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ISBN 978-3-7083-1040-4

European Yearbookon Human Rights 15

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edited byWolfgang Benedek

Florence Benoît-RohmerMatthias C. Kettemann

Benjamin KneihsManfred Nowak

2014 was a year of transition and controversy in Europe: a new Parlia -ment and new Commission were constituted and Opinion 2/13 of theCourt of Justice of the European Union on the EU’s accession to theEuropean Convention on Human Rights raised serious questions aboutthe coherence and future character of the human rights protectionregimes in Europe.

Across 38 contributions by 61 authors in five sections, the EuropeanYearbook on Human Rights 2015 explains and contextualizes key developments in human rights and provides much needed analysis.

Edited jointly by representatives of four major European human rightsresearch, teaching and training institutions, the Yearbook 2015 coverspolitical and legal developments in the field of the three main organi -zations charged with securing human rights in Europe: EU, Council ofEurope and OSCE, accompanied by a chapter on cross-cutting topics.Now in its seventh edition, the Yearbook remains essential reading foranyone interested in human rights in Europe and the world.

ISBN 978-1-78068-337-9

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Table of Contents

Editors’ Preface .................................................................................................... 7 Abbreviations ...................................................................................................... 17

I Topics of the Year ................................................................ 25

Paul GRAGL The Reasonableness of Jealousy: Opinion 2/13 and EU Accession to the ECHR ............................................................................. 27

Elisabeth STEINER and Ioana RĂTESCU The Long Way to Strasbourg – The Impact of the CJEU’s Opinion on the EU’s Accession to the ECHR ........................................................ 51

Maria BERGER und Clara RAUCHEGGER Opinion 2/13: Multiple Obstacles to the Accession of the EU to the ECHR .................................................................................................... 61

II European Union .................................................................... 77

Wolfgang BENEDEK EU Human and Fundamental Rights Action in 2014 .............................. 79

Hans-Peter FOLZ The Court of Justice of the European Union and Human Rights in 2013-2014 .................................................................................................. 105

Theodor RATHGEBER Human Rights à la Carte: The EU at the UN Human Rights Council in 2014 ......................................................................................... 125

Gosia PEARSON Assessment of the Implementation of the EU Human Rights Strategy and Action Plan as Regard Business and Human Rights .... 135

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Valentina CAGNIN The Potential Role of the Horizontal Social Clause (Article 9 TFEU) on Social Rights Protection ........................................................ 143

Karin LUKAS The EU Charter of Fundamental Rights and the European Social Charter – an Alliance for Social Rights?................................................ 153

Ewelina TYLEC The Influence of Economic Crisis on Fundamental Rights in the European Union: A Step Forward or Step Backwards? ....................... 165

Moritz BIRK and Gerrit ZACH Torture Prevention in the EU – Many Actors, Few Outcomes? ........... 175

Grazia REDOLFI European Union’s Attitude Towards Reproductive Rights: Clear Policy or Double Standards Approach ................................................. 189

Denise VENTURI The Body as an Instrument of Border Control: Remarks on Age Assessment for Unaccompanied Migrant Children ............................. 201

Rocío ALAMILLOS SÁNCHEZ EU Sanctions Policy: A New Human Rights Tool? The Case of Belarus ..................................................................................................... 213

Nicolas HACHEZ and Jan WOUTERS Introducing FRAME: A Large-Scale Research Project on the European Union and Human Rights ...................................................... 227

Katharina HÄUSLER and Alexandra TIMMER Human Rights, Democracy and Rule of Law in EU External Action: Conceptualization and Practice ............................................... 231

Balázs MAJTÉNYI The Nation’s Will as Trump in the Hungarian Fundamental Law ........ 247

Felipe GÓMEZ ISA and María NAGORE CASAS EU Member States Under the Universal Periodic Review of the Human Rights Council: Achievements and Challenges ...................... 261

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Carolina PAVESE, Jan WOUTERS and Katrien MEUWISSEN The European Union and Brazil in the Quest for the Global Promotion of Human Rights: Prospects for a Strategic Partnership .............................................................................................. 279

Viljam ENGSTRÖM and Mikaela HEIKKILÄ Lisbonising Back and Forth? Strategic Planning and Fundamental Rights in the AFSJ ............................................................ 295

Veronika APOSTOLOVSKI, Isabella MEIER, Markus MÖSTL, Klaus STARL and Maddalena VIVONA Measuring Human Rights in EU Practice: Realities and Requirements ........................................................................................... 307

III Council of Europe .............................................................. 317

Brigitte OHMS, Dominik HAIDER, Elisabeth HANDL-PETZ, Martina LAIS and Sebastian SCHOLZ The Jurisprudence of the European Court of Human Rights in 2014: A Year of Consolidation ................................................................ 319

Amalie BANG Recent Developments in Whistleblower Protection in Europe ........... 343

Jonas GRIMHEDEN and Gabriel N. TOGGENBURG Fundamental Rights in EU Criminal Justice Instruments: How to Best Make the Glass Slipper Fit? ........................................................... 355

Adina PORTARU The “Rights and Freedoms of Others” vs. Religious Manifestations: Who Wins at the ECtHR? ............................................. 367

Zane RATNIECE and Kushtrim ISTREFI The Limits of the Strasbourg Court’s Two-Level Harmonization Approach vis-à-vis SC Resolutions in Al-Dulimi .................................. 379

Philip CZECH European Human Rights in International Military Operations ............. 391

Sarah LAMBRECHT The Brexit Scenario: Potential Consequences of a Withdrawal of the UK from the European Convention on Human Rights .................. 407

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IV OSCE .................................................................................... 421

Manfred NOWAK Torture, Enforced Disappearances and Extrajudicial Killings in the OSCE Region ..................................................................................... 423

Eva Katinka SCHMIDT and Vasily VASHCHANKA Judicial Performance Evaluation and Judicial Independence: International Standards for an Appropriate Balance ............................ 435

Irina URUMOVA The Role of Social Inclusion in Preventing Victimization: What We Know and What We Don’t Know ...................................................... 445

Lucile SENGLER Foreign Terrorist Fighters: A Human Rights Perspective .................... 453

Martina ORLANDI Wartime Sexual Violence: The Route to Accountability Between International Justice and Political Commitments ................................ 467

Kateryna RYABIKO and Marcin WALECKI A Right to Political Participation Beyond Elections ............................. 479

Andrei RICHTER The Relationship between Freedom of Expression and the Ban on Propaganda for War ........................................................................... 489

