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GREENS and M.T. v. THE UNITED KINGDOM - 60041/08 [2011] ECHR 686 (11 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/686.html
Cite as:
(2011) 53 EHRR 21,
[2011] ECHR 686
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FOURTH
SECTION
CASE OF GREENS and M.T. v. THE UNITED KINGDOM
(Applications
nos. 60041/08 and 60054/08)
JUDGMENT
STRASBOURG
23 November 2010
FINAL
11/04/2011
This
judgment has become final under Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the cases of Greens and M.T. v.
the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ledi Bianku,
Mihai
Poalelungi,
Vincent Anthony de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 60041/08 and 60054/08)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two British nationals, Mr Robert Greens and
M.T. (“the applicants”), on 14 November 2008. The
President of the Chamber acceded to M.T.'s request, following
communication of the case, not to have his name disclosed (Rule 47 §
3 of the Rules of Court).
The
applicants were represented by Mr T. Kelly, a solicitor practising in
Coatbridge. The United Kingdom Government (“the Government”)
were represented by their Agent, Ms E. Willmott, of the Foreign and
Commonwealth Office.
The
applicants alleged a violation of Article 3 of Protocol No. 1 to the
Convention as a result of the refusal to enrol them on the electoral
register for domestic elections and for elections to the European
Parliament. They further complained under Article 13 that they did
not have an effective remedy.
On
25 and 28 August 2009 respectively the President of the Chamber
decided to give notice of the applications to the Government. It was
also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
The
Equality and Human Rights Commission was granted leave to intervene
in the proceedings as a third party pursuant to Article 36 § 2
of the Convention and Rule 44 § 3 of the Rules of Court.
On
6 July 2010 the Chamber decided to notify the parties that it was
considering the suitability of applying the pilot judgment procedure
in the cases. Written comments on the suitability of the pilot
judgment procedure were received from both parties.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant, Mr Greens, was serving a
determinate sentence of imprisonment at HM Prison Peterhead at the
time his application was lodged with the Court. He was eligible for
release on parole from 29 May 2010. It is not known whether he has
been released on parole. The second applicant, M.T., is currently
serving a determinate sentence of imprisonment at HM Prison
Peterhead. According to information provided by the Government, he is
scheduled to be released in November 2010.
On 23 June 2008 the applicants posted voter
registration forms to the Electoral Registration Officer (“ERO”)
for Grampian. They sought registration on the electoral register at
their address in HM Prison Peterhead.
On 3 July 2008, the ERO replied referring to previous
applications for registration which were refused in 2007 under
sections 3 and 4 of the Representation of the People Act 1983, as
amended, (see paragraph 19 and 21 below) on the basis of the
applicants' status as convicted persons currently detained. The ERO
requested clarification of whether there had been a change in
circumstances in the applicants' cases.
On 5 August 2008 the applicants 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. Scott (see paragraphs 27-30
below), the ERO was obliged to add their names to the electoral
register.
On 12 August 2008, the ERO refused the applicants'
registration applications on the basis of their status as convicted
persons detained in a penal institution.
By letter of 14 August 2008 the applicants informed
the ERO of their wish to appeal to the Sheriff Court against the
refusal.
On 12 September 2008 the Sheriff considered the
applicants' appeals together with appeals in a number of other
similar cases and ordered written representations to be lodged.
On 25 September 2008 the applicants wrote to the court
summarising their position. They provided further submissions on
1 October 2008. The applicants alleged that legal aid was not
available for the proceedings and they therefore represented
themselves.
On 10 November 2008 the applicants' appeals were
refused.
On 20 November 2008 another serving prisoner whose
appeal was also refused on 10 November 2008, Mr Beggs, applied to
Aberdeen Sheriff Court to request that it state a case for the
opinion of the Registration Appeal Court (see paragraph 22 below). On
30 December 2008, the Sheriff refused to state a case. Mr Beggs
subsequently applied to the Court of Session for an order requiring
the Sheriff to state a case, on the ground that the Sheriff had erred
in law in refusing to do so. The most recent information available to
the Court was that those proceedings were pending. It is not clear
whether that remains the case.
On 4 June 2009, elections to the European Parliament
took place. The applicants were ineligible to vote.
On 6 May 2010 a general election took place in the
United Kingdom. The applicants were ineligible to vote.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Electoral legislation
1. The Representation of the People Act 1983
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);
...”
Sections 56-57 set out that there is a right of appeal
against a decision of the registration officer. In Scotland, a
further appeal lies on any point of law from a decision of the
Sheriff to a court of three judges of the Court of Session (known as
the “Registration Appeal Court”).
2. The European Parliamentary Elections Act 2002
Section 8(1) of the European Parliamentary Elections
Act 2002 (“the 2002 Act”) provides that a
person is entitled to vote at an election to the European Parliament
if he is within any of subsections (2) to (5) of section 8. These
subsections provide, in so far as relevant, as follows:
“(2) A person is within this
subsection if on the day of the poll he would be entitled to vote as
an elector at a parliamentary election ...
...
(5) A person is within this subsection
if he is entitled to vote in the electoral region by virtue of the
European Parliamentary Elections (Franchise of Relevant Citizens of
the Union) Regulations 2001 (S.I. 2001/1184) (citizens of the
European Union other than Commonwealth and Republic of Ireland
citizens).”
B. The Human Rights Act
Section 3 of the Human Rights Act 1998 (“the
Human Rights Act”) 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 Act 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.
...”
Finally, section 6(1) of the Act provides that it is
unlawful for a public authority to act in a way which is incompatible
with a Convention right. Section 6(2) clarifies that:
“Subsection (1) does not apply to an act if–
(a) as the result of one or more provisions of primary
legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made
under, primary legislation which cannot be read or given effect in a
way which is compatible with the Convention rights, the authority was
acting so as to give effect to or enforce those provisions.”
C. Legal challenges to the ban on prisoners voting
1. Proceedings in Scotland
a. Smith v. Scott 2007 SLT 137
In Smith v. Scott, 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, in anticipation of
elections to the Scottish Parliament. The Secretary of State conceded
in the proceedings that in light of the judgment of this Court in
Hirst section 3(1) of the 1983 Act was incompatible with
Article 3 of Protocol No. 1 to the Convention and that the
appellant's rights under that Article had been violated. He also
accepted that for the purposes of Article 3 of Protocol No. 1
the Scottish Parliament was a legislature. The court, handing down
its judgment on 24 January 2007, summarised the matters for
examination in the following terms:
“1. Since section 3(1) of the 1983 Act, giving the
words of that provision their ordinary meaning, was incompatible with
Article 3 of the First Protocol, the Court should consider whether it
was possible, in terms of section 3(1) of the Human Rights Act, to
read it down in such a way as to make it compatible. If that was
possible, it should be done and the appeal should be allowed.
2. If, however, that was not possible, then the appeal
would be refused but the Court should consider whether it could and
should make a declaration of incompatibility in respect of section
3(1) of the 1983 Act in terms of the Human Rights Act section 4(2).
If that could be done, it should be.
3. If the Court did not take that course, it should
consider, in the context of the requirement in terms of section 6 of
the Human Rights Act for the Court not to act in a manner
incompatible with the appellant's Convention rights, whether by
refusing the appeal and providing the appellant with no remedy it
would be acting in breach of that statutory requirement. If it would,
then the Court was obliged to give such remedy as was open to it
within its powers at common law or under any statute. Such a remedy
would include granting a declarator that the appellant's rights under
Article 3 of the First Protocol of the Convention had been violated.
It was open to the Court in the exercise of its inherent jurisdiction
to grant such a declarator.”
Counsel for the appellant argued that if there was
some “possible” interpretation (or “reading down”)
of section 3(1) of the 1983 Act which would remove the
incompatibility identified by this Court in Hirst, the
Registration Appeal Court should adopt it. He considered that
insertion of words to the effect that any ban on prisoner voting
“would apply at the discretion of the sentencing judge”
would qualify, but not contradict, the “grain of the
legislation” and that the case should accordingly be resolved
along those lines. Counsel for the respondent submitted that while
section 3 of the Human Rights Act empowered the court to interpret
legislation, where possible, in a certain way, it did not entitle the
court to amend or reverse clear legislative provisions, nor otherwise
to usurp the legislative function of Parliament. The court summarised
counsel's argument as follows:
“26. ... section 3(1) of the 1983 Act clearly
provided for a blanket ban on voting which applied to all convicted
prisoners serving custodial sentences. There was thus no 'grain of
the legislation' which could properly serve as a starting point for
any interpretation designed to clothe some or all of such prisoners
with voting rights. Over and above that, it was necessary to
recognise the complexity of the issues which had been opened up by
the decision of the European Court of Human Rights in Hirst,
and the extensive consultation which would have to be undertaken
before the Government could form a view as to the appropriate way
forward. Since the Convention rights conferred by Article 3 of the
First Protocol were in no way absolute, there were many possible
levels at which the line might be drawn for the enfranchisement or
disenfranchisement of convicted prisoners in different categories,
and it could be no part of this Court's function to make an
uninformed choice among such alternatives.”
