THE RIGHT TO VOTE AND THE TENSION BETWEEN STATE SOVEREIGNTY AND HUMAN RIGHTS SUPERVISION OF ELECTIONS
How have international and regional human rights institutions approached the content and scope of the right to vote and how much ‘margin of appreciation’ do states still enjoy in the granting of voting rights in national elections?
Eilidh Dickson
Supervisor: Yvonne Donders
JULY 18, 2018
University of Amsterdam1
Abstract
The right to vote is commonly protected by international and regional human rights law treaties, albeit by differently formulated texts in the International Covenant on Civil and Political Rights, The European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Human and Peoples Rights. How the provisions have been interpreted by the relevant adjudicatory bodies has yielded significantly similar approaches to the normative content of the right. Analysis of this normative content demonstrates the material scope of the right, namely its exercise in elections and referendums, is expected to meet the same or similar criteria regardless of the provision’s wording. Similarly, the personal scope has been interpreted using common criteria, including citizen and universal suffrage. This thesis analyses and describes these commonalities using case-law from each supervisory body with discusses voting and/or elections. After elucidating the content of the right within each regional or international human rights system, the approach of each body towards limitations is outlined using these same cases, examining the components of each body’s emergent test of legitimate restriction of voting rights.
In order to assess any claims of violation of the right to vote, the supervisory body not only applies such tests, but is also faced with issues of legitimacy when it intervenes in the electoral processes of the state, both from the perspective of international interference and separation of constituently powers. The concluding part of this discussion examines each supervisory body’s approach to asses how much ‘margin of appreciation’ states still enjoy in the granting of voting rights in national elections. Whether a perfect balance of interests can be achieved is unclear, and the question of who is best placed to make such a determination has been a recurring theme of particularly ECtHR jurisprudence on voting rights, especially in the light of the Hirst v UK case. However similar concerns can be seen in the decisions of other bodies and each institution must take note of the range of factors at play in deciding voting rights human rights cases, particularly as democracy becomes more entrenched and more nuanced cases come forth.
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Contents
1. Introduction ... 4
2. The right to vote in human rights texts ... 6
2.1. International ... 6
2.2. Europe ... 7
2.3. Americas ... 8
2.4. Africa ... 9
3. The emergent normative content ... 11
3.1. The state as the duty bearer ... 11
3.2. Defining the object of the right ... 12
3.2.1. Application to state elections ... 12
3.2.2. Election standards ... 13
3.2.3. State constitutional arrangements ... 15
3.3. The Personal Scope ... 16
3.4. Observations ... 20
4. Legitimate limitations ... 21
4.1. Articulating the tests ... 21
4.2. Common Features ... 22 4.2.1. Legitimate aim ... 22 4.2.2. Reasonable ... 23 4.2.3. Arbitrary ... 24 4.2.4. Discrimination ... 24 4.2.5. Proportionality ... 26
5. Scrutiny and state discretion ... 29
5.1. The legitimacy of international adjudication of the right to vote ... 29
5.2. Scrutiny in practice ... 31 5.2.1. ECHR ... 31 5.2.2. ACHR ... 35 5.2.3. ACHPR ... 37 5.2.4. ICCPR ... 38 5.3. A single approach? ... 38
3 6. Conclusion ... 40 Case List ... 41 Africa ... 41 Americas ... 41 Europe ... 42
UN Human Rights Committee ... 44
Other ... 44 National law ... 45 Bibliography ... 46 Primary materials ... 46 Secondary materials ... 48 Books ... 48 Chapters ... 48 Journals ... 49 Reports ... 56 Blogs ... 56 News articles ... 57
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1. Introduction
It has been thirteen years since Hirst v. UK1 provoked a prolonged period of tension for
European human rights,2 after challenging the UK’s ban on voting rights for persons serving prison sentences. 3 The UK parliament has steadfastly refused to comply with the judgement, breaching art.46 of the European Convention on Human Rights and prompting concerns about the long-term sustainability of human rights.4 Recently though there has been reason for tentative optimism following (minimal) proposals to address the blanket and automatic ban.5 Whether this ‘compromise’ finally concludes the bad blood between state and European Court of Human Rights remains to be seen.6
While there is much commentary about the reception of Hirst and its consequences, the central topic at issue – the right to vote - remains only moderately mined. Compared with other civil and political rights, international human rights law has heard considerably fewer disputes on the subject. However, the right poses interesting issues in relation to legitimacy of international supervision of human rights:
“This is an area in which two sources of legitimacy meet, the Court on the one hand
and the national parliament on the other. This is a difficult and slippery terrain for the Court in view of the nature of its role, especially when it itself accepts that a wide margin of appreciation must be allowed to the Contracting States.”7
This paper aims to describe and analyse how international and regional human rights institutions have approached the content and scope of the right to vote and evaluate the degree and legitimacy of scrutiny imposed on state political systems. Chapter two will outline the sources of the right and the contexts in which they were drafted to sketch an originalist conceptualisation. The third chapter examines the elaboration of the normative content by the
1 (No.2) (Application No.74025/01)
2 Bowcott O. 'Council of Europe Accepts UK Compromise on Prisoner Voting Rights' (The Guardian, 2017)
<https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights> accessed 1 June 2018
3 HoC Library Prisoners' voting rights: developments since May 2015 (Briefing Paper) (2016) CBP 7461 4 P. Leach and A. Donald, 'Russia Defies Strasbourg: Is Contagion Spreading?' (Ejiltalk.org, 2015)
<https://www.ejiltalk.org/author/leachdonald/> accessed 17 May 2018
5 CoE Secretariat of the Committee of Ministers Communication from the UK concerning the case of HIRST (No.2) v. the UK (Application No.74025/01) DH-DD(2017)1229
6 O. Bowcott 'Council of Europe Accepts UK Compromise on Prisoner Voting Rights' (The Guardian, 2017)
<https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights> accessed 1 June 2018
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supervisory institutions by analysing the case-law interpreting these texts, first the material scope, or object of the right and secondly the personal scope or beneficiaries. Chapter four will examine the tests for legitimate limitations which have arisen and their consequences. Finally, the fifth chapter explains the degree of scrutiny, or level of discretion which the supervisory institutions impose, and the extent to which it varies. The conclusion brings together these findings into an observation on the protections of voting by human rights law at international and regional levels.
This thesis focuses on the Human Rights Committee (hereafter HRCttee); European Court of Human Rights (ECtHR); American Commission of Human Rights (IAComHR); Inter-American Court of Human Rights (IACtHR); African Commission on Human and Peoples Rights (AComHPR) and African Court of Human and People’s Rights on Human and Peoples' Rights (ACtHPR). While there is a small body of material examining the emerging right to vote in Asia and then Middle East these are not included here because of the absence of institutional interpretation upon which a study of the normative content could proceed.