V Cross-Cutting Issues ........................................................... 505

Klaus STARL, Veronika APOSTOLOVSKI and Ingrid NICOLETTI Human Rights Education for the Judiciary: An Assessment of a Decade of Training Experience ............................................................. 507

Tessa SCHREMPF An Economy to Feed (on) Human Beings? Human Rights and the Responsibility to Counteract .................................................................. 517

Patrick HARRIS Prisoners: Disenfranchised with Dignity? Searching the Legal and the Theoretical to Find the Cure for Europe’s Ailing Right to Vote ........................................................................................................... 533

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VI Book Reviews ..................................................................... 551

Biographies ....................................................................................................... 567

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Patrick HARRIS

Prisoners: Disenfranchised with Dignity? Searching the Legal and the Theoretical to Find the Cure for Europe’s Ailing Right to Vote

Table of Contents

A Background: The Prisoner Voting Problem ............................................. 534 1 Introduction .............................................................................................. 534 2 Approach ................................................................................................. 534 B The Theory: Human Rights as Claims to Interests Protecting Dignity,

Development and Capability .................................................................... 535 1 Outline ..................................................................................................... 535 2 Rights Restrictions: Proportionality and Balance ..................................... 536 3 The Right to Vote Within the Model ......................................................... 538 C The Right to Vote in the European System ............................................. 540 1 Article 3 of Protocol 1 ............................................................................... 540 2 Guidance on the Right to Vote ................................................................. 540 3 The European Case Law on Prisoner Voting .......................................... 542

a Hirst v. UK (2005) ........................................................................... 542 b Frodl v. Austria (2010) .................................................................... 542 c Scoppola v. Italy (2012) .................................................................. 543

4 Reflections on the Case Law and Reasoning .......................................... 543 a The “Legitimate” Aims of Disenfranchisement ................................ 544 b The Problem with the Margin of Appreciation ................................. 546

D The Legal: Lessons for the Margin of Appreciation and Proportionality Tests ................................................................................ 547

1 Correcting the Balance: Structuring the Proportionality Test ................... 547 2 Advantages of the Two-Stage Approach ................................................. 548 E Conclusions ............................................................................................. 549

Keywords

ECHR, voting, prisoners, Article 3 of Protocol 1, disenfranchisement, dignity, UK, democracy, proportionality, margin of appreciation, interest theory

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A Background: The Prisoner Voting Problem

1 Introduction

In November 2010, UK Prime Minister David Cameron defiantly declared himself “physically ill” at the thought of convicted prisoners being given the vote. This, in response to the 2005 case of Hirst (No. 2),1 (hereafter: “Hirst”) in which the European Court of Human Rights (ECtHR) decided that the UK’s blanket voting ban for jailed offenders2 was disproportionate, had arbitrary effects, and had not been the subject of considered debate in the UK Parliament.3 It was therefore deemed incompatible with Article 3 of Protocol 1 (A3P1) to the European Con-vention on Human Rights (ECHR).

Ten years have passed and the UK has made no concrete changes, legisla-tive or otherwise, in an attempt to move away from its blanket ban. Defiance on disenfranchisement shows little sign of abating. The UK Supreme Court unani-mously dismissed two further appeals by prisoners in October 2013, given the lack of legislative change.4 The UK Parliamentary Joint Committee on the Draft Voting Eligibility (Prisoners) Bill published its report on the 18th of December 2013, conceding the need for reform, and giving proposals for changes.5 Yet concrete legislative reform would seem to be completely at odds with the current political climate. Most recently, and unsurprisingly, the government announced in December 2014 that prisoners would not be enfranchised before the 2015 Gen-eral Election on 7 May.6

2 Approach This article draws upon human rights theory and takes the opportunity to present human rights in a way that exposes the UK’s reliance on background political considerations to justify its position on disenfranchisement. This implies an argu-able misunderstanding of those rights, and the notion of dignity at their core. The article goes on to show how the position of defiance is encouraged by the weak-

1 ECtHR, Hirst v. The United Kingdom (No. 2), Appl. No. 74025/01 (6 October 2005). 2 The UK imposes a ban, pursuant to Section 3 of the Representation of the People

Act 1983, which is usually termed “blanket”, although remand prisoners, people im-prisoned for contempt of court and those imprisoned for defaulting on fines are eligible to vote.

3 The matter has since been debated in Parliament, in the House of Commons on 10th February 2011, (HC) Deb. (10 February 2011), Vol. 523, Columns 493-586, http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110210/debtext/ 110210-0001.htm#11021059000001.

4 R (on the application of Chester) (Appellant) v. Secretary of State for Justice (Re-spondent); McGeoch/(AP) (Appellant) v. The Lord President of the Council and an-other (Respondents), Scotland (2013), UKSC 63.

5 The Draft Bill, http://www.justice.gov.uk/downloads/legislation/bills-acts/voting-eligibil ity-prisoners/voting-eligibility-prisoners-command-paper.pdf.

6 Ministry of Justice, Responding to human rights judgments: Report to the Joint Committee on Human Rights on the Government response to human rights judg-ments 2013-14, https://www.gov.uk/government/uploads/system/uploads/attachment_ data/file/389272/responding-to-human-rights-judgments-2013-2014.pdf, 6.

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ness of the provision for a right to vote in A3P1 to the ECHR, arguing that the unfortunate and vague wording has led to its de facto shift from right to privilege.

This article then attempts to reverse the shift by identifying a further problem; that the high degree of deference to which states feel entitled (in the form of the margin of appreciation (MoA)) threatens important elements of the proportionality test. The disenfranchisement of prisoners, for the most part, is not based on a proportionate, legitimate aim that has a discernible and logical link with the means employed. It is asserted that adding more structure to these tests could swing the balance back in favour of rights.

The section that follows elucidates a particular conception of rights and at-tempts to locate the right to vote within it.

B The Theory: Human Rights as Claims to Interests Protecting Dignity, Development and Capability

1 Outline Inspired by a number of human rights theories drawing upon natural rights, and the concepts of dignity, vulnerability and capability,7 it is the position of this article, that human rights are claims to protection against harms threatening the dignity of persons (often arising through the threat or denial of some developmental function or capability), generated by interests that arise in us as human beings.

