1 DO POST-RELEASE CRIMINAL DISENFRANCHISEMENT LAWS VIOLATE
INTERNATIONAL HUMAN RIGHTS LAW?
CASE STUDIES OF ARMENIA, BELGIUM, AND CHILE.
Sara Silva Student No: 12737372
E-mail: saramartins20@hotmail.com
Supervisor: Leonie Huijbers
JULY 24, 2020
University of Amsterdam
LLM European and International Law: Public International Law
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Abstract
The right to vote is a non-absolute right and, as such, it can be limited. By preventing former prisoners from exercising this right, post-release criminal disenfranchisement laws form a restriction to the right to vote. Currently, only four States have these laws: Armenia, Belgium, Chile, and the United States.
The purpose of this thesis is to assess whether Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws violate international human rights law. In order to make this assessment, the thesis begins by setting out the post-release criminal disenfranchisement laws of each one of the three States. Then, it explains the scope of the right to vote and discusses the margin of appreciation States enjoy when warranting limitations to voting.
As this discretion is not unlimited, the paper subsequently establishes the requirements for justifiable limitations to the right to vote. The criteria are found in case law of the Human Rights Committee, the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, and the European Court of Human Right. A theoretical international human rights law framework concerning justifiable limitations to voting is then formed by five of these requirements: prescribed by law, legitimate aim, suitability, necessity, and proportionality stricto sensu. It is by comparing Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws with this theoretical international human rights law framework that the thesis assesses whether they violate international human rights law.
The comparison showcases that these three States’ post-release criminal disenfranchisement laws have a legitimate aim, protecting the formal integrity of their State’s electoral process, and are prescribed by law. However, these laws fail to fulfill all the other criteria: they are grossly ineffective in achieving their aim; they are not the least restrictive means to accomplish the purpose of protecting the electoral integrity of a State; they do not have a sufficient link between the sanction and the conduct and circumstances of the individual concerned; and, they cause indirect discrimination.
Because they do not meet the five requirements that form the theoretical IHRL framework, the paper concludes that Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws violate international human rights law.
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Contents
1. Introduction ... 4
1.1. Various criticism on post-release criminal disenfranchisement laws ... 4
1.2. Research question and methodology ... 5
1.3. Outline ... 6
2. Criminal disenfranchisement ... 8
2.1. Armenia ... 8
2.2. Belgium... 9
2.3. Chile ... 9
3. Theoretical IHRL framework ... 10
3.1. The scope of the right to vote ... 10
3.1.1. Active and passive voting rights... 10
3.1.2. The International Covenant on Civil and Political Rights ... 11
3.1.3. The American Convention on Human Rights ... 12
3.1.4. The European Convention on Human Rights ... 12
3.2. Limitations to the right to vote ... 13
3.3. Margin of appreciation ... 14
3.4. Criteria for justifiable limitations ... 16
3.4.1. The International Covenant on Civil and Political Rights Test ... 16
3.4.2. The American Convention on Human Rights Test ... 17
3.4.3. The European Convention on Human Rights Test ... 18
3.4.4. Articulating the tests ... 20
4. Comparison of post-release criminal disenfranchisement laws with the theoretical IHRL framework ... 21
4.1. Prescribed by law ... 21
4.2. Legitimate aim ... 22
4.3. Suitability ... 23
4.4. Necessity ... 25
4.5. Proportionality stricto sensu ... 26
4.5.1. Personal and general circumstances ... 27
4.5.2. Discrimination ... 29
5. Conclusion ... 32
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1. Introduction
In human rights law, some human rights are deemed absolute rights, that is, rights that do not allow any limitation. Conversely, non-absolute rights usually contain a separate clause on permissible limitations. The right to vote is placed under the latter, as shown by Article 25 of the International Covenant on Civil and Political Rights1 (hereafter, ICCPR), Article 23(2) of the American Convention on Human Rights (hereafter ACHR). As regards Article 3 of Protocol No. 1 to the ECHR (hereafter, P1) the European Court of Human Rights has clarified that this right may also be limited under certain conditions.2 As such, the right to vote is a non-absolute right.
States enjoy a margin of appreciation when warranting limitations to the right to vote: it is in this discretion that criminal disenfranchisement policies are placed. For purposes of analysis, this paper will follow Brandon Rottinghaus’ classification of criminal disenfranchisement laws, which divides them into four distinct categories: no criminal disenfranchisement; selective criminal disenfranchisement; total criminal disenfranchisement; and post-release criminal disenfranchisement.3 The thesis will solely focus on the latter, which prevents citizens
from voting after their release from prison, either permanently or for a specific number of years. Currently, there are only four States in the international community that have post-release criminal disenfranchisement laws: Armenia, Belgium, Chile, and the United States (hereafter, US).4
1.1. Various criticism on post-release criminal disenfranchisement laws
Scholars are overwhelmingly hostile to the practice: post-release criminal disenfranchisement is regarded as the harshest restriction on offender voting rights of any modern democracy,
1 ‘(…) without any of the distinctions mentioned in article 2 and without unreasonable restriction (…)’
2 ECtHR (Chamber) App. No. 69949/01, Aziz v. Cyprus, judgment of 22 June 2004, para. 25; ECtHR (Grand
Chamber) App. No. 74025/01, Hirst v. United Kingdom (No. 2), judgment of 6 October 2005, para. 62.; ECtHR (Chamber) App. No. 20201/04, Frodl v. Austria, judgment of 4 October 2010, para. 23; and ECtHR (Chamber) App. No. 29411/07, Söyler v. Turkey, judgment of 17 September 2013, para. 33.
3 B. Rottinghaus, ‘Incarceration and Enfranchisement: International Practices, Impact and Recommendations for
Reform’ (2003) Charles and Kathleen Manatt Democracy Studies Fellow International Foundation for Election
Systems, p. 20.
4 ProCon.org, ‘International Comparison of Felon Voting Laws - Felon Voting’ (2018)
5 running counter to the modern trend of extending voting rights and other fundamental rights.5
Most arguments against post-release criminal disenfranchisement laws are of an ethical and political nature. Many scholars6 argue that it is used primarily to protect the interests of the dominant class, as ‘an expanded racial or economic underclass with little to lose could destabilize the social order that benefits the affluent so much’7: prisons are meant to rehabilitate citizens, and removing their right to vote after prison terms does not further that goal. Post-release criminal disenfranchisement laws are a residual punishment from medieval times when citizens who broke the social contract by engaging in a civil wrong suffered a ‘civil death’8, that stripped them of their legal status and denied them even the most basic protections of the civil and criminal law9.
Political trust is a prerequisite for a stable and efficient democracy: if the government is perceived as legitimate and trustworthy, electoral losers are more likely to accept outcomes without resisting, enabling democracy to continue10. Early models of participation11 and empirical studies12 have demonstrated that the restoration of the right to vote makes citizens more trusting, efficacious and involved in their communities. The legal aspect of this matter, on the contrast, has been little explored.