The court continued:
“27. Against that background, we are clearly of
the opinion that the appellant's submission must be rejected and we
decline to 'read down' section 3(1) of the 1983 Act in the manner
proposed ... In our opinion to read down section 3(1) of the 1983 Act
as providing for full or partial enfranchisement of convicted
prisoners serving custodial sentences would be ... to depart
substantially from a fundamental feature of the legislation. Without
the benefit of consultation or advice, this Court would, in a real
sense, be legislating on its own account, especially in view of the
wide range of policy alternatives from which a 'possible' solution
would require to be selected ...”
The court, however, made a declaration of
incompatibility in respect of section 3(1) of the 1983 Act.
b. Traynor and another v. Secretary of State for
Scotland [2007] CSOH 78
On 20 April 2007, the Outer House of the Court of
Session considered the disenfranchisement of prisoners in judicial
review proceedings challenging the legality of an order made by the
Secretary of State for Scotland regarding the organisation of the
elections to the Scottish Parliament in May 2007 and the involvement
of the Scottish Executive in those elections. The challenge was based
on the provisions of the Scotland Act 1998 and in particular the
requirement that Scottish legislation and acts of the Scottish
Executive be compatible with the Convention. Lord Malcolm rejected
the claim for interdict (injunction), emphasising that it was for
Parliament to decide whether to remove the incompatibility between
domestic legislation and the Convention.
On the question of declaratory relief, he added:
“11. I should record that I was asked to repeat
the declarator of incompatibility pronounced in Smith. There
is no dispute in these petitions as to the incompatibility between
section 3 of the 1983 Act and article 3 of the first
protocol. The discussion focused on other matters. That
incompatibility has been authoritatively determined in Smith.
I am satisfied that a further declarator in these proceedings is
unnecessary and inappropriate ...”
2. Proceedings in Northern Ireland
a. R v. Secretary of State, ex parte Toner and
Walsh [2007] NIQB 18
In the case of Toner and Walsh, two convicted
prisoners sought, in light of Hirst, a declaration that the
disqualification of convicted prisoners from voting did not apply to
elections to the Northern Ireland Assembly. After careful
consideration of the judgment of this Court in Hirst and the
decision of the Registration Appeal Court in Scott v. Smith,
Gillen J held:
“9(iv). I consider that the [Strasbourg] court has
deliberately left the method of compliance in the hands of the
Contracting States subject to the overriding veto of the court ...
Accordingly I see nothing intrinsically objectionable about the
various options being explored by the Government proposals contained
in the consultation paper of 14/12/06 which makes up its response to
the Hirst decision. The consequence of this is that not only
is Mr Sweeney [Deputy Director, Rights and International Relations in
the Political Directorate at the Northern Ireland Office] entitled to
say ... that the Government is unlikely to propose that prisoners
serving sentences as long as those of the applicants should become
entitled to vote whilst detained, but I am left singularly
unconvinced that the applicants are currently or will ever be able to
lay claim to a right to vote. I reject the argument of Mr Larkin [for
the applicants] that because a blanket prohibition on prisoners is
incompatible with the Convention that somehow converts into the
proposition that all prisoners are currently entitled to vote until
the vacuum is filled. In my view that conforms neither with principle
nor logic and certainly does not find any authority in Hirst
which expressly recognises that restraints on Article 3 Protocol 1
are justifiable provided they pursue a legitimate aim and are
proportionate.”
3. Proceedings in England
a. Chester v. Secretary of State for Justice and
another [2009] EWHC 2923 (Admin)
In judicial review proceedings brought in the High
Court in Chester v. Secretary of State for Justice and another,
the claimant, a prisoner, argued that his disqualification from
voting in the then pending June 2009 European Parliament elections
breached his rights under Article 3 of Protocol No. 1 and under
European Union law. He was granted permission to bring his claim on
27 March 2009. At the hearing before Burton J, he argued that section
8 of the 2002 (see paragraph 23 above) Act should be “read
down” in order to enable him to vote or, in the alternative, a
declaration of incompatibility as regards section 3 of the 1983 Act
and section 8 of the 2002 Act should be made. He accepted that no
argument could be mounted that a “reading down” of
section 3 of the 1983 Act would be feasible, within the parameters of
the Human Rights Act.
The claim was dismissed by Burton J on 28 October
2009. As to the possibility of “reading down” section 8,
Burton J held:
“29. ... I am being asked effectively to draft
fresh legislation by bolting on to existing legislation additional
words which not only dramatically change its nature, but are
imminently to be considered by the Legislature. Two competing
alternatives are presented to me for consideration. One of these
affects the franchise by allowing all convicted prisoners to vote.
The other amends the statute so as to allow one particular category
of convicted prisoners, the post-tariff lifers, to vote, while still
retaining a bar on all other prisoners, including those only serving
very short terms of imprisonment, to whom it seems, on any basis, the
Government is proposing that the franchise should be extended; and to
make such differentiation simply because the claimant in this case
happens to be one of the category in whose favour the statute would
now be amended.
30. The first proposal is not acceptable, not least for
the same reasons as were enunciated by Gillen J in paragraph 9(iv) of
his judgment [in Toner and Walsh], which I have cited earlier.
Enfranchisement of all prisoners, including those with a minimum
term/tariff of life which may or may not be what the legislature
after full consultation and discussion of all the issues may
consider, but it would be a dramatic change, was not, as Gillen J
points out, required by Hirst. As for the alternative,
selection of one particular category of prisoner simply because one
of that category happens to be the Claimant, to effect what would in
fact be a substantial amendment of the legislation, but only as to
one category of convicted prisoner, cannot be an appropriate exercise
of this jurisdiction. It would lead to piecemeal and possibly
continuous amendments, without consideration by Parliament, of
legislation dealing with matters of important social policy, all
depending upon which claimant happened to be before the Court at any
one time.”
Burton J concluded that if and in so far as section 8
of the 2002 Act was incompatible with the Convention or with EU law,
reading it down was not an available remedy.
As to whether it would be appropriate to make a
declaration of incompatibility in respect of section 3 of the 1983
Act, Burton J concluded:
“34. ... I am content to say that there is no need
for any declaration to be made by yet another court, as one has
already been made which is binding on the UK Government.
35. However, towards the end of his submissions, Mr
Southey [for the claimant] put forward another basis upon which to
support his case for such a declaration. He submitted that, as the
grant of a declaration is discretionary, there is no reason why it
cannot be made again, if it is made on different grounds. He submits
that I can and should make a declaration that s3 of the 1983 Act is
incompatible with the ECHR, and do so by reference to the fact that
it excludes (together with all other convicted prisoners) post-tariff
lifers. Then there would be some point in making the declaration,
given that the Government's proposed legislation seems, subject to
what may have emerged from the second consultation, to be intended
not to make any change in their position. Hence, it would be a
declaration as to the incompatibility with regard to the present
legislation, but to be made because it does not appear as if there is
going to be any amelioration of his client's position by reference to
the proposed legislation. This would effectively simply amount to the
declaration of incompatibility being a peg upon which Mr Southey can
hang his substantive submissions, to which I shall come in a moment.
Subject however to that argument ... I reject his suggestion that I
should make a declaration of incompatibility.”
In respect of the application for a declaration of
incompatibility as regards section 8 of the 2002 Act, Burton J said:
“43. I am satisfied that, but for Mr Southey's
'proposed legislation argument', this course is wholly inappropriate
as a matter of discretion:
(i) Simply as a matter of context and background, there
is no presently intended European election, to which alone s8 would
apply ... These proceedings were brought at the time when the June
2009 European elections were still in the future. There will now not
be further such elections for 5 years. By that time, whatever the
Claimant's personal position may be, new legislation, whatever it may
be, will be well in place (and will have been capable of challenge,
if appropriate).
(ii) More significantly, it is plain that the challenge
to s8 is purely parasitic to the real challenge, which is to s3. S8
merely provides that (with the exceptions discussed) the same people
can vote in European elections as can vote in UK elections. When
there is new legislation in place of s3, s8 will automatically
follow. A declaration has already been made in relation to s3, upon
which s8 wholly hangs, and legislation is to be put before Parliament
with the intention of curing the contravention of the ECHR.
