DISSENTING OPINION OF JUDGE David Thór Björgvinsson

I share the finding of a violation in the Chamber judgment of 18 January 2011, which I believe presents a prudent and logical follow-up to the Grand Chamber judgment in the Hirst case. I have therefore voted against finding no violation in this case.

I would like to add the following remarks in support of my opinion:

In the context of this case Article 3 of Protocol No.1 has two important aspects to it. One relates to the organisation of the electoral system in a given country, that is, the organisation of the electoral process, division into constituencies, the number of representatives for each constituency, and so on. The other relates to the rights of individuals to vote in general elections. As regards the former, the Contracting States have, and should have, wide discretion or a wide margin of appreciation in the organisation of the electoral system and the electoral process in general. However, as to the latter point, which relates directly to the individual’s right to participate in the electoral process, the margin is much narrower. It follows that the necessity of limitations on the rights of citizens in a democratic society to vote in the election of the legislative body must be subject to close scrutiny by the Court.

In paragraph 90 of the judgment it is stated that disenfranchisement of convicted prisoners serving prison sentences may be considered to pursue the aims of preventing crime and enhancing civil responsibility and respect for the rule of law. Moreover, in paragraph 91 it is held to pursue the legitimate aim of the proper functioning and preservation of the democratic process.

To some extent, with respect to the first aim, disenfranchising a convicted person may possibly be justified as a penal measure for certain well-defined crimes; and in principle, like punishments in general, it may serve some preventive purpose. This may be seen as a legitimate aim. However, if disenfranchisement is to be understood as a form of punishment, this entails requirements as to the firmness and clarity of the legal basis upon which disenfranchisement is based, and judicial intervention in each individual case, as is the case where other forms of penal sanction are applied. From this penal perspective, any kind of automatic disenfranchisement as a result of criminal conviction, without any assessment of the individual case, should be avoided.

The other aim, namely that the restrictions may be seen as contributing to the proper functioning and preservation of the democratic process is, in my opinion, much more problematic. This aim is of course legitimate in itself. However, I do not believe that disenfranchising a whole sector of the population, which is clearly the result of the contested Italian legislation, contributes to the proper functioning and preservation of the democratic process. In my opinion the Italian legislation is just as likely to have exactly the opposite effect. While I accept that the proper functioning and preservation of the democratic process is clearly a legitimate aim, I fail to see how the Italian legislation contributes to it. By contrast, the inclusion of prisoners and a wider acceptance of their right to vote is much more likely to serve this important aim.

My main reason for voting against the majority is simply that I find the position taken in this judgment incompatible with the Court’s findings in the Hirst judgment.

I would start by pointing out that the concrete situation of the applicants in the Hirst case and the present case is exactly the same: both are serving very long prison sentences, one for manslaughter and the other for murder. Although the legislation upon which their forfeiture of their voting rights is based differs in some respects, the concrete effect of it for both applicants is the same, namely the automatic forfeiture of their right to vote as result of a life sentence. For this reason particularly strong arguments are needed to explain why one of them has suffered a violation of Article 3 of Protocol No. 1 as a result of his disenfrachisement but not the other.

The following are the main elements upon which the finding of a violation in the Hirst judgment is based:

- When sentencing the applicant, the criminal courts in England and Wales made no reference to disenfranchisement and it was not apparent, beyond the fact that a court considered it appropriate to impose a sentence of imprisonment, that there was any direct link between the facts of any individual case and the removal of the right to vote ( Hirst , § 77).

- The relevant United Kingdom legislation was found to be a blunt instrument, stripping of their Convention right to vote a significant category of persons, and doing so in an indiscriminate manner. Moreover, the legislation was found to impose a blanket restriction on all convicted prisoners in prison. It was found to apply automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances ( Hirst , § 82).

- There was no evidence that the British Parliament ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote ( Hirst , § 79). Nor did the courts undertake any assessment of the proportionality of the measure itself ( Hirst , § 80).