1.2. Research question and methodology
The purpose of this thesis is to contribute to the debate concerning post-release criminal disenfranchisement laws by adding a legal perspective to it. The central question to this paper
5 M. Sigler, ‘Defensible Disenfranchisement’ (2004) Iowa Law Review 99, p. 1726
6 C. Uggen & J Manza, ‘Democratic Contraction? Political Consequences of Felon Disenfranchisement in the
United States’ (2002) American Sociological Review 67, pp. 777-803; A. Ghosh & J. Rockey, ‘On the Political Economy of Felon Disenfranchisement’ (2019) SSRN; M. Bowers & R. Preuhs, ‘Collateral Consequences of a Collateral Penalty: The Negative Effect of Felon Disenfranchisement Laws on the Political Participation of Nonfelons’ (2009) Social Science Quarterly 9, pp. 722-743; and E. Kerrison, ‘The Color of Suffrage: Voter Disenfranchisement, Power Threat Hypotheses and Modern Democracy’ (2009) Research Gate, pp. 1-12
7 D. Jacobs & R. Helms, ‘Toward a Political Model of Incarceration: A Time-Series Examination of Multiple
Explanations for Prison Admission Rates’ (1996) American Journal of Sociology 102, pp. 323-357.
8 B. Rottinghaus (2003), p. 7. 9 M. Sigler (2014), p. 1726.
10 V. Shineman, ‘Restoring Rights, Restoring Trust: Evidence that Reversing Felon Disenfranchisement Penalties
Increases Both Trust and Cooperation with Government’ (2014) SSRN, p. 4.
11 C. Pateman, ‘Participation and Democratic Theory’ (1970) Cambridge University Press, pp. 40-46.
12 V. Shineman, ‘If you mobilize them, they will become informed: Experimental evidence that information
acquisition is endogenous to costs and incentives to participate’ (2018) British Journal of Political Science 48, pp. 189-211; V. Shineman, ‘Evidence that Casting a Ballot Increases Political Trust: Isolating the Downstream Effects of Voting by Generating Exogenous Shocks in Turnout’ (2018) SSRN, pp. 1-27; and V. Shineman, ‘Evidence that Casting a Ballot Increases Political Efficacy and the Cycle of Participation: Isolating the Downstream Effects of Voting by Generating Exogenous Shocks in Turnout’ (2018) Unpublished Manuscript
6 is whether post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile violate international human rights law, in particular the right to vote. Despite having post-release criminal disenfranchisement laws, the US will not be looked upon in this thesis: since each state determines its own restrictions to voting and there are ten states with post-release criminal disenfranchisement laws13, an in-depth study of each of these laws would have been required, a task not feasible for the paper.
To answer this question, this thesis first sets out the post-release criminal disenfranchisement laws of each one of the three States. Then, it explains the scope of the right to vote and its importance as a fundamental right. Active voting rights, which concern the eligibility to vote, are of upmost importance as they allow individuals to decide on who is to make governmental decisions on their State. Nevertheless, the right to vote allows limitations. Hence, the paper subsequently discusses the margin of appreciation States enjoy when warranting limitations to the right to vote. As this discretion is not unlimited, the paper then establishes the criteria for justifiable limitations to the right to vote. They are found in case law and views of the Human Rights Committee (hereafter, CCPR), the Inter-American Court of Human Rights (hereafter, IACtHR), the Inter-American Commission on Human Rights (hereafter, IACHR), and the European Court of Human Rights (hereafter, ECtHR). It is clear that the post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile are a limitation to the right to vote. As such, after having established the theoretical IHRL framework, the thesis compares the post-release criminal disenfranchisement laws of these three States with it. This is key to answer the central question of this paper.
1.3. Outline
This thesis is divided in three main sections.Chapter 2 is dedicated to set out the post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile. Chapter 3 establishes the theoretical IHRL framework. This Chapter is divided in three sections. It begins by explaining the scope of the right to vote and its importance as a fundamental right. It then discusses the margin of appreciation States enjoy when warranting limitations to the right to vote. Lastly,
13 Brennan Center for Justice, ‘Criminal Disenfranchisement Laws Across the United States’ (2020)
< https://www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states>, Alabama, Delaware, Florida, Iowa, Kentucky Maryland, Mississippi, Missouri, Wyoming, and Tennessee.
7 this Chapter establishes the requirements for justifiable limitations to the right to vote and determines which ones form the theoretical IHRL framework.Chapter 4 compares the post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile with the theoretical IHRL framework. This comparison allows to assess whether post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile violate international human rights law.
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2. Criminal disenfranchisement
According to Black’s Law Dictionary, disenfranchisement is, simply put, ‘the taking away [of] the right to vote in public elections from a citizen or class of citizens’.14 That there should be a minimum voting age and that the right to vote of mentally deficient people should be restricted are two types of disenfranchisement that have reached a near consensus among an overwhelming majority of States.15 There is little consensus, however, about whether electors residing abroad should retain their right to vote, and whether prisoners and former prisoners should have the right to vote.16
Indeed, research has shown that States have different approaches as to the voting rights of prisoners and former prisoners.17 There are twenty States that endorse a no criminal disenfranchisement policy.18 They allow their prisoners to vote. Eleven States carry out a selective criminal disenfranchisement policy, thus only granting the right to vote to some of their prisoners, usually excluding those convicted of more serious charges.19 Complete criminal disenfranchisement, which prevents all prisoners from voting until released, is the policy followed in ten States.20 Lastly, there are only four States with a post-release criminal disenfranchisement policy, that is, that do not allow citizens to vote even after their release from prison (either permanently or for a specific number of years): Armenia, Belgium, Chile and the US. It is this final category of disenfranchisement policy that is addressed in this thesis, precisely because it forms such a severe infringement on the right to vote. This Chapter briefly explains the key provisions in regard of Armenia, Belgium, and Chile.
2.1.Armenia
According to Article 2 (4) of its Electoral Code and Article 48 (4) of its Constitution, Armenia permanently excludes from voting former prisoners convicted for a grave crime or a particularly grave crime. Article 19 (4 and 5) of the Criminal Code of Armenia considers grave
14 B. Garner & H. Black, ‘Black’s Law Dictionary’ (2009) West, DISENFRANCHISEMENT
15 A. Blais, L. Massicotte & A. Yoshinaka, ‘Deciding who has the right to vote: A comparative analysis of election
laws’ (2001) Electoral Studies 20, pp.41-62.
16 A. Blais, L. Massicotte & A. Yoshinaka (2001), pv. 17 ProCon.org (2018).
18 Austria, Canada, Croatia, Czech Republic, Denmark, Finland, Germany, Ireland, Israel, Latvia, Lithuania,
Macedonia, Norway, Serbia, Slovenia, Spain, South Africa, Sweden, Switzerland, and Ukraine.
19 Australia, Bosnia, France, Greece, Iceland, Italy, Luxembourg, Malta, Poland, Portugal, and Romania. 20 Argentina, Brazil, Bulgaria, Estonia, Hungary, India, New Zealand, Russia, San Marino, and United Kingdom.
