CEDH · CASELAW;CLIN;ENG — 30 novembre 2021

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Romania - 17504/18 Judgment 30.11.2021 [Section IV] Article 3 of Protocol No. 1 Vote Unjustified restriction on voting rights of applicant serving prison sentence outside the electoral constituency of his place of residence: violation Facts – The applicant complained about his inability to vote in legislative elections while he was serving a sentence in a prison situated outside the electoral constituency of his place of residence. Law – Article 3 of Protocol No. 1: While the applicant’s right to vote had not been restricted by the court which had convicted and sentenced him, it had, in practice, been removed in so far as the domestic law only permitted voting in the electoral constituency where the voter’s place of residence was situated. As the applicant had been serving his sentence in a prison situated outside his electoral district on the date of the elections, he had been deprived of the ability to cast his vote. His right to vote enshrined in Article 3 of Protocol No. 1 had therefore been restricted. The Court accepted that an electoral system which, such as that in place in Romania, imposed a territorial link between the voters and their elected representatives, pursued a legitimate aim compatible with the principle of the rule of law and the general objectives of the Convention. It therefore had to determine whether there had been arbitrariness or a lack of proportionality, and whether the restriction had interfered with the free expression of the will of the people. While States were afforded a wide margin of appreciation in organising and running their electoral systems, the situation was not the same when an individual or group had been deprived of the right to vote. Such a situation had to pass a more stringent proportionality test. Moreover, in none of the member States surveyed for the purpose of the present application would a prisoner be prevented from voting in legislative elections for the sole reason that he or she had been serving a sentence in a detention facility situated outside the electoral constituency of their place of residence. It could thus be inferred that there was a strong European consensus that prisoners in the applicant’s situation be allowed to exercise their right to vote. Twelve of the forty-two electoral constituencies on Romanian territory did not have a detention facility. Moreover, a detention facility might not be regarded as a prisoner’s place of residence for the purpose of elections. It followed that any prisoner, who, like the applicant, had his or her residence in one of the twelve electoral constituencies without a detention facility would automatically be banned from voting during their detention. Such a situation could not be construed as being compatible with the provisions of the Convention. States had to ensure that voters’ particular circumstances were taken into account when organising the electoral system. However, it was not clear if and how this had been done in the present case. The Government had argued that the applicant should have applied to have his place of residence moved to the city where he had been serving his sentence. However, they had not provided any convincing explanation as to how realistic such action would have been. According to the applicable law, the applicant should have provided a rental agreement, a statement from a host willing to take him in, or a report by a police officer attesting that he actually lived in that city. The Court was not convinced that a prisoner in the applicant’s situation would be able to produce such documents for any address outside the prison. The burden imposed on the applicant thus appeared to have been disproportionately high. In the same vein, the possibility for prisoners to request to be transferred to a detention facility situated in the electoral constituency of his or her residence remained purely speculative in so far as the law did not clearly provide for it. Moreover, the situation in which the applicant had found himself – subjected to multiple transfers to prisons belonging to different electoral constituencies – made such a request appear unpredictable. In any case, that option remained illusory for the applicant, whose residence was in an electoral constituency which did not have a detention facility. While the Court accepted that the law could not take account of every individual case, it could not but observe with concern that, in the respondent State, the ability for a prisoner to exercise the right to vote (when not restricted by court) became a completely random act entirely outside the control of the person concerned and exclusively in the hands of the authorities. Lastly, the fact that, in the respondent State, solutions had been found so that non-residents and military and police personnel stationed abroad could vote in a different electoral constituency from that of their domicile or residence, showed that the residence requirement had not been essential in the current electoral system. It was not the role of the Court to indicate to the respondent Government what would be the best solution to allow prisoners in the applicant’s situation to vote. However, several different arrangements were possible and had already been put in place in the member States surveyed for the purpose of the present application. Consequently, the State’s task to secure the exercise of the right to vote to prisoners in the applicant’s situation did not appear insurmountable. Conclusion : violation (unanimously). Article 41: finding of a violation sufficient in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes