Law and Rights
The European Court of Human Rights has announced that, on 22nd May, the Grand Chamber will hand down judgment in Scoppola v. Italy (N° 3) concerning a prisoner?s right to vote. The case concerns the applicant?s disenfranchisement following his criminal conviction.
Principal facts:
The applicant, Franco Scoppola, is an Italian national who was born in 1940 and lives in Parma (Italy). In 1999, following a violent family argument, he killed his wife and wounded one of his sons. In 2002 the Assize Court sentenced him to life imprisonment for murder, attempted murder, ill-treatment of members of his family and unauthorised possession of a firearm. Under the Italian Criminal Code his life sentence entailed a lifetime ban
from public office, which in turn meant the permanent forfeiture of his right to vote. Appeals by the applicant against the ban were unsuccessful. The Court of Cassation dismissed an appeal on points of law in 2006, pointing out that only prison sentences of at least five years or life sentences entailed permanent disenfranchisement.
Following a judgment of the European Court of Human Rights of 17 September 2009 in another case brought by Mr Scoppola (Scoppola v. Italy (no. 2)), in which the Court held that there had been a violation of Articles 6 (right to a fair trial) and 7 (no punishment without law) of the Convention, the Court of Cassation commuted his life sentence to 30 years? imprisonment.
Complaint and procedure - Relying on Article 3 of Protocol No. 1 (right to free elections) to the Convention, the applicant complains that he was deprived of the right to vote as a result of being banned from public office for life following his criminal conviction.
The complaint was lodged with the European Court of Human Rights on 16 December 2004. In its Chamber judgment of 18 January 2011 the Court found a violation of Article 3 of Protocol No. 1 because of the automatic and indiscriminate nature of the measure depriving Mr Scoppola of the right to vote. On June 2011 the panel of the Grand Chamber accepted the Italian Government?s request that the case be referred to the Grand Chamber under Article 43 of the Convention. A hearing was held in the Human Rights building in Strasbourg on 2 November 2011.
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Law and Rights
Prisoner Voting - Scoppola v Italy - Will prisoners finally have to be granted the right to vote?
Principal facts:
The applicant, Franco Scoppola, is an Italian national who was born in 1940 and lives in Parma (Italy). In 1999, following a violent family argument, he killed his wife and wounded one of his sons. In 2002 the Assize Court sentenced him to life imprisonment for murder, attempted murder, ill-treatment of members of his family and unauthorised possession of a firearm. Under the Italian Criminal Code his life sentence entailed a lifetime ban
from public office, which in turn meant the permanent forfeiture of his right to vote. Appeals by the applicant against the ban were unsuccessful. The Court of Cassation dismissed an appeal on points of law in 2006, pointing out that only prison sentences of at least five years or life sentences entailed permanent disenfranchisement.
Following a judgment of the European Court of Human Rights of 17 September 2009 in another case brought by Mr Scoppola (Scoppola v. Italy (no. 2)), in which the Court held that there had been a violation of Articles 6 (right to a fair trial) and 7 (no punishment without law) of the Convention, the Court of Cassation commuted his life sentence to 30 years? imprisonment.
Complaint and procedure - Relying on Article 3 of Protocol No. 1 (right to free elections) to the Convention, the applicant complains that he was deprived of the right to vote as a result of being banned from public office for life following his criminal conviction.
The complaint was lodged with the European Court of Human Rights on 16 December 2004. In its Chamber judgment of 18 January 2011 the Court found a violation of Article 3 of Protocol No. 1 because of the automatic and indiscriminate nature of the measure depriving Mr Scoppola of the right to vote. On June 2011 the panel of the Grand Chamber accepted the Italian Government?s request that the case be referred to the Grand Chamber under Article 43 of the Convention. A hearing was held in the Human Rights building in Strasbourg on 2 November 2011.
British Government's view:
The present British government is vehemently opposed to granting voting rights to prisoners. The Prime Minister said that granting the vote made him physically ill. The government intervened in the Scoppola case with the Attorney-General personally addressing the Grand Chamber. In a speech delivered at Lincoln's Inn, the Attorney said: "We need clarity. That is why the United Kingdom is intervening in Scoppola before the Grand Chamber of the European Court of Human Rights. I am personally going to Strasbourg to plead the matter on behalf of the United Kingdom. I will argue that the principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation ..."
The recent Brighton Declaration referred to subsidiarity with para. 3 of the Preamble stating - " The States Parties and the Court share responsibility for realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity and points out that the court acts as a safeguard for violations that have not been remedied at a national level."
Later, at para. 12, "The Conference therefore: a) Welcomes the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation, and encourages the Court to give great prominence to and apply consistently these principles in its judgments; b) Concludes that, for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court?s case law should be included in the Preamble to the Convention and invites the Committee of Ministers to adopt the necessary amending instrument by the end of 2013, while recalling the States Parties? commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention.
Then, at para. 29, The Conference therefore: a) .... ; b) Reiterates the invitation made by the Interlaken and Izmir Conferences to the Committee of Ministers to apply fully the principle of subsidiarity by which the States Parties may choose how to fulfil their obligations under the Convention; ..."