Belonging within the “interest theory”8 camp, such a model places upon itself a self-justificatory and potentially circular burden. In other words, it raises the question; what is it about such interests that render them important enough to generate claims for protection? The answer seems, at the same time, to be both remarkably simple and exceedingly complex. Imagining, as Feinberg does, a world without rights, we can, without difficulty, envisage the vulnerability and harm that might arise.9 Systemic vulnerability in this sense can be seen as a justification for systemic protection.10 But that is not enough.

It is arguably the very definition of human life, to be and to do; to freely choose a life, and to develop according to one’s own autonomous choice. With-out such freedoms, one’s dignity is threatened. It should be then, that a life of 7 For work on vulnerability and human rights, see Bryan S. Turner (ed.), Vulnerability

and Human Rights (Essays on Human Rights) (2006). For work on capabilities, see Martha C. Nussbaum (ed.), Women and Development: The Capabilities Approach (2000).

8 As Fagan has noted, an interest theory must eventually assume some implicit account of human nature, which may then make it open to disagreement, Andrew Fagan, Hu-man Rights, Internet Encyclopaedia of Philosophy, section 4(b), http://www.iep.utm.edu/ hum-rts (9 April 2015).

9 Joel Feinberg, The Nature and Value of Rights, The Journal of Value Inquiry (1970) 4, 243.

10 Nickel has stated that, “a prudential argument from fundamental interests attempts to show that it would be reasonable to accept and comply with human rights, in cir-cumstances where most others are likely to do so, because these norms are part of the best means for protecting one’s fundamental interests against actions and omis-sions that endanger them (James W. Nickel, Making Sense of Human Rights: Philo-sophical Reflections on the Universal Declaration of Human Rights (1987), 84).

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dignity that comes from autonomous development and the exercise of capabili-ties, is protected through guarding against certain serious harms and both direct and indirect affronts to our dignity.

Dworkin has claimed that: “It makes sense to say that a man has fundamental rights against the gov-ernment, in the strong sense, like free speech, if that right is necessary to protect his dignity, or his standing as equally entitled to concern and re-spect, or some other personal value of like consequence. It does not make sense otherwise.”11

According to such a view then, human beings possess those rights which are necessary for the protection of dignity, which must in turn require the protection of fundamental capabilities, autonomous self-expression and development. Both the strength and the weakness of such a view seems to lie in the amorphous nature of dignity; an enigmatic concept precious, yet difficult to define. On the one hand, such a theory may require the elusive concept to do too much. On the other hand, it is almost undeniably the life force behind ideals of human rights. One only has to look to the preambular paragraphs of the Universal Declaration on Human Rights, and the International Covenants on Civil and Political, and Economic and Social Rights to find substantiation. UN General Assembly Reso-lution 41/120 of 1986 also explicitly reaffirms dignity as the basis of human rights.12 Reliance on the concept in such treaties and international instruments is of course extremely symbolic, but certainly, it has led many to the idea that “human rights were designed specifically for the protection of dignity”.13 Protecting this dignity then necessitates protection against harms to physical integrity, but also against harms that compromise our development and core capabilities.

2 Rights Restrictions: Proportionality and Balance Once it is established that human rights are of such importance, we enter into a further debate about when they can be justifiably restricted. There are those who would argue that the idea or the language of balancing is dangerous to rights protection,14 but, considering the impossibility of an absolute trump for rights, a balance of some kind is inevitable, even if we choose to conceive of it in a differ-ent way.15

Some would go further, and argue that it is wrong to “trade off” rights and 11 Ronald Dworkin, Taking Rights Seriously (1977), 199.

12 U.N. Doc. A/Res/41/120 (4 December 1986), Setting international standards in the field of human rights, http://www.un.org/documents/resga.htm.

13 Walter Osiatyński, Human Rights and Their Limits (2009), 190. 14 Andrew Legg, The Margin of Appreciation in International Human Rights Law, Def-

erence and Proportionality (2012), 187. 15 Ibid., “Luteran argues that the language of balancing should be abandoned, since it

gives rise to a prevalent and unhelpful understanding of proportionality as a cost-benefit analysis when instead the courts are assessing the proportion between the ends and means of state action.” (Cf. Martin Luteran, Some Issues Relating to Pro-portionality in Law and Ethics, with Special Reference to European Human Rights Law, DPhil, Oxford University (2009), 260 et seq.) I would argue that assessing the proportion between the ends and means is also a form of balancing, whether we choose to use the term or not.

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other values. That, if we accept the importance of rights as we have above, it would compromise, in a Kantian sense, treating human beings as ends in them-selves to perform such an exercise.16 Once one begins to do so, one concedes that the difference between human rights and other values is merely a question of degree, and it is difficult then, to put the right, prior to the good. Given that worthy consideration of this subject would fill a great many pages, it is simply submitted here that whilst this deontological view theoretically recognises the fundamental nature of rights, in practice it falls short. In truth “the search for a fair balance is inherent in the whole of the Convention”.17

Proportionality would seem to dictate that rights be restricted by claims imply-ing at least a similar importance or necessity; in other words, by those interests protecting against sufficiently similar or intimate harms. If this is not the case, then the strength of their protection is wholly undermined. Consider the claim that prisoners have forfeited their rights and ought to be punished by their removal. Such a view was expressed in the UK Divisional Court judgment of Hirst in 2001. The then Secretary of State for the Home Department argued:

“By committing offences which by themselves or taken with any aggravat-ing circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have their say in the way the country is governed for that period. There is more than one element to punishment than forcible detention. Removal from society means removal from the privileges of society, amongst which is the right to vote.”18

The problem with this view is that it appears to cloud the disproportionality of the restriction with moral judgment. If we accept that what gives rights their value is their relationship with, and capacity to protect against these affronts to our fundamental characteristics, then it would be entirely inconsistent to allow them to be valued on a par with, or below interests that are contingent only upon our moral judgments. If we do so, they will be at risk of becoming nothing more than a “pick and choose” collection of norms which are merely respected at conven-ience and in accordance with changing political tides. The person who is dis-gusted by the legality of same-sex marriage does not suffer harm in his offence or moral outrage, that can be equated with that of the person who has no legal possibility to marry the partner of his choosing. The latter suffers harm to his autonomous self-expression and is effectively told that his sexual orientation is not accepted. The former suffers an offence based upon the fact that his subjec-tive preference generates a dislike for the policy. Aside from the offence, his capability to live his life as he wishes is not affected.19 His offence does not fall into the category of “harm” and ought to be treated as a “background considera-tion”20 which should not justify entering into any sort of balance of harms. 16 Raz has been a strong proponent of the theory that rights and goods are not com-

mensurable. Cf. Joseph Raz, The Morality of Freedom (1986), 321-368. 17 ECtHR, Sporrong and Lönnroth v. Sweden, Appl. Nos. 7151/75 and 7152/75

(23 September 1982), 69. 18 As cited in Hirst v. UK (2005), No. 2, 16. 19 One might argue of course, that his ability to live his life in a world free of same-sex

marriage is affected. But the line has to rest upon some defined harm; his autonomy is not sufficiently affected so as to endanger his development and dignity.

