In her recent post, Natasha Holcroft-Emmess critiques the European Court of Human Rights Grand Chamber (GC) judgment in Scoppola (no. 3); she rightly notes that the GC has taken a step backwards in terms of protecting prisoners’ voting rights. Unbound by constraints of Strasbourg jurisprudence, I have made elsewhere ‘the case for letting prisoners vote’, arguing that its use as a punishment should cease. In this post, I would like to suggest that, while the GC was professing to follow its 2005 decision in Hirst (no. 2), it was instead the First Section Chamber judgment in Frodl that was more faithful to Hirst (no. 2)’s logic.
In Hirst, the GC ‘read’ a proportionality requirement into Article 3 of the (First) Additional Protocol to the European Convention on Human Rights (‘the right to free elections’). It then held  the UK legislation disenfranchising all prisoners for the duration of their prison sentence to be ‘a blunt instrument’ that ‘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.’
In Frodl, the Chamber held that Austrian legislation disenfranchising all prisoners serving sentences of over a year violates the right to vote. It interpreted the Hirst ratio to require  that ‘disenfranchisement is an exception even in the case of convicted prisoners’ and that ‘specific reasoning… be given in an individual decision explaining why in the circumstances of the specific case disenfranchisement was necessary.’ Concomitantly, and indeed logically, the Chamber maintained that individualised assessment can only be made by a judge .
In contrast, in Scoppola (no. 3) the GC upheld Italian legislation permanently disenfranchising all persons sentenced to more than five years’ incarceration, and disenfranchising all persons sentenced to three-to-five years for the duration of their prison sentence. The GC maintained  that the Italian legislation is not disproportionate because it ‘is not applied…to all individuals sentenced to a term of imprisonment but only to those sentenced to a prison term of three years or more.’ However, Hirst (no. 2)’s ratio logically entails judicial involvement and rules out any form of blanket disenfranchisement, be the threshold one, three or five years’ imprisonment: how else can ‘individual circumstances’ and ‘the nature and gravity of the offence’ properly be taken into account?
It is hard to reconcile Scoppola (no. 3) with the GC’s rather consistent jurisprudence that ‘prisoners in general continue to enjoy all fundamental rights and freedoms guaranteed under the Convention save the right to liberty’ (applicable, a fortiori, to ex-prisoners affected by the Italian legislation), and that ‘[a]ny departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.’
One is thus left wondering whether the GC was affected by developments elsewhere, including the strong resistance by the UK government to implementing its Hirst (no. 2) judgment as reflected in a crossbench motion passed by an overwhelming majority on 10 February 2011 stipulating that the British parliament is ‘of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers’, as well as the lead up to the Brighton Declaration. Importantly, however, the U.K. is still required to amend its legislation by 22 November 2012, as dictated by the Chamber judgment in Greens and M.T. Scoppola (no. 3) seems to suggest that setting a threshold of 3 years’ imprisonment (or perhaps even less) will suffice.