People have rights simply because they are human and these rights cannot be earned, nor are they lost for bad behaviour. According to Scoppla he complained before the court that his right to vote guaranteed under article.3 of protocol no.1 had been violated. However, there was no difficulty of avoiding disenfranchisement under domestic law. The claimant had been arrested and had to stand trial for murder of his wife, attempted murder of his son, ill-treatment of his family and unauthorised possession of a firearm. He was found guilty of all charges on the 24th 2000, he then was sentenced 30 years and also a lifetime ban from public offices. However, he was initially sentenced life imprisonment, but due to the fact of violation of article 6 and 7 of the convention, it was reduced to 30 years.
18 states out of the 41 states allow their prisoners to vote without any restrictions. UK is included with the 13 States that ban all prisoners from voting however there are several states which have a partial ban on some prisoners and Italy is included. Countries such as Belgium allows prisoners vote if they serve less than 4 months, whereas Austria allows their prisoners to vote if they serve less than a year. Italy disenfranchises prisoners who serve more than 5 years. Countries such as Romania allow prisoners who commit petty crime to vote although if the crime is more of a serious offence then they would lose their right to vote. 1 In Scoppola situation, he had commited a murder and was sentenced for more than 5 years; murder itself is a serious offence. If the rules are broken then there must be some sort of suffering especially for such offence line murder.
This case had allowed the grand chamber of the European court of human rights to reassess the issue of prisoners’ deprivation of the right to vote under article 3; ‘no one shall be subject to torture or to inhuman or degrading treatment or punishment’2. According to the Italian criminal law system it said that there is an ancillary penalty of the ban from public offices this is compulsorily imposed against the person who is convicted by the final judgement under two hypotheses. However, the ban can possibly be permanent or provisional varying on cases and involves the loss of right to vote for the term of its duration. The claimant had relied on the Hirst case to back his argument. In Hirst, it was held that voting is a right not a privilege to be taken away3. It is considered that the Hirst decision lacks examination of proportionality by the legislature, are opposing with the convention. Some conventions are outright or unequivocal and impedance with them can’t be legitimized; others are constrained and a state may intervene with them in certain circumstances however most are eligible or contingent and might be limited. The court will dependably inquire as to whether a state’s obstruction is recommended by law, vital in a majority rule society and proportionate.
Nevertheless, it would be acceptable to say that each state has a wide preference as it how it standardises ban4. However, in Scoppola the court has changed the way in which the concepts are applied; done by strengthening the roles of the individual case before evaluating the proportionality of a disenfranchisement measure.
Nevertheless, it looks at the pertinent legitimate system, yet it appears to content itself of the exertion made by the Italian legislator in separating different cases relying upon the idea of the offense or the cruelty of the sentence, without analysing whether the arrangement received would prompt regard of proportionality in every last case. In addition, the Court’s decision demonstrates a steady worry in featuring the pertinence of the conditions of the case, specifically of the gravity of the offenses submitted by the candidate5.
The sovereign states are responsible for protecting rights in their own countries, also the ECtHR is shared in the international agreement which allows them to confirm their wish to respect human rights. According to Art.54 of the ECHR; “the judgement of the court shall be transmitted to the committee of Ministers which shall supervise its execution”6.
In view of the assorted variety of conventions and societies the ECtHR manages each express “Margin of appreciation” – space to authorize the rights in a way which fits with their residential traditions and qualities. The responsibility of the ECtHR, should be to support and supervise. With 800 million people inside the CoE territory it unmistakably must be a court of final resort.
It was said that ‘there is no question that a prisoner forfeits his convention rights merely because of his status as a person detailed the following convention…on what might offend public opinion’. This statement, gives a clear understanding of the fact that it would be considered as the restriction would be seen as outlying any acceptable margin of appreciation7, Margin of appreciation would be defined as a degree of freedom.
The margin of appreciation was introduced in Handyside v UK, the book was for the education of the children however it was considered as sexually explicit and also anti-authoritarian. The copies of the books were detained and destroyed8.
According to Article 19 of the UDHR 1948, everyone has the rights to freedom of opinion and expression however these rights must exist without obstruction of any media and regardless of frontiers. However, there are several factors which affect the scope of the margin which was allowed such as; provision invoked, interests at, aim pursued by questioned interference, context, proportionality, comprehensive analysis by domestic supreme court. Although Art.10(2) does not give the contracting countries the unlimited power of appreciation9. The issue was that the doctrine gives contracting countries restricted extension to translate rights as it were, which is reasonable in their own particular national set. The test here is to secure a rather intelligible and liberal average of protection.
Following the Hirst case, the judgement was that there was an ‘blanket ban’ on prisoners voting applied by the English law on all imprisoned offenders. Despite the fact of the length of their sentence, the nature of their offence and their individual circumstance. However; when the issue was raise to the Grand Chambers, Italian government had mentioned that the methods were met; norms of legality, legitimacy of the aim and proportionality requires for implicit restriction to the right to vote.
There has been situation where the UK Government had violated Art. 3 of Protocol no.1, due to the fact the UK Government had also restrained prisoners with serious offence to vote10. However, according to the convention right it is the ‘duty of national courts to keep pace with the Strasbourg jurisprudence as it evolves over time’ in the case of R (Ullah) v Special Adjudicator11.
According to the European Prison Rules 1987 it is said that imprisonment is by the hardship of liberty a discipline in itself. The situations of imprisonment and the prison regime would not hence, except as related to reasonable isolation or the support of teach, bother the torment distinctive in this12. The reason as to why the prison would commence this is so they will be able to discipline themselves. As mentioned before human rights cannot be lost for bad behaviour, voting is a right so they should not lose the right to vote. However, the human rights were created in 1948 and humanity is completely different in the recent time, which allows us to understand it would be better if this situation such as prisoners voting is approached in a different way.
The decision that was made by the Grand Chamber of the ECtHR; must allow some prisoners to vote but the decision that must be is about which prisoners it should be.
Scoppola was an Italian case and the decision was made for the Italian government, however it may be vital for UK government as well. One of the two reasons are that the court had made clear statement that the UK government had to bring it into place within the 6 months’ time from when the decision was made. This brought the legislative proposal which ended the blanket disenfranchisement of prisoners. Secondly due to the fact that the grand chamber has refined an outline oh how it expects each of the states to approach the original prisoner votes ruling.
To conclude; would you really want someone with a bad track record to get involved in voting; they’ve already broken the law by not abiding by the rules and regulation. Rules were made to protect the humans but if the rules are broken then you should not benefit from the rights that were given such as voting.
1 Hirst v United Kingdom (2) ECHR
6 Article 54 ECHR
7 Hirst v United Kingdom (2) ECHR
8 Handyside v UK
9 Human Rights Act 1998
11 R (Ullah) v Special Adjudicator 2004 UKHL 26
12 European Prison Rules 1987