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Tuesday, May 22, 2012

Scoppola v Italy some analysis

Scoppola v Italy some analysis


A. The legislative framework in the Contracting States

45. Nineteen of the forty-three Contracting States examined in a comparative law study place no restrictions on the right of convicted prisoners to vote: Albania, Azerbaijan, Croatia, Cyprus, Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania, Moldova, Montenegro, Serbia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine.

46. Seven Contracting States (Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the United Kingdom) automatically deprive all convicted prisoners serving prison sentences of the right to vote.

47. The remaining sixteen member States (Austria, Belgium, Bosnia and Herzegovina, France, Germany, Greece, Luxembourg, Malta, Monaco, Netherlands, Poland, Portugal, Romania, San Marino, Slovakia and Turkey) have adopted an intermediate approach: disenfranchisement of prisoners depends on the type of offence and/or the length of the custodial sentence. Italy’s legislation on the subject resembles that of this group of countries.

48. In some of the States in this category the decision to deprive convicted prisoners of the right to vote is left to the discretion of the criminal court (Austria, Belgium, France, Germany, Greece, Luxembourg, Netherlands, Poland, Portugal, Romania and San Marino). In Greece and Luxembourg, in the event of particularly serious offences disenfranchisement is applied independently of any court decision".

Given that there are 47 Member States in the Council of Europe, why leave out 3 Member States, Andorra, Liechtenstein and Norway from the equation? What is the position of prisoner votes in those countries?

Excluding the 3 countries excluded above, it appears as though the 19 Member States which do not restrict prisoner voting, and the 16 which have restrictions based on length of sentence and/or seriousness of crime are pretty evenly split. Therefore, it would appear at first sight that the UK might get away with some limitations following Scoppola v Italy. However, this approach appears to me to deviate from Hirst v UK (No2).

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