FOURTH SECTION
 
 
 
 
 
 
CASE OF GREENS and M.T. v. THE UNITED KINGDOM
 
(Applications nos. 60041/08 and 60054/08)
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
23 November 2010
 
FINAL
 
11/04/2011
 
This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the cases of Greens and M.T. v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Lech Garlicki, President,
 Nicolas Bratza,
 Ljiljana Mijović,
 David Thór Björgvinsson,
 Ledi Bianku,
 Mihai Poalelungi,
 Vincent Anthony de Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 60041/08 and 60054/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr Robert Greens and M.T. (“the applicants”), on 14 November 2008. The President of the Chamber acceded to M.T.'s request, following communication of the case, not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicants were represented by Mr T. Kelly, a solicitor practising in Coatbridge. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office. 3. The applicants alleged a violation of Article 3 of Protocol No. 1 to the Convention as a result of the refusal to enrol them on the electoral register for domestic elections and for elections to the European Parliament. They further complained under Article 13 that they did not have an effective remedy. 4. On 25 and 28 August 2009 respectively the President of the Chamber decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). 5. The Equality and Human Rights Commission was granted leave to intervene in the proceedings as a third party pursuant to Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court. 6. On 6 July 2010 the Chamber decided to notify the parties that it was considering the suitability of applying the pilot judgment procedure in the cases. Written comments on the suitability of the pilot judgment procedure were received from both parties. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The first applicant, Mr Greens, was serving a determinate sentence of imprisonment at HM Prison Peterhead at the time his application was lodged with the Court. He was eligible for release on parole from 29 May 2010. It is not known whether he has been released on parole. The second applicant, M.T., is currently serving a determinate sentence of imprisonment at HM Prison Peterhead. According to information provided by the Government, he is scheduled to be released in November 2010. 8. On 23 June 2008 the applicants posted voter registration forms to the Electoral Registration Officer (“ERO”) for Grampian. They sought registration on the electoral register at their address in HM Prison Peterhead. 9. On 3 July 2008, the ERO replied referring to previous applications for registration which were refused in 2007 under sections 3 and 4 of the Representation of the People Act 1983, as amended, (see paragraph 19 and 21 below) on the basis of the applicants' status as convicted persons currently detained. The ERO requested clarification of whether there had been a change in circumstances in the applicants' cases. 10. On 5 August 2008 the applicants wrote to the ERO arguing that following the Court's decision in Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005‑IX, and the declaration of incompatibility made by the Registration Appeal Court in the case of Smith v. Scott (see paragraphs 27-30 below), the ERO was obliged to add their names to the electoral register. 11. On 12 August 2008, the ERO refused the applicants' registration applications on the basis of their status as convicted persons detained in a penal institution. 12. By letter of 14 August 2008 the applicants informed the ERO of their wish to appeal to the Sheriff Court against the refusal. 13. On 12 September 2008 the Sheriff considered the applicants' appeals together with appeals in a number of other similar cases and ordered written representations to be lodged. 14. On 25 September 2008 the applicants wrote to the court summarising their position. They provided further submissions on 1 October 2008. The applicants alleged that legal aid was not available for the proceedings and they therefore represented themselves. 15. On 10 November 2008 the applicants' appeals were refused. 16. On 20 November 2008 another serving prisoner whose appeal was also refused on 10 November 2008, Mr Beggs, applied to Aberdeen Sheriff Court to request that it state a case for the opinion of the Registration Appeal Court (see paragraph 22 below). On 30 December 2008, the Sheriff refused to state a case. Mr Beggs subsequently applied to the Court of Session for an order requiring the Sheriff to state a case, on the ground that the Sheriff had erred in law in refusing to do so. The most recent information available to the Court was that those proceedings were pending. It is not clear whether that remains the case. 17. On 4 June 2009, elections to the European Parliament took place. The applicants were ineligible to vote. 18. On 6 May 2010 a general election took place in the United Kingdom. The applicants were ineligible to vote. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Electoral legislation
1. The Representation of the People Act 1983