9 crimes as those that entail a ‘maximal punishment not exceeding ten years of imprisonment’ and particularly grave crimes as those that entail a ‘maximal imprisonment for more than ten years or for life’.
2.2. Belgium
Article 31 of the Criminal Code of Belgium and Articles 1 (4) and 6 of the Electoral Code of Belgium provide that former prisoners sentenced to ten or more years of imprisonment or sentenced to twenty or more years of imprisonment may be excluded from voting. This exclusion is either permanent or for twenty years to thirty years, depending on the seriousness of the crime committed.
2.3. Chile
According to Article 13 of the Chilean Constitution, former prisoners sentenced to ‘afflictive punishment’ are stripped of their citizenship, thus being permanently excluded from voting. Article 37 of the Criminal Code of Chile regards all penalties for crimes and minor offences in their maximum degrees as ‘afflictive punishment’.
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3. Theoretical IHRL framework
This thesis focuses on post-release criminal disenfranchisement laws, which preclude former prisoners from exercising their right to vote. As such, the focus of the first part in this Chapter is to describe what that right consists of and it actually protects, specifically attending to the international human rights treaties to which Armenia, Belgium, and Chile are parties.
As the principle of universal suffrage is a benchmark for voting, post-release criminal disenfranchisement laws can be considered an infringement to this right. The second part of this Chapter explains the rationale of warranting limitations to voting. As the right to vote is not an absolute right, it can be limited under certain restrictions.21
Lastly, this Chapter compiles case law from the CCPR, IACtHR, IACHR, and ECtHR to find which criteria these international bodies use to assess whether a limitation to the right to vote is justifiable under the ICCPR, the ACHR, and the ECHR respectively. By comparing the requirements these international bodies rely on, a set of common criteria can be established. These common criteria form the theoretical international human rights law (hereafter, IHRL) framework with which the comparison of post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile is made. It is through this comparison that the thesis assesses whether these States’ post-release criminal disenfranchisement laws are justifiable under IHRL.
3.1. The scope of the right to vote
3.1.1. Active and passive voting rights
First and foremost, it bears noting that voting rights comprise both an active aspect and a passive aspect.22 The active voting right is the right to vote, thus concerning one’s possibility
21 CCPR, Communication No. 1410/2005, Human Rights Committee: Decision adopted by the Committee at its
101th session (14–1 April 2011), 21 March 2011, CCPR/C/101/D/1410/2005 (Yevdokimov and Rezanov case),
para. 7.4; IACtHR, Rep. No. 125/01, Yatama v. Nicaragua, judgment of 23 June 2005, para. 206; and ECtHR,
Hirst v. the United Kingdom (no. 2) (2005), para. 36.
22 IACtHR, Yatama v. Nicaragua (2005) para. 51; ECtHR (Chamber) App. No. 9267/81, Mathieu-Mohin and
Clerfayt v. Belgium, judgment of 2 March 1987, para. 32; and European Commission For Democracy Through
Law (Venice Commission), Code Of Good Practice In Electoral Matters – Guidelines And Explanatory Report, 25 October 2018, CDL-AD (2002)023rev2-cor, para. 6.
11 to vote. Conversely, the passive voting right is the right to stand for election. This relates to one’s possibility to be elected to representative bodies.
Both aspects are intrinsically linked to a State’s sovereignty, as it is through them that citizens transfer the power to make decisions on state and social public affairs. These decisions not only affect significant aspects of people’s lives – from education to health, to labor conditions – but are also enforceable to everyone under that State’s domain.23 As such, the importance of active
and passive voting rights cannot be taken lightly. Nevertheless, the thesis focuses solely on the right to vote of former prisoners, that is, the active aspect of voting rights.
3.1.2. The International Covenant on Civil and Political Rights
Article 25 of the ICCPR ‘recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected, and the right to have access to public service’.24 Under this provision, States are obliged to provide their citizens an effective opportunity to enjoy these rights, regardless of the form of government in force.
Paragraph (b) of Article 25 specifically provisions for the right to vote. According to General Comment No. 25 on the right to participate in public affairs, voting rights and the right of equal access to public service (hereafter, General Comment No. 25), the right to vote should be guaranteed by law and may only be subject to objective and reasonable restrictions.25 In addition, States must take the necessary measures to ensure that the effective exercise of this right. This means that States should have penal laws prohibiting any abusive interference with voting (and strictly enforce them) and that they should facilitate voter’s registration (by refraining from imposing obstacles to it). Moreover, General Comment No. 25 also considers voter education and registration campaigns as necessary measures to be taken by States, contending that an informed community contributes to ensure that all persons entitled to vote are able to exercise that right.
23 J. Brennan, ‘The Right To A Competent Electorate’ (2011) The Philosophical Quarterly 61, pp. 700-724. 24 CCPR, CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The
Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July
1996, CCPR/C/21/Rev.1/Add.7, para. 1.
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3.1.3. The American Convention on Human Rights
Article 23 of the ACHR uses a similar language to Article 25 of the ICCPR, also recognizing and protecting the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected, and the right to have access to public service. Paragraph 1 (b) of Article 23 specifically provides for the right to vote.The ACHR obliges States not only to observe the rights embodied in Article 23, but to guarantee their exercise in conformity to paragraph 1 of Article 1 of the Convention.26 Therefore, by respecting the terms established by
paragraph 1 of Article 1, States must ensure that the free and full exercise of the right to vote without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
However, paragraph 2 of Article 21 establishes infringements that can be made to the right to vote. According to it, restrictions to voting can be placed based on ‘age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings’. It bears noting that the IACHR condemns infringements to the right to vote on political grounds27 and on ideological grounds28. The IACHR has been particularly attentive to potential manipulations of the electoral process, by, for example, controlling who is eligible to vote in favor of the political party in power.29 For this reason, the IACHR also monitors the conditions imposed by States for citizens to exercise their right to vote.30
3.1.4. The European Convention on Human Rights
Article 3 of P1 establishes the obligation of States to hold elections, in order to ensure the right to freedom of opinion and expression. However, the ECtHR concluded that, by interpreting it in light of the its preparatory work and in the context of the ECHR as a whole, Article 3 also comprises the right to vote and the right to stand for election.31 Additionally, the ECtHR has found that the scope of this provision only concerns the choice of the legislature, meaning it
26 IACHR, ‘Inter-American YearBook on Human Rights’ (1990) Martinus Nuhoff Publishers, pp. 400-404. 27 IACHR (1990), p. 400, ‘members of the opposition have been jailed, forced to move elsewhere or exiled’. 28 IAHCR (1990), p. 400, ‘people who subscribe to certain political philosophies’.
29 IACHR (1990), p.v. 30 IACHR (1990), p.v.
31 ECtHR (Chamber) App. No. 9267/81, Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2nd March 1987,
paras. 48-51 and ECtHR (Grand Chamber) App. No. 58278/00, Ždanoka v. Latvia, judgment of 16 March 2006, para 102.
