FOURTH SECTION

DECISION

Application no. 1309/02 by Richard FEAL-MARTINEZ and Antony PEARSON against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 1 July 2003 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mrs E. Palm, Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki ,

Mr J. Borrego Borrego , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 15 February 2001,

Having regard to the observations submitted by the respondent Government and the letter in reply submitted by the applicants’ solicitor,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Richard Feal-Martinez and Mr Antony Firth Pearson, are United Kingdom nationals, who were born in 1956 and 1953 respectively and are serving sentences of imprisonment. They are represented before the Court by Mr D. Machover, a solicitor practising in Liverpool.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant is a prisoner serving a discretionary life sentence imposed on 9 February 1996 for four offences of arson. His  tariff (that part of the sentence relating to retribution and deterrence) expired on 22 September 2000 and his continued detention is based on considerations relating to risk and dangerousness.

The second applicant is serving a determinate ten year sentence imposed on 15 September 1998 for an offence relating to the importation of drugs.

On 3 October 2000, the Electoral Registration Officer refused the second applicant’s application for registration as a voter. On 20 November 2000, he refused the first applicant’s application. This refusal was based on section 3 of the Representation of the People Act 1983 (see below, Relevant Domestic Law and Practice).

The applicants lodged an application for judicial review of the refusal and also sought a declaration of incompatibility of the 1983 Act under section 4 of the Human Rights Act 1998.

The applicants’ application was heard before the Divisional Court on 21 and 22 March 2001, together with the application of another prisoner, Mr Hirst (application no. 74025/01).

In its judgment dated 4 April 2001 ( R. on the application of Pearson and another v. the Secretary of State for the Home Department and others, Hirst v. the Attorney General [2001] EWHC Admin 239 [2001] HRLR 39 ), the Divisional Court rejected the applicants’ claims, finding that there was no clear international consensus on the issue of disenfranchisement of prisoners and that the United Kingdom’s position on the subject was plainly a matter for Parliament not for the courts. The legislation was in its view compatible with Article 3 of Protocol No. 1, Article 14 and Article 10 of the Convention.

On 15 May 2001, the applicants’ application for permission to appeal was refused by a single judge of the Court of Appeal, Lord Justice Buxton on examination of the papers. Their renewed application was refused on 18 June 2001, after oral argument, by Lord Justice Simon Brown.

B. Relevant domestic law and practice

Section 3 of the Representation of the People Act 1983 provides:

“(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local election.”

The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)a) or to those imprisoned only for default in, for example, paying a fine (section 3(2)c).

During the Parliamentary debates concerning the Representation of the People Act 2000, which permitted remand prisoners and unconvicted mental patients to vote, Mr Howarth M.P. , speaking for the Government, maintained the view that “it should be part of a convicted prisoner’s punishment that he loses rights and one of them is the right to vote”.

COMPLAINTS

The applicants complained under Article 3 of Protocol No. 1 that they were  barred from voting. The applicants also invoked Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1, complaining inter alia that the persons convicted of similar offences but with determinate sentences could vote when released on licence and that the restriction did not apply to drug offenders who did not receive custodial sentences.

PROCEDURE

On 3 September 2002, the Court decided to invite the Government to submit observations on the admissibility and merits of the applicants’ complaints. On 19 February 2003, before the expiry of the extension in the time-limit granted by the President, the Government submitted their observations on admissibility and merits. By letter dated 25 February 2003, the Government’s observations were sent to the applicants’ solicitor, who was requested to submit any observations in reply by  8 April  2003.

On 14 April 2003, the President granted the applicants’ solicitor’s request for an extension in the time-limit until 9 May 2003. By letter dated 23 May 2003, the Registry informed the solicitor that no observations, or request for further extension in the time-limit, had been received. By fax transmission dated 2 June 2003, the solicitor stated that he regretted to report that he was without instructions from either client. By letter dated 4 June 2003, the Registry warned that the case might be struck out of the list of cases.

THE LAW

The Court notes that the applicants have lost contact with their solicitor and not provided him with any instructions for responding to the Government’s observations.

The Court considers that in the circumstances the applicants may be regarded as no longer wishing to pursue their application within the meaning of Article 37 § 1(a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued.

Accordingly, the case should be struck out of the Court’s list of cases.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Michael O’Boyle Matti Pellonpää Registrar President