All these arguments, with minor reservations which will be explained below, are equally applicable in the present case, and should lead to the same finding of a violation.

As to the first point, paragraph 100 of the present judgment brushes it aside as being a consideration of a general nature which does not concern the specific situation of the applicant. In further support of this opinion it is noted that the argument is not repeated in the recapitulation of the main arguments in § 82 of the Hirst judgment.

This is a very unconvincing and unsatisfactory argument since the other decisive grounds listed above for finding a violation in the Hirst case do not relate specifically to the applicant’s situation either, but rather to the general nature of the legislation as such and its automatic general effect on a large group of individuals, including the applicant in this case, rather than the concrete effect of it for the applicant himself. The fact that in its recapitulation of the arguments in paragraph 82 of the Hirst judgment the Court does not repeat this argument does not in my view in any way diminish its relevance and importance in the finding of a violation. It is to be noted in this connection that in sentencing the applicant in the present case the Italian courts did not make any specific reference to his disenfranchisement, and it is not apparent, beyond the fact that a court considered it appropriate to impose a sentence of imprisonment, that there is any direct link between the facts of his case and the removal of his right to vote.

As to the second point, just like the United Kingdom legislation, Italy’s legislation, is a blunt instrument stripping of their Convention right to vote a significant number of persons and doing so in an indiscriminate manner and to a large extent regardless of the nature of their crimes, the length of their sentences and their individual circumstances. In this regard it is worth recapitulating the differences between the two States’ legislation. In the United Kingdom section 3 of the Representation of the People Act 1983 (“the 1983 Act”) provides that a convicted person, during the time he is detained in a penal institution, is legally incapable of voting in any parliamentary or local election. This 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)) (see Hirst , §§ 21 and 23). Moreover, under this legislation prisoners automatically regain their right to vote on release from prison (Hirst § 51). In Italy Section 2 of Decree 223/1967 provides that persons sentenced to penalties entailing a ban from public office may not vote. The consequence of this is that persons sentenced to less than three years in prison continue to enjoy the right to vote. Those sentenced to three to five years forfeit their right to vote for five years, and lastly, persons sentenced to five years or more are deprived of their right to vote for life. Thus the loss of the right to vote under the Italian system is an automatic consequence of deprivation of the right to hold public office.

The main difference between the two is that the Italian legislation deprives of voting rights only those who are sentenced to three years or more in prison, while the United Kingdom’s legislation deprives all persons sentenced to imprisonment, for the duration of their time in prison. While the Italian legislation may seem for this reason to be more lenient in comparison with that of the United Kingdom, it is stricter in the sense that it deprives prisoners of their right to vote beyond the duration of their prison sentence and, for a large group of prisoners, for life. Therefore, unlike the majority, I find that these differences are not sufficient to reach a different conclusion. In fact the Italian legislation is just as blunt as the legislation in the United Kingdom, albeit for slightly different reasons. The fact that a former prisoner may, under Articles 178 and 179 of the Italian Criminal Code, apply for rehabilitation three years after the date on which the principal penalty was completed does not alter that. Moreover, I find that it makes no difference that disenfranchisement under Italian law follows from a ban on holding public office. The result is nonetheless automatic forfeiture of the right to vote as a result of a prison sentence. Furthermore, there is not necessarily any link between the right of an individual to hold public office and his right to vote in general elections.

As to the third point, it also applies in the present case. No sufficient assessment of proportionality has been made in the present case, either by the legislature or by the courts, as regards the justification for depriving all these prisoners in Italy of their voting rights beyond the end of their prison sentence, and many of them for life, as a result of their forfeiture of the right to hold public office.

In sum, I find the distinction made in this judgment between these two cases as a ground for justifying different conclusions to be unsatisfactory. The present judgment offers a very narrow interpretation of the Hirst judgment and in fact a retreat from the main arguments advanced therein. Regrettably 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.