The impact of the ECHR on Austrian legal amendments: Disenfranchisement of Prisoners Gregor Wenda

1. The impact of the ECHR on Austrian legal amendments: Disenfranchisement of Prisoners Gregor Wenda Federal Ministry of the Interior Republic of Austria Chisinau, Moldova 26 June 2013

2. GUIDELINES ON ELECTIONS I. 1. Universal suffrage 1.1. Rule and exceptions d. Deprivation of the right to vote and to be elected: i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions: ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them; iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence. v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law. Disenfranchisement: What does the Code say?

3. Early case law of the “Commission” (1959-1961): “Article grants no individual rights” (X v. Germany, X v. Belgium) Court changed opinion: Article grants individual rights, including the right to vote, but rights are not absolute but open to “implied limitations” States have “a wide margin of appreciation” (nonetheless subject to Court’s scrutiny) Limitations must not curtail the rights in question “to such an extent as to impair their very essence and deprive them of their effectiveness” (Mathieu-Mohin and Clerfayt v. Belgium, Py v. France) Art. 3 P. 1 contains no specific conditions for restrictions but: any restriction must pursue a legitimate aim means employed must not be disproportionate Art. 3 para. 1 of Convention

4. ECHR approved disenfranchisement for a variety of criminal convictions: offences of political nature, e.g. collaboration with an essentially undemocratic regime (Glimmerveen and Hagenbeek v. the Netherlands; X v. Belgium; X. v. Netherlands); serious crimes, e.g. possession of explosives (Patrick Holland); financial crimes, including fiscal fraud (M.D.U. v. Italy) Development of judgments (before Hirst and Frodl)

5. Disenfranchisement of a convict does not necessarily have to be linked to a prison sentence (M.D.U.) Disenfranchisement could lasts longer than the imprisonment (Glimmerveen; X cases) Lengthier sentences (Glimmerveen; X cases; Patrick Holland) and shorter sentences (e.g. two years - M.D.U.) can accompany the disenfranchisement Both temporary and lifelong disenfranchisement of convicts is possible (Glimmerveen; X. cases) But: Right to vote must not be deprived “of its effectiveness” (Aziz v. Cyprus - complete ethnic minority of the Cypriot population was barred from voting) Peculiarities in the case law

6. “Legislation on elections varies from place to place and from time to time.” “Rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State.” “Any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another.” Py v. France judgment (6 June 2005)

7. Prisoner convicted for manslaughter, complete disenfranchisment 2 judgements (Hirst 1/Court – 30 March 2004; Hirst 2/Grand Chamber – 6 October 2005) Court accepted “in principle” a wide margin of appreciation of Member States (it is left “to them to decide which restrictions on the right of prisoners to vote could legitimately be imposed”) but: “(…) margin of appreciation is wide, (but) it is not all-embracing” Breach of Art. 3 of Protocol No. 1 of the Convention (Art. 3 P. 1) Hirst v. United Kingdom

8. “… several criteria (…) for disenfranchisement to be respected by member States when imposing restrictions” only for “narrowly defined group of offenders serving a lengthy term of imprisonment direct link between the facts on which a conviction is based and the sanction of disenfranchisement measure should preferably be imposed “not by operation of a law but by the decision of a judge” (following judicial proceedings) Criteria according to Hirst

9. “(…) disenfranchisement operating under United Kingdom law was a “blunt instrument”, imposing a blanket restriction on all convicted prisoners in prison and doing so in a way which was indiscriminate, applying to all prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. (…)” “(British) 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.” Grand Chamber on Hirst – Quotes (1)

10. “(…) 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.” Grand Chamber on Hirst – Quotes (2)

11. Judges Wildhaber, Costa, Lorenzen, Kovler, Jebens (5 of 17) “We are not able to agree with the conclusion of the majority” States have a wide margin of appreciation; relevant criteria may vary according to historical and political factors peculiar to each State general restriction on prisoners’ right to vote is possible no judge “in each individual case” necessary (“let the legislature decide such issues in the abstract”) “little consensus in Europe about whether or not prisoners should have the right to vote” “(…) obvious that the deprivation of the right to vote for the most serious offences such as murder or manslaughter is not excluded in the future” Dissenting opinion in Hirst

12. 1993: Helmut Frodl convicted of murder, sentenced to life imprisonment 2002: not allowed to vote in National Council elections – Constitutional court confirmed that Frodl was not put on electoral roll 2004: Frodl approaches ECHR 2009: Case accepted 8 April 2010: Judgement Austrian Grand Chamber application  negative 4 October 2010: Judgement final Then came Frodl …

