AS TO THE ADMISSIBILITY OF
by Helmut FRODL
The European Court of Human Rights (First Section), sitting on 8 January 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 25 May 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Helmut Frodl, is an Austrian national who was born in 1957 and is presently detained in Garsten Prison. He is represented before the Court by Ms N. Mole, of the AIRE Centre, a non-governmental organisation in London. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 December 1993 the applicant was convicted of murder by the Vienna Regional Criminal Court, sitting as an Assize Court, and sentenced to life imprisonment.
On 18 October 2002 the applicant filed an objection (Einspruch) against the local electoral register (Wählerverzeichnis) with the Local Electoral Authority (Gemeindewahlbehörde) complaining that his name had not been entered in the register although he met the general conditions such as minimum age, citizenship and residence in the community. He alleged that his exclusion from the electoral register under section 22 of the National Assembly Election Act (Nationalratswahlordnung) was unlawful as this provision was unconstitutional. He invoked, inter alia, Article 3 of Protocol No. 1 to the Convention.
The Local Electoral Authority dismissed the applicant's objection on 30 October 2002 and, referring to section 22 of the National Assembly Election Act, refused to enter the applicant's name in the electoral register. On the same day the applicant appealed.
On 7 November 2002 the District Electoral Authority (Bezirkswahl-behörde) dismissed the appeal. It found that the Local Electoral Authority had acted correctly in refusing to enter the applicant's name in the electoral register and that it was not the task of these authorities to express themselves on the alleged unconstitutionality of the law applied.
On an unspecified date the applicant requested the Constitutional Court to grant him legal aid for lodging a complaint with that court against the District Electoral Authority's decision.
On 3 December 2003 the Constitutional Court refused to grant legal aid as it found that the applicant's complaint lacked any prospect of success. It referred in this respect to a previous decision of 27 November 2003 in which it had found that section 22 of the National Assembly Election Act was not unconstitutional.
B. Relevant domestic law and practice
1. Provisions of constitutional and ordinary law
Article 26 of the Federal Constitutional Act as in force at the time of the events and in so far as relevant, reads as follows:
“(1) The National Council is elected by the nation in accordance with the principles of proportional representation on the basis of equal, direct, secret and personal vote for men and women who on election day have completed their eighteenth year of life. .............
(4) Eligible for election are all men and women who on the election day are in possession of Austrian nationality and have completed their nineteenth year of life at the latest on election day.
(5) Forfeiture of the right to vote and to stand for election can only ensue from a court sentence.
(7) The electoral register will be drawn up by the municipalities as part of their assigned sphere of competence.”
Section 22 of the National Assembly Election Act reads as follows:
“(1) 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. Disenfranchisement shall end six months later. Time shall start to run once the sentence has been enforced and any preventive [detention] measure combined with the deprivation of liberty has been enforced or dropped; if the sentence is enforced with the period of detention on remand being counted towards the sentence, time shall start to run when the judgment becomes final.
(2) If the legal consequences [of a conviction] are excluded under other legal provisions or have lapsed or if all legal consequences or the forfeiture of the right to vote have been pardoned, the convicted person shall not forfeit the right to vote; nor shall he or she forfeit the right to vote if the court has imposed a conditional sentence. If the condition is revoked, disenfranchisement shall take effect from the day that decision becomes operative.”
Section 44 of the Criminal Code, entitled “conditional suspension of more than one sanction“ (Bedingte Nachsicht bei Zusammentreffen mehrerer Strafen), as in force until 31 December 1996, reads as follows:
“(1) If a term of imprisonment and fine are imposed concurrently, both sanctions shall be conditionally suspended if the relevant requirements are met. If it can be expected that enforcement of one sanction alone or of part of one sanction will suffice, Sections 43 [conditional remission of sentence] and 43a [conditional remission of part of a sentence] may be applied.
(2) Confiscation cannot be the subject of conditional remission. If another subsidiary sanction is imposed it shall be conditionally suspended if the main sanction is also conditionally suspended and independent enforcement of the subsidiary sanction is not necessary. The same shall apply in respect of the legal consequences of a conviction.”
By the Criminal Law Amendment Act 1996, Federal Law Gazette no. 1996/762 (Strafrechtsänderungsgesetz 1996, BGBl. Nr. 1996/762), paragraph 2 of Section 44 was replaced by the following wording:
“(2) Subsidiary sanctions and the legal consequences of a conviction may be the subject of conditional remission of sentence independently from the main sanction.”
2 The case-law of the Constitutional Court
In its decision of 27 November 2003 (B669/02 Slgnr. 17058) the Constitutional Court examined the constitutionality of the conditions of disenfranchisement under section 22 of the National Assembly Election Act of a person convicted of aggravated fraud and serving a six-year prison term.