20 Dworkin argued that such background considerations should be “trumped” by rights;

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Of course, the right to vote is more complex than the same-sex analogy. It comprises (inter alia) considerations of democracy and situations (despite the position of this article that these will be rare) whereby the punishment is arguably justified. But if we believe in the importance of human rights, then we cannot be entitled to let moral judgments influence our thinking. Human rights, centred on protecting the dignity of human beings, is wholly undermined if we are governed by considerations of how we feel toward people, independently of the harm that they present.

3 The Right to Vote Within the Model Within her list of core human capabilities, Nussbaum included “affiliation”. This capability requires that a person be able to engage in interaction, socially and institutionally, and includes political speech.21 She further states that this principle encompasses, “[h]aving the social bases of self-respect and non-humiliation”;22 “being able to be treated as a dignified being whose worth is equal to that of others”.23

Considering the above, we could argue that interaction, expression and affilia-tion are concepts which mutually reinforce an understanding of dignity that is protected by rights. It certainly seems that possessing the ability to express one-self, interact, engage in dialogues and affiliate politically, affords a person a particular sense of political worth perhaps not possessed by those who lack such abilities. This is without even taking into account the more pragmatic side of political participation, which allows one to further one’s own interests by electing candidates of one’s choice, and having an (albeit minor) influence on shaping the policies and laws to which one will be subjected. Whilst it may be difficult for us to appreciate the importance of the right to vote in the modern day,24 attempting to locate it within the rights model expressed above arguably shows it to protect dignity in more than one sense.

In a South African case concerning prisoner voting, Sachs J stated: “The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.”25 Such a view accords with Dworkin’s claim above that fundamental rights are those necessary to protect the dignity of a person, in the sense of ensuring their entitlement to equal concern and respect, inde-pendently of our thoughts on what might be deserved.

Ronald M. Dworkin, Rights as Trumps, in: Jeremy Waldron (ed.), Theories of Rights (1984), 153-168.

21 Martha C. Nussbaum, Women and Development: The Capabilities Approach, (2000), 79.

22 Margalit has written that “a decent society is one that does not humiliate its citizens”, exploring also the relationship between rights, dignity and humiliation (perhaps the antithesis of dignity) (Avishai Margalit, The Decent Society (1998), 1-53).

23 Nussbaum (2000), 79. 24 E.P Thompson stated that [t]he vote, for the workers of this, and the next decade,

was a symbol whose importance it is difficult for us to appreciate, our eyes dimmed by more than a century of the smog of two-party parliamentary politics. It implied first “[…] equality of citizenship, personal dignity, worth”, Edward P. Thompson, The Mak-ing of the English Working Class (1966), 827.

25 August and Another v. Electoral Commission and Others (CCT8/99) (1999), ZACC 3, Sachs, 18.

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A further case may lend strength to this idea. In Sauvé v. Canada, the Su-preme Court stated that:

”denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person. More broadly, denying citizens the right to vote runs counter to our constitutional com-mitment to the inherent worth and dignity of every individual.”26

Some dissenting judgments in Sauvé claimed that punishment relates to the crime committed not to the judgment on the “worth” of the perpetrator.27 This may be true. But when the punishment of incarceration is aggravated by re-striction of voting rights, the question of proportionality arises. The state must then bear the burden of proving that all elements of the punishment fit the crime, both in terms of strict proportionality (a rational link between means and ends), and also in the wider sense of necessity for protection of others. Aggravating prison sentences by imposing voting restrictions, it is argued, will usually fail to clear these hurdles, because of a lack of rational link between means and ends, and because of the lack of a clear need, to aggravate the sentence in this way.

Once the reason for removal of the right is shown not to have a rational con-nection with rehabilitation, incapacitation, or deterrence of some harm, the reason for the restriction can only be punitive. This implies an assessment of desert, which, as already explained is inappropriate, on a human rights approach, espe-cially one founded on dignity.

What of those non-citizens who support the system through their taxes, but who are legally unable to vote in their country of residence? Can we really claim that their dignity is affected by their lack of voting rights? The indirect effects of restrictions on voting rights of non-citizens and of prisoners are the same; in that they are unable to represent their political interests and are deprived of a form of participation and autonomous expression (speaking to effects on dignity through capability and development). There is certainly an argument that this is the case. However, the manner of the restriction is different. Non-citizens, before becom-ing resident, did not possess voting rights in their current country of residence, and therefore their lack of this right appears not to involve the passing of moral-judgment on deservingness, but rather is based upon on a theory of democracy which has a certain (arguably hypocritical) conception of inclusivity. There is therefore a moral distinction between lack of inclusion and active exclusion.

A large part of the harm caused to prisoners, is the act of the passing of judgment upon their deservingness to vote, and thus indirectly, their worth to society (that their function is now only to obey the law and have no say in its creation).

Whilst a great deal of its strength is arguably symbolic, we should not forget that the right to vote quite simply underpins the democratic legitimacy of political systems which operate as democracies. In fact, it is the legitimacy of such sys-tems. Once the right to vote begins to be eroded in anything more than an ex-ceptional sense, that legitimacy begins to be chipped away, because it is not representative of all groups of society. Quite apart from the fact that losing your right to vote increases your chances of marginalisation from a society and system 26 Sauvé v. Canada (Attorney General) Canadian Supreme Court [2002] 3 S.C.R. 519,

199. 27 Ibid., 185.

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which now has less of an incentive to take note of your interests, we would surely be inclined to argue that there are strong reasons for including the right to vote in a basic and fundamental list of human rights. This article thus argues that, in the vast majority of cases, prisoners suffer an unjustified and undignified disenfran-chisement when they lose their voting rights.

C The Right to Vote in the European System

1 Article 3 of Protocol 1 Article 3 of Protocol 1 states:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free ex-pression of the opinion of the people in the choice of the legislature.”

Its formulation is vague and expressed in terms of state obligations rather than individual rights. It therefore calls into question and undermines the strong ideals of universal suffrage that are captured in the above guidelines.