The judgment is therefore awaited with massive interest to see whether Hirst No. 2 survives the onslaught from governments seeking to maintain their voting prohibitions. In Hirst, the Grand Chamber ruled that the UK's BLANKET band on prisoner voting was in breach of Convention rights. The court stated that (i) imprisonment should mean loss of liberty and not other Convention rights; (ii) disenfranchisement played no role in the sentencing process and there was no evidence that it deterred crime; (iii) those convicted of crimes with a strong anti-social element but not in prison do not lose the right to vote whereas some convicted prisoners may have committed offences with some moral excuse but would lose the right to vote; (iv) there was no evidence that Parliament had ever seriously considered the competing arguments for and against the ban. As far as (iv) is concerned, the evidence which the court looked for is now there. In early 2011, House of Commons voted to support the ban.
Hirst is binding on the UK though the British governments (Labour and Coalition) have avoided implementation of the decision. Perhaps something in Scoppola may make a difference and enable the UK to maintain its ban. In the post-Brighton era, will the court be more ready to accept that this should be a matter entirely for national parliaments or will the court continue to adhere to Hirst? Perhaps the most likely outcome is that the essentials of Hirst will survive but the court will give greater guidance as to the factors to be considered in deciding nationally where the line should be drawn between those prisoners to be allowed a vote and those who are not.
UK Human Rights Blog - 15th May - "European Court Grand Chamber to rule on prisoner voting ..."
Brighton:
The recent Brighton Declaration referred to subsidiarity with para. 3 of the Preamble stating - " The States Parties and the Court share responsibility for realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity and points out that the court acts as a safeguard for violations that have not been remedied at a national level."
Later, at para. 12, "The Conference therefore: a) Welcomes the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation, and encourages the Court to give great prominence to and apply consistently these principles in its judgments; b) Concludes that, for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court?s case law should be included in the Preamble to the Convention and invites the Committee of Ministers to adopt the necessary amending instrument by the end of 2013, while recalling the States Parties? commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention.
Then, at para. 29, The Conference therefore: a) .... ; b) Reiterates the invitation made by the Interlaken and Izmir Conferences to the Committee of Ministers to apply fully the principle of subsidiarity by which the States Parties may choose how to fulfil their obligations under the Convention; ..."
Hirst No. 2:
The judgment is therefore awaited with massive interest to see whether Hirst No. 2 survives the onslaught from governments seeking to maintain their voting prohibitions. In Hirst, the Grand Chamber ruled that the UK's BLANKET band on prisoner voting was in breach of Convention rights. The court stated that (i) imprisonment should mean loss of liberty and not other Convention rights; (ii) disenfranchisement played no role in the sentencing process and there was no evidence that it deterred crime; (iii) those convicted of crimes with a strong anti-social element but not in prison do not lose the right to vote whereas some convicted prisoners may have committed offences with some moral excuse but would lose the right to vote; (iv) there was no evidence that Parliament had ever seriously considered the competing arguments for and against the ban. As far as (iv) is concerned, the evidence which the court looked for is now there. In early 2011, House of Commons voted to support the ban.
Hirst is binding on the UK though the British governments (Labour and Coalition) have avoided implementation of the decision. Perhaps something in Scoppola may make a difference and enable the UK to maintain its ban. In the post-Brighton era, will the court be more ready to accept that this should be a matter entirely for national parliaments or will the court continue to adhere to Hirst? Perhaps the most likely outcome is that the essentials of Hirst will survive but the court will give greater guidance as to the factors to be considered in deciding nationally where the line should be drawn between those prisoners to be allowed a vote and those who are not.
Other links:
UK Human Rights Blog - 15th May - "European Court Grand Chamber to rule on prisoner voting ..."
- Prisoner Voting
A ruling by the Court of Justice of the European Union has upheld a ban on a French convicted murderer who was serving a sentence of more than five years from taking part in the European elections - The Guardian 6th October * See the Court of Justice...
- Thoughts On The Supreme Court's Decision In Chester And Mcgeogh
The long term legal importance of a case can sometimes have little to do with the actual question which was before the court at the time. An example of this may prove to be the Supreme Court's judgment in the recent 'prisoner voting'...
- Mr Cameron's Address To The Council Of Europe - 25th January
The Prime Minister, David Cameron, has addressed the Parliamentary Assembly of the Council of Europe and his address is available via the 10 Downing Street website. Mr Cameron began by saying - "I want no one here to doubt the British commitment...
- Prisoner Voting ... Uk Government Given 6 Months To Introduce Legislation ...
On 15th March Law and Lawyers noted that the U.K. government had requested the Grand Chamber of the European Court of Human Rights to consider the case of Greens and M.T. v U.K. decided by a chamber of the court on 23rd November 2010. The Grand...
- Prisoners And Voting
In Hirst v United Kingdom (2004) 38 EHRR 40 a Chamber of the European Court of Human Rights ruled that the U.K.'s blanket ban on convicted prisoners voting in elections was in breach of the Convention. That decision was confirmed by the Grand...