44. For the reasons I have given, namely that there is
already a declaration of such incompatibility in relation to the
governing section, s3, upon which s8 entirely depends, the same
reasons drive me to conclude that there is no basis in the exercise
of my discretion to grant a declaration of incompatibility in
relation to s8, any more than there is to s3 ...”
On the need for a further declaration of
incompatibility as a result of the apparently limited scope of the
proposed legislation, Burton J considered that any declaratory or
other relief which was intended to interfere with the process by
which new legislation resulting from the consultation process was put
before and debated by Parliament was inappropriate and was not to be
granted. In any case, he concluded that the court was:
“... ill-equipped to decide this issue of social
policy, and certainly ill-equipped to legislate and provide for the
consequences of any view, plain and obvious or otherwise, as to which
category of prisoners ought to be enfranchised as a result of the
removal of the absolute ban.”
The claimant appealed and on 13 May 2010, was granted
leave to appeal by the Court of Appeal. The appeal was heard on 3
November 2010 and the judgment is pending.
D. The report of the Joint Committee on Human Rights
In its recent report, “Enhancing Parliament's
role in relation to human rights judgments”, 15th
Report of 2009-10, published in March 2010, a parliamentary
committee, the Joint Committee on Human Rights, considered domestic
developments in the execution of the Grand Chamber's judgment in
Hirst and noted:
“108. ... our overriding disappointment is at the
lack of progress in this case. We regret that the Government has not
yet published the outcome of its second consultation, which closed
almost 6 months ago, in September 2009. This appears to show a lack
of commitment on the part of the Government to proposing a solution
for Parliament to consider.
...
116. It is now almost 5 years since the judgment of the
Grand Chamber in Hirst v UK. The Government consultation was
finally completed in September 2009. Since then, despite the imminent
general election, the Government has not brought forward proposals
for consideration by Parliament. We reiterate our view, often
repeated, that the delay in this case has been unacceptable.
...
117. ... Where a breach of the Convention is identified,
individuals are entitled to an effective remedy by Article 13 ECHR.
So long as the Government continues to delay removal of the blanket
ban on prisoner voting, it risks not only political embarrassment at
the Council of Europe, but also the potentially significant cost of
repeat litigation and any associated compensation.”
E. Recent developments
On 2 November 2010 a short debate took place in the
House of Commons following a question to the Government regarding
their plans to give prisoners the right to vote. In the course of
that debate, the Minister emphasised that the Government were under a
legal obligation to change the law following the judgment in Hirst.
He said that the Government were actively considering how to
implement the judgment and that once decisions had been made,
legislative proposals would be brought forward.
On 3 November 2010, in response to a question in the
House of Commons, the Prime Minister also emphasised that the
Government were required to come forward with proposals to implement
the Court's judgment in Hirst.
III. RELEVANT RESOLUTIONS AND DECISIONS OF THE COMMITTEE OF MINISTERS
On 3 December 2009, in the context of their
supervision of the execution of the Court's judgment in Hirst,
the Committee of Ministers adopted Interim Resolution
CM/ResDH(2009)160, which stated as follows:
“The Committee of Ministers, ...
Recalling that, in the present judgment, the Court found
that the general, automatic and indiscriminate restriction on the
right of convicted prisoners in custody to vote, fell outside any
acceptable margin of appreciation and was incompatible with Article 3
of Protocol No. 1 to the Convention;
Recalling that the Court, while acknowledging that the
rights bestowed by Article 3 of Protocol 1 are not absolute,
expressly noted that in the present case the blanket restriction
applied automatically to all prisoners, irrespective of the length of
their sentence, the nature or gravity of their offence and their
individual circumstances;
Recalling further that the Court found 'no evidence that
Parliament has ever sought to weigh the competing interests or to
assess the proportionality of a blanket ban on the right of a
convicted prisoner to vote';
Noting that the blanket restriction imposed by Section 3
of the Representation of the People Act 1983 remains in full force
and effect;
Recalling that the United Kingdom authorities, in a
revised Action Plan submitted in December 2006, committed to
undertaking a two-stage consultation process to determine the
measures necessary to implement the judgment of the Court, with a
view to introducing the necessary draft legislation before Parliament
in May 2008;
Noting that the United Kingdom authorities have provided
detailed information as regards the consultation process, and that
they are committed to continuing to do so;
Noting however that the second consultation stage ended
on 29 September 2009, and the United Kingdom authorities are now
undertaking a detailed analysis of the responses thereto, in order to
determine how best to implement a system of prisoner enfranchisement
based on the length of custodial sentence handed down to prisoners,
EXPRESSES SERIOUS CONCERN that the substantial delay in
implementing the judgment has given rise to a significant risk that
the next United Kingdom general election, which must take place by
June 2010, will be performed in a way that fails to comply with the
Convention;
URGES the respondent state, following the end of the
second stage consultation period, to rapidly adopt the measures
necessary to implement the judgment of the Court;
...”
On 4 March 2010 the Committee of Ministers adopted a
decision in which they noted that notwithstanding the Grand Chamber's
judgment in Hirst, a declaration of incompatibility with the
Convention under the Human Rights Act by the highest civil appeal
court in Scotland in the case of Smith v. Scott
and the large number of persons affected, the automatic and
indiscriminate restriction on prisoners' voting rights remained in
force; reiterated their serious concern that a failure to implement
the Court's judgment before the general election and the increasing
number of persons potentially affected by the restriction could
result in similar violations affecting a significant category of
persons, giving rise to a substantial risk of repetitive applications
to the European Court; and strongly urged the authorities rapidly to
adopt measures, even if of an interim nature, to ensure the execution
of the Court's judgment before the then pending general election.
On 3 June 2010 the Committee of Ministers adopted a
further decision in which they expressed profound regret that despite
the repeated calls of the Committee, the United Kingdom general
election had been held on 6 May 2010 with the blanket ban on the
right of convicted prisoners in custody to vote still in place; and
expressed confidence that the new United Kingdom government would
adopt general measures to implement the judgment ahead of elections
scheduled for 2011 in Scotland, Wales and Northern Ireland, and
thereby also prevent further, repetitive applications to the European
Court.
On 15 September 2010 the Committee of Ministers
adopted their most recent decision on the execution of Hirst,
in the following terms:
“The Deputies,
1. recalled that in the present judgment, delivered on 6
October 2005, the Court found that the general, automatic and
indiscriminate restriction of the right of convicted prisoners in
custody to vote, fell outside any acceptable margin of appreciation
and was incompatible with Article 3 of Protocol No. 1 to the
Convention;
2. recalled that since its 1059th meeting (June 2009),
the Committee has urged the United Kingdom to prevent future,
repetitive applications by adopting general measures to implement the
judgment;
3. deeply regretted that despite the Committee's calls
to the United Kingdom over the years to implement the judgment, the
risk of repetitive applications to the European Court has
materialised as the Court has communicated 3 applications to the
government with a view to adopting the pilot judgment procedure and
has received over 1 340 applications;
4. noted, that according to the information provided by
the United Kingdom authorities during the meeting, the new government
is actively considering the best way of implementing the judgment;
5. regretted, however, that no tangible and concrete
information was presented to the Committee on how the United Kingdom
now intends to abide by the judgment;
6. called upon the United Kingdom, to prioritise
implementation of this judgment without any further delay and to
inform the Committee of Ministers on the substantive steps taken in
this respect;
7. highlighted in this connection that, within the
margin of appreciation of the state, the measures to be adopted
should ensure that if a restriction is maintained on the right of
convicted persons in custody to vote, such a restriction is
proportionate with a discernible and sufficient link between the
sanction, and the conduct and circumstances of the individual
concerned;
...”
IV. RELEVANT EUROPEAN UNION MATERIAL
A. The Treaty on the Functioning of the Union (“TFEU”)
Article 20(2)(b) TFEU provides:
“2. Citizens of the Union shall enjoy the rights
and be subject to the duties provided for in the Treaties. They shall
have, inter alia:
...
(b) the right to vote and to stand as candidates in
elections to the European Parliament and in municipal elections in
their Member State of residence, under the same conditions as
nationals of that State;
...”
Article 22(2) TFEU provides:
“Without prejudice to Article 223(1) and to the
provisions adopted for its implementation, every citizen of the Union
residing in a Member State of which he is not a national shall have
the right to vote and to stand as a candidate in elections to the
European Parliament in the Member State in which he resides, under
the same conditions as nationals of that State. This right shall be
exercised subject to detailed arrangements adopted by the Council,
acting unanimously in accordance with a special legislative procedure
and after consulting the European Parliament; these arrangements may
provide for derogations where warranted by problems specific to a
Member State.”