While perfect comparisons are impossible because the four systems examined operate independently, similarities and differences in case law will be acknowledged. Initially, cases were selected via the relevant tribunals’ databases, for those referring the treaty provision covering the right to vote, then those citing and cited by within the judgment. The Election Observation and Democracy Support (EODS) Case Law database8 was helpful as an almost comprehensive list of cases relating to elections. Some cases raise issues of interpretation of the same provision applicable to elections, but concern associated elements such as the right to stand as a candidate. Relevant comments however have been selected to demonstrate aspects of interpretation applicable to the treaty provision discussed. A smaller number of cases represent interpretations of other provisions of human rights law which play a role in understanding issues which affect interpretation of the right to vote.
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2. The right to vote in human rights texts
When modern human rights first emerged in the 1940s, much like the state’s treatment of its nationals, how those nationals should be governed constituted the state’s domaine reserve. However, representative democracy has since become intrinsically linked with human rights. States have underlined this connection explicitly, for example, the Vienna Declaration, paragraph 8 of which opens “Democracy, development and respect for human rights and
fundamental freedoms are interdependent and mutually reinforcing.”9 However the four systems have their own ways of characterising individual rights, heavily influenced by their drafting context.10
2.1. International
A right to vote was included in the Universal Declaration of Human Rights (UDHR), art. 21(3) providing:
The will of the people shall be the basis of the authority of government; this will 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.
The travaux preparatoires demonstrate an acute awareness of political rights as a means of countering totalitarianism.11 Art.21 requires not only respect for the individual’s free vote, but
a positive obligation on the state to provide elections that meet enumerated standards. The obligations enumerated have since been restated by art.25(b) of the International Convention on Civil and Political Rights (ICCPR):
25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions…
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
9 World Conference on Human Rights in Vienna: Declaration and Programme of Action, (adopted 25 June
1993)
10 T. Daly The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (Cambridge University
Press 2017) p172.
11 W. A. Schabas ed. The Universal Declaration of Human Rights: The Travaux Préparatoires (Cambridge
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The absence of the condition that the will of the people shall be the “basis of the authority of government” reveals a difference in the way that states viewed an incursion into their sovereignty when the requirement to hold elections was to give rise to an actionable right to vote.12 Additionally, art.25 refers to the “distinctions mentioned in art.2,” explicitly including a requirement of non-discrimination. Together this implies that the ICCPR does not mandate the introduction of elected government but once introduced the right to vote in elections must be granted equally.13 However, it also renders the article weaker in addressing systemic flaws, including unelected branches of government, and this may explain the relatively small number of elections cases considered by the HRCttee under the Optional Protocol.14
2.2. Europe
The wording of political rights plagued the drafting of the European Convention on Human Rights (ECHR) and it was not until after the Convention entered into force that a text was agreed for art.3 of the First Protocol (P1-3):
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.
P1-3 is the only right in the ECHR expressed as a state obligation. Initially this led some commentators to suggest it could only be asserted in inter-state claims, although individual application is now clearly accepted.15 Secondly it contains no specific right to participate in the democratic process;16 the wording emphasises the positive obligations for the state in the holding and running of elections.17 The ECtHR’s primary task is to ensure that the state has complied with the conditions of P1-3 so that individual rights can be exercised effectively.18
12 A. Coleman and M. Jackson ‘Democracy's Global Quest: A Noble Crusade Wrapped in Dirty Reality’ (2004) Suffolk Transnat'l L. Rev. 28 175 pp177-178
13J. Vidmar ‘Multiparty Democracy: International and European Human Rights Law Perspectives’ (2010) 23 LJIL
209 p217
14 H.J. Steiner ‘Political Participation as a Human Right’ (1988) 1 Harvard Human Rights Yearbook 77, p87 15Mathieu-Mohin And Clerfayt v Belgium (Application No.9267/81) §48; §50
16 Specifically, art.21, UDHR, see R. O'Connell ‘Towards a Stronger Conception of Democracy in the
Strasbourg Convention’ [2006] EHRLR 281
17 W.A. Schabas The European Convention on Human Rights: a Commentary (Oxford University Press; 2015)
p.1019
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It is important to note the drafting took place in the post-war context and the regional desire to prevent future emergence of totalitarianism. The Court has, even in recent cases, noted the connection between the voting and expression, particularly in the context of political debate, as necessary to guarantee pluralism.19 Democracy was thus central to the Convention and the ECtHR continues to describe P1-3 as of prime importance, protecting an essential characteristic of effective political democracy.20 Even at the time of draft, many CoE states had already imbedded electoral systems21 and considered representative government their common heritage.22 This may explain their willingness to embrace wording capable of including the breadth of existing practice.
2.3. Americas
Unlike the ECHR, the Inter-American system includes an explicit and non-derogable right to participation in their democracy, including the right to vote, developed within the Organization of American States (OAS). 23 At its creation many American states were not representative democracies, a key difference with Europe. Art.2(b) OAS Charter shows that establishing democracy was a deliberate goal and one of its essential purposes is to ‘promote and consolidate representative democracy.’
A right to vote was included in the American Declaration of the Rights and Duties of Man:
Art. XX: Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.
Drafted later, the American Convention on Human Rights (ACHR) art.23 provides:
Every citizen shall enjoy the following rights and opportunities:
…b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters;
19 Özgürlük Ve Dayanışma Partisi (ÖDP) v Turkey, (Application No.7819/03) §79
20 Karimov v Azerbaijan (Application No.50430/06) §34; Mathieu-Mohin and Clerfayt v. Belgium §47 21 G.H. Fox ‘The Right to Political Participation in International Law’ (1992) 17 YaleJIntlL 539. p546 22 Mathieu-Mohin and Clerfayt v Belgium §94
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Art.23 is formulated almost identically to art. 25 ICCPR, mandating the same qualities for elections. Furthermore, art.27(c) of the Convention leaves open the prospect of future recognition of any right ‘derived from representative democracy as a form of government.’ Uniquely, the IAComHR describes art.23 as part of a broader right to democracy24 as does the OAS.25 Art.9 OAS Charter provides for the suspension from the organisation in the case of
coups d’états. However, only Cuba has suffered suspension despite other suspect
circumstances.26
The Inter-American Democratic Charter27 further elaborates political rights, 28 art.3 of which defines an “essential element” of representative democracy as “the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people.” While the Charter is not binding, it claims to provide an authoritative interpretation of the OAS charter29 and can help interpret art.XX and art.23.
2.4. Africa
The African Charter on Human and Peoples' Rights (ACHPR) provides:
Art.13(1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
This wording offers no protection for individual rights.30 The clawback clause "in accordance with the provisions of the law" suggests states are not obligated to introduce elections and that rights need only be provided so far as national law requires.
