1. Taking away the right to vote
As a form of punishment for social deviance, some European jurisdictions impose ancillary penalties for serious criminal offences, which entail the loss of some civic rights, such as the right to vote and to stand for election. Such penalties usually result in the removal of the convicts from electoral lists, preventing them from registering for any elections, consequently banning them from voting. Nevertheless, the right to vote is one of the fundamental rights conferred by Article 3 of Protocol No. 1 of European Convention of Human Rights and Fundamental Freedoms (hereinafter ‘ECHR’). Striking between the principle of sovereignty and the protection of this fundamental right, the European Court of Human Rights (hereinafter ‘ ECtHR’) has on many occasions assessed whether the restriction of the right to vote is acceptable (see for instance Hirst v. UK, Scoppola v. Italy, Greens and M.T. v. UK, Firth and Others v. UK etc.).
The most influential perhaps is the case Hirst v. UK, where the ECtHR adjudged that the right to vote is not absolute and that limitations may be imposed, however those limitations should not be arbitrary and should be proportionate to the (1) severity of the crime committed and (2) the length of the sentence and (3) take into consideration individual circumstances. As a result, ‘a general, automatic and indiscriminate restriction [...] must be seen as falling outside any acceptable margins of appreciation [...] and as being incompatible with [the right to vote]’ (Hirst v the United Kingdom (No 2), [2006]). How the ECtHR judgment will affect national legislation is yet to be seen, especially in the UK, where recent case Chester and McGeoch sparked a vivacious public and political debate regarding the issue.
Having this in mind, the situation where prisoners are restricted or even permanently banned from voting, as a result of national legislation, gets even more complicated when it comes to elections to the European Parliament.
2. Charter of Fundamental Rights and its applicability
The right to vote to the European Parliament is enshrined in Article 39 of the Charter of Fundamental Rights of the European Union (hereinafter ‘the Charter’) which stipulates that ‘every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament’. A citizen can exercise that right ‘[…] in the Member State in which he or she resides, under the same conditions as nationals of that State’. The second paragraph further provides that ‘members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot’.
However, according to Article 51(1) Charter, provisions of the Charter are ‘[...] addressed to the Member States only when they are implementing EU law’ Consequently, in order to establish the jurisdiction of the CJEU and the protection of the Charter, there ought to be a connection between the national legislation in question and EU law, since provisions of the Charter cannot in itself form a basis for such jurisdiction (Åklagaren v Hans Åkerberg Fransson, [2013], Emiliano Torralbo Marcos v Korota SA, Fondo de Garantía Salarial, [2014], para. 30, Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, [2015], para. 27).
The CJEU has clarified in Åkerberg with due regard to the Explanations to the Charter that the requirement of ‘implementing EU law’ can be fulfilled when Member States act ‘in the scope of EU law’ (Åklagaren v Hans Åkerberg Fransson, [2013], para. 20). It is further explained in Åkerberg that the situation falls within the scope of EU law whenever the EU law applies. In Åkerberg the CJEU had jurisdiction because Mr. Åkerberg was subject to criminal proceedings due to tax evasion, which the CJEU found to be within the scope of EU law, as there are relevant EU provisions which entail the Member States the obligation to regulate the area. In addition, as the CJEU emphasised that the EU has financial interest on the matter, it can also be deduced from Åkerberg that the CJEU followed the Opinion of AG Villaón (Opinion of Advocate General Villaón in case C-617/10 Åklagaren v Hans Åkerberg Fransson, [2012], point 40), who asserted that the jurisdiction of the CJEU arises from the ‘specific interest of the EU in ensuring that that exercise of public authority accords with/to the interpretation of the fundamental rights by the EU.’
In the light of the aforementioned the right to vote to the European Parliament must therefore fall within the scope of EU law. Defining that connection, however, has proven to be a hard nut to crack, which is why it assumes the central role of every case before the CJEU regarding voting rights. Only recently has the CJEU in the Delvigne case cracked and established a permanent connection between national legislation for enfranchisement and the right to vote under EU law.
3. Connection to EU law
As it follows from the opinion of Advocate General Villalón in Delvigne (Opinion of Advocate General Villalón in case C-650/13 Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, [2015], point 82) the provisions of the Charter generally apply when a criminal offence relates to a situation which is governed by EU law. Considering Mr. Delvigne was imprisoned for murder he, in principle, could not rely on the Charter. However, the fact that he was additionally sanctioned with disenfranchisement, he, among other things, could not vote in the European parliamentary elections, which added an ‘EU dimension’ to his case. The link to EU law arose from the exercise of EU competence in that matter, by way of the Article 14(3) TEU and the 1976 Act, which regulates the right to vote to the European Parliament (Ibidem, point 91). Although the Court did not follow the opinion of Advocate General in whole, it came to the same conclusion (Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, [2015], paras. 32, 33).
Since EU law does not determine expressly and precisely who is entitled to vote to the European Parliament, and it is provided in Article 8 of the 1976 Act that the electoral procedure shall be governed in each Member State by its national provisions, the final definition of persons entitled to vote falls within the competence of each Member State, as the CJEU held in Eman and Sevinger (M. G. Eman and O. B. Sevinger v College van burgemeester en wethouders van Den Haag, [2006], paras. 43, 45) and Spain v. UK (Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland, [2006], paras. 70, 78).
