DISSENTING OPINION OF JUDGE ZÃœND

1. The majority have found no violation of Article 3 of Protocol No. 1 to the Convention despite, in their own words, the indiscriminate nature of the domestic law restricting the right to vote of prisoners (paragraph 45 of the judgment) and the fact that domestic courts had not at the time of sentencing taken into account that the applicant would be disenfranchised (paragraph 46). They have thus approved the application of an automatic blanket ban on prisoners’ voting rights. In the light of the foregoing, I respectfully dissent.

2. Prisoners remain part of society, in particular of a democratic society. Save for their right to liberty, they continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 69), including their right to vote. This is the status quo and point of departure for all decisions on disenfranchising prisoners. Narrow exceptions may be carved out from this principle, if valid reasons present themselves to justify excluding certain prisoners from the democratic process. Such severe measures of disenfranchisement should not be taken lightly. They therefore require a discernible and sufficient link between the removal of the right to vote and the conduct and circumstances of the individual concerned. The Court has held on multiple occasions that this applies when an individual has engaged in and was convicted for criminal activities related to civil and political rights, such as election fraud or abuse of public office (see Hirst , ibid., § 77; Calmanovici v. Romania , no. 42250/02, § 153; Frodl v. Austria , no. 20201/04, § 28; and Anchugov and Gladkov v. Russia , nos. 11157/04 and 15162/05, § 97). It is insufficient, on the other hand, to base disenfranchisement on the severity of the criminal activity alone, as this is wholly unrelated to the applicant’s civil and political rights. In so far as the Court does not reject such elements (see Scoppola v. Italy (no. 3), no. 126/05, §§ 106-108), they are incompatible with the legitimate aim of restricting electoral rights, i.e., protecting the democratic process.

3. A decision to disenfranchise requires the prior legislative determination of specific situations in which a person may lose their right to vote. A blanket ban is strictly prohibited (see Hirst , cited above, § 71). Alternatively, it is for the judge presiding over a criminal procedure to evaluate in sentencing the proportionality of excluding a defendant’s right to vote for a certain duration (see Frodl , cited above, § 34). The judge’s margin of appreciation in this regard must, however, also be specified in legislation.

4. Neither of the two alternative requirements above are respected in this case: the blanket ban – and not the intact right to vote – appears to be the point of departure for the majority. The fact that the applicant had the possibility of seeking a review of the proportionality of the blanket ban ex post facto in relation to a specific election justifies, in the majority’s view, this blanket ban. This solution therefore turns on its head the narrow and exceptional nature of a decision to disenfranchise.

5. Finally, the solution envisaged by the majority contributes to a class-based voting system. It is well-known that incarceration affects people of lower classes or backgrounds disproportionally – those who may also not have the means to challenge disenfranchisement. A blanket voting ban for prisoners, without any ex ante evaluation of its legality, particularly risks stripping marginalised groups of people of their right to participate in the democratic process.

[1] On the point that there is no room for absolute prohibitions in the case-law of the Court, see paragraphs 63-71 of my partly dissenting opinion in Regner v. the Czech Republic [GC], no. 35289/11, 19 September 2017. In paragraph 71 of that opinion it is stated that u ntil now we have known that the Convention makes provision for some absolute rights, but not for absolute restrictions. An absolute restriction leads to the death of a right or to no right at all .

[2] On this, see also Dean Spielmann, “The European Court of Human Rights: Master of the Law but not of the Facts?” in L.-A. Sicilianos, I. A. Motoc, R. Spano and R. Chenal (eds), Intersecting views on national and international human rights protection : liber amicorum Guido Raimondi (Wolf Legal Publishers, 2019), 909 et seq .