24Andres Aylwin Azocar et al. v. Chile, Case 11,863, IAComHR, Report no.137/99 §157
25 L. Mooney ‘Introductory Note to the Inter-American Juridical Committee: Resolution on the Essential and
Fundamental Elements of Representative Democracy and the Their Relation to Collective Action Within the Framework of the Inter-American Democratic Charter’ (2009) 48 ILM 1233 p1233
26https://www.economist.com/the-americas/2018/02/08/the-ills-of-latin-american-democracy
https://www.washingtonpost.com/news/worldviews/wp/2016/07/22/map-the-world-of-coups-since-1950/?noredirect=on&utm_term=.21e9d3ba808a
27 (11 September 2001) (2001) 40 ILM 1289.
28 E. Lagos and T.D. Rudy ‘In Defence of Democracy’ (2004) 35 U. MIAMI INTER-Am.L.REV. 283 p290 29 T. D. Rudy, ‘A Quick Look at the Inter-American Democratic Charter of the OAS: What Is It and Is It Legal’
(2005 33 Syracuse J. Int'l L. & Com. 237, pp240-241.
30 S. Elvy, ‘Towards a New Democratic Africa: The African Charter on Democracy, Elections and Governance’
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Decolonialisation cannot be ignored in African human rights protection but especially regarding political rights.31 The struggle for self-determination has left a lingering sense of
self-preservation and reluctance to sanction intervention in constitutional arrangements.32 Whilst representative democracy has quickly become embedded since the Cold War, there remains considerable degrees of effective participation, from authoritarian regimes to functional multi-party elections. Focussing on unconstitutional changes in government over individual rights protections is a “uniquely African approach” to participatory rights. 33 Coups have been heavily condemned by the AComHPR34 and like the OAS, AU membership may be suspended if a government has come to power by unconstitutional means, a measure applied by the OAU the Comoros, Ivory Coast, and Niger35 and by the AU to Madagascar, Mali, Egypt among others.36
This minimalist protection has been recently supplemented by the African Charter on Democracy, Elections and Governance, inspired by the Inter-American Democratic Charter but designed to reflect regional specifics.37 Although binding law, and signed by nearly 40 states, just 10 have completed ratification. 38 In 2002, the AU also agreed the Declaration on the Principles Governing Democratic Elections in Africa39 which offers soft-law indications for
the procedural guarantees in elections.40
31 ACHPR Preamble: “Conscious of their duty to achieve the total liberation of Africa…”
32 S.M. Weldehaimanot, ‘African Law of Coups and the Situation in Eritrea: A Test for the African Union's
Commitment to Democracy’ (2010) 54(2) Journal of African Law, 232, pp246-247
33 E.Y. Omorogbe, ‘A Club of Incumbents? The African Union and Coups d’Etat’ (2011) 44(1) Vanderbilt
Journal of Transnational Law 123, p124.
34 AComHPR Resolution on the Human Rights Situation in Africa (1994) ACHPR/Res.40(XXVI)99
35 OAU Lomé Declaration of July 2000 on the framework for an OAU response to unconstitutional changes of
government (AHG/Decl.5 (XXXVI)
36 Maasho A. ‘African Union suspends Egypt’ <
https://www.reuters.com/article/us-egypt-protests-africa-idUSBRE9640EP20130705> accessed 27 July 2018
37 P.J Glen, 'Institutionalizing Democracy in Africa: A Comment on The African Charter on Democracy,
Elections and Governance' (2012) 5 AJLS 149, p150; 159
38 A.M. Mangu. ‘African civil society and the promotion of the African Charter on Democracy, Elections and
Governance’ (2012) AHRLJ 12 348, p350
39 AU Declaration on the Principles Governing Democratic Elections in Africa, AHG/Decl.1 (XXXVIII),
(2002)
40 S. Elvy, ‘Towards a New Democratic Africa: The African Charter on Democracy, Elections and Governance’
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3. The emergent normative content
Each core text has benefitted from interpretation elaborating and expanding the normative content of the right to vote. The following chapter analyses common features resulting from this interpretation, examining the duty bearer; characteristics defining the object of the right and the criteria for determining its subjects.
P1-3’s wording has not prevented the ECtHR from developing the right into a structure similar to other convention rights. 41 It has been clear since Mathieu-Mohin and Clerfayt that individual rights are implied by its structure: the right to vote (the active right) and to be elected (the passive right).42 The court has since confirmed that these rights are substantively the same as those in art.25 ICCPR.43 Similarly, the AComHPR has opined that it is difficult to conceive of participatory rights without elections.44 In Dawda Jawara it was clear that individuals have both a right to enjoy democratic governance and a right to participate in decision-making.45 Taken together, there is an implicit right to vote in regular elections guaranteeing the will of the people.46
3.1. The state as the duty bearer
The state must ensure the right to vote, which is clear from the texts and has been reiterated in case-law.47 However, individual exercise of participatory rights clearly requires both state
action and restraint, more so than most classical freedom rights. P1-3 offers a starting point for analysing the content of state obligations, namely to hold elections which meet the criteria outlined in the text. The HRCttee has said that states should also adopt legislation for running elections48 and other measures necessary, such as voter registration.49
41 Goodwin-Gill G.S. Free and fair elections (IPU 2006) p137 42 Mathieu-Mohin And Clerfayt v Belgium §51
43 Scoppola v Italy (No.3) (Application No.126/05) §82
44 Constitutional Rights Project v Nigeria, AComHPR, Comm.No.60/91 (1995) §50 45Dawda K Jawara v The Gambia AComHPR Comm.No.147/95 and 149/96 §73
46N Kofele Kale. ‘Participatory Rights in Africa: a Brief Overview of an Emerging Regional Custom’ (2008)
Netherlands International Law Review 233, p248
47V. Jaichand, ‘The Promise in the Right to Vote’ (1993) 1 The Comparative and International Law Journal of Southern Africa 26, 1 p2
48 HRCttee General Comment 25 (1996) CCPR/C/21/Rev.1/Add.7 §19 49 Ibid §25
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While the concept of extra-territorial application of human rights has been debated extensively,50 requiring the state to extend elections beyond borders would violate another
state’s or states’ territorial sovereignty. The ECtHR discussed territorial limits in Mathews, holding that the obligation should be determined by reference to the decision-making power over the territory.51
3.2. Defining the object of the right 3.2.1. Application to state elections
P1-3 is limited to the “choice of the legislature” which is one of the few express terms to provoke serious debate before the ECtHR.52 The Court’s position is that ‘legislature’ must be determined by reference to functions exercised by the organ53 and the state’s constitutional traditions.54 One phenomenon is the European Parliament’s gradual transition from a consultative organ to being “sufficiently involved in the passage of [EU] legislation” to fall within the material scope of P1-3,55 which demonstrates that the state’s participation in supranational bodies can be supervised, and that what constitutes a legislature is capable of change, particularly through dynamic interpretation.56
The travaux show that concerns about non-elected chambers hindered drafting of the right to vote article57 and the ECtHR considers it sufficient that part of the legislature is elected. Cases
concerning referendums58 and municipal elections59 have been declared inadmissible as have
those concerning administrative bodies.60 The Court has been less absolute in excluding presidential elections, leaving open the prospect of review where the head of state exercises legislative functions61 but has so far excluded such cases on functional grounds.62
50 S. Joseph and A Fletcher ‘Scope of application’ in D. Moeckli et. al eds, International Human Rights Law 2nd
Edn. (OUP, 2014) pp. 129-138
51 Matthews v The UK (Application No.24833/94) §30.
52 W.A. Schabas ‘The European Convention on Human Rights: A Commentary’ p.1020 53 Guliyev v Azerbaijan (Application No. 35584/02)
54 Sejdić And Finci v Bosnia And Herzegovina (Application No.27996/06 and 34836/06) §40; Mathieu-Mohin and Clerfayt v Belgium §53
55 Matthews v. UK §52-54 56 Ibid §79
57 Collected Edition of the “Travaux Preparatoires” of the European Convention on Human Rights, (Martinus
Nijhoff Publishers, 1985) Volume VIII, pp. 46, 50 and 52).
58 Hilbe v Liechtenstein (Application No.31981/96) 59 Salleras Llinares v Spain (Application No.52226/99) 60 Xureb v Malta (Application No.52492/99)
61 Krivobokov v. Ukraine (Admissibility Decision) (Application no. 38707/04)
62 For example: Anchugov and Gladkov v. Russia (Application No. 11157/04 and 15162/05) §55 and Guliyev v Azerbaijan (Application No. 35584/02) (ECHR); W.A. Schabas ‘The European Convention on Human Rights: a
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Limitation to the legislature is not replicated in other treaties. The HRCttee has accepted that art.25 ICCPR does not apply to elections for heads of state63 but accepted application to referendums in Gillot.64 The lack of case-law on the ACHPR renders art.13’s material scope underdefined, but it is submitted that given the Charter’s approach to constitutionalism, “government of his country” is likely to extend the obligations only so far as the state designs. The IACtHR has stated that the right to participate includes “referendums, plebiscites, or
citizen consultations, or through freely elected representatives”65 suggesting a broader scope.
3.2.2. Election standards
Each treaty text enumerates characteristics states are obligated to meet in providing the opportunity to vote.66 Grabenwarter collectively refers to “voting principles,” which constitute minimum standards.67
‘Genuine’ appears in the ACHR, ICCPR and UDHR, although the meaning was initially not addressed. The ICCPR’s drafters were divided on whether ‘genuine’ should refer to outcome, or was a standalone concept referring to the quality of the process. It was ultimately left part of the quality analysis, assuming that combined with suffrage and regularity, it would result in a genuine expression of public will.68 The United Nations Centre for Human Rights Elections
Handbook differentiates between ‘genuine effects’ and ‘genuine procedures,’ both of which should “reveal and give effect to the freely expressed will of the people.”69
The IAComHR defines genuine elections as being without intimidation, fraud, harassment; reflecting the voters' will and has stated that one-party states are inherently coercive.70
63 HRCttee, Mazón Costa (CCPR/C/92/D/1745/2007) §3.2 64 HRCttee Gillot et al v France (CCPR/C/75/D/932/2000) §5 65 Castañeda Guzmán IACtHR (2008) Series C No. §184 147.
66 G.H. Fox ‘The Right to Political Participation in International Law’ (1992) 17 YaleJIntlL 539. p552 67 C. Grabenwarter, European Convention on Human Rights (CH Beck 2014) pp. 402-403. See also P. Merloe
‘Human rights: the basis for inclusiveness, transparency, accountability and public confidence in elections’ in
International Principles for Democratic Elections ed. J. Harding Young p3;
68 Commission on Human Rights Third Committee, 16th Session (1961) A/5000 §94
69 UN Centre for Human Rights, UN Human Rights and Elections A Handbook on the Legal, Technical and
Human Rights Aspects of Elections (1994) §77
70 A. Rubinstein and R. Yaniv ‘The Right to a Genuine Electoral Democracy’ (2018) 27 Minn. J. Int'l L 143
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Coercion may have regional context but essentially means reduction in choice, which may vary in degree of seriousness.71
The ECHR and ACHPR refer to ‘free’ elections, which seems to have been interpreted substantively similar to ‘genuine’. P1-3 uses “the free expression of the opinion of the people in the choice…” implying the existence of meaningful options, reflecting the ECHR’s commitment to pluralism.72 The AComHPR has linked the credibility of elections to the concepts ‘free and fair’73 and art.13 ACHPR refers to “freely chosen,” again connecting choice
to the quality of outcome. ‘Free and fair’ is described in art.3 of the Inter-American Democratic Charter as an essential element of representative democracy. This clarifies the standards the OAS expects for exercise of voting, as art.23 ACHR simply uses ‘free’ to refer to the “expression of the will of the voters.’
The ECtHR has implied that positive obligations relating to electoral laws and processes such as registration and observation can be important means of preventing coercion74 as is a positive duty to investigate state-level violations “capable of thwarting the free expression of the
opinion of the people.”75 Furthermore, refusal to accept an election outcome can violate the
concept of a free exercise of voting where there is otherwise consensus that it met the minimum standards.76
The ICCPR, ECHR and ACHR each require elections to be held at periodic or regular intervals. The ACHPR does not include any time reference, although the Elections Declaration requires elections at regular intervals as provided for in national constitutions.77 Neither the AComHPR nor ACtHPR has considered intervals making it difficult to determine how much discretion would be granted in light of the clawback. The European Commission in Timke suggested that ‘reasonable’ constituted parliamentary terms which balance the need for the politics of the
71 A Burra ‘Another Look at the Revisionist Challenge to Liberty’ (2016) 14:1 Jerusalem Review of Legal
Studies 87 pp.90-91
72 E.g. Organization for Security and Co-operation in EuropeConference on Security and Co-operation in
Europe, Document of the Copenhagen Meeting of the Conference on the Human Dimension, June 29, 1990, reprinted in 29 ILM 1305, 1308, (1990) §3
73 Kofele Kale N. ‘Participatory Rights in Africa: a Brief Overview of an Emerging Regional Custom’ p249 74 Georgian Labour Party v. Georgia (Application No.9103/04) §88
75 Davydov and Others v. Russia (Application No.75947/11)
76 Constitutional Rights Project v. Nigeria, AComHPR, Comm. No. 60/91 (1995) §53
77 African Union Declaration on the Principles Governing Democratic Elections in Africa, AHG/Decl.1
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government to reflect fundamental changes in public opinion with the state’s interest in longer-term planning.78 The HRCttee similarly states that intervals should be “not unduly long and
ensure that the authority of government continues to be based on the free expression of the will of electors.”79 Both imply considerable degrees of latitude for states in conducting this balancing act.