Article 223 TFEU provides:
“1. The European Parliament shall draw up a
proposal to lay down the provisions necessary for the election of its
Members by direct universal suffrage in accordance with a uniform
procedure in all Member States or in accordance with principles
common to all Member States.
The Council, acting unanimously in accordance with a
special legislative procedure and after obtaining the consent of the
European Parliament, which shall act by a majority of its component
Members, shall lay down the necessary provisions ...”
To date, the Council has not adopted an instrument
setting out a uniform election procedure. However, certain agreed
principles are set out in the 1976 Act (see below).
B. The Act of 20 September 1976 concerning the election of the
Members of the European Parliament by direct universal suffrage, as
last amended by Council Decision 2002/772/EC (“the 1976 Act”)
Article 1 of the 1976 Act provides:
“1. In each Member State, members of the European
Parliament shall be elected on the basis of proportional
representation, using the list system or the single transferable
vote.
2. Member States may authorise voting based on a
preferential list system in accordance with the procedure they adopt.
3. Elections shall be by direct universal suffrage and
shall be free and secret.”
The 1976 Act also contains provisions on, inter
alia, the allocation of seats, campaign expenses, the term and
nature of members' mandates and the organisation of elections.
Article 8 clarifies that:
“Subject to the provisions of this Act, the
electoral procedure shall be governed in each Member State by its
national provisions.
These national provisions, which may if appropriate take
account of the specific situation in the Member States, shall not
affect the essentially proportional nature of the voting system.”
C. Council Directive 93/109/EC of 6 December 1993 laying down
detailed arrangements for the exercise of the right to vote and stand
as a candidate in elections to the European Parliament for citizens
of the Union residing in a Member State of which they are not
nationals
Article 1 of Directive 93/109/EC stipulates that the
directive lays down the detailed arrangements whereby citizens of the
Union residing in a Member State of which they are not nationals may
exercise the right to vote and to stand as a candidate in elections
to the European Parliament.
Article 3 provides:
“Any person who, on the reference date:
(a) is a citizen of the Union ...;
(b) is not a national of the Member State of residence,
but satisfies the same conditions in respect of the right to vote and
to stand as a candidate as that State imposes by law on its own
nationals,
shall have the right to vote and to stand as a candidate
in elections to the European Parliament in the Member State of
residence unless deprived of those rights pursuant to Articles 6 and
7.”
In so far as relevant, Article 9 provides:
“...
2. In order to have his name entered on the electoral
roll, a Community voter shall produce the same documents as a voter
who is a national. He shall also produce a formal declaration ...
3. The Member State of residence may also require a
Community voter to:
(a) state in his declaration under paragraph 2 that he
has not been deprived of the right to vote in his home Member State;
...”
Article 6 refers to the right to stand as a candidate.
Article 7 allows the State of residence to verify whether a person
seeking to exercise his right to vote under the Directive has been
deprived of that right in the home State. If the information provided
invalidates the content of the declaration made under Article 9, the
State of residence is required to take the appropriate steps to
prevent the person concerned from voting.
D. The Marleasing principle
In a preliminary reference to the European Court of
Justice (“ECJ”) in case C-106/89 Marleasing SA v La
Comercial Internacional de Alimentacion SA, the ECJ was asked to
consider the extent to which national courts were required to
interpret national law in light of the wording and the purpose of an
EC directive which had not been implemented by the Member State in
question. The ECJ held that:
“... the Member States' obligation arising from a
directive to achieve the result envisaged by the directive and their
duty under Article 5 of the Treaty to take all appropriate measures,
whether general or particular, to ensure the fulfilment of that
obligation, is binding on all the authorities of Member States
including, for matters within their jurisdiction, the courts. It
follows that, in applying national law, whether the provisions in
question were adopted before or after the directive, the national
court called upon to interpret it is required to do so, as far as
possible, in the light of the wording and the purpose of the
directive in order to achieve the result pursued by the latter ...”
THE LAW
I. ADMISSIBILITY ISSUES
A. The parties' submissions
1. The Government
The
Government argued that the applicants had failed to exhaust domestic
remedies in that following the rejection of their appeals by the
Sheriff (see paragraph 15 above), they had not requested that the
Sheriff state a case for the consideration of the Registration
Appeals Court or, subsequently, applied for an order from the Court
of Session that the Sheriff state a case. The Government pointed out
that Mr Beggs had taken these steps and that his application was
still pending before the Court of Session (see paragraph 16 above).
The
Government further referred to the judicial review proceedings
commenced by Mr Chester in the High Court (see paragraphs 34-40
above). They relied on Mr Chester's claim for sympathetic
interpretation of section 8 of the 2002 Act, in respect of which
permission to appeal had recently been granted, as evidencing a
potential effective remedy which the applicants had not exhausted.
They added that the right to vote in European Parliament elections
did not depend on the exercise of free movement rights but was
guaranteed to all nationals of EU Member States. Accordingly, the
applicants could have relied upon their rights under EU law,
notwithstanding the fact that they had not exercised any free
movement rights. The Government emphasised that the Scottish courts
had not been given the opportunity to examine arguments based on EU
law.
The
Government accepted that applicants were not required to pursue
remedies which did not in reality offer any chance of redressing the
alleged violation but emphasised that where there was doubt as to the
prospects of success of a particular case it should be submitted to
the domestic courts for resolution prior to an application being made
to the Court. In particular, this Court had had occasion to consider
Hirst in the recent cases of Calmanovici v. Romania,
no. 42250/02, 1 July 2008 and Frodl v. Austria, no. 20201/04,
8 April 2010; in the Government's view each of those judgments might
have had a significant impact upon the approach adopted by the
Scottish courts. Accordingly, the Government concluded that the
remedies available were potentially effective and therefore required
to be exhausted by the applicants.
2. The applicants
The
applicants disputed that any further remedy was open to them in
respect of their complaint. In particular, they pointed out that Mr
Beggs was an Irish citizen and that it appeared that his case was
based upon the fact that in residing in the United Kingdom he was
exercising his right of free movement under European Union law. He
therefore sought to argue that he was entitled to rely directly upon
his right to vote and stand as a candidate in European Parliament
elections in his country of residence, as guaranteed by Article
20(2)(b) of the Treaty on the Functioning of the European Union (see
paragraph 48 above). Mr Beggs' position was therefore to be
distinguished from that of the applicants, who were both British
nationals and were not exercising their free movement rights under EU
law. Further, no right derived from EU law existed in respect of
national elections. In any event, the judges of the Court of Session,
sitting as the Registration Appeals Court in Smith v. Scott,
had already stated unequivocally that the ERO had acted lawfully in
refusing to enrol serving prisoners on the electoral register (see
paragraph 29 above). The only possible relief which the applicants
could have obtained had they sought to appeal the decision of the
Sheriff in their cases was another declaration of incompatibility,
which the applicants contended was not a remedy which they were
required to exhaust before bringing their complaints to Strasbourg.
As
to the Government's suggestion that a claim for a sympathetic
interpretation of section 8 of the 2002 Act constituted a potential
effective remedy which they had failed to exhaust, the applicants
first emphasised that even if successful, such a claim would entitle
them to vote only in the European elections and would have had no
impact on their disenfranchisement in national elections or elections
to the Scottish Parliament. Second, the applicants considered the
Government's contention fanciful in light of the observations made by
the judges of the Court of Session in Smith v. Scott (see
paragraph 29 above). These observations made it clear that courts in
Scotland would not even consider, let alone uphold, any further
argument based on a sympathetic interpretation of unequivocal
legislation banning prisoners from voting in any election. Any
suggestion that the proceedings in Chester should be viewed as
evidence that there remained an effective remedy which had not been
exhausted was, the applicants contended, simply wrong given that the
Scottish legal system remained distinct from the English legal system
and that decisions of the English courts were not binding on the
Court of Session. The Court of Session had made its own views on the
matter clear and the fact that English courts might adopt more
sympathetic views was irrelevant.
3. The Equality and Human Rights Commission
The
Equality and Human Right Commission (“EHRC”) noted that a
declaration of incompatibility had been made by the Registration
Appeal Court in Smith v. Scott and were of the view that once
one declaration had been made, the courts would generally decline to
offer any further relief. They pointed to the judgment of the Court
of Session in Traynor and another and the High Court judgment
in Chester (see paragraphs 32 and 37 above). They concluded
that there was no possibility for prisoners to bring further
applications to court seeking the right to vote.
