Joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens 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. Article 3 Prot. 1 of the ECHR, as originally interpreted, did not directly grant individual rights and did not contain any conditions for elections, including in relation to the scope of the right to vote, other than the requirement that "the free expression of the opinion of the people" must be guaranteed. The Court subsequently affirmed that the article does indeed grant individual rights, including the right to vote, while recognising that such individual rights are not absolute but are open to "implied limitations" that leave the States Parties "a wide margin of appreciation", which is in any event subject to review by the Court.

 

2. Art. 3 Prot. 1 of the ECHR leaves a wide margin of appreciation to the Contracting States in determining their electoral system. In any event, in the absence of a precise wording of this provision and the delicate political considerations involved regarding the exercise of the right to vote by detainees, caution is required. Unless restrictions undermine the very essence of the right to vote or are arbitrary, national legislation on the right to vote should only be declared incompatible with art. 3 Pot. 1 of the ECHR if substantial reasons justify such a finding. Moreover, the legislation of the Member States shows that there is little consensus on the question of the right to vote for prisoners. In fact, the majority of legal systems do not provide for such restrictions, although some States have generalised restrictions and others have limited ones. Thus, it cannot be said that UK legislation is out of harmony with a common European standard.