EPRSLibrary By / May 7, 2013

Does Disenfranchisement violate the European Convention on Human Rights?

The case Mr Harry Shindler is a British national, residing since 1982 in Italy. According to British law, British nationals…

© kaysus / Fotalia.com

The case

© kaysus / Fotalia.com

Mr Harry Shindler is a British national, residing since 1982 in Italy. According to British law, British nationals residing abroad retain their electoral rights for 15 years, after which they are removed form the electoral register, until their return to the United Kingdom (UK). As a consequence, Mr Shindler is not eligible to vote in parliamentary elections (disenfranchisement). In 2009 he lodged an application against the UK Government with the European Court of Human Rights (ECtHR) in Strasbourg alleging the violation of the European Convention on Human Rights and Fundamental Freedoms by the British rules on voting by citizens resident abroad. He relied mainly on the right to free elections (Article 3, Protocol 1 to the Convention).

Positions on disenfranchisement

Many authors favour disenfranchisement rules arguing that non-resident citizens lack sufficient knowledge of the political reality in their home country. They also point out that they are not directly affected by the acts adopted by the legislature. Conversely it is put forward that the nationality creates a permanent link between a state and its nationals. Many point to the current possibilities to remain informed on politics in the home country even when residing abroad and argue for the right for overseas voters to decide for themselves whether to vote or not. Among EU Member States, in addition to the UK, Cyprus, Denmark, Germany, Ireland and Malta also provide for the loss of electoral rights in national elections stemming from residence abroad.

The judgment of the European Court of Human Rights

On 7 May 2013 the ECtHR delivered its judgment, dismissing Mr Shindler’s application. The Court first declared that electoral rights in national parliamentary elections do not fall within the scope of EU law (e.g. freedom of movement) so that Mr Shindler was not required to first seek domestic judicial review relying on EU law. The Court concluded that the electoral rights enshrined in Protocol 1, Article 3 to the Convention are not a privilege but that they are not absolute either and can be limited. Limits to these rights have however to respect their very essence and need to be proportional in relation to the legitimate aim pursued by the restrictions. The Contracting States have thereby a certain margin of appreciation, taking account of the particular socio-economic realities of each country. The Court held that the UK provisions on disenfranchisement of expatriates pursue the legitimate aim of ensuring that those citizens with close connections with the UK and directly affected by its laws are eligible to participate in parliamentary elections there. Moreover, the general 15-year period was considered to be proportionate because a case by case assessment of whether the individual had close links to the UK would place an unbearable burden on the electoral administration. The Court concluded that although there is a tendency in Europe to grant electoral rights to non-residents, there is no legal obligation upon States to grant non-resident nationals unrestricted access to these rights.

Position of the European Parliament (EP)

In 2012 the EP called on Member States to implement the Venice Commission’s Code of Good Practice in Electoral Matters (Council of Europe), including the abolition of disenfranchisement of expatriates in elections to national parliaments. Moreover, the EP Committee on Petitions (PETI) has also recently addressed this issue based on several petitions by EU citizens.

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