Thierry Devigne v Commune de Lesparrre-Medoc and Prefet de la Gironde Case C650/1 (Court of Justice of the European Union 6 October 2015)
The battle for prisoners’ voting rights in the UK has been active now for nearly 15 years. Following the domestic courts’ refusal to declare s.3 of the Representation of the Peoples Act 1983 as incompatible with the right to vote under Article 3 of the First Protocol to the European Convention, the European Court of Human Rights, and then the Grand Chamber of the European Court confirmed that the ‘blanket’ ban on convicted prisoners voting in national and European elections was in violation of the ‘right to vote’ under article 3 of the First Protocol to the European Convention on Human Rights (1950): Hirst v United Kingdom (No. 2) (2006 42 EHRR 41). Despite that finding, and subsequent findings of the European Court, which confirm that the UK continue to breach its Convention obligations in this area, prisoners are still left without a remedy because the European Court of Human Rights and the Council of Europe are powerless to change the relevant law, and must wait for the government to initiate legislation which will comply with the rulings.
However, a recent decision of the European Court of Justice has accepted that the deprivation of the right to vote as a prisoner represents a limitation of the exercise of the right of EU citizens to vote in elections to the European Parliament. This means that UK law must comply with relevant EU law as far as European elections are concerned, and that if it is in conflict, including any ruling of the ECJ, then EU law will automatically apply and will prevail, irrespective of the government’s strict legal power to ignore the rulings and directions of the European Court of Human Rights and the Council of Europe.
The decision does not clear up all of issues surrounding the UK law in this area, as the decision was made with respect to a ban in another country, which is different than the one operating in the UK. Nevertheless, it gives some renewed hope to disenfranchised prisoners that the current ban may be inconsistent with right under EU law.
Facts and decision in Thierry Devigne v Commune de Lesparrre-Medoc and Prefet de la Gironde
In 1998 Devigne was convicted by the French courts of a serious criminal offence. Under the law at that time those convicted of such a crime were automatically and permanently deprived of their civic rights: the right to vote and stand for election. In 1994 the law was changed and under the Criminal Code the ban ceased to be automatic and had to be imposed by a court for a period not exceeding 10 years. As the new rule does not apply to convictions delivered before the new Code entered into force, Devigne remains banned under the previous law. He challenged the ban and the tribunal d’instance de Bordeaux asked the ECJ whether, taking into account the right of EU citizens to vote in elections to the European Parliament, a Member State can make provision for a general, indefinite and automatic ban on the exercise of civil and political rights.
The ECJ first held that the deprivation of the right to vote to which Devigne was subject represented a limitation of the exercise of the right of EU citizens to vote in elections to the European Parliament, as guaranteed under the Charter of Fundamental Rights of the European Union. However, the ECJ held that limitations to that right may be imposed on the exercise of such fundamental rights provided they are proportionate. On this issue, the ECJ ruled that the ban in question was proportionate in so far as it took into account the nature and gravity of the criminal offence committed and the duration of the penalty. The ban in question applied (at the time) only to persons convicted of a criminal offence punishable by at least 5 years’ imprisonment, and in any case allows the prisoner to apply for and obtain reinstatement of the civic rights which they have lost under the law. Accordingly, the ECJ felt that it is, under EU law, possible to maintain a ban which precludes persons convicted of a serious crime from voting in elections to the European Parliament.
The ECJ also found that the decision of the Court was not called into question by the rule of retroactive effect of a more lenient criminal law, under which any lighter penalty provided by law after the commission of a criminal offence must be applied. In the ECJ’s view, reform of the Criminal Code does not affect Delvigne’s position, since he had already been finally convicted before the reform came into force.
Despite the ECJ’s acceptance that EU law applies to this area with respect to elections to the European Parliament, it is questionable whether the decision resolves the question whether UK law is compatible with the European Convention and the EU Charter.
At the very least the ECJ recognise that EU law and rights are engaged, in comparison with the domestic courts who felt that it had little impact. Thus in Chester and McGeough (2013), the Supreme Court held that even if EU law had recognised a right to vote, it would not have gone further than Strasbourg jurisprudence as the ECJ very rarely declined to follow that case law. The only relief that the domestic courts could consider would be to declare relevant legislation inconsistent with EU law; it could not simply disapply the legal prohibition on prisoner voting. Nor, in the Court’s view, could the courts read the provisions compatibly with EU law: the legislation was clear, and it would contradict the UK’s intention in enacting it to allow some prisoners to vote under unspecified conditions; the Supreme Court could not devise an alternative scheme to Parliament.
Now that it is accepted that EU rights might be engaged, with respect to legality, looking at the tenor of the recent judgment it would appear that any restriction on disenfranchisement needs to be proportionate taking into account the nature and gravity of the offence and the duration of the penalty. Taking that into account the ECJ were satisfied that the French law (at the time of Delvigne’s conviction, and certainly after the reform of the Code) was proportionate because it only applied to serious criminal offences (in this case those involving at least 5 years’ imprisonment). This reflects the quite broad margin of appreciation given to states by the European Court of Human Rights in this area. Thus in Scoppola v Italy, the Grand Chamber not only hinted that each state had a broad discretion to determine the rules on prisoner disenfranchisement, but also held that judicial involvement in the decision to ban prisoners from voting was not necessary. The ECJ’s ruling displays a similar reluctance to interfere where the domestic law only applies to certain and serious crimes.
The insistence that the law takes into account the gravity and nature of the ban would appear to leave the ban imposed on UK prisoners as still incompatible with both the European Convention and the recent decision of the ECJ. This is because of the blanket nature of the ban, which in Firth v United Kingdom the European Court recently confirmed as incompatible with article 1 of the first protocol; the ban not taking into consideration the nature and seriousness of the offence. In Firth the Court recognised that despite the recent steps taken in the United Kingdom with the publication of a draft bill and the report of the Parliamentary Joint Committee appointed to examine the bill, that the legislation remained unamended.
However, one dissenting judge in Firth – Judge Wojtycek – believed that the decision in Scoppola affords governments a much wider discretion, and one which could clearly cover the present UK law. In his view the law in the UK does not amount to a blanket ban, because it only applies to those in detention, as opposed to other jurisdictions which allow the ban to continue beyond incarceration. Accordingly the judge called for a review by the Grand Chamber of the situation regarding prisoner voting rights. If this is true, then it is possible for the government to argue, – both before the European Court of Human Rights and the ECJ – that the ban is indeed proportionate given that it only applies during the prisoner’s incarceration and that, unlike other jurisdictions, prisoners resume their civic rights on release.
It is clear from the recent ECJ case that proportionality is at the heart of the legality and compatibility of any ban, and the wording of the ECJ’s judgment appears to reflect, no more and no less, the standards already laid down by the Strasbourg Court. Those standards are, however, flexible and changing: both Courts have suggested that there will be some margin left to the state, but it is unclear at what point either Court would regard the ban as disproportionate. More specifically, it is not certain whether the ECJ would accept a ban such as the UK, which is blanket in one sense (it applies to all incarcerated prisoners), but perhaps, not in another (in the sense that it does not apply beyond incarceration) It is suggested that the present UK ban is blanket and disproportionate: at best a lazy solution to the question of whether prisoners should be able to vote; at worst an illogical and disproportionate interference with a fundamental democratic right.