13 does not apply to local elections, whether municipal32 or regional33. Nevertheless, as pointed
out by the Court in the Mółka v. Poland case, the legislative power may not be restricted to the national parliament alone and, as such, the term “legislature” in Article 3 of P1’has to be interpreted in the light of the constitutional structure of the State in question’. 34
Although both the principle of universal suffrage and the principle of equality of treatment concerning the right to vote are included in Article 335, limitations to the right to vote are permissible. However, for these limitations to be justifiable under Article 3, they must be proportional and necessary in a democratic society36.
3.2. Limitations to the right to vote
The modern approach to human rights reflects a natural rights theory37: human rights are conferred on individuals because of their very existence, as they are set out the minimum standards necessary to live with dignity, freedom, equality, justice, and peace38. Likewise, the right to vote is inherent to all individuals, regardless of nationality, sex, religion, or ethnicity. Nevertheless, voting is not an absolute right. While absolute rights cannot be infringed under any circumstances (not even during a declared state of emergency)39, the right to vote allows
limitations, albeit subject to certain conditions.40
Article 25 paragraph (b) of the ICCPR and Article 23 paragraph (b) of the ACHR provision that the principle of universal suffrage is part of the right to vote. Although not explicitly
32 ECtHR (Chamber) App. No. 52492/99, Xuereb v. Malta, judgment of 15 June 2000 and ECtHR (Chamber)
App. No. 52226/99, Salleras Llinares v. Spain, judgment of 12 October 2000.
33 ECtHR (Chamber) App. No. 46813/99, Malarde v. France, judgment of 5 September 2000. 34 ECtHR (Chamber) App. No. 56550/00, Mółka v. Poland, judgment of 11 April 2006.
35 ECtHR, Guide on Article 3 of Protocol No. 1 to the European Convention on Human Rights: Right to free
elections, 30 April 2019, para. 9
36 Guide on Article 3 of P1(2019), para. 13
37 J. Shestack, ‘The Philosophic Foundations of Human Rights’ (1998) Human Rights Quarterly 20, p. 217, ‘The
aftermath of World War II brought about a revival of natural rights theory. (…) The Universal Declaration of Human Rights reflects that influence, as seen in the Declaration's opening statement: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." (…) The debt that "inherent dignity" and "inalienable rights" owe to natural law philosophy is obvious.’.
38 J. Shestack, (1998), pp. 216.
39 European Commission, ‘Fundamental Rights’
<https://ec.europa.eu/home-affairs/what-we-do/networks/european_migration_network/glossary_search/fundamental-rights_en> and N. Mavronicola, ‘What is an ‘absolute right’? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights’ (2012) Human Rights Law Review 12, pp. 734 & 736.
40 Article 25 ICCPR , Article 23(2) of the American Convention on Human Rights, and, in regard of Article 3 of
14 recognized in Article 3 of P1, ECtHR’s case law41 established universal suffrage as a
benchmark principle to voting.42 Universal suffrage entails that everyone is allowed to vote.43
Therefore, an infringement to voting can be the exclusion of people from exercising this right. Post-release criminal disenfranchisement laws are a clear limitation to the right to vote.
These infringements, including post-release criminal disenfranchisement laws, are warranted under the competence principle. Brennan44 best defined the competence principle as one that ‘requires that when a decision is high stakes and involuntarily imposed through force upon others, it must be made by reasonable and competent people in a reasonable and competent way’.45
The right to vote determines the government, which holds the ultimate decisional power in a State and affects the lives of every person living in it. As such, the right to vote has significant practical consequences on a State’s affairs, as the economic, social and cultural policies in a State will depend on the type of representatives elected. Hence, according to the competence principle, infringements to the right to vote are natural corollaries of that right itself46: due to
its importance, it is necessary that the right to vote is exercised without unnecessary risks to the people affected by it. Said risk is mitigated by excluding from voting those deemed as ignorant, irrational, or morally unreasonable, and thus more prone to choose unfit rulers for the State.
3.3. Margin of appreciation
As a non-absolute right, the right to vote can be limited. Moreover, States are allowed a margin of appreciation when warranting limitations to it, as acknowledged by the ECtHR in the Hirst
v. United Kingdom (No. 2) case47 and by the IACtHR in the Yatama v. Nicaragua case48.
41 European Commission of Human Rights App. No. 10565/83, X. v. Germany, decision of 9 May 1984; ECtHR,
Hirst v. United Kingdom (No. 2) (2005), paras. 59 & 62; and ECtHR, Mathieu-Mohin and Clerfayt v. Belgium (1987), para. 51.
42 Guide on Article 3 of P1 (2019), para. 9.
43 J. Still, ‘Political Equality and Election Systems’ (1981) Ethics 91, p. 379. 44 J. Brennan, (2011), pp. 700-724.
45 J. Brennan, (2011), pp. 700-724.
46 A. Kirshner, ‘The International Status of the Right to Vote’ (2003) Democracy Coalition Project, p. 11, ‘The
right to vote necessarily entails limitations on who can exercise that right. It is not uncommon for the limits to be embedded in the constitutions of electoral democracies’.
47 ECtHR, Hirst v. United Kingdom (No. 2) (2005), Concurring Opinion of Judges Tulkens and Zagrebelsky. 48 IACtHR, Yatama v. Nicaragua (2005), para. 206.
15 According to the ECtHR sin the Söyler v. Turkey case49, the Frodl v. Austria case50, the Scoppola v. Italy (No. 3)51, and the Ždanoka v. Latvia case52, the margin of appreciation is granted because there is not just one way to organize an electoral system and, as such, States should be free to uphold their own democratic vision, in accordance with their historical development, cultural diversity, and political thought. Concerning limitations to the right to vote of former prisoners in particular, the ECtHR in the Hirst v. United Kingdom (No. 2) case53 and in the Mathieu-Mohin and Clerfayt v. Belgium case54 has found that the margin of appreciation is also justified by the lack of consensus within the international community concerning the right to vote of prisoners and former prisoners: as mentioned in Chapter 2., there are twenty States that endorse a no criminal disenfranchisement policy; eleven States that carry out a selective criminal disenfranchisement policy; ten States that follow a complete criminal disenfranchisement policy; and four States that have a post-release criminal disenfranchisement policy.
This margin of appreciation means that States enjoy some discretion in deciding what kind of infringements to the right to vote they impose and to what extent. However, as highlighted by the ECtHR in the Hirst v. United Kingdom (No. 2) case, this discretion cannot be used to justify limitations to voting ‘which derive, essentially, from unquestioning and passive adherence to a historic tradition’.55 Hence, although limitations to voting should be asssessed in the light of
the political evolution of the State concerned56, they can never impair the democratic functioning of the society, as reasoned by the CCPR in General Comment No. 2557, the IACtHR in the Yatama v. Nicaragua case58, and the IACHR in the Statehood Solidarity
Committee v. United States case59. Albeit no single model of a democratic society exists, the right to vote is always regarded as the indispensable foundation of one.60
49 ECtHR, Söyler v. Turkey (2013), para. 33. 50 ECtHR, Frodl v.Austria (2010), para. 23.
51 ECtHR, Scoppola v. Italy (No. 3) (2012), para. 83. 52 ECtHR, Ždanoka v. Latvia (2006), para. 103.
53 ECtHR, Hirst v. United Kingdom (No. 2) (2005), para. 40. 54 ECtHR, Mathieu-Mohin and Clerfayt v. Belgium (1987), para. 54. 55 ECtHR, Hirst v. United Kingdom (No. 2) (2005), para. 41. 56 ECtHR, Ždanoka v. Latvia (2006), para. 115(c).
