Prisoner Voting: Right Away A Affair Of Eu Law
November 25, 2018
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Article 39(2) of the Charter of Fundamental Rights provides:
‘Members of the European Parliament shall endure elected past times straight off universal suffrage inwards a costless as well as hush-hush ballot.’
In its brief as well as rather depression key judgment inwards Delvigne (Case C-650/13; ECLI:EU:C:2015:648), which was handed downwardly on half dozen Oct 2015, the Grand Chamber of the Court of Justice has pose flesh on the bones of this provision. It concluded that national measures taken to determine who is entitled to vote inwards European Parliament elections autumn inside the range of European Union police push clit equally they must endure considered to endure implementing European Union police push clit inside the pregnant of Article 51(1) of the Charter of Fundamental Rights. Consequently, Article 39(2) is applicable inwards such a situation, equally are other Charter Rights. The Court’s judgment follows the recommendations of Advocate General Villalon’s Opinion (ECLI:EU:C:2015:363), albeit amongst much to a greater extent than laconic reasoning as well as without reference to the ECHR or Strasbourg illustration law.
The CJEU reviewed for certain French rules depriving the applicant of his civic rights, including the correct to vote as well as to represent election. This sanction was imposed, past times functioning of law, consequent upon the applicant’s conviction for a serious criminal offense as well as his receipt of a custodial sentence. However, the Court concluded that measures depriving a mortal who has been convicted of a serious criminal offense of the correct to vote on an indefinite ground were non precluded past times Article 39(2) CFR. The Court did non refer to the European Convention on Human Rights as well as Fundamental Freedoms, or the well-known prisoner voting illustration police push clit of the European Court of Human Rights. But it did hash out the demand for whatsoever limitations on the correct to vote to endure proportionate, inwards the sense of pursuing a legitimate aim of full general involvement as well as of taking into job organisation human relationship the nature as well as gravity of the criminal offence committed as well as the duration of the punishment imposed. The Court farther held that in that place was no infringement of Article 49 CFR regarding the non-retroactivity of criminal sanctions. This work of the illustration volition non endure discussed farther inwards this blog.
Prior to Delvigne, the only important excursion past times the Court of Justice into the plain of European Parliament voting rights was inwards 2006. In Spain v United Kingdom of Great Britain as well as Northern Ireland (Gibraltar), the Court rejected an declaration led past times Kingdom of Spain that the range of the franchise for European Parliament elections was determined past times European Union law. This precluded a challenge brought past times Kingdom of Spain against the UK’s conclusion to include Commonwealth citizens inside the Gibraltar franchise, when extending the range of European Parliament elections to that territory pursuant to the Court of Human Rights judgment inwards Matthews. The same betoken almost Articles 1(3) as well as 8 of the 1976 Act on Direct Elections non expressly or exactly defining who are entitled to vote inwards EP elections was repeated in Eman as well as Sevinger (Aruba), decided on the same day. Moreover, the Court inwards Eman as well as Sevinger expressly stated that the provisions on citizenship inwards what was as well as so Part Two of the EC Treaty do non confer an ‘unconditional correct to vote as well as to stand upward equally a candidate inwards elections to the European Parliament’ on citizens of the Union (para. 52). The Court highlighted that the citizenship provisions inwards Part Two were aimed at guaranteeing access to the vote for those European Union citizens resident exterior the state of which they were nationals. The Court also went on to state that nix precluded Member States using the criterion of residence inwards lodge to determine who had the correct to vote, relying inwards that honour on ECHR illustration law. However, the Court did conclude that an equal handling number arose inwards the circumstances of the case, because of the divergence inwards approach nether Netherlands police push clit for ii groups of Netherlands nationals, who were non resident inwards the metropolitan Netherlands. Those resident inwards Aruba could non vote, as well as even so those inwards 3rd countries could vote. This divergence inwards handling (under the full general equal handling principle) needed to endure justified.
The judgment inwards Delvigne draws on the groundwork set downwardly inwards Eman as well as Sevinger, inwards its application of the proportionality regulation to scrutinise national arrangements on prisoner voting. The applicant was convicted of a serious criminal offense inwards 1988 as well as given a custodial judgement of 12 years. By functioning of the police push clit as well as so applicable, that judgement also entailed the loss of his civic rights, equally he had been convicted of a serious offence. Subsequently, novel Criminal Code provisions abolished the ancillary punishment of loss of civic rights past times functioning of law, as well as set downwardly that a total or partial deprivation of civic rights must endure the dependent area of a courtroom ruling, as well as may non plow over 10 years inwards the illustration of conviction for a serious offence. However, Delvigne himself was non affected past times the provisions of the novel Criminal Code, equally his deprivation of rights resulted from a criminal conviction that became terminal earlier the novel Criminal Code entered into force. In the French courts, he contested a conclusion to take his bring upward from the electoral register inwards the district inwards which he was residing, an human activity which prevented him voting inwards the 2014 European Parliament elections, arguing this was reverse to European Union law. To assist its deliberations, the French courtroom referred a serial of questions to the Court of Justice.
The French authorities (backed past times interveners Kingdom of Spain as well as the UK) contested the jurisdiction of the Court, arguing that in that place was no connective to European Union police push clit given that it lies inside the competence of Member States to determine who tin vote inwards European Parliament elections. The Court noted that European Union police push clit is applicable, nether Article 51 CFR, only where Member States are implementing European Union law. Citing Gibraltar as well as Eman as well as Sevinger, the Court acknowledged (para. 31) that the Act on Direct Elections does non expressly as well as exactly determine who are to endure entitled to vote inwards EP elections. However, inwards exercising that competence, Member States are jump ‘by the obligation set out inwards Article 1(3) of the 1976 Act, read inwards conjunction amongst Article 14(3) TEU, to ensure that the election of Members of the European Parliament is past times straight off universal suffrage as well as costless as well as secret’, a betoken which was supported past times the European Commission, the European Parliament as well as the High German Government inwards their observations. This creates the connective to European Union law.
The words ‘direct universal suffrage’ have got been acquaint inwards European Union primary police push clit for to a greater extent than than 50 years, equally they were included inwards the master Treaty of Rome, admittedly equally an aspiration for straight off elections to endure held to the European Parliament. For nearly xl years (since the 1976 Act on Direct Elections), the aspiration has been given concrete form, through a physical care for to ensure that the citizens of the Member States elect the members of the European Parliament. Since the Matthews illustration earlier the ECtHR, it has also been clear that the EP is a legislature vis-à-vis those citizens, as well as thus that the elections are dependent area to the overarching norm of universal suffrage set out Article iii of Protocol 1 ECHR. This is reinforced past times Article 14(3) TEU which adopts the same words equally Article 39(2) CFR. Why has it taken so long to institute that inwards regulation Member States’ franchise rules inwards honour of the belongings of European Parliament elections are dependent area to universal suffrage norms within the framework of European Union police push clit (as opposed to past times reference to the ECHR alone, equally per Matthews)? Perhaps the arrival of the Charter of Rights has made a difference. And even so the texts are exactly the same. As the Court observed (para. 44):
As regards Article 39(2) of the Charter, it is apparent from the considerations inwards paragraph 41 of the acquaint judgment that this constitutes the appear inwards the Charter of the correct of Union citizens to vote inwards elections to the European Parliament inwards accordance amongst Article 14(3) TEU as well as Article 1(3) of the 1976 Act.