However, in determining the persons entitled to vote by national provisions, Member States are in fact exercising a competence of the EU and must therefore exercise that competence in compliance with EU law, namely, they are bound by obligations set out in Article 1(3) of the 1976 Act and Article 14(3) TEU (Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, [2015], para. 32). Consequently, national legislation regarding the right to vote to the European Parliament must be considered as implementing EU within the meaning of Article 51(1) of the Charter, therefore falling within the scope of EU law and giving the CJEU jurisdiction for a preliminary ruling.
4. Does citizenship of EU imply the right to vote?
The right to vote is generally regarded as one of the fundamental rights conferred by citizenship. But how is this principle applied in the European Union? Throughout the history of European integration, the EU has constantly strived towards giving life to the European citizenship.
In the light of foregoing it can be concluded that by virtue of Article 20 TFEU and Article 14 TEU the right to vote to the European Parliament is inherently attached to the status of EU citizenship. In that regard, the CJEU stipulated in many occasions that ‘[…] citizenship of the EU is destined to be the fundamental status of nationals of the Member States […].’(Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, [2001], paras. 31 and 32, Carlos Garcia Avello v Belgian State, [2003], paras. 22 and 23, Brian Francis Collins and Secretary of State for Work and Pensions, [2004], para. 61). In Delvigne case, the CJEU has finally gone a step further and explicitly confirmed that the right to vote to the European Parliament is a freestanding right of EU citizens (Coutts, 2015).
Citizenship of the EU is established by Article 20 TFEU, which defines the rights and duties stemming from it, including the right to vote in Paragraph 2(b), which corresponds to Paragraph 1 of Article 39 of the Charter, stipulating that ‘[...] the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State. ‘This provision, however, is limited only to non-discrimination and equal treatment of EU citizens’ voting rights in Member States other than the Member State of their nationality (Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland, [2006], para. 66). Therefore, persons deprived of the right to vote, as a result of sanctions for criminal offences by a judgement in the Member State of their nationality, cannot invoke this provision in order to be granted protection by the CJEU and the Charter (Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, [2015], para. 43). On the other hand, Article 14(3) TEU stipulates that ‘members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.’ This is further enshrined in Article 1(3) of the 1976 Act, as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002, which regulates the electoral procedure. These two provisions reflect the right to vote guaranteed by Paragraph 2 of Article 39 of the Charter, which was found to be applicable in the case Delvigne and forms the basis for the protection of EU citizens’ right to vote even from national provisions in the Member State of nationality. Suddenly, any limitations on the right to vote comes under scrutiny from the CJEU.
5. Justifiable limitation to the right to vote
Nevertheless, can the right to vote to the European Parliament, governed in Article 39 of the Charter, preclude Member States from imposing a ban on the right to vote to the EP as a result of a criminal sanction? At the outset, limitations may be imposed on Charter rights, however, according to Article 52(1) of the Charter, the limitations are acceptable only if they are (1) provided by law, (2) respect the essence of rights and freedoms and (3) are proportionate, as they (a) are necessary and (b) genuinely meet the objectives of general interest of the EU or the need to protect rights and freedoms of others (Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, [2015], para. 46).
In addition, according to the Article 52(3) of the Charter where the Charter contains rights that correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR and the case-law of the ECtHR. Explanations of the Article 52 of the Charter in principle specify which rights from the Charter correspond to the rights in the ECHR. Although Article 39(2) of the Charter is not expressly listed among those rights, it seems that Article 39(2) of the Charter nevertheless correspond to Article 3 of Protocol No. 1 to the ECHR. In any event, the question whether the CJEU should refer to the ECtHR jurisprudence regarding the right to vote, remains open. Namely, in case Delvigne the CJEU did not explicitly refer to the ECtHR case-law.
Nevertheless, in Delvigne, the CJEU used the same standards as the ECtHR adjudicating that the limitations (1) are provided by law, (2) respect the essence of the right and (3) are proportionate, so long as they take into account the nature and gravity of the criminal offence and the duration of the penalty. However, regarding proportionality, the ECtHR has in similar cases taken a different approach, stating that ‘a general, automatic and indiscriminate restriction [...] must be seen as falling outside any acceptable margin of appreciation [...] and as being incompatible with [the right to vote]’ (Hirst v the United Kingdom (No 2), [2006], para. 82). Nonetheless, in Delvigne the CJEU took a milder approach as regards the substance of the preliminary question After the analysis regarding the provisions of French national criminal law, which ban the right to vote of some prisoners, they were considered proportionate, mostly due to the fact that the loss of civic rights is imposed only to persons sentenced for a serious crime and that convicts can apply for a lifting of the additional penalty.
Conclusion
It can be concluded that Member States which ban the right to vote to the European Parliament as a result of a criminal sanction can be subject of the judicial review of the CJEU. Moreover, in case of doubt regarding the interpretation of the European provision national courts are in principle obliged to make a reference for a preliminary ruling on the interpretation of the relevant provisions of the European law. Given the principle of supremacy of the EU law, set in COSTA v. ENEL, Shaw emphasises that there are two important issues that may emerge in that respect (1) the disapplication of the domestic law and the (2) risk of damages for state liability (Shaw, 2015).
Finally, the recent development of the CJEU jurisprudence also enlighten some interesting questions connected to the EU participatory citizenship. What does the future hold for the relationship between the EU citizens and the EU? Are we about to witness the rise of EU political conscience and identity? And can a story of a former prisoner from France influence on European (dis)integration?
By Irma Abdić & Maks Mencin
This article was originally published in issue 4.2 of the magazine, which can be accessed here.