B. The Court's assessment
The
Court reiterates that where the Government claims non-exhaustion they
must satisfy the Court that the remedy proposed was an effective one
available in theory and in practice at the relevant time, that is to
say, that it was accessible, was capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (see, inter alia, Akdivar and Others
v. Turkey, 16 September 1996, § 68, Reports of Judgments
and Decisions 1996-IV; Sejdovic v. Italy [GC],
no. 56581/00, § 46, ECHR 2006-II; and Kennedy v. the
United Kingdom, no. 26839/05, § 109, ECHR 2010 ...).
In
the present case, the Government have argued that the applicants
could have continued with their challenges to the refusal of the ERO
to register their names on the electoral register and could have
brought a claim under section 3 of the Human Rights Act seeking the
'reading down' of section 8 of the 2002 Act.
As
to the former of these two proposed remedies, the Court refers to the
judgment of the Registration Appeal Court in Smith v. Scott,
in which it declined, in firm terms, to “read-down”
section 3(1) of the 1983 Act in favour of the appellant in that case.
No further appeal from the Registration Appeal Court, which is
composed of three judges of the Court of Session, is possible. Even
if a declaration of incompatibility were to be considered an
effective remedy, and the Court recalls in this regard that it has
recently reiterated that the practice of giving effect to the
national courts' declarations of incompatibility by amending
offending legislation is not yet sufficiently certain for this to be
so (see Kennedy, cited above, § 109), the Court
emphasises that the Registration Appeal Court in Smith v. Scott
had already made such a declaration. There was no advantage in
obtaining a second one, a point made by the Court of Session in
Traynor and another and by the High Court in Chester (see
paragraphs 32 and 37 above). In the circumstances, there was nothing
to be achieved by the applicants in pursuing their legal challenges
to the decision of the ERO in the hope of obtaining a further
declaration of incompatibility.
As
to the possibility of seeking the “reading down” of
section 8 of the 2002 Act by reference to section 3 of the Human
Rights Act and obligations arising under EU law, the Court emphasises
at the outset that such an application was of interest only in
respect of the applicants' complaint that they were prevented from
voting in the European Parliament elections of June 2009. Even if
successful, it would have had no bearing on the ban in place as
regards national elections.
On
the substance of the proposed remedy, the Court notes that section 8
of the 2002 Act, so far as it applies to the applicants, establishes
a right to vote in elections to the European Parliament “if on
the day of the poll [a person] would be entitled to vote as an
elector at a parliamentary election”. Section 4 of the 1983 Act
provides that a person is entitled to be registered in the register
of parliamentary electors if, inter alia, he is not subject to
any legal incapacity to vote. Section 3(1) of the same Act stipulates
that a convicted person is legally incapable of voting during the
time that he is detained in a penal institution in pursuance of his
sentence. It is clear that, as Burton J said in Chester, a
challenge to section 8 of the 2002 Act is “purely parasitic”
to the real challenge which is to section 3 of the 1983 Act (see
paragraph 38 above). Given the findings of the Registration Appeal
Court in Smith v. Scott as regards the possibility of reading
down section 3 of the 1983 Act (see paragraph 29 above) and the
approach of the Outer House to an argument based on the Scotland Act
1998 in Traynor and another (see paragraph 31 above), the
Court is of the view that the possibility of seeking to circumvent
the ban on prisoners voting in European elections by lodging a
“parasitic” challenge to section 8 of the 2002 Act did
not offer to the applicants reasonable prospects of success. In
reaching this conclusion, the Court further refers to, although does
not depend on, the opinion of Burton J in the High Court (see
paragraphs 35-36 above) and the findings of Gillen J in the High
Court of Northern Ireland as to the scope for domestic courts to
extend the right to vote to prisoners pending amending legislation
(see paragraph 33 above).
The
Court notes that the claimant in Chester has now been granted
permission to appeal the judgment of Burton J and that the appeal has
been heard (see paragraph 40 above). The order granting leave has not
been provided to the Court and the grounds for granting leave are
therefore not clear. In any event, the granting of leave in Chester
occurred well after the elections to the European Parliament of June
2009 and almost two years after the applicants had lodged their
applications with this Court. To the extent that the grant of leave
can now be considered to indicate the availability of a potential
remedy, it was not foreseeable prior to the 2009 elections that such
an argument could offer reasonable prospects of success and was
therefore not a remedy that the applicants in the present case were
required to exhaust.
The
Court therefore concludes that the applicants have satisfied the
requirements of Article 35 § 1. It further notes that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention, nor is it inadmissible on any
other grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE
CONVENTION
The
applicants complained that as convicted prisoners in detention they
had been subject to a blanket ban on voting in elections and had
accordingly been prevented from voting in elections to the European
Parliament in June 2009 and in the general election of May 2010 and
would potentially be banned from voting in the elections to the
Scottish Parliament of May 2011, in violation of their rights
guaranteed by Article 3 of Protocol No. 1 to the Convention, 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 accepted that, if the applications were declared
admissible, then there had been a violation of Article 3 of Protocol
No. 1 in the applicants' cases as a result of their ineligibility to
vote in the European and general elections.
The EHRC criticised the Government's delay in
implementing this Court's judgment in Hirst, pointing to the
concerns expressed by the Joint Committee on Human Rights regarding
the delay (see paragraph 41 above). According to statistics provided
by the EHRC, there were approximately 70,000 serving prisoners in the
United Kingdom in February 2009. They estimated that more than
100,000 prisoners were likely to have been affected by the ban at one
time or another since the Court's judgment in Hirst.
The
Court notes at the outset that the applicants have already been
prevented from voting in the European elections of June 2009 and in
the general election of May 2010 as a result of their status as
detained prisoners. However, Mr Greens became eligible for release on
29 May 2010 and M.T. is scheduled to be released in November 2010.
The Court observes that both dates fall well before the elections to
the Scottish Parliament on 5 May 2011. Accordingly, the Court will
examine the applicants' complaints of a violation of Article 3 of
Protocol No. 1 as a result of their ineligibility to vote in the
European elections and the general election only.
The
Court recalls that in Hirst, cited above, it concluded that:
“82. ... while the Court reiterates
that the margin of appreciation [applicable to Article 3 of Protocol
No. 1] is wide, it is not all-embracing. Further, although the
situation was somewhat improved by the 2000 Act which for the first
time granted the vote to persons detained on remand, section 3 of the
1983 Act remains a blunt instrument. It strips of their Convention
right to vote a significant category of persons and it does so in a
way which is indiscriminate. The provision imposes a blanket
restriction on all convicted prisoners in prison. It applies
automatically to such prisoners, irrespective of the length of their
sentence and irrespective of the nature or gravity of their offence
and their individual circumstances. Such a general, automatic and
indiscriminate restriction on a vitally important Convention right
must be seen as falling outside any acceptable margin of
appreciation, however wide that margin might be, and as being
incompatible with Article 3 of Protocol No. 1.”
The legislation in question, namely section 3 of the
1983 Act, has not been amended since Hirst. As a result, the
present applicants were ineligible to vote in the general election in
the United Kingdom in May 2010. The blanket restriction introduced by
section 3 of the 1983 Act has been extended to elections to the
European Parliament by section 8 of the 2002 Act, which is parasitic
upon the former section. As a result, the present applicants were
ineligible to vote in the elections of June 2009 to the European
Parliament.
These considerations are sufficient for the Court to
conclude that there has been a violation of Article 3 of Protocol No.
1 to the Convention in both cases.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants further complained that they had no effective remedy to
address their complaints under Article 3 of Protocol No. 1, in
violation of Article 13 which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government contested that argument.
A. The parties' submissions
1. The applicants
The
applicants referred to a number of cases against Italy decided by the
Court in which, they argued, it had found that the absence of an
effective remedy to challenge restrictions on undischarged bankrupts
which were set out in primary legislation and applied to all those
declared bankrupt amounted to a violation of Article 13 (citing,
inter alia, Neroni v. Italy, no. 7503/02, 22 April
2004; Albanese v. Italy, no. 77924/01, 23 March 2006;
Campagnano v. Italy, no. 77955/01, ECHR 2006 IV; and De
Blasi v. Italy, no. 1595/02, 5 October 2006). They therefore
contended that the fact that the violation in the present case arose
as a result of primary legislation did not prevent a finding of a
violation of Article 13.
They
concluded that the only remedy available to prisoners complaining
about their disqualification from voting was a declaration of
incompatibility. The applicants argued that such a declaration did
not constitute an effective remedy. In particular, they emphasised
that they could not obtain damages for the violation of their
Convention rights.
2. The Government
The
Government contended that it was well-established that Article 13 did
not require a remedy to be provided in order to allow individuals to
challenge provisions of domestic legislation on the grounds that it
was contrary to the Convention (citing Leander v. Sweden, 26
March 1987, § 77, Series A no. 116; and P.M. v. the United
Kingdom, no. 6638/03, §§ 32-34, 19 July 2005). They
argued that this was the position in the present case, where the
applicants complained of the application of section 8 of the 2002 Act
and section 3 of the 1983 Act. No remedy was therefore required under
Article 13. The Italian cases could be distinguished as the
complaints in those cases concerned individual measures of
implementation of domestic legislation, rather than domestic
legislation itself, and the key point for the purposes of Article 13
was that there was a means of challenge to the measures but the time
limit for invoking the remedy was too short to be effective.
Further,
notwithstanding the general principle that Article 13 did not require
a remedy in cases concerning primary legislation, the Government
contended that two remedies were in fact available to the applicants
in respect of their complaint regarding their disqualification from
voting in the European elections of June 2009, namely the possibility
of requesting the domestic courts to “read-down” section
8 of the 2002 Act and the possibility of relying on EU rights in
order to challenge the “disproportionate” restriction on
their voting rights.
In
respect of any complaint regarding the non-availability of legal aid
for domestic proceedings, the Government submitted that there was no
law or policy in place preventing the applicants from seeking legal
aid in the circumstances of the present cases, the applicants did not
apply for legal aid and, in the event that legal aid had been
refused, the applicants could have appealed any such refusal. In any
case, the Government argued that even if legal aid had been
unavailable, this did not in itself give rise to a breach of Article
13 in the circumstances of the present cases, having regard to what
was at stake for the applicants, the complexity of the proceedings
and the applicants' capacity to represent themselves effectively. It
was clear that the applicants had had the benefit of some legal
advice: their appeals to the Sheriff contained cogently-argued legal
submissions.
In
conclusion, the Government invited the Court to find no violation of
Article 13 in the applicants' cases.
3. The Equality and Human Rights Commission
The
EHRC explained that as Article 46 of the Convention, which required
Contracting States to abide by the final judgment of the Court in any
case to which they were parties, was not included in the rights
protected by the Human Rights Act 1998, the domestic courts were
unable to enforce it directly due to the dualist nature of the
British legal system.
In
a case where the domestic human-rights challenge was based on a
provision of primary legislation which could not be read in a
Convention-compliant way, the EHRC considered it problematic that the
only remedy available to claimants was a declaration of
incompatibility under section 4(2) of the Human Rights Act. They
pointed out that the Government was not obliged to reform legislation
found to be incompatible and concluded that the mechanism was
inadequate to satisfy the guarantees of Article 13.
B. The Court's assessment
In
James and Others v. the United Kingdom, 21 February 1986, §
85, Series A no. 98, the Court held that Article 13 did not go so far
as to guarantee a remedy allowing a Contracting State's laws as such
to be challenged before a national authority on the ground of being
contrary to the Convention or to equivalent domestic legal norms.
This position has been confirmed in numerous subsequent cases (see,
inter alia, Leander, cited above, § 77 (d); Willis
v. United Kingdom, no. 36042/97, § 62, ECHR 2002 IV;
Roche v. the United Kingdom [GC], no. 32555/96, §
137, ECHR 2005-X; Branko Tomašić and Others v.
Croatia, no. 46598/06, § 73, ECHR 2009 ... (extracts);
A. and Others v. the United Kingdom [GC], no. 3455/05, §
135, ECHR 2009 ...; and most recently Kennedy, cited
above, § 197). The Italian cases to which the applicants
referred are not authority for the contrary position: as the
Government pointed out, these cases were concerned with the manner of
implementation of the relevant legislative provisions and can
therefore be distinguished from the present cases.
The
Court notes that it has found a violation of Article 3 of Protocol
No. 1 as a result of section 3 of the 1983 Act and, by its
implicit reference to the contents of that section, section 8 of the
2002 Act. Both of these provisions are provisions of primary
legislation.
The
Court accordingly concludes that there has been no violation of
Article 13.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed an unspecified sum in respect of non-pecuniary
damage. They noted that although the Court had awarded no damages in
the case of Hirst, it had subsequently awarded the sum of
1,500 euros (EUR) in seven cases against Italy involving a ban on
voting in respect of undischarged bankrupts (citing, inter alia,
Bova, cited above; Pantuso v. Italy, no. 21120/02, 24
May 2006; La Frazia v. Italy, no. 3653/02, 29 June 2006; and
Pio and Ermelinda Taiani v. Italy, no. 3641/02, 20 July 2006).
Emphasising the continuing failure of the Government to amend the law
on prisoners' voting rights in order to comply with the Court's
judgment in Hirst, the applicants argued that an award of
damages would be appropriate.
The
Government considered that it was not appropriate to award damages in
the present cases. They pointed out that the Grand Chamber in Hirst
had awarded no compensation for non-pecuniary damage, an approach
which had been followed in a subsequent case in which a category of
persons had been excluded from the right to vote (see Aziz v.
Cyprus, no. 69949/01, ECHR 2004 V). The Italian cases could
be distinguished as the restrictions on bankrupts in those cases were
far-reaching and gave rise to serious breaches of the Convention. In
particular, and unlike in Hirst, the Court held in the Italian
cases that the relevant provisions of Italian law did not pursue a
legitimate aim. The Government concluded that there was no material
difference between the present cases and Hirst and invited the
Court to conclude that the forthcoming amendment of section 3 of the
1983 Act constituted sufficient just satisfaction. In particular, the
delay in introducing amended legislation was a matter for the
Committee of Ministers and was, in the Government's view, irrelevant
to the applicants' just satisfaction claims.
The
Court notes that in Hirst, the Grand Chamber endorsed the
conclusion of the Chamber on the question of non-pecuniary damage
that:
“... the Court notes that it will be for the
United Kingdom Government in due course to implement such measures as
it considers appropriate to fulfil its obligations to secure the
right to vote in compliance with this judgment. In the circumstances,
it considers that this may be regarded as providing the applicant
with just satisfaction for the breach in this case.”
It
is a cause for regret and concern that in the five years which have
passed since the judgment of the Grand Chamber in Hirst, no
amending measures have been brought forward by the Government, a
matter to which the Court returns below (see paragraphs 103-122).
However, as regards non-pecuniary damage, the Court recalls that it
has in the past examined claims by applicants for punitive damages to
reflect the particular character of the violations suffered by them
and to serve as a deterrent in respect of violations of a similar
nature by the respondent State, and for aggravated damages to reflect
the fact that they were victims of an administrative practice. It has
declined to make any such awards (see Akdivar and Others v. Turkey
(Article 50), 1 April 1998, §§ 35-38, Reports 1998 II;
Selçuk and Asker v. Turkey, 24 April 1998, §§
116-119, Reports 1998 II; Menteş and Others v.
Turkey (Article 50), 24 July 1998, §§ 18-21, Reports
1998 IV; Hood v. the United Kingdom [GC], no.
27267/95, §§ 88-89, ECHR 1999 I; and B.B. v.
the United Kingdom, no. 53760/00, § 36, 10 February 2004).
Similarly, the Court does not consider that aggravated or punitive
damages are appropriate in the present case.
The
Court notes the recent decision of the Committee of Ministers, which
made reference to the fact that “the new government is actively
considering the best way of implementing the judgment” in Hirst
(see paragraph 47 above). While the Court accepts that the
continuing prohibition on voting may give rise to some feelings of
frustration in respect of those prisoners who can reasonably expect
potentially to benefit from any change in the law, it nonetheless
concludes that the finding of a violation, when viewed in tandem with
the Court's direction under Article 46 below (see paragraph 115),
constitutes sufficient just satisfaction in the present cases.
B. Costs and expenses
The
applicants also claimed costs and expenses incurred in the
proceedings before the Court. Mr Greens claimed the total sum of
6,991.26 pounds sterling (GBP) inclusive of VAT, which was comprised
of GBP 2,408.76 in respect of solicitors' fees and GBP 4,582.50 in
respect of counsel's fees (representing one half of the fees charged
by counsel in respect of work done for both applicants). M.T. claimed
the sum of GBP 1,802.91 in respect of solicitors' fees and GBP
4,582.50 in respect of counsel's fees, amounting to a total of GBP
6,385.41 inclusive of VAT. Both applicants provided a detailed break
down of the fees claimed.
