partnerships between diasporas and between countries of origin and host countries to enable greater involvement of diasporas in development projects ...”
2. The Committee of Ministers
40. It its reply to the Assembly’s Recommendation 1500 (2001) on participation of immigrants and foreign residents in political life in the Council of Europe member states, the Committee of Ministers:
“... note[d] with interest the Assembly’s recommendation to organise exchanges of information and experience concerning foreigners’ participation in political life. It emphasises the wide variety of aspects to be taken into account in this field: right to vote and stand for election; naturalisation; civil, social and economic rights ...”
41. In its reply to Recommendation 1650 (2004) on links between Europeans living abroad and their countries of origin, the Committee of Ministers commented that the Recommendation raised important and timely issues that should be given serious consideration and therefore brought it to the attention of the governments of the member States. The Committee of Ministers agreed with the Assembly that growing expatriation could constitute a positive effect of globalisation that contributed to building diverse, tolerant and multicultural societies and recognised the role that migrants could play as vectors of development for both countries of origin and destination, as well as their importance for their countries of origin. It further agreed that the right balance between the integration into host societies and the links with the country of origin should be achieved and maintained, and charged the European Committee on Migration with examining the concrete mechanisms linked to the migratory processes at the pan-European level, with a view to identifying the legal measures that could contribute to such a balance. It further commented:
“6. The Committee of Ministers agrees with the Assembly that expatriation should be accompanied by coherent migration policies involving both host countries and countries of origin. It will continue to explore the possibilities of developing common approaches for relations between expatriates and their countries of origin. This may concern both the reception of foreigners in host countries and the full and equal participation of expatriates in the economic, social and cultural life of the receiving community ...”
42. In its reply to Recommendation 1714 (2005) on abolition of restrictions on the right to vote, the Committee of Ministers agreed that the abolition of existing restrictions on the right to vote should be the subject of further activities of the Council of Europe. It further agreed that that member states should take measures to facilitate the exercise of voting rights of citizens living abroad, for example through postal, consular or e-voting. However, it did not see any pressing need to elaborate a convention to improve international co-operation on the issue.
43. In its Final Declaration at the 8th Council of Europe Conference of Ministers responsible for migration affairs on “Economic migration, social cohesion and development: towards an integrated approach”, 4-5 September 2008, the Committee of Ministers recognised that the Council of Europe had the potential to develop holistic and coherent policies in the field of migration based on human rights. The member States therefore agreed and undertook to work together in the management of migration in accordance with a number of principles and objectives, including to:
“1. Promote and protect the human rights of migrants and those of persons of immigrant background and guarantee their rights to equal treatment and opportunities, with special attention to gender equality and the rights of women.
2. Strengthen dialogue and co-operation between receiving, transit and origin countries, particularly within Europe, with a view to increasing and sharing the benefits of migration, facilitating integration and re-integration, and enhancing the impact of migration on development.”
44. The thematic report prepared as a main reference for the Conference contained a chapter on migration and social cohesion. On the question of links between the migrant and the country of origin, the report noted:
“286. At the same time, long term and permanent immigrants increasingly maintain multiple social, economic and political ties and sometimes, dual citizenship with both host and home countries, establishing social and communities that transcend geographical, cultural and political borders. As well, migrants are developing transnational activities and multicultural and multilingual skills. These evolving features of international migration also need to be taken into account in designing policies and practices to ensure social inclusion and cohesion in European countries.”
45. The report also commented on the mergence of a “transnationalism” in the area of migration:
“386. This migration is contributing to development of transnational networks of players and of globalised economic exchanges. International migration is increasingly eliciting transnational practices among migrants and causing transnational communities to emerge. The term transnationalism refers to processes whereby migrants develop multiple social ties between the society from which they come and the host society, establishing social communities that transcend geographical, cultural and political borders. More people attain multiple identities, transnational relationships and dual or multiple citizenship. An increasing number of migrants are organising their lives with reference to two or more societies and are developing transnational activities and multicultural and multilingual skills. Dual citizenship and European ‘citizenship’ reflect greater freedom of movement, multicultural societies, employment mobility, activities in two or more countries, and so on. An increasing migratory circulation within the European area reflecting a gradual emergence of cosmopolitan, intercultural and global citizenship.”
46. Under the section “Guidelines and options for action”, the report concluded:
“462. Civic and political participation by foreigners should be encouraged, including by providing migrant associations a larger role and developing facilities for civic and cultural involvement.