Secret ballot has been widely accepted in each system as necessary to safeguard on the free exercise of opinion and prevent fraud.80 This has faced little scrutiny, declared inadmissible before the ECtHR in the only case raised.81 Although the UDHR offers the option of an “equivalent free voting procedure,” the subsequent texts did not explore potential alternatives.
The requirement that the “will of the people shall be the basis of the authority of government” is omitted in the ICCPR but included in the UDHR. The travaux shows this to be a deliberate choice led by states who feared mandating a structure where every branch of authority was elected.82 Art 25 only requires that state elections shall guarantee free expression of the will of electors. The state’s obligations, upon simple reading, only extend as far as ensuring that each individual voter’s opportunity to express their vote is free from coercion or fraud. This limited role for public will is mirrored by the ACHR and does not feature in the ACHPR. P1-3 offers a more outcome focussed right, as free expression of voters must underpin the choice of the legislature. The ECtHR has however been reluctant to read this in a way which introduces further obligations on states regarding the material scope of elections, including voting systems, irrespective of whether the system ensures the widest possible choice.83
3.2.3. State constitutional arrangements
Within the ECHR, beyond the state’s treaty obligations, sovereignty over constitutional arrangements remains absolute and states may adopt their own “vision of democracy.”84 However, an electoral system which denied subjects of their right to vote, unless within the boundaries of a legitimate limitation, would fall beyond this discretion.85
78 Timke v. Germany Commission Decision of 11 Sept. 1995, 82 D&R 158 79 HRCttee General Comment 25 §9
80 C. Grabenwarter, European Convention on Human Rights p.403. 81 Babenko v. Ukraine (Application No.68726/10)
82 Commission on Human Rights, (5th session 1949), 9th session (1963) A/2929 Chap.VI 83 Matthews v. the UK §64
84 Mathieu-Mohin and Clerfayt v Belgium §52 85 Matthews v. the UK §64
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The HRCttee has read art25(a) as obliging states to provide at minimum the opportunity to participate in public affairs but leaving it open to “provide for the modalities”86 and further noted that “the covenant does not favour any particular democratic model.”87 The IAComHR
commented in Azocar that while there is no requirement for any specific electoral system in art.23 ACHR, states should ensure certain aspects to give effect to the free expression of will, namely equal value of votes and non-discriminatory delimited districts.88 These comments elucidate the sort of elements OAS states should ensure in their electoral systems but do not expand the obligatory criteria.
3.3. The Personal Scope
While individuals are the beneficiaries of the right to vote, its value can only be realised when aggregated to establish a collective “free expression in the choice” of governance.89 How this
collective is defined by the state will determine to which individuals it owes its material obligations.
The treaties provide minimum qualifications for participation, defining the personal scope of obligations in a different and narrower way than many rights in the same treaties. While art.2 ICCPR extends rights to “all individuals within its territory and subject to its jurisdiction”, art.25 is the only exception, providing that “every citizen” shall enjoy the rights contained. Furthermore art.25(b) includes the right to take part in elections of “universal and equal suffrage,” meaning that the article implies the widest possible participation of the citizenry but permits excluding those simply present on the territory.
Personal scope is largely unexplored by General Comment 25, bar the state’s obligations to “take effective measures to ensure that all persons entitled to vote are able to exercise that right.”90 Several HRCttee decisions however have explored franchise: in Gillot exclusion of
certain groups in self-determination referendums was justified by context, thus implying the rights under art.25(b) can be election-content specific.91 However in Fongum Gorji-Dinka the
86 HRCttee Marshal v Canada (CCPR/C/43/D/205/l986) §5.4 87 HRCttee, General Comment 25 §9.
88 Andres Aylwin Azocar §21
89 F. Palermo and J. Woelk, 'No Representation without Recognition: The Right to Political Participation Of
(National) Minorities' (2003) 25(3) Journal of European Integration 225, page 225
90 HRCttee General Comment 25 §11 91 HRCttee Gillot et al v France §13.7
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HRCttee found that the applicant’s disenfranchisement pursuant to national laws preventing prisoner voting amounted to a violation, reminding states that latitude for restriction of suffrage only goes so far. 92
Art.23 ACHR is similarly worded, stating that “every citizen shall enjoy the… [right] to vote… by universal and equal suffrage”, again departing from the general rule that Charter obligations extend to “all persons subject to [the state’s] jurisdiction.”93 Conversely, the American
Declaration says nothing of citizens or universal suffrage, instead that “every person having legal capacity.”94 Whether legal capacity is the same as citizenship or has some other meaning relating to domestic law is unclear. Some OAS states are not bound by the ACHR and thus it could be claimed held to different – perhaps lesser – standards. The IAComHR however suggested in Azocar the content of the two provisions was similar95 and that consensus on the importance of universal suffrage was the conclusion of the lengthy process of democratisation,"96 which suggests the wording is immaterial to the content of the right.
More recently, the Commission was called upon to interpret the American Declaration in
Statehood Solidarity Committee.97 As the US was only bound by the Declaration the
Commission dedicated part of the decision to the role of democracy in OAS states98 and commented that “insights regarding the specific content of Art.XX can properly be drawn from Art.23 [ACHR].”99 Ultimately the violation turned upon the lack of opportunity to participate
in public affairs, but the reasoning suggests that the Commission would interpret the scope of the right to vote the same way.100
The ACHPR also limits art.13 to “every citizen,” another departure from the general obligation to respect the rights and freedoms of “every individual” in art.2. Unsurprisingly art.13 says nothing of universal and/or equal suffrage. Art.4.2 of the African Democratic Charter however
92HRCttee Fongum Gorji-Dinka v. Cameroon (CCPR/C/83/D/1134/2002) §5.6 93 ACHR art.1
94 American Declaration art.XX 95 §94
96 §95
97 Statehood Solidarity Committee v. United States, Case 11,204, IAComHR, Report no. 98/03,
OEA/Ser.L/V/II.118, doc. 5 rev. 2 (2003)
98 §85 99 §87
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requires that “State Parties shall recognize popular participation through universal suffrage
as the inalienable right of the people.”