Article 39(2) appears, therefore, to add together no additional noun heft to the principles of universal suffrage compared to the pre-Charter situation. However, the explanations relating to the Charter do locomote far clear that Article 39(2) takes over the basic principles of the electoral scheme inwards a democratic state. This is presumably a reference to ECHR illustration police push clit on Article iii of Protocol 1. And it is perchance the clear articulation of the range of European Union police push clit equally relating to situations where Member States are implementing EU police push clit contained inwards Article 51 CFR that prompts the CJEU into a clearer belongings that franchise restrictions are dependent area to the basic principles of European Union police push clit than i finds inwards Eman as well as Sevinger. The resultant is the same, but the route taken is much to a greater extent than elegant. So inwards that honour the Charter does assist the Court of Justice to pose itself inwards the seat to cast its oculus over the French prisoner voting rules.
The resolution of the noun issues inwards the illustration past times the CJEU is real brief. As whatsoever ban on prisoners voting is a restriction on a telephone substitution correct protected past times the Charter (the correct to vote inwards EP elections), it needs to endure assessed equally a limitation nether Article 52(1) CFR. The CJEU quotes the weather condition nether which limitations on the practice of rights are permissible: they must endure provided for past times law, they must honour the essence of those rights as well as freedoms and, dependent area to the regulation of proportionality, they must endure necessary as well as really run into objectives of full general involvement recognized past times the European Union or the demand to protect the rights as well as freedoms of others (para. 46).
It was clear that the ban is provided for past times French police push clit (and indeed inwards a after work of the judgment non discussed here, the Court concluded that the approach taken past times the French legislature to maintaining the voting ban inwards honour of those whose judgement had already locomote terminal earlier the entry into strength of the novel police push clit was non reverse to Article 49 CFR). Second, excluding for certain persons nether for certain conditions, on job organisation human relationship of their conduct, does non comport upon the essence of the correct (para. 48). Finally, as well as perchance crucially for those who were waiting for this illustration from the side of the UK, amongst its fraught debate on prisoner voting, the Court stated that ‘a limitation such equally that at number inwards the principal proceedings is proportionate inwards so far equally it takes into job organisation human relationship the nature as well as gravity of the criminal offence committed as well as the duration of the penalty’ (para. 49). And that was pretty much all the Court had to say on the matter. It chose to determine the proportionality number itself, rather than referring this dorsum to the national court. The Court noted the French observations that Delvigne was made dependent area to a deprivation of civic rights equally a resultant of existence sentenced to a term of 12 years’ imprisonment for a serious crime, as well as that he also had the possibility of applying for as well as obtaining a courtroom lodge lifting the sanction.
As a illustration on the Charter of Rights, Delvigne does non interruption novel the world although it does furnish helpful clarifications, especially when i looks at the Advocate General’s Opinion. As has been argued previously, it follows quite naturally from Eman as well as Sevinger as well as from text of Article 39(2) CFR that the Court would conclude that domestic limitations upon the European Parliament elections franchise would autumn inside the range of European Union law, as well as that equally such they would endure dependent area to a proportionality test. The value of the illustration is that it makes the betoken explicit, whereas the challenge after Eman as well as Sevinger was to figure out from the Court’s judgment what exactly was the link amongst European Union police push clit that gave the Court jurisdiction to examine the graphic symbol of the Dutch state’s policies on external voting inwards EP elections as well as to let on them to be, inwards effect, arbitrary inwards graphic symbol (by applying the full general Aristotelian regulation of equal treatment). Indeed, it would have got been improve if the Court inwards Eman as well as Sevinger had followed the Advocate General at that fourth dimension (see paras. 69-71 of the Opinion), as well as concluded that in that place is (has ever been since straight off elections?) a freestanding (but evidently non unlimited) ‘right to vote’ inwards EP elections on the work of European Union citizens. Part of the job has been that this correct to vote (as an appear of universal suffrage inwards a democratic context) has oftentimes been confused amongst the correct on the work of non-national European Union citizens inwards the Member State of residence (which is an appear of the importance that European Union police push clit attaches to the integration of migrant European Union citizens inwards their host state, so that they do non inwards fact lose rights equally a resultant of mobility). In Delvigne, the Court carefully separated the ii as well as made it clear that Article 39(1) CFR, which corresponds to Article 20(2)(b) TFEU, does non apply inwards a illustration such equally this. Of course, that does non resolve exactly what mix of Articles 39(1) as well as 39(2), plus associated TFEU provisions, mightiness apply to a illustration involving a non-national European Union citizen prisoner dependent area to a voting ban inwards honour of EP elections inwards the host state, equally arose inwards the United Kingdom of Great Britain as well as Northern Ireland inwards the illustration of Teshome v The Lord President of the Council ([2014] EWHC 1468).
The major difficulty amongst the judgment inwards Delvigne is that dissimilar the Advocate General, the Court gives no clue equally to whether it has read the illustration police push clit of the European Court of Human Rights on Article iii of Protocol 1, as well as thus how it feels that the tests as well as standards which it applies based on Article 52 stacks upward against the approach taken to contracting state discretion on prisoner voting inwards cases such equally Hirst v United Kingdom of Great Britain as well as Northern Ireland (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663. The AG’s conclusion was the legislation such equally that at number inwards Delvigne was non precluded past times Article 39(2) CFR ‘provided ever that it does non prescribe general, indefinite as well as automatic deprivation of the correct to vote, without a sufficiently accessible possibility of review, the latter peculiarly existence a affair which it is for the national courtroom to establish.’ This sticks unopen to the ECHR rubric.
It is beyond the range of this weblog to hash out inwards particular the fraught political process, the interactions betwixt domestic illustration police push clit as well as Strasbourg illustration law, as well as the tentative steps taken inside the United Kingdom of Great Britain as well as Northern Ireland Parliament inwards the shape of the Draft Voting Eligibility Bill to let on a compromise betwixt Strasbourg as well as what appears to endure the mainstream political sentiment inwards the United Kingdom of Great Britain as well as Northern Ireland political elite that giving the correct to vote to prisoners is somehow abhorrent. The twists as well as turns of this narrative are presented inwards total inwards a regularly updated House of Common Standard Note, which provides a handy timeline. Prisoner voting has become, inwards the UK, a lightning rod conducting fears almost an over-interventionist Court of Human Rights, by as well as large underspecified worries that somehow the Human Rights Act overprotects the human rights of those ‘less deserving’ of those rights, as well as ongoing sensitivities almost the proper province of the courts, including the domestic courts, as well as the legislature inwards relation to such matters. The domestic courts have got sought to avoid conflict past times making it clear that they have got nix to a greater extent than to say on the number of prisoner voting inwards relation to the ECHR, as well as that they volition non blueprint a scheme inwards compliance amongst the ECHR fifty-fifty if Parliament refuses to act. Some judges, such equally Lord Sumption inwards the Supreme Court inwards Chester as well as McGeoch, have got been critical of the Strasbourg approach.
Indeed, for many observers as well as members of the political as well as indeed legal elite, prisoner voting offers the ideal chance to ‘stand upward to Europe’, as well as to insist that human rights should have a uniquely ‘British’ interpretation. Unfortunately, it at nowadays seems impossible to have got a measured policy debate on the affair of prisoner voting inwards the United Kingdom of Great Britain as well as Northern Ireland as well as the anomalies thrown upward past times the electrical flow system, although the articulation commission of the ii Houses of Parliament charged amongst looking after the number of prisoner voting whilst it remains inwards the long grass into which it has been kicked past times successive governments has done a expert labor of belongings a consultation as well as producing a balanced study making some useful compromise suggestions almost how to convey United Kingdom of Great Britain as well as Northern Ireland police push clit into line amongst what Hirst (No. 2) as well as Scoppola (No. 3) appear to require. Nothing farther has happened, as well as the United Kingdom of Great Britain as well as Northern Ireland Government continues to post regular letters to Strasbourg, indicating that it is waiting for this, or that judgment, to appear – most lately Delvigne itself earlier doing anything further. At to the lowest degree i influential legal commentator has called on the Minister of Justice Michael Gove, who has shown himself to endure somewhat to a greater extent than liberal-minded than many had expected inwards his relatively novel political role, to seize the chance of this illustration to atomic number 82 on legislation giving at to the lowest degree some prisoners the correct to vote. The Draft Voting Eligibility Bill may at nowadays indeed endure retrieved from the long grass as well as given farther consideration, although no parliamentary fourth dimension has been set aside. Meanwhile, opponents of prisoner voting proceed to convey frontward private members bills earlier the Houses of Parliament to reinforce the electrical flow position. Liberal voices arguing that Strasbourg does non locomote far plenty tin only appear on as well as hope for a radical alter inwards the political wind.
The judgment was non by as well as large received amongst hostility inwards the UK. Much of the paper commentary seemed to assume that it would brand no divergence to the United Kingdom of Great Britain as well as Northern Ireland position, largely because of a misreading of the CJEU’s credence that the particular ban pose inwards identify past times French Republic was inwards as well as of itself proportionate, as well as because they went picayune farther than reading the formal work of the judgment, which reads:
Article 39(2) [CFR]…must endure interpreted equally non precluding legislation of a Member State…which excludes, past times functioning of law, from those entitled to vote inwards elections to the European Parliament persons who, similar the applicant inwards the principal proceedings, were convicted of a serious crime…’
This seems at kickoff sight to endure to a greater extent than of an endorsement of states’ rights than it actually is. In fact, the judgment leaves many issues opened upward for the United Kingdom of Great Britain as well as Northern Ireland courts to confront equally they have the adjacent moving ridge of prisoner voting rights applications, taking payoff of the novel European Union police push clit flank opened upward past times Delvigne, assuming political inaction continues. Indeed, legal commentary has been much to a greater extent than endure to the implications. Most obviously, it poses a straight off challenge to the conclusions of the Supreme Court inwards the 2013 illustration of Chester as well as McGeoch that it was non possible to brand an declaration grounded inwards European Union police push clit to back upward a illustration brought inwards the domestic courts seeking a remedy inwards honour of the exclusion of prisoners inwards United Kingdom of Great Britain as well as Northern Ireland jails excluded from EP voting rights. Lord Mance’s lengthy consideration of the number of European Union police push clit raised past times the applicants, inwards which he relied upon a contorted interpretation of Eman as well as Sevinger according to which it was the European Union police push clit correct given to non-national European Union citizens which somehow triggered the jurisdictional link inwards that illustration rather than freestanding protection of universal suffrage inwards EP elections, led him to conclude that European Union police push clit was non applicable. His reasoning is worth quoting inwards detail:
The Court of Justice [in Eman as well as Sevinger] did non thus endorse Advocate General Tizzano’s wide approach, or import the Strasbourg jurisprudence into the full general provisions of Community as well as Union police push clit referring to voting inwards European Parliamentary elections. There was expert ground for this. Eligibility to vote is nether the Treaties as well as the 1976 Act a affair for national Parliaments, i of considerable national interest. There is no sign that the European Commission has ever sought to involve itself inwards or pick out number amongst voting eligibility inwards Member States or specifically amongst the restrictions on prisoner voting which apply inwards a number of such States. The Strasbourg jurisprudence operates equally the relevant control, albeit i that has itself proved inwards some respects controversial. It would non only unnecessarily duplicate that command at the European Community or Union level, it could also atomic number 82 to farther conflict as well as uncertainty.
Once again, inwards Delvigne, the Court has declined to refer to the Strasbourg illustration law, but fifty-fifty so the proportionality examine it has applied inside the plain of European Union police push clit may acquaint a minefield for national courts, which must at nowadays opened upward up their domestic prisoner voting rules for scrutiny. Is it proportionate only to brand the ban tally the judgement (as opposed to a ban which tin proceed beyond the sentence, but is dependent area to review, equally is the illustration inwards France), or does proportionality implicitly require the seriousness of the criminal offense to endure taken into account? It is hard to imagine that these matters tin endure fleshed out without reference to the Strasbourg illustration law, where they have got been most fully canvassed. The judgment of Lady Hale inwards Chester as well as McGeoch provides perchance the most overt sympathy on the work of the United Kingdom of Great Britain as well as Northern Ireland judiciary towards the Strasbourg seat that the UK’s comprehensive ban approach is only likewise lacking inwards nuance to satisfy the touchstone nether Article iii of Protocol 1 equally articulated inwards Hirst (No. 2) as well as modulated inwards Scoppola (No. 3). Applying a custody threshold does non clearly articulate the aim that disenfranchisement – non inwards as well as of itself illegitimate – seeks to promote, as well as clearly custody thresholds, shifting over time, volition brand the inquiry of whether whatsoever particular mortal convicted of whatsoever particular criminal offense tin vote inwards whatsoever given election to some marker arbitrary. The Supreme Court volition undoubtedly have got to render to these issues, taking guidance from the CJEU ruling inwards Delvigne and applying it to the United Kingdom of Great Britain as well as Northern Ireland context. Given the refusal to brand a reference on the number of range inwards Chester as well as McGeoch, the Supreme Court in all likelihood volition non desire to brand a reference on the number of proportionality. But given the uncertainties that Delvigne leaves standing, it would in all likelihood endure a useful chance for the Court of Justice to pose a picayune to a greater extent than flesh on the bones of the proportionality examine that it has articulated. But it may endure that the CJEU would endure equally unwilling a recipient of such a reference equally the Supreme Court would endure a generator.
Moreover, at nowadays that the number of a freestanding correct to vote inwards European Union police push clit equally a reflection of the regulation of universal suffrage which underpins democratic elections to the European Parliament seems settled, other limitations on the franchise may endure challenged earlier the national courts inwards the United Kingdom of Great Britain as well as Northern Ireland as well as elsewhere, including external voting restrictions as well as restrictions on voters deemed to lack capacity past times ground of disability. The Brexit plebiscite franchise inwards the United Kingdom of Great Britain as well as Northern Ireland may perchance also endure dependent area to challenge based on this argument.
Finally, i time whatsoever or all of these issues are settled, in that place volition rest the tricky inquiry of remedies inwards the domestic legal order, which the European Union police push clit route opens upward inwards ways that the cases inwards the United Kingdom of Great Britain as well as Northern Ireland based on the Human Rights Act as well as Strasbourg illustration police push clit do not, past times virtue of the supremacy of European Union police push clit as well as the human relationship betwixt the European Union legal lodge as well as the national legal order. Two options are probable to endure discussed inwards detail, namely the disapplication of the domestic rules as well as the possibility of damages for state liability. Anticipating that he mightiness endure incorrect on the number of the range of European Union law, Lord Mance already addressed these pre-emptively inwards Chester as well as McGeoch. He argued that fifty-fifty if he were incorrect almost the number of the range of European Union law, it would endure only impossible for a national courtroom to disapply United Kingdom of Great Britain as well as Northern Ireland police push clit because in that place would endure no agency of ‘reading down’ the Representation of the People Act 1983, which contains the voting ban, without putting inwards identify positive activity including an administrative physical care for to allow some prisoners to practice their correct to vote, if the ban applied inwards their particular illustration was deemed disproportionate. But applying proportionality to such a blanket ban is indeed a tricky issue. Consistent amongst his approach to interpreting European Union police push clit inwards such a agency equally to maximize national discretion, Lord Mance also interpreted the Francovich principles regarding state liability so equally to propose that inwards whatsoever trial in that place could have got been no successful activity for damages.
Barnard & Peers: chapter 9, chapter 3
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