A stronger version of this article was unfortunately rejected at the draft stage.28 The formulation that was instead accepted appears to be one that requires the state to ensure the free expression of the people (but not all of the people) in choosing the legislature, whilst ensuring at most, a weak link (in fact) between the choice of the legislature, and its subsequent action, in reliance upon the legitimacy of the people. This leaves us, reading the provision literally, with an exceptionally weak and unfortunately vague formulation. It appears to impose a duty upon the High Contracting Parties to hold free and fair elections, but little more than that. It is unsurprising then, that when the European Commission on Human Rights came to consider the Article, it initially interpreted it not to convey an individual right.29 In Mathieu-Mohin however, the European Court considered that the right could be the subject of individual applications.30 Despite this ruling, Article 3 is sometimes interpreted in its collective sense rather than as an indi-vidual and subjective conferral of voting rights, as will be seen when we examine certain reasoning in the case law.

2 Guidance on the Right to Vote There exists a significant amount of guidance concerning the right to vote, in-cluding from the European Commission for Democracy through Law (The Venice Commission), an advisory body of the Council of Europe on the question of con-

28 Cf. European Court of Human Rights, Preparatory Work on Art. 3 of Protocol 1 to the

European Convention on Human Rights (Travaux Préparatoires) Council of Europe (5 September 1986), http://www.echr.coe.int/LibraryDocs/Travaux/ECHRTravaux-P1-3-Cour(86)36-BIL1221606.pdf.

29 X v. Federal Republic of Germany, Appl. 530/59, Yearbook of the European Con-vention on Human Rights III (1960), 184, as cited in: Pieter Van Dijk and Fried Van Hoof (eds.), Theory and Practice of the European Convention on Human Rights (1998) (3rd ed.), 658.

30 ECtHR, Mathieu-Mohin and Clerfayt v. Belgium, Appl. No. 9267/81 (2 March 1987).

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stitutional and democratic issues. The Venice Commission’s guidelines state that disenfranchisement should not be seen as a rule but an exception. Given the ECHR’s status as an instrument adopted by the Council of Europe, the Commis-sion’s guidelines hold a particular relevance and legitimacy for our purposes.31

On a possible departure from the underlying principle of universal suffrage, the guidelines elaborate that a possible deprivation: ▪ [m]ust be provided for by law; ▪ [t]he proportionality principle must be observed [...]; ▪ [t]he deprivation must be based on mental incapacity or a criminal conviction

for a serious offence; ▪ [f]urthermore, the withdrawal of political rights [...] may only be imposed by

express decision of a court of law.32

Guidance from the Office for Democratic Institutions and Human Rights (ODIHR) offers a strong interpretation of the right to vote, noting that universal suffrage, as can be derived from A3P1, implies subjective participation rights. The UN Human Rights Committee has also expressed its opinion in its General Comment 25, emphasizing the need for any deprivation to be objective, reason-able and proportionate.33

Article 25 (b) of the International Covenant on Civil and Political Rights (ICCPR) guarantees the individual right to vote without unreasonable restrictions. Article 10 para. 1 of the same Covenant states that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”, and Article 10 para. 3 stipulates that, “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”.

It appears then that a blanket ban or even the lack of case-by-case consider-ation would certainly seem to be contrary to much of the above guidance, given that an (exceptional) express decision of a Court ought to be the only arena for the restriction on political rights. Anything else risks dangerous accusations of being “tantamount to the elected choosing the electorate”.34 On Article 10 para. 3 ICCPR it seems unlikely that the essential aim of disenfranchisment would be social rehabilitation. In Sauvé, the Court felt that there was “no rational connec-tion” between the promotion of civic responsibility and the denial of the right to vote. Furthermore, Easton has stated that:

“[D]isenfranchisement perpetuates isolation and social exclusion. Con-versely, restoring the vote and participation in the political process would assist in rehabilitation by reminding prisoners of the obligations and duties of citizenship and encourage a sense of responsibility.”35

31 European Commission For Democracy through Law (Venice Commission) Code of Good

Practice in Electoral Matters. Guidelines and Explanatory Report, adopted by the Venice Commission at its 51st and 52nd sessions (Venice, 5-6 July and 18-19 October 2002).

32 Ibid. 33 UN Committee on Human Rights, General Comment 25, The Right to Participate in

Public Affairs, Voting Rights and the Right to Equal Access to Public Service, 1510th meeting (57th session), CCPR/C/21/Rev.1/Add.7, http://www.osce.org/odihr/ elections/19154.

34 This was an argument asserted by the applicant in Hirst v. UK (2005), No. 2, 46. 35 Susan Easton, Prisoners’ Rights, Principles and Practice (2011), 224.

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3 The European Case Law on Prisoner Voting Now that the model of rights and restrictions, the position of the right to vote within it, and the provision for a right to vote in the European system have been expounded, we will turn to the main line of European case law on prisoner disen-franchisement, beginning with Hirst itself. The sections that follow will then attempt to identify ways to bring the reasoning and outcomes emerging from the case law, into line with the dignity approach.

a Hirst v. UK (2005)

The applicant John Hirst, a British national who was convicted of manslaughter, was given a life sentence in prison for his crime in 1980. Subject to the UK Rep-resentation of the People Act 1983, he was therefore banned from voting in parliamentary or local elections during the term of his imprisonment.

Section Three of Part One of the said Act, states that: “a convicted person during the time that he is detained in a penal institution in pursuance of his sen-tence […] is legally incapable of voting at any parliamentary or local government election.”36

The Chamber of the ECtHR held in 2004, that despite the wide margin of ap-preciation which they felt ought to apply in this case, such a restriction on voting, was disproportionate, given that it applied “automatically, irrespective of the length of the sentence or the gravity of the offence” and found that “the results were arbitrary and anomalous, depending on the timing of elections”.37 Given that the primary reason submitted by the UK Government for the ban, was puni-tive, the Chamber also held that there was no logical justification for the continu-ation of the restriction, given that the punitive part of Hirst’s sentence was over.38

The Chamber, finally, was not convinced that the UK had ever “sought to weigh the competing interests or to assess the proportionality of the ban as it affects convicted prisoners”.39 The Case came to the Grand Chamber in late 2005 who, by 12 votes to 5, agreed with the previous judgment, dismissing the UK Government’s appeal.

b Frodl v. Austria (2010)

The case concerned a prisoner facing a life sentence who had also been banned from voting under Austrian legislation which imposed such conditions on all pris-oners serving sentences of more than one year.