In Purohit and Moore, concerning disenfranchisement of a mentally incapable individual, the AComHPR stated that:
“the right provided for under Art.13(1) of the African Charter is extended to ‘every
citizen’ and its denial can only be justified by reason of legal incapacity or that the individual is not a citizen of a particular State.”101
Citizenship in Africa is often a recent creation, with many nationals previously identified by colonial laws, which has influenced their constitutions. In Legal Resources v Zambia,102 the AComHPR interpreted “every citizen” as preventing constitutions from excluding sections of the citizenry from the franchise, despite art.13’s claw-back clause “in accordance with the provisions of the law” in relation to the right to participate.103 In doing so, it commented that
the claw-back clause cannot be used to deny individual’s rights already enjoyed.104
Subsequently in Mouvement ivoirien des droits humains the AComHPR cited the Zambia case to reiterate that citizens should expect to be treated equally to other citizens105 and further added that art.14 includes individual rights to be enjoyed without reference to attachment to other individuals, such as parents.106 Therefore the scope of art.13 must be defined only by reference
to the status of the individual who is invoking their right rather than any wider group identity. It is therefore submitted that deference to national constitutions will not extend to the personal scope of the right where provisions are designed intentionally to deny rights to certain groups.
The ECHR does not restrict the right to ‘citizens’, instead using the phrase “the people,” which is not defined. While Art.1 ECHR extends Convention rights to everyone within the jurisdiction of the State, P1-3 does not specifically address whether the right to vote is an individual right, and therefore to whom it extends. Furthermore, there is no requirement that elections be held by universal suffrage.
101 §75
102 Legal Resources Foundation v Zambia AComHPR Comm. No. 211/98(2001) §67; §70
103 S. Singh ‘The impact of clawback clauses on human and peoples' rights in Africa’ (2009) 18:4 African
Security Studies 95 p101
104 Legal Resources Foundation v Zambia §70
105Mouvement ivoirien des droits humains (MIDH) v. Cote d'Ivoire AComHPR Comm. No.246/02(2008) §87 106 §86
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Having interpreted the subjective right to vote as a corollary of the state’s obligations, the Court has traditionally conceived of franchise as part of state discretion over constitutional arrangements. Increasingly however, it appears the ECtHR is happier to discuss the personal scope, concluding categorically in Hirst that the right to vote is not a privilege.107 Jurisprudence on disenfranchised groups has made it clear that the state does not have unbridled discretion.
The Hirst presumption towards inclusion is further supported by decisions such as Söyler108 and Frodle109 in which the court directly invoked the principle of universal suffrage and commented that “any departure from the principle… risks undermining the democratic validity
of the legislature thus elected and the laws it promulgates.”110 In this regard the ECtHR is interpreting personal scope similarly to the ACHR, albeit from the opposite starting point. Where the ICCPR and the ACHR establish universal suffrage as a core component of the individual’s right to vote, the ECtHR has incorporated it to limit state discretion.
Voting can be considered as a benefit of active citizenship, participating in a shared community,111 and an indicator of passive citizenship or a sign that the individual enjoys the
protection of the state as legally recognised member.112 Delimiting the citizenry will be for national constitutional law, however the ICJ has held that as far as international law is concerned, a "genuine connection' should exist between individual and state.113 IAComHR
discussed the relationship between voters and representatives in Azocar, commenting that a genuine link can only be assured through an electoral system that ensures the “most free and ample participation” to legitimise governance.114 This essential role of public legitimisation
can also be found in many soft law documents, including the Inter-Parliamentary Union’s Declaration on Democracy.115
107 Hirst v The UK (No.2) §59
108 Söyler v Turkey (Application No.29411/07) 109 Frodl v Austria (Application No.20201/04) 110Ibid §24
111 R. Bauböck ‘Expansive Citizenship- Voting Beyond Territory and Membership’ (2005) 38 Political Sci. &
Politics 683 p683
112 H. Lardy ‘Translating human rights into moral demands on government’ (2003) 9 Int'l Legal Theory 123,
pp126-127
113 Nottebohm Case (Liechtenstein v Guatemala); Second Phase, International Court of Justice (ICJ), 6 April
1955 p.23
114 §95
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3.4. Observations
Through interpretation, the exercise of the right to vote has become largely synonymous across the regions, however is has not removed space for state discretion when designing constitutional frameworks, including citizenship or franchise laws. The supervisory bodies have also clarified election characteristics, which has its own impact on discretion, both in where states may set their own rules and the supervision of how they meet the minimum standards.
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4. Legitimate limitations
Most challenges to electoral laws before international human rights institutions have been where the state has prevented certain groups from exercising their rights. However, as the IAComHR in Yatama noted “instituting and applying requirements for exercising political
rights is not, per se, an undue restriction of political rights.”116
Katz characterises three types of limitations imposed on the right to vote: community membership, competence and autonomy.117 Though perhaps imprecise, these categories indicate how states have sought to limit the right. Restrictions based on competence are perhaps the easiest to recognise: it is uncontroversial that a minimum age be imposed on voting while exclusions based on mental competence are less simple.118 This chapter will examine such restrictions considering the institutions’ approaches to limitations, outlining the tests that have emerged from their reasoning before discussing common features of such tests and their application.
.
4.1. Articulating the tests
The ECtHR has consistently held that there is room for implied limitations in P1-3. The wide margin of appreciation afforded to states extends to limitations,119 but any exclusion must be reconcilable with P1-3’s underlying purposes.120 It is the ECtHR’s role, in the last resort, to
ensure that conditions do not curtail the right to such an extent as to impair its ‘very essence’ and deprive its effectiveness; that restrictions are in pursuit of a legitimate aim; and that the means employed are not disproportionate.121
The HRCttee’s General Comment 25 provides that where voting is introduced, the franchise should not include distinctions between citizens on the grounds in Art.2(1).122 The HRCttee’s approach to limitations concerns their discriminatory effect, and whether they can be
116 §206
117 R.S. Katz Democracy and Elections (Oxford Oxford University Press 1997) p216
118 A. Blais, L. Massicotte and A. Yoshinaka ‘Deciding who has the Right to Vote: a Comparative Analysis of
Election Laws’ (2001) 20(1) Electoral studies 41 p42
119 Hirst v The UK (No. 2) §61
120 Shinder v The UK (Application No. 19840/09) (ECHR) §68;
121 Mathieu-Mohin And Clerfayt v Belgium §52 Gitonas and Others v Greece (Application no. 18747/91 etc.)
(ECHR) §39 and Matthews v. the UK §63
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objectively and reasonably justified, as was the test applied in Fongum Gorji-Dinka, which explicitly noted that the limitation must be provided by law.123
Art.23(2) ACHR is the only text to state objective limitations for the right to vote; an exhaustive list including “age, nationality, residence, language, education, civil and mental capacity, or
sentencing by a competent court in criminal proceedings.” However, In Statehood Solidarity Committee the IAComHR explicitly commented that its approach to limitations was similar to
the ECHR and the ICCPR, in that each recognises “that any conditions that apply to the right to political participation should be based on ‘objective and reasonable criteria.’124
ACHPR case-law suggests a narrow set of limitations will be tolerated, with the AComHPR in
Purohit commenting that denial of the right to vote “can only be justified by reason of legal
incapacity or that the individual is not a citizen”125 In Tanganyika Law Society, the ACtHPR
stated art.13 rights may be limited on the basis of the general limitations clause in art.27(2) which allows individual rights to be restricted only for rights of others, collective security, morality and common interest.126
4.2. Common Features
Although each test for legitimate limitation differs in structure many aspects considered are common, and capable of holistic definition.