The
Government argued that the costs claimed by the applicants were
excessive and unreasonable, pointing out that the cases were
follow-ups to Hirst. More specifically, the Government
considered the rates charged to be unduly high, particularly for a
solicitors' firm based outside central London. They contended that no
more than GBP 2,000 should be allowed for solicitors' fees in total
and that the overall sum claimed in respect of counsel's fees –
over GBP 9,000 for 19 hours worked – should be reduced to GBP
3,000 in total.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court agrees that
the sums claimed were excessive. In particular, the Court notes that
the Government accepted that, if the applications were admissible,
there had been a violation of Article 3 of Protocol No. 1. The Court
further recalls that it has found no violation of Article 13 in the
present cases. In the circumstances, regard being had to the
documents in its possession, the Court considers it reasonable to
award to the applicants a total sum of EUR 5,000 for the costs of the
proceedings before the Court in these two applications.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
V. ARTICLE 46 OF THE CONVENTION
Article 46 of the Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. Application of the pilot judgment procedure
In
July 2010, the parties were advised that the Court was considering
the suitability of applying the pilot judgment procedure (see
Broniowski v. Poland [GC], no. 31443/96, § 189-194,
ECHR 2004 V) in the cases. The applicants had no objection to
the application of the pilot judgment procedure. The Government
submitted that features of the present applications made the
effective operation of the pilot judgment procedure difficult. The
first difficulty arose as a result of the wide margin of appreciation
which, the Government submitted, the Grand Chamber had afforded to
the State in Hirst. The second difficulty resulted from the
recent judgment of the Court in Frodl, which the Government
considered departed significantly from the principles set out in
Hirst and which, at the time of the Government's submission,
was pending before the panel of the Grand Chamber.
The
Court observes that on 4 October 2010 the panel of the Grand Chamber
declined to accept a referral request from the respondent Government
in Frodl. The judgment of the Chamber in that case is
accordingly final in accordance with Article 44 § 2 (c). The
Court considers that notwithstanding the wide margin of appreciation
afforded to the respondent State by its judgment in Hirst, in
light of the lengthy delay in implementing that decision and the
significant number of repetitive applications now being received by
the Court, it is appropriate to make findings under Article 46 of the
Convention in the present cases.
B. General principles
The
Court recalls that Article 46 of the Convention, as interpreted in
the light of Article 1, imposes on the respondent State a legal
obligation to implement, under the supervision of the Committee of
Ministers, appropriate general and/or individual measures to secure
the right of the applicant which the Court found to be violated. Such
measures must also be taken in respect of other persons in the
applicant's position, notably by solving the problems that have led
to the Court's findings (see Scozzari and Giunta v. Italy
[GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 VIII; S.
and Marper v. the United Kingdom [GC], nos. 30562/04 and
30566/04, § 134, 4 December 2008; Burdov v. Russia (no. 2),
no. 33509/04, § 125, ECHR 2009 ...; and Olaru and Others
v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, §
49, 28 July 2009). This obligation was consistently emphasised
by the Committee of Ministers in the supervision of the execution of
the Court's judgments (see, among many authorities, Interim
Resolutions DH(97)336 in cases concerning the length of proceedings
in Italy; DH(99)434 in cases concerning the action of the security
forces in Turkey; ResDH(2001)65 in the case of Scozzari and Giunta
v. Italy; ResDH(2006)1 in the cases of Ryabykh and
Volkova; and ResDH(2007) 75 in cases concerning the
length of detention on remand in Poland).
In order to facilitate effective implementation of
its judgments along these lines, the Court may adopt a pilot judgment
procedure allowing it clearly to identify in a judgment the existence
of structural problems underlying the violations and to indicate
specific measures or actions to be taken by the respondent state to
remedy them (see Broniowski v. Poland, cited above, §§
189-194 and the operative part; and Hutten-Czapska v. Poland
[GC] no. 35014/97, ECHR 2006-VIII §§ 231-239 and the
operative part). This adjudicative approach is however pursued with
due respect for the Convention organs' respective functions: it falls
to the Committee of Ministers to evaluate the implementation of
individual and general measures under Article 46 § 2 of the
Convention (see, mutatis mutandis, Broniowski v. Poland
(friendly settlement) [GC], no. 31443/96, § 42,
ECHR 2005-IX, and Hutten-Czapska v. Poland (friendly
settlement) [GC], no. 35014/97, § 42, 28 April 2008).
Another important aim of the pilot judgment procedure
is to induce the respondent State to resolve large numbers of
individual cases arising from the same structural problem at the
domestic level, thus implementing the principle of subsidiarity which
underpins the Convention system. Indeed, the Court's task, as defined
by Article 19, to “ensure the observance of the engagements
undertaken by the High Contracting Parties in the Convention and the
Protocols thereto” is not necessarily best achieved by
repeating the same findings in large series of cases (see Burdov,
cited above, § 127; and Olaru, cited above, § 51).
The object of the pilot judgment procedure is to facilitate the
speediest and most effective resolution of a dysfunction affecting
the protection of the Convention rights in question in the national
legal order (see Wolkenberg and Others v. Poland (dec.),
no. 50003/99, § 34, ECHR 2007-... (extracts)). While
the respondent State's action should primarily aim at the resolution
of such a dysfunction and at the introduction, where appropriate, of
effective domestic remedies in respect of the violations in question,
it may also include ad hoc solutions such as friendly
settlements with the applicants or unilateral remedial offers in line
with the Convention requirements. The Court may decide to adjourn
examination of all similar cases, thus giving the respondent State an
opportunity to settle them in such various ways (see, mutatis
mutandis, Broniowski, cited above, § 198; and
Xenides-Arestis v. Turkey, no. 46347/99, § 50,
22 December 2005).
However,
the Court has previously indicated that if the respondent State fails
to adopt such measures following a pilot judgment and continues to
violate the Convention, the Court would have no choice but to resume
examination of all similar applications pending before it and to take
them to judgment so as to ensure effective observance of the
Convention (see Burdov, cited above, § 128; and Olaru,
cited above, § 52).
C. The Court's assessment
1. Indication of specific measures to implement the present
judgment
The
Court recalls the finding of the Grand Chamber in Hirst in its
judgment of 2005 that the general, automatic and indiscriminate
restriction on the right to vote imposed by section 3 of the 1983 Act
must be seen as falling outside any acceptable margin of
appreciation, however wide that margin may be. It emphasises that the
finding of a violation of Article 3 of Protocol No. 1 in the present
two cases was the direct result of the failure of the authorities to
introduce measures to ensure compliance with the Grand Chamber's
judgment in Hirst (see paragraphs 78-79 above).
One of the fundamental implications of the pilot judgment procedure
is that the Court's assessment of the situation complained of in a
“pilot” case necessarily extends beyond the sole
interests of the individual applicant and requires it to examine that
case also from the perspective of the general measures that need to
be taken in the interest of other potentially affected persons (see
Broniowski (friendly settlement), cited above, § 36;
and Hutten-Czapska (friendly settlement), cited above,
§ 33). As the Court has already indicated, the prevailing
situation has given rise to the lodging of numerous subsequent
well-founded applications. There are currently approximately 2,500
applications in which a similar complaint is made, around 1,500 of
which have been registered and are awaiting a decision. The number
continues to grow, and with each relevant election which passes in
the absence of amended legislation there is the potential for
numerous new cases to be lodged: according to statistics submitted by
EHRC, there are approximately 70,000 serving prisoners in the United
Kingdom at any one time (see paragraph 75 above), all of whom are
potential applicants. The failure of the respondent State to
introduce legislative proposals to put an end to the current
incompatibility of the electoral law with Article 3 of Protocol No. 1
is not only an aggravating factor as regards the State's
responsibility under the Convention for an existing or past state of
affairs, but also represents a threat to the future effectiveness of
the Convention machinery (see Broniowski, cited above, § 193).
The
Court recalls that in Hirst, while finding a violation of the
right to vote, the Grand Chamber left to the discretion of the
respondent State the decision as to how precisely to secure the
rights afforded by the Convention. Pursuant to Article 46 § 2,
Hirst is currently under the supervision of the Committee of
Ministers, which has regularly examined domestic developments and
sought a speedy end to the prevailing situation of non-compliance
(see paragraphs 44-47 above). It is not disputed by the Government
that general measures at national level are called for in order to
ensure the proper execution of the Hirst judgment. It is
further clear that legislative amendment is required in order to
render the electoral law compatible with the requirements of the
Convention (see, inter alia, paragraphs 42-43 above). In light
of the lengthy delay which has already occurred and the results of
the delay in terms of follow-up applications, the Court, like the
Committee of Ministers, is anxious to encourage the speediest and
most effective resolution of the situation in a manner which complies
with the Convention's guarantees. The question therefore arises
whether it is now appropriate for the Court to provide the respondent
Government with some guidance as to what is required for the proper
execution of the present judgment.