The Austrian Government argued that such a prohibition could be distin-guished from that in Hirst, given that it allowed room for a category of prisoners to vote and was therefore not drawn in such disproportionate and arbitrary terms. The applicant argued that the government had not submitted legitimate aims that were proportionate to the restriction and had not proved the necessity of the restriction. Further the applicant claimed that the government had “merely relied

36 UK Representation of the People Act 1983, http://www.legislation.gov.uk/ukpga/

1983/2. 37 Hirst v. UK (2005), No. 2, 41. 38 Ibid., Judge Caflisch, 4 (d). 39 Ibid., 41.

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on the gravity of the crime of which the applicant had been convicted in order to justify his disenfranchisement and pointed to differences between the Austrian provision and the one at issue in the Hirst case”.40

The Court stated, that “there must be a link between the offence committed and issues relating to elections and democratic institutions”.41 As well as stress-ing the importance that the decision should be taken only by a judge, taking into account the particular circumstances, all of which aims to ensure that disenfran-chisement is the exception. The Court therefore found these elements wanting in the Austrian government’s restriction and found a violation of A3P1. The Court stressed the need for a “discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned” as required by the principle of proportionality.42

c Scoppola v. Italy (2012)

Franco Scoppola was convicted in 2002 of murder and attempted murder, and was sentenced to thirty years imprisonment, as well as banned for life from hold-ing public office under the Italian Criminal Code, which subsequently necessitat-ed his disenfranchisement. The Grand Chamber of the ECtHR, apparently fear-ing that in Frodl the Court had gone too far, seemed to backtrack on certain issues, including the need for all decisions to be made by a judge.43

The Grand Chamber found that the ban was more tailored to individual cir-cumstances and gravity of offence, and therefore that it lacked the “general, automatic and indiscriminate character that led it, in Hirst, to find a violation of A3P1”.44 The Grand Chamber, in a disappointing judgment which arguably stripped Hirst of a lot of its force,45 essentially took the view that it was for the state to regulate the voting ban amongst prisoners. It focused on the lack of consensus between the states of the Council of Europe as to the extent of the disenfranchisement (or lack thereof)46 and cited Hirst that it was “for each Con-tracting state to mould [legislation] into their own democratic vision”.47

4 Reflections on the Case Law and Reasoning In the UK Divisional Court in the case of Hirst, Lord Justice Kennedy stated:

“Of course as far as an individual prisoner is concerned disenfranchise-ment does impair the very essence of his right to vote, but that is too sim-plistic an approach because what Article 3 of the First Protocol is really

40 ECtHR, Frodl v. Austria, Appl. No. 20201/04 (8 April 2010), 17. 41 Ibid., 34. 42 Ibid., 35. 43 ECtHR, Scoppola v. Italy (No. 3), Appl. No. 126/05 (22 May 2012), 97-99. 44 Ibid.,108. 45 Indeed, Judge Björgvinsson’s dissenting judgment in Scoppola argued exactly that,

stating, “[r]egrettably the judgment in the present case has now stripped the Hirst judgment of all its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe”.

46 Ibid., Scoppola v. Italy, No. 3, 101. 47 Ibid., 83, citing Hirst v. UK (2005), No. 2, 61.

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concerned with is the wider question of universal franchise, and the free expression of the opinion of the people in the choice of the legislature.”48

A similar view is found in the dissenting judgment of Hirst in the European Court, where the judges stated that because of the right to vote’s insufficiently clear basis in A3P1, “we are not able to accept that it is for the Court to impose […] an obligation […] to abolish disenfranchisement […] or to allow it only to a very limited extent”.49

These interpretations highlight the problems caused by the weakness of A3P1. Stating that A3P1 protects the right to vote, but when the essence of the right to vote is impaired, it only offers protection insofar as free expression of the opinion of the people is also impaired, undermines the conception of a right in the first place. For the right then, to offer any protection at all on an individual level, an individual would have to be disenfranchised in conjunction with an en-tire group of others, so as to seriously undermine the free expression of the people. This leads to the “right’s” de facto shift to a privilege, for the enfranchised majority. It also would not sufficiently protect the loss of this privilege within that majority, if the goal is merely to protect collective expression. That is not a right at all.

a The “Legitimate” Aims of Disenfranchisement

The legitimate aims cited by the UK in Hirst, for the disenfranchisement of pris-oners, related to the prevention of crime, and the punishment of offenders, as well as the enhancement of civil responsibility and respect for the rule of law.50 Doubt over disenfranchisement as a punishment has already been expressed. Indeed, in Sauvé, it was noted that, “the government offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of state punishment”. The “European Prison Rules” state on the matter that, “[i]mprisonment is by the deprivation of liberty a punishment in itself. The condi-tions of imprisonment and the prison regimes shall not, therefore […] aggravate the suffering inherent in this”.51 It should be clear from what has been argued thus far, that a voting ban does indeed aggravate the suffering inherent in the punishment; both through implication of a lack of worthiness; a direct harm to the dignity of an individual, and through the deprivation of a form of participation, autonomous expression and development; an indirect harm to dignity.

Doubts have been expressed as to the punitive and rehabilitative functions of disenfranchisement. Could the “added value” of the deprivation, then, be deter-rent or incapacitative? These justifications perhaps fit more closely with the con-ception of rights drawn above, given that this theory is centred on protecting against the causing of harms to others. But does disenfranchisement serve to prevent the free exercise of this right causing harm to others? This seems unlike-ly, for it is through deprivation of liberty not disenfranchisement, that a prisoner is 48 As cited in Hirst v. UK 2005, No. 2, 16. 49 Ibid., joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and

Jebens, Annex (c), 4. 50 Hirst v. UK (2005), No. 2, 50. 51 Council of Europe: Committee of Ministers, Recommendation (2006)2 of the Com-

mittee of Ministers to Member States on the European Prison Rules (11 January), Part VIII, 102.2, https://wcd.coe.int/ViewDoc.jsp?id=955747.