463. Allowance for immigrant participation in local, town or regional civic life is a key bridge to integration, including particularly through accordance of voting rights in local elections.
464. Ultimately, naturalisation is a major bridge and reflection of integration. Recognition of dual citizenship is a means of accommodating existing and emerging participation by migrants to both long-term or permanent host countries and unbreakable ties to origin societies.”
3. The Venice Commission
47. The European Commission for Democracy though Law (“Venice Commission”) adopted Guidelines on Elections at its 51st Plenary Session on 5-6 July 2002. As regards the principle of universal suffrage, the Guidelines provided:
“Universal suffrage means in principle that all human beings have the right to vote and to stand for election. This right may, however, and indeed should, be subject to certain conditions ...”
48. These conditions included conditions of age, nationality, residence and other grounds for deprivation of the right to vote. As to residence, the Guidelines noted:
“i. A residence requirement may be imposed.
ii. Residence in this case means habitual residence.
iii. A length of residence requirement may be imposed on nationals solely for local or regional elections.
iv. The requisite period of residence should not exceed six months; a longer period may be required only to protect national minorities.
v. The right to vote and to be elected may be accorded to citizens residing abroad.”
49. The Guidelines were subsequently included, together with an explanatory report, in the Code of Good Practice in Electoral Matters adopted by the Venice Commission at its 52nd Plenary Session, 18-19 October 2002.
50. At its 61st Plenary Session, 3-4 December 2004, the Venice Commission endorsed two reports on the Abolition of Restrictions on the Right to Vote in General Elections (CDL-AD (2005) 012 and CDL-AD (2005) 011). One of the reports contained discussion of the right to vote of expatriates in their countries of origin. It noted:
“28. Most of the citizens in European countries who are temporarily working or staying abroad are registered in the Voters’ List in their country of origin. Those persons are mainly registered according to their last place of residence prior to the departure abroad. This clearly indicates the determination of the legislators to use residence as a basis for allocation of the citizens (who have a right to vote) in the Voters’ List. In most countries, persons who have an active suffrage can exercise it, if they have or had a last residence on the territory of their home country prior to their departure abroad, regardless of their place of residence. The method of registration of the new residence and the cancellation of the old residence or temporary residence, as well as the registration of the change of the address, is regulated on the basis of different legislation, which varies from country to country.”
51. It continued:
“31. One question arises from the aforesaid facts: why do most of the states decide to adopt the concept that links the right of a citizen to vote with his or her residence? The methodology of voter registration determines the distribution of the polling stations, and accordingly results in the layout of the electoral districts. But, citizens who are abroad on Election Day in the same Council of Europe member states may exercise their right to vote in the diplomatic and consular offices or by mail. However, according to the legislation of the same countries, they would have to return to their country and cast their vote in the polling station located in the municipality where their last residence was before they left the country. Not all of them might be in a position to do so.
32. In our view, the country of origin should find a formula to encompass this category of voters who reside abroad and want to exercise their right to vote, but cannot come to their country on Election Day. It is up to the citizen to decide whether or not he/she wishes to exercise this right. The same approach should be applied to the legal requirement for passive suffrage. Such a legislative provision will mean that every citizen who meets the general conditions required can run as a candidate for the national elections and does not have to be in his home state. The only legal connection with the state, which a citizen who wants to run for a candidate has to meet, is to be its citizen. This approach is particularly important for countries with a large numbers of its nationals living abroad, who, at the same time, maintain relations with state (although the residences of these people and their successors are abroad, they can run as Members of Parliament).”
52. The subsequent opinion on the Assembly’s Recommendation 1714 (2005) adopted by the Council for Democratic Election and the Venice Commission in October 2005 noted:
“3. The right to vote as one of the fundamental political rights is also fundamental for the fulfilment of a number of civil and social rights. At the same time the principles of universality, equality, freedom and secret ballots are the four pillars of the European electoral heritage and they are introduced into the constitutions and electoral legislation of the member and observer states of the Council of Europe. In this respect the abolition of existing restrictions on the right to vote should be of interest to states and it should also serve as an issue for further activities of the Council of Europe and other international organisations.
4. In some member and observer states of the Council of Europe, the implementation of existing standards and general principles is deeply influenced by customs, and traditions, but most of all by the level of political culture. In a number of cases and situations in countries of Europe and elsewhere various norms and practices have been established which restrict the right to vote to certain categories of people. Such restrictions are problematic from a human rights perspective. European institutions and in this case the Parliamentary Assembly of the Council of Europe are working to overcome such restrictions.”
