Information Note on the Court’s case-law 209

July 2017

Moohan and Gillon v. the United Kingdom (dec.) - 22962/15 and 23345/15

Decision 13.6.2017 [Section I]

Article 35

Article 35-3-a

Ratione materiae

Referendum on Scottish Independence did not fall within scope of Article 3 of Protocol No. 1: inadmissible

Facts – In October 2012 the Scottish and United Kingdom Governments signed an agreement on a referendum on independence for Scotland. Under the Scottish Independence Referendum Franchise Act, convicted prisoners in detention were prohibited from voting. The applicants, British nationals serving sentences of life imprisonment for murder, petitioned for judicial review of the Franchise Act. The petitions were dismissed and appeals refused. The independence referendum took place in September 2014.

Before the European Court, the applicants complained under Article 10 of the Convention and Article 3 of Protocol No. 1 that they were subject to a blanket ban on voting in the independence referendum.

Law

Article 3 of Protocol No. 1: The principle question was whether the independence referendum could be considered to fall within the scope of Article 3 of Protocol No. 1. To date, the Court and former Commission had unequivocally held that the Article was limited to elections concerning the choice of legislature and did not apply to referendums. It was true, as observed domestically, that in the independence referendum the people of Scotland were effectively voting to determine the type of legislature that they would have. Consequently, at first glance it might appear anomalous for such a referendum to fall outside the sphere of protection provided by Article 3 of Protocol No. 1, while elections concerning the choice of the legislature fell within it. However, such a conclusion was consistent with the wording of the Article and its consistent interpretation by the Convention organs.

Given that there were numerous ways of or ganising and running electoral systems and a wealth of differences in historical development, cultural diversity and political thought within Europe which it was for each Contracting State to mould into their own democratic vision, the possibility that a d emocratic process described as a referendum by a Contracting State could potentially fall within the ambit of Article 3 of Protocol No. 1 was not excluded. However, in order to do so the process would need to take place at reasonable intervals by secret ba llot, under conditions which would ensure the free expression of the opinion of the people in the choice of the legislature.

Conclusion : inadmissible (incompatible ratione materiae ).

Article 10 of the Convention: The Convention organs had repeatedly found that Article 10 did not protect the right to vote, either in an election or a referendum.

Conclusion : inadmissible (incompatible ratione materiae ).

(See X v. the United Kingdom (dec.), 7096/75 , 3 October 1975)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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