Prisoners’ voting rights and the rule of law

Prisoners’ voting rights and the rule of law

April 25, 2010

by Lourdes Peroni

Once again, the Court has been called upon to decide on a case regarding prisoners’ disenfranchisement. In Frodl v. Austria, the applicant, convicted of murder and sentenced to life imprisonment, was denied inclusion in the electoral register on the basis of Section 22 of the National Assembly Election Act which provides that ‘anyone who has been convicted by a domestic court of one or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of more than one year shall forfeit the right to vote.’

In 2005, the Court had ruled against a blanket restriction on prisoners’ voting rights in Hirst v. the United Kingdom. In finding a breach of Article 3 of Protocol No. 1, the Court emphasized that the disenfranchisement in the United Kingdom was a “blunt instrument” applied to all convicted prisoners, irrespective of the length of their sentences and irrespective of the nature or gravity of their offences and their individual circumstances.

In the recent case of Frodl v. Austria, the Court observed that, although the Austrian provisions on disenfranchisement were more narrowly defined than the rules applicable in the Hirst case, they did not meet the criteria therein established. Under the Hirst test, automatic and blanket restrictions are ruled out. Decisions on disenfranchisement must be taken by a judge with regard to the particular circumstances of the case and a link between the committed offence and issues relating to elections and democratic institutions must be established. The essential purpose of these criteria is to establish disenfranchisement as an exception, ensuring that such a measure is accompanied by specific reasoning in decisions explaining why disenfranchisement is necessary in light of the circumstances of the specific case, taking into account the above-mentioned elements.

Although Austria did not specify the legitimate aims pursued by the restriction, the Court assumed that the provisions on disenfranchisement of prisoners under Austrian law pursued the legitimate aims of (i) preventing crime by punishing the conduct of convicted prisoners and (ii) enhancing civic responsibility and respect for the rule of law.

I find it strange that the Court did not engage in a proper assessment of the connections between the aims of ‘enhancing civic responsibility and respect for the rule of law’ and the denial of the right to vote to a group of prisoners. The alleged connection strikes me as illogical. Disenfranchisement may well be seen in contradiction with these aims. In the case of Sauvé v. Canada (no. 2) cited by the Strasbourg Court in Hirst, the Canadian Supreme Court contended, rightly in my opinion, “[a]s regards the objective of promoting civic responsibility and respect for the law, denying penitentiary inmates the right to vote was more likely to send messages that undermined respect for the law and democracy than messages that enhanced those values. The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote.”

Depriving groups of citizens from the right to have a say in the processes by which laws are made can seriously call into question the legitimacy of such laws. As the same Strasbourg Court clearly acknowledges, “any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.” In both Frodl and Hirst, I would have liked the Court to say more on the failure of Austria and the United Kingdom to establish a logical connection between the denial of the right to vote to a large group of prisoners and the aim of promoting civic responsibility and respect for the rule of law.