4.2.1. Legitimate aim
The ECtHR has displayed no appetite to challenge states on aims put forward, even if some incredulousness is indicated,127 provided it is compatible with the principle of the rule of law and the general objectives of the treaty.128 Whether a state can invoke an aim based on morality has been much debated, particularly in prisoner voting.129 Such justifications are hardly objective but it is difficult to suggest there is no scope for political or moral-fitness
123§5.6
124 Statehood Solidarity Committee,§93 125 §75
126 Tanganyika Law Society and the Legal and Human Rights Centre v. Tanzania (Application No.009 and
011/2011) §100
127 The Georgian Labour Party v Georgia §138; Hirst v The UK (No.2) §74-§75
128 Ždanoka v. Latvia (Application no. 58278/00) §118
129 Plaxton M. and Lardy H. ‘Prisoner disenfranchisement: Four judicial approaches’ (2010) 28 Berkeley J. Int'l
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justifications unless the human rights supervisory institutions explicitly state that justification based on morality will not be tolerated. However moral arguments clearly have political value, such as the UK’s former PM commenting that the idea alone of prisoner make him feel “physically ill”.130 No defence (to date) has relied on such an aim, but the level of unquestioned
acceptance may be one area where the margin could move in future.
The IACtHR also considers the legitimacy of the purpose of restrictions and states should demonstrate their need in terms of the means and motive of the aim pursued.131 The HRCttee has also stated that restrictions must be justified in accordance with the aim put forward.132
4.2.2. Reasonable
What is reasonable will be largely context-driven. The HRCttee regularly uses the term but does not positively define it, only proving in General Comment 25 examples of a reasonable restriction (age) and unreasonable restrictions including physical disabilities, education or property requirements.133 The IAComHR also used the term in Azocar, saying that the electoral system should not include unreasonable barriers to voting.134
The ECtHR has however stated that it is not unreasonable to ask a prospective voter to do something in order to receive their right to vote, for example pre-registration or presenting identification.135 However, positive obligations on the individual can have consequences. Voter
identification laws, billed as a means of preventing electoral fraud, may have significant consequences for certain groups.136
130 H. Mulholland and A. Stratton (The Guardian, 2011)
<https://www.theguardian.com/society/2011/feb/01/prisoners-vote-may-elections-compensation-claims>
accessed 13 March 2018
131 Andres Aylwin Azocar et al. §102
132 HRCttee Weinberger Weisz v. Uruguay (UN Doc.CCPR/C/11/D/28/1978) 133 HRCttee General Comment 25 §10
134 Andres Aylwin Azocar et al. §51
135 The Georgian Labour Party v Georgia §92
136 Shindelar A. 'Voter Rights Are Human Rights: An Analysis of Voter Suppression in the 2016 Election
Cycle’ (Humphrey Public Affairs Review 2017) <http://humphreyreview.umn.edu/news/voter-rights-are-human-rights-analysis-voter-suppression-2016-election-cycle> accessed 1 June 2018
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4.2.3. Arbitrary
In Hirst the ECtHR found that the UK’s “blanket” and “automatic” disenfranchisement arbitrary because it applied to all prisoners irrespective of crime or sentence and was thus beyond the tolerable discretion.137
This approach to disenfranchisement is mirrored in the Court’s approach to the automatic disenfranchisement of those under guardianship orders where the applicant’s mental incapacity was not independently assessed.138 The ACtHPR considered the same issue in its decision in
Purohit and Moore, holding that there should be an objective basis within the legal system to
assess the deprivation of the right.139 In doing so, it explicitly relied upon the HRCttee’s objective and reasonable test.140
4.2.4. Discrimination
Each treaty’s separate provision on discrimination has been used in voting rights cases141 however, the jurisprudence also demonstrates an inherent non-discrimination aspect to suffrage. Not all differences in treatment of a vote or voter amount to a discriminatory limitation, only that which is not objective or reasonable. The HRCttee, in Gillot found that excluding some voters from the franchise for a referendum on self-determination was objective because it applied equally to all residents and did not have the intent of excluding certain ethnic or national groups. Instead it restricted participation to those with a close connection to New Caledonia142 which was reasonable for this specific process.143
The AComHPR in the Zambia case held that the difference in treatment between citizens based on parental citizenship was a violation of art.13 and art.2 of the ACHPR. In the absence of objective justification there was discriminatory treatment of citizens.144 The AComHPR in
Mouvement ivoirien des droits humains also employed an objective and reasonable test, citing
the HRCttee’s General Comment 25.145
137 Hirst v The UK (No.2) §82
138 Alajos Kiss v Hungary (Application No.38832/06) §39 and §43 139 Purohit and Moore v. The Gambia §76
140 Ibid §75
141 ICCPR art.24 ACHR art.1; ECHR art.14 and ACHPR art.19 142 §13.10-§13.11
143 §13.16
144 Legal Resources Foundation v Zambia §63-§72.
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An objective and reasonable test was also applied by the ECtHR in Aziz, which found a violation of P1-3 in conjunction with art.14.146 The applicant was denied the opportunity to
vote because he was a Turkish Cypriot residing in the Greek-controlled area. Regardless of the political situation, the Court said his total exclusion could not be considered reasonable.