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effectively incapacitated. The argument of disenfranchisement as a deterrent seems equally dubious, given, as Brenner and Caste have argued, “if the severi-ty of prison life cannot deter one from committing a crime, it is unlikely that add-ing disenfranchisement will achieve this goal”.52 The only instance where this might be a plausible and proportionate argument, would seem to be where an offender has committed electoral fraud, or similar crimes undermining democra-cy, thus providing a logical link. Judge Costa, in his dissenting judgment in Hirst, noted the questionable logic of link between disenfranchisement and the preven-tion of crime, stating:

“I confess to having doubts about the legitimacy – or rationality – of that aim. It is perfectly conceivable, for example, that a person who has been convicted of electoral fraud, […] or even of corruption should be deprived for a time of his or her rights to vote and to stand for election. The reason for this is that there exists a logical and perhaps even a natural connection between the impugned act and the aim of the penalty.”53

This is similar to the position that is taken through the theory of rights and re-strictions laid out above. It is intended to ensure that rights are restricted only when there is a logical symmetry or proportionality between the harms that we seek to prevent. In the majority of prisoner disenfranchisement cases, this pro-portionality does not exist.

Restricting a prisoner’s vote in order to prevent crime, could perhaps be com-pared to prohibiting a prisoner from writing a political book for the same reasons. Both activities contribute to a form of political discourse, a form of political ex-pression, and are a manifestation of a capability. Furthermore, many would ar-gue that such forms of expression are valuable means of reeducation and rein-tegration. The distinction in intuitive acceptability will probably lie in the fact that many are not favourable to the idea that prisoners can make a concrete contribu-tion to a decision on the country’s governance. Again though, unless restricting this capability can be shown to be rationally and necessarily imposed for the prevention of harm, it will in all likelihood, be disproportionate. It is possible for this link to be present. But this article argues that this will only be in cases where the crime committed by the offender is of a political nature, or undermines de-mocracy itself, showing the need to incapacitate, and rehabilitate on the basis of this behaviour. There, it seems, removal of the voting right, despite entailing the creation of a potential fiction which states that the commission of a certain type of crime requires protection against its reoccurrence, has a logical link with the harm caused in the first instance; i.e. harming the rights of others to vote in free and fair elections by rigging the polls.

In Hirst, the Court noted the possibility that “restrictions on electoral rights could be imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations”.54 This argument was in essence, accepted as a legiti-mate aim in Scoppola.55

52 Saul Brenner and Nicolas J. Caste, Granting Suffrage to Felons in Prison, Journal of

Social Philosophy 34 (2003) 2, 236. 53 ECtHR, Hirst v. UK (2005), No. 2, Dissenting Opinion of Judge Costa, 3. 54 Hirst v. UK (2005), No. 2, 71. 55 Scoppola v. Italy, No. 3, 90-92.

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In the more recent case of Achugov and Gladkov v. Russia,56 a case in which a blanket ban similar to that in Hirst had been imposed, the Government argued that disenfranchisement was necessary given the pressure that “could be exer-cised by criminal underworld leaders on individuals serving a custodial sentence that could negatively influence the freedom and objectiveness of the latter’s choice in elections”.57 Whilst accepting the legitimate aims, the Court found that there was no evidence, as in Hirst, that the government had attempted to assess the proportionality of the ban, which therefore fell outside of an acceptable MoA.58 The specifics of this case, where one of the defendants had been in-volved in organised crime, is perhaps a situation where disenfranchisement would be acceptable, in order to protect against a harm with a rational link to elections and democracy, i.e. compromising free and fair elections. This does not, of course, justify a blanket ban, given that there are much less onerous measures that could prevent undue influence by those who wish to undermine the ideals of democracy.

b The Problem with the Margin of Appreciation

One of the main arguments in the prisoner voting cases was that, given the vast array of methods that can be used to organise electoral systems; influenced by history, culture and politics, the MoA afforded to the state, should be broad.59 Whilst the Court is certainly right to permit a diverse range of approaches, it should not allow a wide margin of appreciation when it involves turning a blind eye to a disproportionate restriction to the essence of a right. As van Dijk and van Hoof state:

“[G]iven the object and purpose of the Convention as an instrument for the protection of human rights, the Court’s very use of the margin of apprecia-tion requires close scrutiny […] the MoA should not lead to a dilution of the proportionality requirement under various provisions of the Convention.”60

One of the relevant factors influencing the scope of the MoA, is the position of the state as “better-placed” to judge the presence or lack of a European consen-sus on the subject of a right or a relevant value.61

Indeed, there is no European-wide consensus on the best way to prevent crime, nor on the best ways to ensure public safety, but this can perhaps be distinguished from the lack of consensus on morality, as argued in the Handy-side62 case, on the basis of its greater objectivity. The Court is able to consider prevention of crime aim on its merits, including its prima facie rationality as a legitimate aim. The danger of the MoA merely following a “lack of European consensus” approach was noted in the Müller63 case, where Judge Spielmann 56 ECtHR, Anchugov and Gladkov v. Russia, Appl. Nos. 11157/04 and 15162/05

(4 July 2013). 57 Ibid., 90. 58 Ibid., 108-110. 59 Hirst v. UK (2005), No. 2, 61. 60 Van Dijk and Van Hoof (1998), 94. 61 Legg gives a comprehensive exposition of the nature of these margin-affecting

factors. Cf. Legg (2012), 116-174. 62 ECtHR, Handyside v. the United Kingdom, Appl. No. 5493/72 (7 December 1976), 48. 63 ECtHR, Müller and Others v. Switzerland, Appl. No. 10737/84 (24 May 1988).

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warned that doing so may mean that “many of the guarantees laid down in the Convention could be in danger of remaining a dead letter”.64

D The Legal: Lessons for the Margin of Appreciation and Proportionality Tests

1 Correcting the Balance: Structuring the Proportionality Test The MoA, as employed in the Scoppola case in particular; noting the need for a “non-blanket” ban, but deferring enfranchisement in other respects, to the state, operates as a gap into which the proportionality test may fall. One of the reasons that this has become a problem may be because of the difficulties in separating and understanding the proportionality analysis as separate from the MoA. In-deed, Christoffersen has noted the “partial mystery” of their interaction, and the potentially impossible task of trying to untangle the two.65

The two become most entangled, it seems, in the “necessary in a democratic society” test, which the Court asks itself when considering if an interference with a right was justified. It is therefore, one way of considering, on balance, whether a restriction is proportionate to the aim pursued, in the wider sense, accounting for a multitude of factors and context-specific circumstances. It is here then, that a substantive version of the MoA66 most logically arises as the state will wish to offer its own interpretation as to the necessity of the rights restriction and the interpretational and balancing questions inherent in its democratic society.

