27 August 2009

FOURTH SECTION
Application no. 60041/08
by Robert W. GREENS
against the United Kingdom
lodged on 14 November 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Robert W. Greens, is a British national who was born in 1977 and is currently detained in HM Prison Peterhead. He is represented before the Court by Taylor & Kelly, a firm of solicitors based in Coatbridge.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is currently serving a determinate sentence of imprisonment at HM Prison Peterhead. He will be eligible for release on parole in 2010.
On 23 June 2008, the applicant posted a voter registration form to the Electoral Registration Officer (“ERO”) for Grampian. He sought registration on the electoral register at his address in HM Prison Peterhead.
On 3 July 2008, the ERO replied referring to a previous application for registration which was refused in 2007 under sections 3 and 4 of the Representation of the People Act 1983 (as amended) on the basis of the applicant’s status as a convicted person currently detained. The ERO requested clarification of whether there had been a change in circumstances in the applicant’s case
On 5 August 2008, the applicant wrote to the ERO arguing that following the Court’s decision in Hirst v. the United Kingdom (no. 2)[GC], no. 74025/01, ECHR 2005‑IX, and the declaration of incompatibility made by the Registration Appeal Court in the case of Smith v. Scott2007 SLT 137 (see relevant domestic law and practice, below), the ERO was obliged to add his name to the electoral register.
On 12 August 2008, the ERO refused the applicant’s registration application on the basis of his status as a convicted person detained in a penal institution.
By letter of 14 August 2008, the applicant informed the ERO of his wish to appeal to the Sheriff Court against the refusal.
On 12 September 2008, the Sheriff considered the applicant’s appeal together with appeals in a number of other similar cases and ordered written representations to be lodged.
On 25 September 2008, the applicant wrote to the court summarising his position. He provided further submissions on 1 October 2008. Legal aid was not available for such proceedings and the applicant represented himself.
On 10 November 2008, the applicant’s appeal was refused.
On 20 November 2008, another serving prisoner whose appeal was also refused on 10 November 2008 applied to Aberdeen Sheriff Court to request that it state a case for the opinion of the Registration Appeal Court (Beggs v. McConochie). On 30 December 2008, the Sheriff refused to state a case. No further appeal was possible.
On 4 June 2009, elections to the European Parliament took place. The applicant was ineligible to vote.
B.  Relevant domestic law and practice
Section 3 of the Representation of the People Act 1983 (“the 1983 Act”) provides:
“(1)  A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.”
The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)(a)) or to those imprisoned only for default in, for example, paying a fine (section 3(2)(c)).
Section 4 of the 1983 Act 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;
(b) is not subject to any legal incapacity to vote (age apart);
...
(3) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–
(a) is resident in that area;
(b) is not subject to any legal incapacity to vote (age apart);
...”
Section 3 of the Human Rights Act 1998 provides as follows:
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted;
...”
Section 4 of the Human Rights Act 1998 provides:
“(1)  Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2)  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
...”
In Smith v. Scott2007 SLT 137, the Registration Appeal Court considered the refusal of the ERO for Clackmannanshire, Falkirk and Stirling to enrol a convicted prisoner on the electoral register on the basis of sections 3 and 4 of the 1983 Act. The court declined to “read down” section 3 of the 1983 Act under section 3 of the Human Rights Act 1998 in order to render it Convention-compliant. It therefore upheld the refusal of the ERO to enrol the appellant on the electoral register. However, it made a declaration of incompatibility in respect of section 3 of the 1983 Act.
COMPLAINTS
The applicant complains under Article 3 of Protocol No. 1 of the Convention about the refusal by the ERO to enrol him on the electoral register for domestic elections and for elections to the European Parliament.
He further complains under Article 13 that the proceedings before Aberdeen Sheriff Court did not constitute an effective remedy in light of the refusal to award him legal aid, the inability of the court to disapply the domestic legislation in his case and the failure of the court to find that a violation had occurred.
QUESTION 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 ensure the free expression of the opinion of the people in the choice of legislature (see Hirst v. the United Kingdom (no. 2)[GC], no. 74025/01, ECHR 2005‑IX)?

2.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of Protocol No. 1, as required by Article 13 of the Convention?