57 General Comment No. 25 (1996), para. 20.
58 IACtHR, Yatama v. Nicaragua (2005) paras. 16 & 18.
59 IACHR, Statehood Solidarity Committee v. United States (2003) para. 86. 60 ECtHR, Hirst v. United Kingdom (No. 2) (2005), para. 41.
16 In the Mathieu-Mohin and Clerfayt v. Belgium case61, the Ždanoka v. Latvia case62, the Labita v. Italy case63, and the Aziz v. Cyprus case64, the ECtHR has found that the margin of
appreciation allowed to States is wide. The IACHR in the Statehood Solidarity Committee v.
United States case65 and the Andres Aylwin Azocar y Otros v. Chile case66 has also recognized this margin as wide. In the Yevdokimov and Rezanov case, the ECtHR and IACHR’s position is corroborated by the concurring opinion of CCPR’s members Mr. Gerald L. Neuman and Ms. Iulia Antoanella Motoc.67
Even though a wide margin of appreciation is afforded, in accordance with the ECtHR in the
Shindler v. United Kingdom case, an emerging trend at international level may affect the scope
of this margin.68 While no consensus concerning the right to vote of prisoners and former prisoners exists, explaining the margin of appreciation States enjoy when warranting post-release criminal disenfranchisement laws bears noting that the modern trend is to extend voting rights.69
3.4.Criteria for justifiable limitations
3.4.1. The International Covenant on Civil and Political Rights Test
The Siracusa Principles on the Limitation and Derogation Provision in the International Covenant on Civil and Political Rights70 (hereafter, Siracusa Principles), adopted by a group of distinguished experts in international law, provide useful guidance on the interpretation of limitation and derogation provisions of the ICCPR.71 According to them, for a limitation to be justifiable it must: be provided for by law and be compatible with the objects and purposes of the Covenant; not be applied in an arbitrary manner; not be applied for any purpose other than
61 ECtHR, Mathieu-Mohin and Clerfayt v. Belgium (1987), para. 54. 62 ECtHR, Ždanoka v. Latvia (2006), para. 103.
63 ECtHR, Labita v. Italy (2000), para. 201. 64 ECtHR, Aziz v. Cyprus (2004), para. 25.
65 IACHR, Statehood Solidarity Committee v. United States (2003) para. 88. 66 IACHR, Andres Aylwin Azocar y Otros v. Chile (1999) para. 94.
67 CCPR, Yevdokimov and Rezanov (2011), Individual opinion by Committee members Mr. Gerald L. Neuman
and Ms. Iulia Antoanella Motoc (concurring).
68 ECtHR, Shindler v. United Kingdom (2009), para.110.
69 M. Sigler, ‘Defensible Disenfranchisement’ (2004) Iowa Law Review 99, p. 1726
70 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in
the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4.
71 Icelandic Human Rights Centre, ‘Alteration of Human Rights Treaty Obligations’ (n.d.) <
http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/part-i-the-concept-of-human-rights/alteration-of-human-rights-treaty-obligations>.
17 that for which it has been prescribed; pursue a legitimate aim and be proportionate to that aim; discriminate contrary to Article 2 paragraph 1 of the Covenant; use no more restrictive means than are required for the achievement of the purpose of the limitation; not impair the democratic functioning of the society; and respond to a pressing public or social need. These requirements were developed by academics and through the case law and views of human rights bodies.72
These criteria have been used by the CCPR when concerning limitations to the right to vote. In the Paksas case73 and the Dissanayake case74, the Committee concluded that the right to vote can only be infringed on grounds established by law, proportionate, objective, and reasonable75. The CCPR has also found in the Yevdokimov and Rezanov case that disenfranchisement must necessarily non-discriminatory, proportionate, necessary, suitable, and be based on reasonable grounds.76 In the Sudalenko case77, the established by law, objective, and reasonable requirements were once again reiterated78, whereas in the Gillot v.
France case79, the Committee mentioned that any infringements to the right to vote must be non-discriminatory, reasonable, proportionate and pursue a legitimate aim.80
3.4.2. The American Convention on Human Rights Test
Concerning the right to vote in particular, the IACtHR has concluded in the Yatama v.
Nicaragua case that it cannot be infringed in a way that impairs the very essence of that right.81
Additionally, the Court reasoned that a restriction to voting must pursue a legitimate aim and be prescribed by law, necessary, proportional, reasonable, and non-discriminatory.82
72 Ibid 46.
73 CCPR, Communication No. 2155/2012: Human Rights Committee: Decision adopted by the Committee at its
110th session (10–28 March 2014), 29 April 2014, CCPR/C/110/D/2155/2012.
74 CCPR, Communication No. 1373/2005, Human Rights Committee: Decision adopted by the Committee at its
93th session (7–25 July 2008), 22 July 2008, CCPR/C/93/D/1373/2005.
75 CCPR, Paksas (2014), paras. 8.3. & 8.4 and CCPR, Dissanayake (2008), para. 8.5. 76 CCPR, Yevdokimov and Rezanov (2011), paras.7.2. & 7.4.
77 CCPR, Communication No. 1354/2005, Human Rights Committee: Decision adopted by the Committee at its
100th session (11–29 October 2010), 19 October 2010, CCPR/C/100/D/1354/2005.
78 CCPR, Sudalenko (2011), para. 6.4.
79 CCPR, Communication No. 932/2000, Human Rights Committee: Decision adopted by the Committee at its
75th Session ( 8–26 July 2002), 26 July 2002, CCPR/C/75/D/932/2000.
80 CCPR, Gillot v. France (2002), paras. 12.2. & 13.2. 81 IACtHR, Yatama v. Nicaragua (2005), para. 204. 82 IACtHR, Yatama v. Nicaragua (2005), para. 206.
18 In the Andres Aylwin Azocar y Otros v. Chile case, the IACHR recognized that the limitations explicitly established in Article 23 paragraph 2 of the ACHR constitutes the entirety of infringements to the right to vote justifiable under the Convention and that any other limitation is in clear violation of it.83 As such, any of these restrictions to the right to vote, which ‘draw distinctions among different situations and establish categories for certain groups of individuals’, must pursue a legitimate aim and be suitable to achieve it, and also be reasonable and proportional.84
The IACtHR in the Argüelles y Otros v. Argentina case once again acknowledges that the infringements to the right to vote present in Article 23 paragraph 2 of the ACHR are the only permissible restrictions to this right under the Convention.85 In addition, the Court established that a limitation to voting based on the grounds of the provision mentioned must be prescribed by law86, pursue a legitimate aim87, and be necessary and proportional88.