13. “(Austrian) provision in question is more detailed than the ones applicable in Hirst.” “(…) does not apply automatically to all prisoners irrespective of the length of their sentence and irrespective of the nature or gravity of their offence, but restricts disenfranchisement to a more narrowly defined group” But: “… does not meet all the criteria established in Hirst” “(…) provision which provides for the general exclusion from suffrage of certain groups of convicted prisoners (…) does not contain “a discernible and sufficient link” between the (additional) sanction (including its legal consequences) and the conduct of the individual concerned and was therefore not in compliance with the proportionality principle” Frodl v. Austria

14. Section 22 National Council Election Act: “(1) Anyone who has been convicted by a domestic court of one or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of more than one year shall forfeit the right to vote. Disenfranchisement shall end six months later. Time shall start to run once the sentence has been enforced and any preventive [detention] measure combined with the deprivation of liberty has been enforced or dropped; if the sentence is enforced with the period of detention on remand being counted towards the sentence, time shall start to run when the judgment becomes final. (2) If the legal consequences [of a conviction] are suspended under other legal provisions or have lapsed or if all legal consequences or the forfeiture of the right to vote have been pardoned, the convicted person shall not forfeit the right to vote; nor shall he or she forfeit the right to vote if the court has imposed a conditional sentence. If the condition is revoked, disenfranchisement shall take effect from the day that decision becomes operative.” The Austrian law before Frodl

15. Frodl v. Austria:“Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions”  No such specific condition in “Hirst” The “Hirst Test”

16. Serious issues of general importance: “Chamber has attributed far greater importance to a single statement in the Hirst judgment in para. 77 (in addition to the pertinent recommendation of the Venice Commission in para. 71) than has been indicated by the conclusions of the Grand Chamber in the Hirst judgment” Serious questions affecting the interpretation or application of the Convention: “dissenting opinion” re: Hirst and “to what extent factual and legal developments prior to the issuance of the ECHR’s decision are to be taken into account” Letter of 8 October 2010: Not accepted, judgement final on 4 October 2010 Austrian Grand Chamber Application

17. Political debate started Media reports Plans to take up the issue with the next legal reform 2011 reform amended the law Consequences

18. Convicted prisoners generally retain the right to vote, unless the court decides to withdraw it on an individual basis (sole discretion of the Court): “Circumstances of the individual case have to be considered” Criteria: Sentence is over one year without probation for offences against the state, notably electoral fraud, high treason, assaults against the Army or supreme organs of the state, or denial of the Holocaust (“link between the offence committed and issues relating to elections and democratic institutions”) or sentence is over five years without probation criminal judgement – decision taken on an equal footing with the sentence and “can be appealed against” Right to vote and right to stand was split New rules also apply to elections on provincial and local level 2011 Reform: Amendment to the law

19. Grand Chamber decision of 22 May 2012 (3rd decision) Scoppola changes elements of Frodl (only Chamber judgement) several arguments of Austrian Government basically confirmed Franco Scoppola: Killed wife in 1999, wounded one of his sons – life sentence Italy: Disenfranchisement of prisoners convicted of specific offences against the State or more than five years in prison Scoppola v. Italy (1)

20. Grand Chamber: Italian law did not violate Art. 3 P. 1 Key principle of Hirst confirmed: No blanket restrictions which lack scrutiny of proportionality by the legislature Court decision not essential, also incorporation in the law possible respect for differences in “historical development, cultural diversity and political thought within Europe” Legal provisions define the circumstances (factors such as gravity of the offence committed and the conduct of the offender) Scoppola v. Italy (2)

21. Court decision necessary? Frodl v Austria: “essential element” was that the decision “ought to be taken by a judge and accompanied by specific reasoning to explain why disenfranchisement is necessary”: Scoppola: “(…) reasoning [in Frodl] takes a broad view of the principles set out in Hirst, which the Grand Chamber does not fully share.” (…) “The fact that the applicant was disenfranchised by legislation, and not by the decision of a judge, did not of itself make the measure disproportionate.”  Dissenting opinion of Judge Björgvinsson Scoppola v. Italy (3)

22. Case law changes Need to carefully watch developments Grand Chamber application not easy Reaction to judgements? Lessons learned?

23. Contact: Gregor Wenda Deputy Head of Department III/6 (Electoral Affairs) c/o Federal Ministry of the Interior Republic of Austria Gregor.wenda@bmi.gv.at www.bmi.gv.at/wahlen Thank You forYour Attention!