The
Court observes that it was recently held in Frodl, cited
above, § 32, that, taking into account the particular
circumstances, any decision on disenfranchisement should be taken by
a judge and there must be a link between the offence committed and
issues relating to elections and democratic institutions. On that
basis, there was a violation of Article 3 of Protocol No. 1 in that
case. However, the Court recalls that the Grand Chamber in Hirst
declined to provide any detailed guidance as to the steps which
the United Kingdom should take to render its regime compatible with
Article 3 of Protocol No. 1, despite the Government's contention in
that case that such guidance was necessary (see Hirst, §
52). As the Court emphasised in Hirst, there are numerous ways
of organising and running electoral systems and a wealth of
differences, inter alia, in historical development, cultural
diversity and political thought within Europe which it is for each
Contracting State to mould into their own democratic vision (see §
61 of its judgment). The Court recalls that its role in this area is
a subsidiary one: the national authorities are, in principle, better
placed than an international court to evaluate local needs and
conditions and, as a result, in matters of general policy, on which
opinions within a democratic society may reasonably differ, the role
of the domestic policy-maker should be given special weight (see
Hatton and Others v. the United Kingdom [GC], no.
36022/97, § 97, ECHR 2003-VIII; and Sukhovetskyy v. Ukraine,
no. 13716/02, §§ 68-69, ECHR 2006 VI).
Like
the Registration Appeal Court (see paragraph 29 above) and Burton J
in the High Court (see paragraphs 35 and 39 above), the Court
considers that a wide range of policy alternatives are available to
the Government in the present context. In this regard, the Court
observes that the Government of the respondent State have carried out
consultations regarding proposed legislative change and are currently
actively working on draft proposals (see paragraphs 42-44 and 47
above). Emphasising the wide margin of appreciation in this area (see
Hirst, § 61), the Court is of the view that it is for the
Government, following appropriate consultation, to decide in the
first instance how to achieve compliance with Article 3 of Protocol
No. 1 when introducing legislative proposals. Such legislative
proposals will be examined in due course by the Committee of
Ministers in the context of its supervision of the execution of the
Hirst judgment. Further, it may fall to the Court at some
future point, in the exercise of its supervisory role and in the
context of any new application under Article 34 of the Convention, to
assess the compatibility of the new regime with the requirements of
the Convention.
However, while the Court does not consider it
appropriate to specify what should be the content of future
legislative proposals, it is of the view that the lengthy delay to
date has demonstrated the need for a timetable for the introduction
of proposals to amend the electoral law to be imposed. Accordingly,
the Court concludes that the respondent State must introduce
legislative proposals to amend section 3 of the 1983 Act and, if
appropriate, section 8 of the 2002 Act, within six months of the date
on which the present judgment becomes final, with a view to the
enactment of an electoral law to achieve compliance with the Court's
judgment in Hirst according to any time-scale determined by
the Committee of Ministers.
2. Disposal of comparable cases
116. Given the findings in the present judgment and in Hirst,
it is clear that every comparable case pending before the Court which
satisfies the admissibility criteria will give rise to a violation of
Article 3 of Protocol No. 1. It is therefore to be regretted
that the Government did not act more quickly to rectify the situation
before the elections to the European Parliament in 2009 and the
general election in 2010. Further, while it is to be hoped that new
legislation will be in place as soon as practically possible, it is
far from apparent that an appropriate solution will be in place prior
to the Scottish elections scheduled to take place in May 2011 and the
likely consequence of this failure will be a wave of new applications
to the Court from serving prisoners detained at that time who would
otherwise be eligible to vote in those elections.
The
Court has already emphasised the dual nature of the pilot judgment
procedure: on the one hand, it is intended to assist respondent
States in remedying an identified defect arising from a widespread or
systemic problem; on the other, it aims to ensure the effective
treatment of follow-up cases (see paragraphs 107-108 above). The
question accordingly remains as to how to dispose of the numerous
cases already lodged with the Court and how to deal with potential
future applications lodged before the electoral law has been amended.
The Court observes that the circumstances of the
present cases differ from those arising in previous pilot judgment
cases. In previous cases the pilot judgment procedure has generally
been employed to identify a violation of the Convention and to
require the respondent State, usually within a given time-frame, to
introduce some form of remedy or to offer adequate redress to all
those affected. In the meantime, all pending applications before the
Court were adjourned (see, for example, the approach in Broniowski,
cited above, § 198; Burdov, cited above, § 146;
and Olaru, cited above, § 61). However, those cases
involved property complaints or complaints regarding non-enforcement
of domestic judgments. In those circumstances, the benefits of
requiring the domestic authorities to introduce a remedy or to offer
specific redress in all pending cases were clear. In the present
cases, the violation is of an entirely different nature. No
individual examination of specific cases is required in order to
assess the appropriate redress. Further, no financial compensation is
payable: the relief available from this Court is of a declaratory
nature. The only relevant remedy is a change in the law, which while
no doubt affording satisfaction to all those who have been or may be
affected by the current blanket ban is unable to undo past violations
of the Convention in respect of particular individuals.
The
Court recalls the terms of Article 37 § 1, which provides in so
far as relevant:
“1. The Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that
...
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
In
light of the considerations set out above (see paragraphs 116-118)
and the six-month deadline fixed by the Court in the present judgment
for the bringing forward of legislative proposals, the Court is of
the view that the continued examination of every application
asserting a violation of Article 3 of Protocol No. 1 as a result of
the current blanket ban on voting applicable to serving prisoners is
no longer justified. Such applications can be distinguished from
cases where some form of individual measure might be necessary in
order for any future judgment to be implemented. Examples of the
latter type of case include applications complaining of
non-enforcement of domestic judgments or length of domestic
proceedings, where financial recompense is usually required. The
Court emphasises that it has clearly established, both in the present
judgment and in its judgment in Hirst, that the prevailing
situation has given rise and continues to give rise to a violation of
Article 3 of Protocol No. 1 in respect of every prisoner who is
unable to vote in an election to the legislature and whose
ineligibility arises solely by virtue of his status of prisoner. It
has further declined to award non-pecuniary damages in respect of
this violation. The award made in respect of costs in the present
cases was limited to the proceedings before this Court and reflected
the fact that extensive written submissions were lodged. In future
follow-up cases, in light of the above considerations, the Court
would be likely to consider that legal costs were not reasonably and
necessarily incurred and would not, therefore, be likely to award
costs under Article 41. As a consequence of the Court's approach to
just satisfaction outlined above, an amendment to the electoral law
to achieve compliance with the Court's judgment in Hirst will
also result in compliance with the judgment in the present cases and
with any future judgment handed down in any of the comparable cases
currently pending before the Court. In these circumstances, the Court
considers that it has discharged its obligation under Article 19 of
the Convention, “to ensure the observance of the engagements
undertaken by the High Contracting Parties in the Convention and the
Protocols thereto” and concludes that nothing is to be gained,
nor will justice be best served, by the repetition of its findings in
a lengthy series of comparable cases, at a significant burden on its
own resources and with the resulting impact on its considerable
caseload. In particular, such an exercise would not contribute
usefully or in any meaningful way to the strengthening of human
rights protection under the Convention.
The Court accordingly considers it appropriate to
discontinue its examination of applications registered prior to the
date of delivery of this judgment and raising complaints similar to
those in the case of Hirst pending compliance by the
respondent State with the terms of point 6(a) of the operative part
of this judgment. It would propose, in the event of such compliance,
to strike out such complaints pursuant to Article 37 § 1 (c),
without prejudice to the Court's power to decide, pursuant to Article
37 § 2, to restore such applications to the list should the
respondent State fail to enact an amendment to the electoral law to
achieve compliance with the Court's judgment in Hirst in
accordance with point 6(b) of the operative part of this judgment.
The Court similarly considers it appropriate to
suspend the treatment of any applications not yet registered at the
date of delivery of this judgment, as well as future applications,
raising such complaints, without prejudice to any decision to
recommence the treatment of these cases in the event of any
non-compliance with the terms of point 6(a) of the operative part of
this judgment or in such other event as may justify such course.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins the applications;
2. Declares the applications admissible;
Holds that there has been a violation of Article
3 of Protocol No. 1 to the Convention;
Holds that there has been no violation of
Article 13 of the Convention;
Holds that the above violation has originated in
the failure of the respondent State to execute the judgment of this
Court in Hirst v. the United Kingdom (no. 2) [GC], no.
74025/01, ECHR 2005 IX;
Holds that the respondent State must:
(a) bring
forward, within six months of the date upon which the present
judgment becomes final, legislative proposals intended to amend the
1983 Act and, if appropriate, the 2002 Act in a manner which is
Convention-compliant; and
(b) enact
the required legislation within any such period as may be determined
by the Committee of Ministers;
7. Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), inclusive of any tax that may be chargeable, in
respect of costs and expenses, to be converted into pounds sterling
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 23 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