In the Statehood Solidarity Committee v. United States case, the IACHR has also reasoned that the grounds listed in Article 23 paragraph 2 of the ACHR constitute an exhaustive list of permissible restrictions to the right to vote.89 The Commission concluded that any limitation
based on these grounds must be reasonable, proportional, and pursue a legitimate aim.90 The
IACHR added that any justifiable infringement to voting must not be discriminatory.91
3.4.3. The European Convention on Human Rights Test
In accordance with the Guide on Article 3 of P1, the ECtHR has noted that the supervision of the margin of appreciation States enjoy when warranting restrictions to the right to vote relies mainly in determining whether the measure is necessary in a democratic society.92 There are
83 IACHR, Rep. No. 137/99, Andres Aylwin Azocar y Otros v. Chile, judgment of 27 December 1999, para. 101. 84 IACHR, Andres Aylwin Azocar y Otros v. Chile (1999), para. 102.
85 IACtHR, Rep. No. 135/11, Argüelles y Otros v. Argentina, judgment of 31 October 2011, para. 222. 86 IACtHR, Argüelles y Otros v. Argentina (2011), para. 225.
87 IACtHR, Argüelles y Otros v. Argentina (2011), para. 226. 88 IACtHR, Argüelles y Otros v. Argentina (2011), para. 227.
89 IACHR, Rep. No. 98/03, Statehood Solidarity Committee v. United States, judgment of 29 December 2003,
para. 89/
90 IACHR, Statehood Solidarity Committee v. United States (2003), para. 93. 91 IACHR, Statehood Solidarity Committee v. United States (2003), para. 94. 92 Guide on Article 3 of P1 (2019), para. 19.
19 three conditions to be met: suitability, necessity, and a reasonable balance between the interests concerned.93
As reasoned by the Court in the Aziz v. Cyprus case and the Tănase v. Moldova case94, infringements to voting cannot prevent certain individuals or groups from taking part in their State’s political process95. This means that limitations to the right to vote cannot impair the
very essence of that right. The very essence criterion was reiterated in the Frodl v. Austria case. In this case, the Court also concluded that any limitation to voting must pursue a legitimate aim and be proportionate.96 Automatic disenfranchisement was deemed as inadmissible under Article 3 of P1.97
The Guide on Article 3 of P1established that the right to vote could be restricted if ‘an individual who has, for example, seriously abused a public position or whose conduct threatens to undermine the rule of law or democratic foundations’.98 However, as reasoned by the ECtHR in the Hirst v. the United Kingdom (no. 2) case, the Labita v. Italy case, and the Vito Sante
Santoro v. Italy case, such restriction must pursue a legitimate aim, be prescribed by law, and
be proportional.99
Additionally, it bears noting that the ECtHR in the Shindler v. United Kingdom case and in the
Hirst v. the United Kingdom (no. 2) case specifically mentioned the Code of Good Practice in
Electoral Matters adopted by the European Commission for Democracy through Law100, which provisions the criteria for a justifiable infringement to the right to vote. According to the Code of Good Practice in Electoral Matters, the right to vote can only be restricted if is prescribed by law, proportionate, and based either on mental incapacity or a criminal conviction for a serious offence.101
93 J. Gerards, ‘How to improve the necessity test of the European Court of Human Rights’ (2013) International
Journal of Constitutional Law 11, pp. 466–490.
94 ECtHR (Chamber) App. No. 7/08, Tănase v. Moldova, judgment of 27 April 2010. 95 ECtHR, Aziz v. Cyprus (2004), para. 28 and ECtHR, Tănase v. Moldova (2010), para.158. 96 ECtHR, Frodl v.Austria (2010), para. 23.
97 ECtHR, Frodl v.Austria (2010), para. 25. 98 Guide on Article 3 of P1(2019), para. 25.
99 ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 71.
100 ECtHR (Chamber) App. No. 19840/09, Shindler v. United Kingdom, judgment of 9 September 2009, paras. 60
& 62 and ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 24.
20
3.4.4. Articulating the tests
The CCPR, IACtHR, IACHR, and ECtHR have all taken into consideration the case law of other international bodies. In the Yevdokimov and Rezanov case, the CCPR has shared the EctHR’s approach concerning the proportionality requirement for justifiable infringements to the right to vote, namely citing the Hirst v. the United Kingdom (no. 2) case.102 The IACHR has referred to the approach of the ECtHR in regard of Article 3 of P1 in the Andres Aylwin
Azocar y Otros v. Chile case103 and the Statehood Solidarity Committee v. United States case104.
In particular, the Court takes into consideration the criteria used to assess whether a limitation to the right to vote is justifiable under the ECHR. In both of these cases, the IACtHR and the IACHR have also cited CCPR’s approach to justifiable limitations to voting, once again considering the criteria the Committee relied on.105 In the Hirst v. the United Kingdom (no. 2)
case, the ECtHR has cited CCPR’s General Comment No. 25, specifically the Committee’s criteria for justifiable limitations to the right to vote.106
By alluding to at least one of other international bodies, it is plausible to deduct common requirements to the CCPR, IACtHR, IACHR, and ECtHR when assessing whether infringements to the right to vote are justifiable under IHRL. Therefore, from the caselaw analyzed, there are five common requirements for justifiable limitations to the right to vote: prescribed by law, legitimate aim, suitability, necessity, and proportionality. They were chosen for two reasons. First, each one of them was used by all of the international bodies in question. Second, they are the standard criteria used in IHRL to establish whether a measure limiting a non-absolute right (not just the right to vote) is legitimate.107 These requirements form the
theoretical IHRL framework with which the comparison of post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile is made.
102 CCPR, Yevdokimov and Rezanov (2011), paras. 7.5.
103 IACHR, Andres Aylwin Azocar y Otros v. Chile (1999), para. 103. 104 IACHR, Statehood Solidarity Committee v. United States (2003), para. 91.
105 IACHR, Andres Aylwin Azocar y Otros v. Chile (1999), para. 51 and IACHR, Statehood Solidarity Committee
v. United States (2003), para. 93.
106 ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 23.
107 United Nations Office on Drugs and Crime's Education for Justice (E4J), ‘Module 7: Counter-Terrorism and
Situations of Public Emergency’ <https://www.unodc.org/e4j/en/terrorism/module-7/key-issues/limitations-permitted-by-human-rights-law.html>.
21
4. Comparison of post-release criminal disenfranchisement laws with the theoretical IHRL framework
The central question of the thesis is whether post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile violate international human rights law. In order to answer this, it was first necessary to not only set out the post-release criminal disenfranchisement laws of these three States, but also establish the theoretical IHRL framework concerning justifiable limitations to the right to vote. Only after having completed these steps, can a comparison between these laws and the theoretical IHRL framework take place. That is the purpose of this Chapter: make this comparison and finally determine the compatibility, or lack thereof, between post-release criminal disenfranchisement laws and IHRL.