53. The opinion concluded that the Venice Commission and its Council for Democratic Elections were following the achievements in the area of democratic elections and in respect of voting rights as one of the basic human rights which would continue to influence improvements in international and national legislation through expert opinions, studies, consultative meetings and seminars.
54. A report on Electoral Law and Electoral Administration in Europe, adopted by the Council for Democratic Election and the Venice Commission in June 2006 (CDL-AD (2006) 018), noted on the question of overseas voters:
“57. External voting rights, e.g. granting nationals living abroad the right to vote, are a relatively new phenomenon. Even in long-established democracies, citizens living in foreign countries were not given voting rights until the 1980s (e.g. Federal Republic of Germany, United Kingdom) or the 1990s (e.g., Canada, Japan). In the meantime, however, many emerging or new democracies in Europe have introduced legal provisions for external voting (out-of-country voting, overseas voting). Although it is yet not common in Europe, the introduction of external voting rights might be considered, if not yet present. However, safeguards must be implemented to ensure the integrity of the vote ...
58. If external voting rights are granted, attention should be paid to ensure the equality of votes. Though it appears to be acceptable to limit external voting rights to certain types of elections, e.g. for President or the national Parliament, it may be problematic to not let external voters fully participate in those elections ....”
55. The meeting report for the 34th meeting of the Council for Democratic Elections, 14 October 2010, included the following extract:
“4. Out-of-country Voting
At its last meeting, the Council took note of the document on the legal provisions on this subject (CDL-EL (2010)013), as well as the summary table (CDL-EL (2010)014). These documents were revised on the basis of members’ comments (CDL-EL (2010)013rev2 and 014rev).
The Rapporteurs Ms Durrieu and Mr Trocsanyi, had prepared comments which were submitted to the Council for information (CDL-EL (2010)027and 030).
The Council discussed the main questions which appeared in the extract from document CDL-EL (2010)027. Ms Durrieu presented the report and informed the Council of the recent decision of the European Court on Human Rights against Greece dealing with issues of out-of-country voting (case of Sitaraopulos and others v Grèce). During the discussion some speakers pointed out that there were several additional issues that could be further explored in the report such as the access to information by voters residing abroad, diaspora voting, campaigning abroad as well as procedural aspects of voting. The participants in the meeting had also an intensive exchange of views on cases of voting of people with double nationality and representation in parliament of nationals residing abroad.
The Council asked the rapporteurs to prepare with the help of the Secretariat, a draft consolidated report, which would include more concrete examples from member countries, for its next meeting in December 2010.”
4. The European Convention on Nationality
56. The European Convention on Nationality entered into force on 1 March 2000. It was signed by Italy on 6 November 1997 but has not yet been ratified by that country. The United Kingdom has not signed the Convention.
57. Article 6(3) provides:
“Each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years before the lodging of an application.”
58. Under Article 7(1) a State may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State except in, inter alia, the case of voluntary acquisition of another nationality.
59. Article 9 provides that each State shall facilitate, in the cases and under the conditions provided for by its internal law, the recovery of its nationality by former nationals who are lawfully and habitually resident on its territory.
60. Article 13 provides:
“(1) Each State Party shall ensure that the fees for the acquisition, retention, loss, recovery or certification of its nationality be reasonable.
(2) Each State Party shall ensure that the fees for an administrative or judicial review be not an obstacle for applicants.”
61. Article 15 provides:
“The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether:
a. its nationals who acquire or possess the nationality of another State retain its nationality or lose it;
b. the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality.”
COMPLAINTS
The applicant complains under Article 3 of Protocol No. 1 to the Convention that he is no longer permitted to vote in United Kingdom elections.
He further complains under Article 3 of Protocol No. 1 taken together with Article 14 of the Convention that he is being discriminated against as his property is outside the United Kingdom.
Finally, he complains under Article 2 of Protocol No. 4 to the Convention that he has the right to choose his place of residence without being disenfranchised.
QUESTIONS TO THE PARTIES
1. What are the conditions – including applicable procedures and costs – for acquisition of Italian nationality and is dual nationality permitted under Italian law in cases of naturalisation?
2. Has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to vote in free elections which ensure the free expression of the opinion of the people in the choice of legislature?
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