Joint Concurring opinion of Judges Tulkens and Zagrebelsky in the case of Hirst v. The United Kingdom (No. 2), No. 74025/01, ECtHR (Grand Chamber), 6 October 2005

Exclusion from the exercise of the right to vote in national and local elections for persons sentenced to imprisonment.

Art. 3 Prot. 1 ECHR

1. The view that individual Contracting States may restrict electoral rights seems well established, as they enjoy a wide margin of appreciation in this respect. There must, however, be limits to these restrictions and it is for the Court, rather than for the Contracting Parties, to determine whether a given restriction is compatible with the individual right to vote, to elect and to stand for election. In making this determination, the Court will rely on the legitimacy of the aim pursued by the exclusionary measure and its proportionality.

 

2. However, as in the present case, when the restriction on the right to vote for persons sentenced to a term of imprisonment lacks any consideration of the nature and gravity of the offence, but is provided for only because the person is in prison. This does not constitute a legitimate or proportional purpose. There is no practical reason to deny prisoners the right to vote (remand prisoners vote) and prisoners in general continue to enjoy the fundamental rights guaranteed by the Convention, except the right to liberty. As far as the right to vote is concerned, there is no room in the Convention for the old idea of "civil death" behind the prohibition of prisoners voting.