4.1. Prescribed by law
The Siracusa Principles define prescribed by law as being ‘provided by national law of general application’ and ‘in force at the time the limitation is applied’.108 Accordingly, the IACtHR in the Yatama v. Nicaragua case notes that this criterion requires a limitation to voting to be defined ‘precisely, by law’.109 According to the Cambridge English Dictionary, “precise”
signifies ‘exact and accurate in form, time, detail, or description’.110
The post-release criminal disenfranchisement laws of Armenia, Belgium, and Chile are all provisioned in their respective national laws and currently in force: Article 2 (4) of Armenia’s Electoral Code and Article 48 (4) of its Constitution; Article 31 of the Criminal Code of Belgium and Articles 1 (4) and 6 of its Electoral Code; and Article 13 of Chile’s Constitution.
In regard of Armenia, both provisions are very clear concerning which former prisoners are targeted (former prisoners convicted for a grave crime or a particularly grave crime; what constitutes these crimes is established in Article 19 (4 and 5) of the Criminal Code of Armenia) and whether the exclusion is permanent (the law permanently prevents former prisoners from exercising their right to vote).
108 Siracusa Principles (1984), para. 15.
109 IACtHR, Yatama v. Nicaragua (2005), para. 206.
110 Cambridge University Press, ‘Cambridge English Dictionary’ (2020) <
22 Belgium’s laws clearly establish which former prisoners are targeted (former prisoners sentenced to ten or more years of imprisonment or sentenced to twenty or more years of imprisonment) and whether the exclusion is permanent (it can be either permanent or for twenty years to thirty years).
The Chilean provision establishes which former prisoners are targeted (former prisoners sentenced to ‘afflictive punishment’; Article 37 of the Criminal Code of Chile defines what ‘afflictive punishment’ is) and whether the exclusion is permanent (as the law explicitly stripes them of their citizenship, they are permanently excluded from voting).
Despite failing to provide the exact information about the time from which the exclusion to the right to vote starts, these States’ post-release criminal disenfranchisement laws are clear about who they target and the kinde of restriction they impose.
Therefore, Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws overall pass the prescribed by law criterion.
4.2. Legitimate aim
According to the CCPR in the Gillot v. France case, a legitimate aim cannot be politically based111, that is, a limitation to voting cannot intentionally favor one community, either by ‘allowing only that community to participate in the vote or by granting its members preferential representation’112.
The IACtHR in the Yatama v. Nicaragua case reasoned that a legitimate aim is one that ‘makes it necessary to satisfy an urgent public interest’.113 In the Andres Aylwin Azocar y Otros v. Chile case, the IACHR considered the safeguard of the ‘capacity for discernment in the
electorate’ and the promotion of ‘conscientious political participation’ to be legitimate aims.114 This means that restrictions to the right to vote pursue a legitimate aim if they are ‘justified by the "need" for them in the framework of a democratic society’.115 The requirement of
111 CCPR, Gillot v. France (2002), para. 13.11. 112 CCPR, Gillot v. France (2002), para. 8.21. 113 IACtHR, Yatama v. Nicaragua (2005), para. 206.
114 IACHR, Andres Aylwin Azocar y Otros v. Chile (1999), para. 101. 115 IACHR, Andres Aylwin Azocar y Otros v. Chile (1999), para. 102
23 ‘necessary in a democratic society’ is reiterated by the IACtHR in the Argüelles y Otros v.
Argentina case116.
The ECtHR’s decision in the Frodl v. Austria case was that ‘preventing crime by punishing the conduct of convicted prisoners and also of enhancing civic responsibility and respect for the rule of law’ is considered a legitimate aim.117 In the Labita v. Italy case, the Court reiterated the purpose of preventing crime as a legitimate aim.118
The aim that Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws can be thought to pursue is the protecting of the formal integrity of their electoral process. Protecting electoral integrity essentially entails the necessity to prevent any potential corruption in the electoral process, either through subversive voting or electoral fraud. Safeguarding the formal integrity of the electoral process can be considered an urgent public interest in a democratic society, since it is through voting that individuals decide who is to make governmental decisions on their State. For the same reason, upholding the competence principle is necessary in a democratic society: protecting this right encompasses excluding those considered more prone to choose unfit rulers for the State. In accordance to post-release criminal disenfranchisement laws, such individuals are former prisoners: because they have been convicted, they are perceived to be more likely to engage in dishonest behavior, thus arguably posing a heightened risk to electoral integrity. By preventing them from exercising their right to vote, said risk is thought to be mitigated.
Therefore, Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws pass the legitimate aim requirement.
4.3. Suitability
According to the IACHR in the Andres Aylwin Azocar y Otros v. Chile case, suitability entails that the means employed are capable to achieve the legitimate aim pursued.119 The ECtHR in the Mathieu-Mohin and Clerfayt v. Belgium case considered a suitable limitation to the right
116 IACtHR, Argüelles y Otros v. Argentina (2011), para. 226. 117 ECtHR, Frodl v. Austria (2010), para. 30.
118 ECtHR (Grand Chamber) App. No. 26772/95, Labita v. Italy, judgment of 6 April 2000, para. 195. 119 IACHR, Andres Aylwin Azocar y Otros v. Chile (1999), para. 102.
24 to be one that is reasonable in regard of its legitimate aim.120 This is reiterated by the Court in
the Hirst v. the United Kingdom (no. 2) case121.
The aim of Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws is to protect the formal integrity of their electoral process. They exclude from voting those who are perceived to be more likely to engage in dishonest behavior, thus arguably posing a heightened risk to electoral integrity. However, claims that former prisoners are more likely to engage in dishonest behavior and that, as a group, are more likely to vote in ways that undermine crime control and the rule of law are entirely speculative. Existing evidence suggests that ‘offenders are as likely as other citizens to recognize the legitimacy and importance of criminal laws that protect persons and property’.122 Moreover, a single breach of the law cannot be reasonably expected to represent a wholesale repudiation of a citizen’s civic trust: there is no evidence to support the claim that former prisoners are more likely to commit electoral fraud.123
The ECtHR in the Hirst v. the United Kingdom (no. 2) case has pointed out this lack of evidence to support the claim that disenfranchisement prevents crime.124 The Court also concluded that excluding prisoners from voting actually prevents their rehabilitation as a law-abiding members of the community and ‘undermines the authority of the law as derived from a legislature which the community as a whole votes into power’.125 The importance of respecting
the offenders’ rehabilitation is also highlighted by the CCPR in the Yevdokimov and Rezanov case.126
The question is then what is the level of effectiveness the suitability requirement demands from a limitation. Various scholars argue that the answer depends on the circumstances of each
120 ECtHR, Mathieu-Mohin and Clerfayt v. Belgium (1987), para. 57. 121 ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 38.
122 A. Ewald, ‘Civil Death’: The Ideological Paradox of Criminal Disenfranchisement Law in the United States’
(2012) Wisconsin Law Review, pp.1045-1132 and J. Reiman, ‘Liberal and Republican Arguments Against the Disenfranchisement of Felons’ (2005) Criminal Justice Ethics 24, pp. 3-18.
