3. PRODUCCIÓN
3.1 FLOW-SHEET OPERACIONAL SIN/CON PROYECTO
International treaty obligations and European case law, as outlined above, unequivocally establish that the local, regional, national and European franchise is a basic entitlement, in all but the smallest minority of cases. This entitlement is still being disregarded by a number of member states. There are good reasons for these governments to make a ‘choice’ and extend the franchise to prisoners. Prison reform campaigners argue that an indiscriminate prohibition of prisoner voting will in all likelihood perpetuate social exclusion. As social exclusion is a key driver of criminality and reoffending, far from acting as a deterrent to future crime, an indiscriminate ban may possibly contribute to an increased risk of an individual reoffending. At the very least, denying convicted prisoners the option of fulfilling their democratic obligations serves no purpose in either protecting the public or reforming the offender.264 At worst, the limiting of the franchise, in the words of a Canadian Supreme Court judgment,
260 The European Court has also ruled that blanket bans implemented based on a general rule (in this case, a rule by Austria that prisoners serving a sentence of over one year) are also unlawful. European Court of Human Rights,
Case of Frodl v. Austria (Application no. 20201/04, Judgment, 8 April 2010 [online], accessed 27 December 2010,
available at http://www.prisonreformtrust.org.uk/uploads/documents/Austria.doc 261
Council of Europe, Interim Resolution CM/ResDH(2009)160: Execution of the Judgment of the European Court of Human Rights Hirst against the United Kingdom No. 2, 4 March 2010 [online], accessed 1 January 2011, available at https://wcd.coe.int/wcd/ViewDoc.jsp?id=1556821&Site=CM
262 ‘Prisoners’ Right to Vote, House of Commons, 2 November 2010’, in Hansard, accessed 13 December 2010, available at http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm101102/debtext/101102- 0001.htm#10110260000003
263 Watt, N. & Travis, A., ‘MPs decide to keep blanket ban on prisoners’ vote’, The Guardian, 10 February 2011 [online], accessed 11 February 2011, available at http://www.guardian.co.uk/politics/2011/feb/10/mps-blanket- ban-prisoners-vote?intcmp=239
264 Prison Reform Trust and UNLOCK, Barred from Voting: The Right to Vote for Sentenced Prisoners, February 2010 [online], accessed 5 August 2010, available at
Prisoners and voting
‘undermines the legitimacy of the government, the effectiveness of the government, and the rule of law’.265
In the 2005 European Court of Human Right cases, the judgment referred to
the submission by the AIRE Centre,266 which highlighted the
recommendations of the Committee of Ministers concerning the management of prisoners serving long sentences.
Recommendation Rec (2003)23 of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long-term prisoners
General principles:
3. Consideration should be given to the diversity of personal characteristics to be found
among life sentence and long-term prisoners and account taken of them to make individual plans for the implementation of the sentence (individualisation principle).
4. Prison life should be arranged so as to approximate as closely as possible to the
realities of life in the community (normalisation principle).
5. Prisoners should be given opportunities to exercise personal responsibility in daily
prison life (responsibility principle). 267
Although the recommendation makes no explicit reference to the right of prisoners to vote, the ‘individualisation’, ‘normalisation’ and ‘responsibility’ principles support ‘the extension of the vote to prisoners by fostering one of their possible connections with society, increasing their stake in society and taking into account their personal circumstances and characteristics.’268 Extending the right to vote to prisoners would complement the aims of prisons’ resettlement programmes.
Extending the right to vote to prisoners – and ensuring offenders can exercise that right – is unlikely by itself to reduce the rate of reoffending amongst ex-prisoners. However, ensuring that a citizen’s right to vote is maintained has several important functions. It helps to maintain a person’s connections to society and enables them to have some say in the laws that affect them; imprisonment does not render prisoners unable to reach informed decisions. Prison should not seek to remove what defines us as people and citizens.
265 The judgement continues: ‘It is more likely to erode respect for the rule of law than to enhance it, and more likely to undermine sentencing goals of deterrence and rehabilitation than to further them.’ Canadian Supreme Court, Sauvé v. Canada (Chief Electoral Officer), 31 October 2002 [online], accessed 5 August 2010, available at http://csc.lexum.umontreal.ca/en/2002/2002scc68/2002scc68.html
266 AIRE Centre: Advice on Individual Rights in Europe (http://www.airecentre.org)
267 Council of Europe, Recommendation Rec (2003)23 of the Committee of Ministers to member states on the
management by prison administrators of life sentence and other long-term prisoners, adopted 9 October 2003
[online], accessed 20 July 2010, available at https://wcd.coe.int/ViewDoc.jsp?id=75267&Site=CM 268 European Court of Human Rights (2005), Judgment in Hirst vs. UK, § 54
11.5 Summary and recommendations
Summary
Several CoE member states exercise a blanket ban on prisoner voting, and numerous others a variety of bans that apply to individual categories of prisoners. In some cases, the ban extends after the prisoner’s release. The recent Hirst vs. United Kingdom case is one of a range of judgments from the European Court of Human Rights (ECtHR) in which it is made clear that a blanket ban based solely on the fact of imprisonment is not acceptable. At best, disenfranchising prisoners fails to protect the public or reform the offender. At worst, it undermines democracy and the legitimacy of the government, and contributes to the continued exclusion of the prisoner.
Recommendations
15. The Council of Europe should consider:
a. clarifying in which cases it considers it acceptable for member states to remove the franchise from prisoners.
16. Member states should:
a. remove all blanket bans on prisoners voting
b. define clearly the basis on which prisoners may receive bans and issue sentencing guidelines
c. remove any restrictions that are judged to be necessary as soon as the prisoner’s sentence is over.
Restorative justice and prisoner reintegration