The Constitutional Court held in particular as follows:
“The enactment of legislation providing for disenfranchisement under section 22(1) of the [National Assembly Election Act] on the basis of a final sentence (imposed by a domestic court for one or more offences committed with intent) carrying a term of imprisonment of more than one year, lies, in the Constitutional Court's view, within the margin of appreciation afforded to the legislature in matters of election of the legislature. The fact that as a consequence of this rule citizens who are sentenced to just over a year's imprisonment for an offence committed with intent are stripped of their right to vote and citizens who are sentenced to just under one year's imprisonment (for an intentionally committed offence) are not stripped of their right to vote, does not make the legal provision in question unconstitutional (cf. VfSlg. 13.822/1994 mwH). Nor do the factual submissions advanced by the complainant in this connection (for instance with reference to the Youth Courts Act) alter this conclusion in any way.”
In its decision of 27 September 2007 (B1842/06) the Constitutional Court again examined the constitutionality of section 22 of the National Assembly Election Act. The complainant had been convicted of aggravated robbery and kidnapping and sentenced to nineteen and twelve years' imprisonment respectively. In its decision, after referring at length to the judgment of the European Court of Human Right s in the case of Hirst v. the United Kingdom, it held that in view of this judgment it maintained the findings adopted in its decision of 27 November 2003. It stated in particular as follows:
“In respect of the present complaint it is established that the legal position in the United Kingdom at issue in the judgment in the Hirst case differs decisively from the one in Austria that is relevant here: section 22 of the NAEA does not provide for blanket forfeiture of the right to vote in respect of all convicted prisoners, irrespective of the type or seriousness of the offence they have committed or their individual circumstances. The precondition for imposing forfeiture of the right to vote is a final sentence for one or more intentionally committed offences carrying a prison sentence of more than one year; sentences to a fine, sentences to less than one year's imprisonment, and conditional prison sentences do not attract forfeiture of the right to vote. Moreover, Section 44 § 2 allows the judge to conditionally remit the legal consequences – and therefore also disenfranchisement – of the conviction; in this respect the Austrian legal system also makes legal provision for consideration to be given to the individual circumstances of the person concerned.”
The applicant complains that his disenfranchisement on grounds of his criminal conviction violates his rights under Article 3 of Protocol No. 1 to the Convention.
The applicant complains that his disenfranchisement on grounds of his criminal conviction violates his rights under Article 3 of Protocol No. 1, which reads as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
The Government submitted that the Constitutional Court had examined the question whether disenfranchisement under section 22 of the of the National Assembly Election Act was compatible with Article 3 of Protocol No. 1 and, in its decision of 27 November 2003, had come to the conclusion that the relevant provision was compatible with the Federal Constitution, including Article 3 of Protocol No. 1, which, under Austrian law, formed part of the constitutional order. The Constitutional Court concluded that the provision at issue was within the margin of appreciation afforded to the domestic legislature in matters of election of the legislature. This approach had been confirmed by the Court in the case of Hirst v. the United Kingdom (Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005 ....). In that case the Court had concluded that a provision containing a blanket restriction on all convicted prisoners regarding the right to vote, which applied automatically to prisoners irrespective of the length of their sentence and irrespective of the nature or severity of the offence and their individual circumstances, was in breach of Article 3 of Protocol No. 1 (loc. cit. § 82).
The legal situation at issue in the case of Hirst v. the United Kingdom, however, differed in important aspects from the legal situation in Austria as under Austrian law there was no indiscriminate disenfranchisement of all detainees. The precondition for any restriction of the right to vote was a final conviction for one or several intentionally committed criminal acts, carrying a prison sentence of more than one year and the imposition of fines or of prison sentences less than one year did not lead to disenfranchisement. Nor was there disenfranchisement in case of a conditional conviction. Moreover, Section 44 § 2 of the Penal Code gave the judge an opportunity to conditionally remit the legal consequences of the conviction, such as disenfranchisement, which allowed the individual circumstances and the specific situation of the person concerned to be taken into account. Accordingly, the Austrian legal situation was in full compliance with the criteria established by the Court for disenfranchisement.
This is disputed by the applicant. He submitted that a limitation on the right to vote had to be supported by solid reasons and be proportionate. In his view, the Government had not put forward convincing arguments defending the necessity of the restriction imposed on him and, in particular, had failed to point to any legitimate aim pursued by disenfranchisement, which in itself was a breach of Article 3 of Protocol No. 1. Instead, they had merely relied on the gravity of the crime of which the applicant had been convicted in order to justify the applicant's disenfranchisement and pointed to differences between the Austrian provision and the one at issue in the Hirst v. the United Kingdom case.
Basing the grounds for denial of voting rights solely on the severity of the sentence imposed was too indiscriminate, as it did not take account of the personal circumstances of each case. In particular, no apparent link between the disenfranchisement and the conduct and personal circumstances of the applicant had been shown, such as whether there was a close connection between the offence committed by the applicant and the functioning of the democratic institutions. However, as the Court had said in the case of Hirst v. the United Kingdom (cited above, § 70), the principle of proportionality is not respected in the absence of such a “discernible and sufficient link”.
In so far as the Government had relied on Section 44 § 2 of the Criminal Code, which permits the sentencing judge to remit the legal consequences of the conviction, the applicant argued that this provision only came into force in 1997 and the Government had failed to provide any evidence to show that such a possibility had been open to a person in his position in 1994.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren Nielsen Christos Rozakis