CJEU ruling on prisoner voting – open door for successful UK challenge?

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Delvigne (Judgment), [2015] EUECJ C-650/13 – read judgment.

In a judgment much anticipated on both sides of the Channel, the Court of Justice of the European Union (“CJEU”) has held that French restrictions on the eligibility of prisoners to vote are lawful under EU law.

Mr Delvigne, a French national, was convicted of murder in 1988 and given a 12-year sentence. Under the applicable French law, Mr Delvigne was indefinitely deprived of his “civic rights”, which included, amongst other rights, the right to vote. Despite subsequent amendments to French criminal and administrative law, Mr Delvigne was still restricted from voting and removed from the electoral roll in 2012. This decision was challenged domestically and eventually led to a referral to the CJEU for a preliminary ruling as to the interpretation of EU law. In effect, the issue facing the CJEU was whether such a restriction was compatible with Mr Delvigne’s rights under the EU Charter of Fundamental Rights of the European Union (“EU Charter”).

The first issue to be addressed was whether the CJEU had jurisdiction to consider the request.

Jurisdiction

The provisions of the EU Charter are only of relevance when Member States when they are implementing EU law. Accordingly, for the CJEU to have jurisdiction to reply to this request, the domestic law in question must have included some form of implementation of EU law. Observations from the Governments of France, Spain, and the UK claimed that the connection between the domestic legislation and EU law was missing. Further, the CJEU had previously held that the eligibility of individuals to generally fall within the competency of domestic authorities (see, Spain v. the United Kingdom, C-145/04, paragraphs 70 and 78).

However, on this occasion, the CJEU held that in determining eligibility for European Parliament elections, Member States were bound by the requirements of EU law to ensure that such elections were by “direct universal suffrage”. Accordingly, legislation that impacts upon the eligibility of individuals to vote in European Parliament elections will necessarily involve the implementation of EU law. Mr Delvigne’s situation, which included the restriction of voting in such elections, therefore involved the implementation of EU law. Consequently, the EU Charter was applicable and the CJEU had jurisdiction.

Substance

Having established jurisdiction the CJEU moved on to consider the substance of the request. In effect, the issue to be determined was whether the restriction on Mr Delvigne’s right to vote was compatible with the EU Charter.

Under Article 52(1) of the EU Charter, limitations may be imposed upon rights provided certain criteria are satisfied:

“1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or   the need to protect the rights and freedoms of others.”

The first two concerns, relating to legality and respect for the essence of the right, were quickly dealt with by the CJEU (see paragraphs 47 and 48). The most contentious aspect of this test, the proportionality element, will be of most interest from a UK perspective. The CJEU stated that this requirement would result in the need for the limitation on the right to vote to take “into account the nature and gravity of the criminal offence committed and the duration of the penalty”. In finding that the French restrictions satisfied the proportionality test, emphasis was placed upon two factors. First, the seriousness of the crime committed by Mr Delvigne and the long sentence subsequently imposed. Secondly, the fact that a disenfranchised individual had the ability to apply to the court to have any restriction on voting lifted.

The CJEU went on to consider whether the changes in French law – which resulted in the imposition of lighter penalties as opposed to Mr Delvigne’s indefinite ban – could be contrary to EU law. In answering in the negative, the CJEU again pointed to the avenues available for contesting the ban at a domestic level.

The CJEU concluded that the relevant Articles of the EU Charter did not preclude the restriction placed on Mr Delvigne’s ability to vote in European Parliament elections.

Comment

From the UK perspective, this decision marks the latest development in a prolonged saga regarding prisoner voting rights. The European Court of Human Rights’ decision in Hirst v. the United Kingdom (No. 2), [2005] ECHR 681, (read judgment), exactly 10 years before the CJEU’s decision, provoked a backlash from UK that has never abated; the Hirst decision is still commonly cited by those calling for repeal of the Human Rights Act. Due to the political opposition to any relaxation of the status quo, the decade-old Strasbourg judgment still remains to be implemented by the UK. Indeed, the decision of the CJEU was used by the UK as their latest reason for delaying implementation! Whilst the UK has delayed implementation of Hirst, Strasbourg has consistently found the UK blanket ban on prisoner voting to be in violation of the European Convention on Human Rights.

But, following this decision of the CJEU, challenges to the current position could now proceed from a new angle.

This week’s judgment has two important repercussions; first, with regards to the applicability of EU law, and secondly, due to the consideration of what factors are relevant in assessing whether a voting ban is justified under EU law.

1. Applicability of EU Law

In 2013 the UK Supreme Court in R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent), McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland), [2013] UKSC 63 (read judgment) handed down a judgment concerning the ban on prisoner voting. In addition to arguments advanced under Article 3 of Protocol 1 of the European Convention on Human Rights, both appellants also raised claims based on EU law. The Supreme Court unanimously held that EU law did not include a general right to vote on which the appellants could rely. Accordingly, the appeals were dismissed.

The Delvigne judgment makes clear that EU law is applicable when restrictions are placed upon the ability of individuals to vote in European Parliament elections. UK courts should determine similar questions in the future in line with the CJEU’s reasoning. The right to vote in European Parliament elections contained within the EU Charter can therefore be invoked by prisoners impacted by the ban. Accordingly, any future complaints regarding the ban on prisoner voting in European elections should at least clear the first hurdle. Next, it would be for the State to show that such a restriction was justified.

2. Proportionality

The greatest issue under the tripartite test within the EU Charter would be the need for proportionality. In comparing the situation examined by the CJEU with the situation in the UK, prospects may not appear promising for defenders of the status quo. The issue of proportionality, in this context, requires a consideration of the restriction and “the nature and gravity of the criminal offence committed and the duration of the offence”.

However, the UK system makes any such exercise impossible for domestic authorities. UK legislation is clear that any convicted person detained in a penal institution is incapable of voting, irrespective of the “gravity” or “duration” of the offence. In comparison with the indefinite nature of the ban in Delvigne, the UK restrictions on voting only apply whilst an individual is incarcerated. Accordingly, the restriction on the right to vote in the UK could be said to have an inherent link with the nature of the offence and the length of the sentence imposed. This may result in the restriction placed on individuals serving long sentences to be declared proportionate.

But in the case of an individual serving a short sentence for a minor crime it would be unlikely that such a restriction would be proportionate.  The blanket nature of the UK system – which was not replicated in Delvigne due to the French ban only being imposed on those who had committed “serious offences” – is an important differentiating factor. Additionally, the inability of such an individual to challenge such a restriction, which was available under French law, would again point towards the ban being disproportionate.

So whilst some may have read the headline of the decision and presumed this to be a victory for the UK’s ban on prisoner voting, the content of the decision would suggest otherwise. The judgment stopped short of stating that the UK’s blanket ban on prisoner voting is incompatible with the EU Charter, but such a conclusion seems inevitable in certain circumstances in light of the reasoning within.