The problem of the necessary in a democratic society test then, is that it seems to be the point at which the MoA and the proportionality analysis inter-twine. At this point, the two become quite difficult to separate. As Cremona notes, the MoA:

“is commonly the starting point in its assessment of proportionality and al-so figures in the conclusion in the sense either that, having regard to the margin of appreciation, the impugned measure is found to be proportion-ate […] or […] disproportionate.”67

The danger with this approach is that it risks the assessment of whether a measure was proportionate, also being deferred to the state. It would seem that in certain cases, the MoA and the proportionality test are liable to collapse into the same analysis.

64 Ibid., dissenting Opinion of Judge Spielmann, 10 (b). 65 Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the

European Convention on Human Rights (2009), 1. 66 Letsas has drawn a distinction between the “structural” and “substantive” arms of the

MoA; the former relating to the institutional relationship between the Court and the state, and the latter relating to the state’s input on the interpretational questions of rights and restrictions, and the requisite balance to be struck. C.f. George A. Letsas, Theory of Interpretation of the European Convention on Human Rights (2007), 80-98.

67 John J. Cremona, The Proportionality Principle in the Jurisprudence of the European Court of Human Rights, in: U. Beyerlin (ed.), Recht zwischen Umbruch und Be-wahrung: Völkerrecht, Europarecht, Staatsrecht, Festschrift fur Rudolf Bernhardt (1995), 328.

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In Frodl, the approach was much more promising. The use of a more objec-tive consideration of the necessity of a link between electoral and political issues, and the offence committed, fits well with the approach offered throughout this article. Insofar as the narrower and more objective elements (the discernible link, stressed, in Hirst and Frodl in particular) can be insulated from the broader con-siderations of fair balance, they can protect the proportionality test from being overtaken by the MoA.

The Court should ask therefore, whether there is a discernible and sufficient link between the disenfranchisement and the aim to be achieved; i.e. proportion-ality between means and ends. If a discernible link exists, and the aim to be achieved is, on fair balance, in prevention of a harm that might outweigh that caused by the removal of a voting right, then it may be justified.

It is suggested then, that we separate the more objective principles in the proportionality analysis away from the necessary in a democratic society test, in order to avoid the reach of the substantive MoA; namely the existence of a dis-cernible and sufficient link between ends and means, as noted in Hirst and the existence of a less onerous effective measure. It is argued then, that before the necessity can be considered and before any form of balancing can be entered in to, a proportionality test should first seek to establish the existence of an objec-tive and discernible link, as well as the suitability of the action, in the sense that there was no less stringent or onerous measure that could have been taken. The State’s MoA should primarily exist in the second section, in assessing whether the action was necessary in a democratic society. This is because state-specific questions and subjective interpretations come more strongly into play.

If this rational and discernible link between means and ends does not, in the Court’s view, reasonably exist – it should not pass on to the second stage of the proportionality test, to consider the necessity, because if there was no rational basis for the Court’s action then it cannot have been proportionate and it cannot have been necessary. A violation should then be found.

2 Advantages of the Two-Stage Approach It is argued here that such an approach could have avoided counterintuitive results contrary to the Convention’s basic values in cases such as Müller and Silver. In the case of Silver v. UK,68 a prisoner’s private correspondence was intercepted and read before sending. The justification for this was inter alia, prison security and the prevention of crime. Clearly in this case there exists a discernible and logical link between the means and the ends of state action but this is a good example of the insufficiency of this test alone. We cannot know if the measure was proportionate in the sense of being necessary, without other information. In order to know if the ends justify the means we need to know the content of the letters, the frequency, the recipients, and so on.

In the case of Müller,69 the lack of consensus on morality appeared to justify the confiscation of paintings deemed offensive. This is arguably a classic case of a wide MoA obscuring key parts of the proportionality test. The Court could have asked itself whether a less onerous and more proportionate response existed, 68 ECtHR, Silver and Others v. United Kingdom, Appl. Nos. 5947/72, 6205/73,

7052/75, 7061/75, 7107/75, 7113/75 and 7136/75 (25 March 1983). 69 ECtHR, Müller v. Switzerland (1988).

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such as subjecting the paintings to restricted showings. Such a decision does not seem to uphold, as the Court said in Handyside, the values of “tolerance and broadmindedness without which there is no ‘democratic society’”.70

E Conclusions

Earlier it was stated that we should not restrict people’s rights independently of the harm that they present. It follows then, that rights should, for the most part, be restricted when doing so protects against the incidence of a like harm in oth-ers. This is why it is argued that making judgments about rights on deserving-ness is wrong. If the right to vote is really a right (despite the argument that a universal right was not wanted by some in the drafting procedure, Mathieu-Mohin should have ended this debate), then undermining it in this way is inconsistent with the fundamental idea of human rights, as understood here. Looking at rights in this way, fits with the idea that “balance is inherent in the Convention”. My right to liberty ends when that liberty endangers the rights of others. At the heart of my right to liberty is my dignity (protected through my freedom to make autonomous decisions and to live a life of my choosing). But if in my liberty I endanger the rights of others to live their lives as they choose, then my right ought to be re-stricted. In such a case, a symmetry of harms exists in principle which justifies a balance. This symmetry is not usually present when we restrict the voting rights of prisoners.

Once we move past this, we see that rights need rational and necessary (proportionate) reasons for restriction. Such reasons are not clearly forthcoming in the cases we have looked at above. This is unfortunately obscured by a num-ber of factors, including political considerations, the weakness of A3P1, and the infiltration of the MoA into the proportionality test.

As Easton states, “[t]he view that prisoners do not deserve rights, that prison-ers are second class citizens and that civic rights may be earned through good behaviour and forfeited through wrongful acts, remains very strong”.71 Indeed, logical arguments will struggle here against sentiment based upon intuitive moral feelings and reflexes. But, as stated in Hirst, there is no place, “under the Con-vention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion”.72

Finally, it is worth noting, as Beckmann has stated, that “democratic exclusion leads us to ask how denying people the right to vote could ever be justified in a democracy”.73 Ultimately, the ECtHR and the United Kingdom would do well to remember that, “the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion”.74

70 ECtHR, Handyside v. the United Kingdom, Appl. No. 5493/72 (7 December 1976), 49. 71 Easton (2011), 251. 72 Hirst v. UK (2005), No. 2, 70. 73 Ludwig Beckmann, Frontiers of Democracy, The Right to Vote and its Limits (2009),

10. 74 Hirst v. UK (2005), No. 2, 59.