In Scoppola v Italy (No. 3) (Application no. 126/05, 22 May 2012) the Grand Chamber of the European Court of Human Rights once again engaged with the vexed issue of prisoners’ voting rights.

Italian legislation permanently disenfranchised prisoners convicted of specific offences against the State and those sentenced to more than five years’ incarceration. The applicant was disenfranchised as a result of his sentence to life imprisonment and ban from public office. It was argued that this violated his right to vote, which the Court has read into Article 3 Protocol 1 of the European Convention on Human Rights (‘ECHR’). By a majority, the Grand Chamber held that Italian law did not violate Article 3 Protocol 1 ECHR.

The majority held at [108] that the Italian legal provisions defining the circumstances in which individuals would be deprived of the right to vote lacked the ‘general, automatic and indiscriminate’ character which led to the finding of a violation of Article 3 Protocol 1 ECHR in the landmark case of Hirst v United Kingdom (No. 2) (2006) 42 E.H.R.R. 41.The Grand Chamber reaffirmed the key principle of Hirst, that blanket restrictions on prisoner voting, which lack scrutiny of proportionality by the legislature, are incompatible with the Convention. Thus the Court professed its commitment, at [82], to ensuring strong protection of the right to vote, as ‘crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law.’

However, the majority departed from certain prior jurisprudence, consequently diminishing the protection afforded to prisoners’ voting rights. In Frodl v Austria (2011) 52 E.H.R.R. 5,the Chamber had held at [34] that an ‘essential element’ in establishing the proportionality of a deprivation of a prisoner’s right to vote is that the decision ought to be taken by a judge and accompanied by specific reasoning to explain why disenfranchisement is necessary. The majority in Scoppola, however, stated at [99] that the ‘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.

The majority in Scoppola justified its deference at [102] as respect for differences in ‘historical development, cultural diversity and political thought within Europe.’ Yet, as Judge Björgvinsson argued in dissent, where the right of individual prisoners to engage in participatory democracy is concerned, limitations must be subjected to close scrutiny. Even when executed through detailed legislation, such disenfranchisement has the same effect of automatic disqualification as a blanket restriction. The decision to disenfranchise prisoners ought, it is argued, to be taken by a sentencing judge who will be fully aware of the mitigating circumstances and intricacies of the case and will, most importantly, be able to assess the proportionality and propriety of disenfranchisement in each particular case. It is lamentable that the majority of the Grand Chamber declined to extend this judicial protection to prisoners’ voting rights, thereby undermining the promise of effective democracy under the Convention.

Natasha Holcroft-Emmess is a BCL candidate at the University of Oxford.