123 A. Altman, ‘Democratic Self-Determination and the Disenfranchisement of Felons’ (2005) Journal of Applied
Philosophy 22, pp. 263-273; J. Kleinig & K. Murtagh, ‘Disenfranchising Felons’ (2005) Journal of Applied Philosophy 22, pp. 217-239; H. Lafollette, ‘Collateral Consequences of Punishment: Civil Penalties
Accompanying Formal Punishment’ (2005) Journal of Applied Philosophy 22, pp. 241-261; R. Re & C. Re, ‘Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments’ (2012) The Yale Law
Journal 12, pp. 1584-2031; and N. Demleitner, ‘Continuing Payment on One’s Debt to Society: The German
Model of Felon Disenfranchisement as an Alternative’ (2000) Minnesota Law Review 84, pp. 753-804.
124 ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 45. 125 ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 46. 126 CCPR, Yevdokimov and Rezanov (2011), paras. 7.4.
25 case.127 According to Janneke Gerads, this view of suitability means that, when a wide margin
of appreciation is given to States, full effectiveness should not be demanded and that measures which are only partially effective, or not entirely effective, can fulfill this requirement.128 As noted by the ECtHR in the Frodl v. Austria case129 and in the Labita v. Italy case130, States enjoy a wide margin of appreciation when warranting infringements to the right to vote. As such, post-release criminal disenfranchisement laws are not required to be fully effective in protecting the formal integrity of their States electoral process.
Nevertheless, existing evidence clearly shows that preventing former prisoners from exercising their right to vote is grossly ineffective in achieving that goal. Moreover, this infringement runs counter the rehabilitation of offenders, a matter which, as previously demonstrated, is highly regarded in the international sphere. As such, even if not upholding the suitability criterion to the fully effectiveness standard, excluding former prisoners from voting is unsuitable to achieve the legitimate aim pursued.
For this motive, Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws do not pass the suitability requirement.
4.4.Necessity
In accordance to the Siracusa Principles and the IACtHR in the Yatama v. Nicaragua case, the necessity requirement consists in using no more restrictive means than are required for achieving the legitimate aim pursued.131 This means that the Court must ‘investigate if there is any other alternative that is less restrictive of rights while being equally effective in attaining the stated policy objective’.132
127 J. Gerards (2013), pp. 466–490; M. Ugrekhelidze, ‘Causation: Reflection in the Mirror of the European
Convention on Human Rights (A Sketch)’ (2007) Liber Amicorum Luzius Wildhaber: Human Rights – Strasbourg
Views, pp. 469-477; and W. Gerven, ‘The Effect of Proportionality on the Actions of Member States of the
European Community: National Viewpoints from Continental Europe’ (1999), The Principle Of Proportionality
In The Laws Of Europe 37, p. 61.
128 J. Gerards (2013), pp. 466–490.
129 ECtHR, Frodl v.Austria (2010), para. 23. 130 ECtHR, Labita v. Italy (2000), para. 201.
131 IACtHR, Yatama v. Nicaragua (2005), paras. 206 & 11 132 J. Gerards (2013), pp. 466–490.
26 As previously mentioned, the aim of Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws is protecting of the formal integrity of their electoral process. This protection essentially entails preventing subversive voting and electoral fraud. However, all of these three States have already in force laws that criminalize electoral fraud: Article 150 of the Armenian Criminal Code, Article 200 of the Belgium Electoral Code, and Article 54 of the Chilean Criminal Code. As such, Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws preclude former prisoners from exercising their fundamental right to vote when all of these States already have in force a less restrictive means to protect their electoral integrity.
Additionally, if their purpose involves preventing subversive voting and minimizing electoral fraud, Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws should only target former prisoners condemned for offences that affect political, economic and other important interests of a State as a whole, such as bribery or electoral fraud. Yet, as demonstrated in Chapter 2, the applicability these three States law depends either on the time sentenced or on the seriousness of the crime committed. They target former prisoners whose crimes in nothing relate to the previously mentioned category of offenses. As such, Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws are targeting a much wider range of former prisoners then they should to achieve their legitimate aim. If these laws should target a narrower range of former prisoners, then less restrictive means are available to achieve the legitimate aim they pursue.
For these reasons, Armenia, Belgium, and Chile’s post-release criminal disenfranchisement laws do not pass the necessity requirement.
4.5. Proportionality stricto sensu
As reasoned by the IACtHR in the Yatama v. Nicaragua case133 and the Argüelles y Otros v.
Argentina134, as well as by the ECtHR in the Hirst v. the United Kingdom (no. 2) case135, the proportionality stricto sensu criterion is essentially a balancing test. It requires ‘measuring the
133 IACtHR, Yatama v. Nicaragua (2005), para. 206.
134 IACtHR, Argüelles y Otros v. Argentina (2011), para. 120. 135 ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 51.
27 relative intensity of the interference with the importance of the aim sough’.136 This means that
the burden of an infringement to the right to vote cannot be excessive as compared with the beneficial outcomes it brings. Hence, as formulated by Robert Alexy, ‘the greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other’.137
This balancing test entails two different assessments. First, a legitimate restriction to voting must have a sufficient link between the sanction and the conduct and circumstances of the individual concerned. This entails that the period for such suspension should be proportionate to the offence and the prison sentence, as concluded by the CCPR in General Comment No. 25138 and in both the Yevdokimov and Rezanov case139 and the Dissanayake case140. The ECtHR has also supported this in the Frodl v. Austria case141 and in the Hirst v. the United Kingdom
(no. 2) case142. Secondly, the proportionality stricto sensu criterion includes a non-discriminatory requirement, as noted by the ECtHR in the Tănase v. Moldova case143 and in the Hirst v. the United Kingdom (no. 2) case144. This means that any infringement to the right to vote must not be warranted with the intention of excluding some persons or groups of persons from participating in their State’s political process.
4.5.1. Personal and general circumstances
As concluded by the ECtHR in the Söyler v. Turkey case, an infringement to voting that applies ‘automatically to prisoners, irrespective of the length of their sentence and irrespective of the nature of their offence and their individual circumstances’ is not justifiable.145 This reiterates the Court’s position in the Hirst v. the United Kingdom (no. 2) case: automatic and blanket limitations to the right to vote are not admissible.146
136 S. Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) I•CON 7, p. 474. 137 R. Alexy, ‘A Theory of Constitutional Rights’ (2002) Oxford University Press, p. 102. 138 General Comment No. 25 (1996), para. 14.
139 CCPR, Yevdokimov and Rezanov (2011), para. 7.4. 140 CCPR, Dissanayake (2008), para. 8.5.
141 ECtHR, Frodl v.Austria (2010), para. 26.
142 ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 23. 143 ECtHR, Tănase v. Moldova (2010), para. 178.
144 ECtHR, Hirst v. the United Kingdom (no. 2) (2005), para. 51. 145 E ECtHR, Söyler v. Turkey (2013), para. 35.
