Prisoner Voting and Strategic Judging

Today the European Court of Human Rights delivered its Grand Chamber judgment in Scoppola v. Italy (no. 3), App. No. 126/05). This is the Court’s latest foray into the prisoner voting saga, starting from its GC judgment in Hirst that the blanket ban on prisoner voting in the UK was disproportionate and a violation of Art. 3 of Protocol No. 1 to the Convention. A press release summarizing the judgment is available here; the judgment itself here. The GC ruling in Hirst was followed by several other cases, which I’ll not look in detail here – readers may wish to consult this post by Adam Wagner, as well as his excellent take on today’s judgment

What makes the whole prisoner voting issue before Strasbourg so interesting is how it reflects on the relationship between law and politics, and on the nature of judging. It is in the nature of human rights cases that resolving them almost invariablity requires value judgments, rather than some blind application of the law. Art. 3 of Protocol No. 1 does not give a clear answer one way or another as to whether a blanket ban on prisoner voting would be disproportionate; that is inevitably a moral and policy decision that the (international) judge needs to take. That decision may well lead to conflit with legislators. In order to avoid such conflicts as much as possible, the Court has normally paid much deference to domestic processes in the absence of a European consensus on the issue. When such consensus existed it would force the few recalcitrant states to conform; in the absence of consensus it would normally allow each state to go its own way. In Hirst, however, the Court may have overreached. While much of the criticism of that decision in the UK was of the cartoonish Daily Mail-type, it nonetheless raised serious concerns about the Court overriding national legislators on morally contested matters on which it was not necessarily any more competent than the democratically elected legislators themselves.

In part because of frequently grotesque misrepresentations of Hirst in (some) media, but mainly because of its own consequent self-interest and the lack of any influential constituency fighting for the rights of prisoners, the UK’s political elite missed few opportunities to criticize the Court, and indeed did so on a multi-partisan basis. Hirst was not going to be complied with. The Court itself, on the other hand, has no desire to diminish its own authority by overruling Hirst, as it has been repeatedly urged to do by the UK. Some judges indeed take great offense from the criticism that they are being subjected to, in their view unfairly; some want to take Hirst even further, as in Frodl and the Chamber judgment in Scoppola itself.

But most of the Strasbourg judges are sensitive to the underlying political dynamic and the potential that the whole thing might blow up in their faces. They thus wanted to find a solution that would both preserve Hirst and give enough way to the UK to provide the UK political elite with cover that would allow what remains of Hirst to be complied with, and thus defuse a damaging row between the Court and one very influential European state. And this is in fact what the GC judgment in Scoppola does. On one hand it explicitly refuses to overrule Hirst; on the other it finds that while a blanket ban on prisoner voting is disproportionate, proportionality does not require individual determination by a judge on a case by case basis. The line on which prisoners exactly may be denied the right to vote may be drawn by the legislator on the basis of very vague criteria, and in fact the Italian system passes muster. Indeed, the Italian system passes muster even though in many, if not most cases the results it produces are actually worse than the UK one – thus, for instance, in the UK prisoners may not vote only while they are in prison, while in Italy anyone sentenced to more than 5 years in prison will get a lifetime ban on voting.

As Judge Bjorgvinsson rightly notes in his dissent (as in fact the only dissenter), it is hard to see why the line drawn in Scoppola is any less arbitrary or objectionable than the line drawn in Hirst. It is one thing to say that as a matter of principle a ban on voting needs to have some relationship to the individual circumstances of the crime – for example, a person convicted of electoral fraud could rightly be denied the right to vote. But there is no principle whatsover is saying that a law prescribing that no prisoner may vote while in prison is arbitrary, while a law prescribing that prisoners sentenced to 5 years or more in prison can be banned from voting for life and those sentenced to 3 years can get a 5 year voting ban, is not arbitrary. If, in others words, the gravity of the crime, and accordingly of the sentence, is sufficient in and of itself to justify a voting ban, regardles of the nature of the crime, then why can’t the same reasoning be extended to a prison sentence as such, as opposed to say a fine or some other form of punishment?

Scoppola is thus hardly a decision born out of principle. But it will hopefully allow both the Court and the UK government to save face, with both learning something from their confrontation. All the UK government now needs to do to comply with Hirst is to pass some essentially cosmetic changes that would ‘strike the proper balance’. Or, depending on how UK media and political elites react, rather than be defused the conflict may well escalate – we shall soon see.