Do prisoners have the right to vote? A brief overview of international standards and judgments toward the rehabilitation aim

AutorPaola Pannia
CargoPhD Scuola Superiore S. Anna, Pisa; Juvenile Justice Consultant at Defence for Children International.
Páginas1-18

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Paola Pannia 1

Recebido em 11.2.2016

Aprovado em 15.3.2016

Abstract: The issue of prisoners’ right to vote has recently been more and more at the centre of relevant judgments, public debates, and scholarly interest. This contribution will present a brief overview of international standards and judgments on prisoners’ voting rights in light of the principle of rehabilitation. The issue of prisoners’ right to vote, in fact, can play a crucial role in shifting the judicial and public debate toward a stronger recognition of the' participation of prisoners in the public life of the community, and of the rehabilitative-centered approach that should inform criminal punishment.

Keywords: Prisoners; right to vote; Participation; Rehabilitation.

Resumo: A questão do direito de votar dos prisioneiros tem estado, recentemente, mais e mais no centro de julgamentos relevantes, debates públicos e interesse acadêmico. O artigo apresenta um breve panorama dos padrões internacionais e julgamentos sobre os direitos de votar dos prisioneiros à luz do princípio da reabilitação. A questão do direito de votar dos prisioneiros pode ter, de fato, um papel crucial na mudança dos debates públicos e judiciais em direção a um forte reconhecimento da participação dos prisioneiros na vida pública, e da abordagem centrada na reabilitação que deve informar a sanção penal.

Palavras-chave: Prisioneiros; direito de votar; Participaçãao; Reabilitação.

Introduction: prisoners, rehabilitation, and the right to vote

The right to vote of prisoners is a practice with distant historical roots2 that has different regulations3 and a plethora of philosophical, juridical, political and moral arguments

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confronting one another. Maybe for this reason (combined with the strong public debate fostered by the relevant judgments in this field), the issue of prisoners’ right to vote has recently been more and more at the centre of scholarly interest.

Clear and complete recognition of the pros and cons theories has already been provided by scholars, along with insightful analysis of them4.

This contribution, instead, will present a brief overview of international standards and judgments on prisoners’ voting rights, answering the following question: what is the framework provided by international standards and national and supranational Courts on prisoners’ right to vote?

To pursue this objective, the study will start by illustrating the general framework of the principles provided by the relevant international laws and agreements. In a top-down process, it will follow a synthetic analysis of what the international courts have stated about national legislation and, more specifically, the arguments that have been constructed to solve these problematic issues. After a preliminary overview, the focus will shift to the main argument recurring in the judicial discourse about prisoners’ voting rights: the proportionality argument. This argument will be questioned, utilizing the evidence provided by the Italian case submitted for the judgement of the European Court of Human Rights (Scoppola v Italy)5.

Stressing the idea that the right to vote is related to the political “inclusiveness” of a state6, the reflections closing this contribution will be based upon a paramount principle: the principle of rehabilitation, which is strictly and indissolubly related to the other principle of the dignity and humanity of sanctions7. These principles of reference impose a change of cultural perspectives, and a shift in the judicial discourse. Against the logic of mere paternalism or punition, promoted by the retributivist theory and the so-called “contractarian

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argument”8, the rehabilitation principle asks to place the unique personality of the prisoner at the centre, promoting her/his role as an active member of the community, despite the condition of reclusion9.

In this sense, the voting right acquires a fundamental role in reaching the objectives just introduced by giving concreteness to the principle of human dignity and opening prisoners up to important spheres of expression about the social and political questions concerning community life.

The framework of principles: international law and other regional instruments of protection

One of the most important recognitions of the right to vote and to public participation in government is situated in art. 21 of the Universal Declaration of Human Rights, which affirms that: “1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. […] 3. The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures ”.

As we can see, these political rights are recognized for “everyone” and the statement in the comment refers to “universal and equal suffrage” while the two most prominent concepts are: a) popular sovereignty and b) the principle of equality (although political participant’s rights are limited to “his country”).

The only restriction admissible to the right to vote comes from the general clause of art. 29 UDHR, second para., which states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of

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securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society10.

Art. 21 of the Universal Declaration of Human Rights has evident parallels with art. 25 of the International Covenant on Civil and Political Rights, which states that every citizen has the right to vote and to be elected by universal and equal suffrage, and that this rights cannot be submitted to “unreasonable restrictions”11.

This statement is better clarified through the General Comment 25 to the ICCPR adopted by the Human Rights Committee, affirming that “no distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, color, sex, […] or other status”, and also specifying that “if conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence12. This last statement, in particular, helps to make light of a “reasonable limitation” – the only limitation allowed – to the right to vote but the dictates remain insufficiently clear13.

In the international framework regarding voting right, the protection guaranteed by the two articles discussed above is wider than the other regional instruments that we will consider. A particular example is Art. 13 of the African Commission on Human and People’s Rights, which does not provide an explicit reference to elections14.

Furthermore, Art. 23 of the American Convention on Human Rights, while recognizing the universal right to vote and equal suffrage, admits to the State’s legislation a wide range of

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restrictions on the right to vote on the basis of age, nationality, civil and mental capacity but also “residence, language, education, […] sentencing by a competent court in criminal proceedings15. Thus, the limits imposed by art. 25 ICCPR can be overcome.

Protocol 1, art. 3 of the European Convention on Human Rights16 states: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. As immediately emerges, there is no provision that recognizes the right to public participation in government and the right to access to public services. Furthermore, the elections clause is remitted to the choice of “the legislature”. Related to this, we must highlight another element: the literal formulation of the article is only able to produce an obligation solely towards member States. It was only the jurisprudence of the Strasbourg court that, thanks to a dynamic interpretation of the article in comment, recognized the right to vote as an individual right, that is capable of being asserted17.

Before analyzing the judicial interpretation of these international prescriptions, it is worth mentioning other non-legally binding rules which address felon disenfranchisement more directly. In particular, reference should be made to the Standard minimum rules for the treatment of prisoners, the European Penitentiary Rules, together with the other conventions, recommendations and resolutions relating to penitentiary questions drawn up by the Council of Europe18. Although it is possible to find express references to prisoners’ contact with the

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community and the promotion of her/his civil rights19, very few words are explicitly devoted to the voting rights of prisoners20.

States’ legislation in the judicial perspective

Despite the protection provided by the international framework, prisoners’ voting rights are not recognized by the legislation of some countries; this will be analyzed through the lens of the International Courts21. This paper will focus not only on the verdicts of the judges, but also more importantly on the arguments utilized to justify or deny the legitimacy of felon disenfranchisement as regulated by certain countries. Three overall reasons underlie the selection and comparison of the judgments here presented and discussed: first, they are the most...

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