The situation is more complex for allegations of discrimination under the ACHR, as the closed list of limitations in art.23(2) includes language, education and sentencing, which differs from the broad prohibition of discrimination in art.25 ICCPR147 and ECtHR case-law.148 Regardless, according to Azocar, states may establish differences in treatment provided they fulfil objective and reasonable standards.149 In Statehood Solidarity Committee, the Commission claimed:
“states may draw distinctions among different situations and establish categories for
certain groups of individuals, so long as it pursues a legitimate end, and so long as the classification is reasonably and fairly related to the end pursued by the legal order.”150
The IAComHR stated that the difference in treatment of Washington DC citizens could amount to indirect discrimination because there was a disproportionate effect on African Americans.151 While it did not consider itself able to judge the issue, the statement demonstrates that a measure may become indirectly discriminatory over time, even if it is not enacted as intentionally discriminatory, and the state fails to address the impacts. Indirect discrimination has also been observed in voter-identification processes for Muslim women who wear a veil;152
refugees without documents and those unable to afford them.153 Concerns about disproportionate effects on minorities of pre-identification checks in the US are well-documented.154
146Aziz v Cyprus (Application no.69949/01) §37
147 European Commission Service for Foreign Policy Instruments Compendium of International Standards for Elections 4th edn. (Luxembourg: Publication Office of the European Union, 2016) p27
148 Hirst v The UK (No.2) Alajos Kiss v Hungary; 'Belgium Linguistics' (Application No.1474/62 etc.) 149 Andres Aylwin Azocar et al. §99
150 Statehood Solidarity Committee §87 151 Ibid §98
152 A.R. Maltbie ‘When the Veil and Vote Collide: Enhancing Muslim Women's Rights through Electoral
Reform’ (2010) 41 McGeorge L. Rev. 967 p970; p980
153 H. Horton 'Voter ID Chaos as Voters Turned Away at The Polling Booth in Pilot Areas During Local
Elections' (The Telegraph, 2018) <https://www.telegraph.co.uk/news/2018/05/03/voter-chaos-voters-turned-away-polling-booth-pilot-areas-local/> accessed 15 May 2018
154 B. Stanford ‘Compulsory voter identification, disenfranchisement and human rights: electoral reform in
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Art.23(2) ACHR permits exclusions based on residency but generally it is possible to read ‘every citizen’ as including those residing abroad.155 The issue was only considered by the
HRCttee in Dáithi Ó Colchúin in which Ireland raised arguments against facilitating non-resident voting, arguing that the uses of every citizen was not an exception to the general rule in art.2, but an additional requirement which meant the territorial qualification of art.25 still applied.156 Unfortunately the case was declared inadmissible and the merits not discussed.
The ECtHR claims that states are not obligated to recognise the rights of non-residents in formulating ‘the people’ provided they strike a ‘fair balance’ between individual interest and need to confine voting to those affected by the results.157 In Shindler it held that “only
differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination” and that art.14 requires comparison with “persons in analogous,
or relevantly similar, situations.” The claim was considered manifestly ill-founded because the applicant’s comparator - a British citizen resident in the UK - was not analogous.158
4.2.5. Proportionality
For a measure to be proportionate it should be necessary to achieve the state’s aim through the least restrictive means.159 What is necessary can change as the democratic security of the state’s status evolves.160 General Comment 31 states that “States must demonstrate their necessity and
only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights.”161 The HRCttee has further specified that where disenfranchisement follows a prison sentence, the period of suspension should be proportionate to offence and sentence.162 This comment was cited in Yevdokimov163 as was Hirst’s ruling that proportionality requires a sufficient link between sanction and the conduct and circumstances of the individual concerned.164 Although Art.23(2) ACHR explicitly permits limitations in respect of sentencing, both the IAComHR and IACtHR still
155 C. Carter ‘The Right to Vote for Non-Resident Citizens: Considered Through the Example of East
Timor." (2010) 46 Tex. Int'l LJ 655, p660
156 HRCttee, Ó’Colchúin v. Ireland (CCPR/C/77/D/1038/2001) 157 Shinder v The UK (Application No.19840/09) §105; §109 158 Ibid §122
159 Alajos Kiss v Hungary §43
160 Melnychenko v. Ukraine (Application no.17707/02); Py v France (Application No.66289/01) 161 HRCttee General Comment 31 (2004) CCPR/C/21/Rev.1/Add.13 §6
162 HRCttee General Comment 25 §14
163 HRCttee Yevdokimov and Rezanov v. Russia (CCPR/C/101/D/1410/2005) §7.4 164 Ibid §7.8
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apply proportionality analyses to explicitly permitted limitations. This led the Court to conclude in Norín Catrimán that the imposition of ancillary penalties which affected the political rights for 15 years was disproportionate.165
Proportionality of limitations to P1-3 must reflect the state’s margin of appreciation electoral system166 and take into consideration “the socio-political realities of a given country.”167 However, as discussed in Hirst, the court also looks to emerging consensus among state parties, which may narrow or broaden the margin of appreciation.168 The current state of the court’s approach to prisoner voting is that where disenfranchisement is an automatic consequence of legislation and does not take into account the nature or gravity of the offence and length of the sentence, it will be considered disproportionate.169
A slightly novel feature is the ECtHR’s references to the ‘very essence’ of P1-3. Although the phrase is found in jurisprudence on Convention rights, the court seldom relies on it. ‘Very essence’ seems to be comparable with the concept of ‘absolute core’ in that is demarks the central purpose from the penumbra of a right, where the state may expect more latitude.170 Simply understood, the court uses ‘very essence’ as a severity test, a bar which if not met leaves room for it to undertake a proportionality assessment.
The court definition of ‘very essence’ in P1-3 is defined in relation to “the free expression of the people in the choice of the legislature.” Limitations on suffrage which undermine the outcome of the election will therefore be inherently tantamount to a violation.171 In Aziz, for example, the court found that laws which deprived members of the Turkish-Cypriot community living in the government-controlled area of Cyprus from any right to vote constituted a violation of the ‘very essence.’172 In Statehood Solidarity Committee, the IAComHR also used
a very essence standard,173 noting the state’s discretion in organizing its political institutions
165 Norín Catrimán et al. v. Chile IACtHR §369
166 Sitaropoulos and Giakoumopoulos v Greece (Application No.42202/07) §66 167 Shinder v The UK §102
168 Hirst v The UK (No.2) §78, §81 and §84
169 Anchugov and Gladkov v Russia (Applications No.11157/04 and 15162/05) §102
170 Although the HRCttee uses the concept of a core of a right in some cases it has not applied this to art.25. 171 Frodl v Austria §29-§30
172 Aziz v Cyprus §30
28
and that it should only interfere where the State has curtailed the ‘very essence and effectiveness’ of the right.174
These cases imply that there is a line beyond which an infringement becomes inherently disproportionate, but this is a moveable construct which may be influenced by political circumstances in the state and the degree of state consensus. Thus, while the ECtHR and IAComHR have used the idea, its practical application is somewhat limited. This core should be defined separately to proportionality, argues Rivers, to play any dissuasive role and prevent serious violations.175 However the ‘very essence’ of the right to vote is “almost impossible to define without reference to competing public interests.”176 Given the voting is an either
exercised or not rather than by degree, the usefulness of the concept in the court’s reasoning is unclear. While a complete denial of the right is clear violation, without knowing the precise line between core and penumbra, a proportionality analysis will still be needed.
174 Ibid §90
175 J. Rivers ‘Proportionality and variable intensity of review’ (2006) 65.1 The Cambridge Law Journal 174,
pp184 – 185