19. Section 3 of the Representation of the People Act 1983 (“the 1983 Act”) provides:
“(1)  A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.”
20. The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)(a)) or to those imprisoned only for default in, for example, paying a fine (section 3(2)(c)). 21. Section 4 of the 1983 Act provides:
“(1) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he–
(a) is resident in the constituency or that part of it;
(b) is not subject to any legal incapacity to vote (age apart);
... (3) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–
(a) is resident in that area;
(b) is not subject to any legal incapacity to vote (age apart);
...”
22. Sections 56-57 set out that there is a right of appeal against a decision of the registration officer. In Scotland, a further appeal lies on any point of law from a decision of the Sheriff to a court of three judges of the Court of Session (known as the “Registration Appeal Court”). 2. The European Parliamentary Elections Act 2002
23. Section 8(1) of the European Parliamentary Elections Act 2002 (“the 2002 Act”) provides that a person is entitled to vote at an election to the European Parliament if he is within any of subsections (2) to (5) of section 8. These subsections provide, in so far as relevant, as follows:
“(2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election ...
... (5) A person is within this subsection if he is entitled to vote in the electoral region by virtue of the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001 (S.I. 2001/1184) (citizens of the European Union other than Commonwealth and Republic of Ireland citizens).”
B. The Human Rights Act
24. Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows:
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted;
...”
25. Section 4 of the Act provides:
“(1)  Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2)  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
...”
26. Finally, section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:
“Subsection (1) does not apply to an act if–
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
C. Legal challenges to the ban on prisoners voting
1. Proceedings in Scotland
a. Smith v. Scott 2007 SLT 137
27. In Smith v. Scott, the Registration Appeal Court considered the refusal of the ERO for Clackmannanshire, Falkirk and Stirling to enrol a convicted prisoner on the electoral register on the basis of sections 3 and 4 of the 1983 Act, in anticipation of elections to the Scottish Parliament. The Secretary of State conceded in the proceedings that in light of the judgment of this Court in Hirst section 3(1) of the 1983 Act was incompatible with Article 3 of Protocol No. 1 to the Convention and that the appellant's rights under that Article had been violated. He also accepted that for the purposes of Article 3 of Protocol No. 1 the Scottish Parliament was a legislature. The court, handing down its judgment on 24 January 2007, summarised the matters for examination in the following terms:
“1. Since section 3(1) of the 1983 Act, giving the words of that provision their ordinary meaning, was incompatible with Article 3 of the First Protocol, the Court should consider whether it was possible, in terms of section 3(1) of the Human Rights Act, to read it down in such a way as to make it compatible. If that was possible, it should be done and the appeal should be allowed. 2. If, however, that was not possible, then the appeal would be refused but the Court should consider whether it could and should make a declaration of incompatibility in respect of section 3(1) of the 1983 Act in terms of the Human Rights Act section 4(2). If that could be done, it should be. 3. If the Court did not take that course, it should consider, in the context of the requirement in terms of section 6 of the Human Rights Act for the Court not to act in a manner incompatible with the appellant's Convention rights, whether by refusing the appeal and providing the appellant with no remedy it would be acting in breach of that statutory requirement. If it would, then the Court was obliged to give such remedy as was open to it within its powers at common law or under any statute. Such a remedy would include granting a declarator that the appellant's rights under Article 3 of the First Protocol of the Convention had been violated. It was open to the Court in the exercise of its inherent jurisdiction to grant such a declarator.”
28. Counsel for the appellant argued that if there was some “possible” interpretation (or “reading down”) of section 3(1) of the 1983 Act which would remove the incompatibility identified by this Court in Hirst, the Registration Appeal Court should adopt it. He considered that insertion of words to the effect that any ban on prisoner voting “would apply at the discretion of the sentencing judge” would qualify, but not contradict, the “grain of the legislation” and that the case should accordingly be resolved along those lines. Counsel for the respondent submitted that while section 3 of the Human Rights Act empowered the court to interpret legislation, where possible, in a certain way, it did not entitle the court to amend or reverse clear legislative provisions, nor otherwise to usurp the legislative function of Parliament. The court summarised counsel's argument as follows:
“26. ... section 3(1) of the 1983 Act clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences. There was thus no 'grain of the legislation' which could properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights. Over and above that, it was necessary to recognise the complexity of the issues which had been opened up by the decision of the European Court of Human Rights in Hirst, and the extensive consultation which would have to be undertaken before the Government could form a view as to the appropriate way forward. Since the Convention rights conferred by Article 3 of the First Protocol were in no way absolute, there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories, and it could be no part of this Court's function to make an uninformed choice among such alternatives.”
29. The court continued:
“27. Against that background, we are clearly of the opinion that the appellant's submission must be rejected and we decline to 'read down' section 3(1) of the 1983 Act in the manner proposed ... In our opinion to read down section 3(1) of the 1983 Act as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be ... to depart substantially from a fundamental feature of the legislation. Without the benefit of consultation or advice, this Court would, in a real sense, be legislating on its own account, especially in view of the wide range of policy alternatives from which a 'possible' solution would require to be selected ...”
30. The court, however, made a declaration of incompatibility in respect of section 3(1) of the 1983 Act.
b. Traynor and another v. Secretary of State for Scotland [2007] CSOH 78
31. On 20 April 2007, the Outer House of the Court of Session considered the disenfranchisement of prisoners in judicial review proceedings challenging the legality of an order made by the Secretary of State for Scotland regarding the organisation of the elections to the Scottish Parliament in May 2007 and the involvement of the Scottish Executive in those elections. The challenge was based on the provisions of the Scotland Act 1998 and in particular the requirement that Scottish legislation and acts of the Scottish Executive be compatible with the Convention. Lord Malcolm rejected the claim for interdict (injunction), emphasising that it was for Parliament to decide whether to remove the incompatibility between domestic legislation and the Convention. 32. On the question of declaratory relief, he added:
“11. I should record that I was asked to repeat the declarator of incompatibility pronounced in Smith. There is no dispute in these petitions as to the incompatibility between section 3 of the 1983 Act and article 3 of the first protocol. The discussion focused on other matters. That incompatibility has been authoritatively determined in Smith. I am satisfied that a further declarator in these proceedings is unnecessary and inappropriate ...”
2. Proceedings in Northern Ireland
a. R v. Secretary of State, ex parte Toner and Walsh [2007] NIQB 18
33. In the case of Toner and Walsh, two convicted prisoners sought, in light of Hirst, a declaration that the disqualification of convicted prisoners from voting did not apply to elections to the Northern Ireland Assembly. After careful consideration of the judgment of this Court in Hirst and the decision of the Registration Appeal Court in Scott v. Smith, Gillen J held:
“9(iv). I consider that the [Strasbourg] court has deliberately left the method of compliance in the hands of the Contracting States subject to the overriding veto of the court ... Accordingly I see nothing intrinsically objectionable about the various options being explored by the Government proposals contained in the consultation paper of 14/12/06 which makes up its response to the Hirst decision. The consequence of this is that not only is Mr Sweeney [Deputy Director, Rights and International Relations in the Political Directorate at the Northern Ireland Office] entitled to say ... that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained, but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote. I reject the argument of Mr Larkin [for the applicants] that because a blanket prohibition on prisoners is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled. In my view that conforms neither with principle nor logic and certainly does not find any authority in Hirst which expressly recognises that restraints on Article 3 Protocol 1 are justifiable provided they pursue a legitimate aim and are proportionate.”
3. Proceedings in England
a. Chester v. Secretary of State for Justice and another [2009] EWHC 2923 (Admin)
34. In judicial review proceedings brought in the High Court in Chester v. Secretary of State for Justice and another, the claimant, a prisoner, argued that his disqualification from voting in the then pending June 2009 European Parliament elections breached his rights under Article 3 of Protocol No. 1 and under European Union law. He was granted permission to bring his claim on 27 March 2009. At the hearing before Burton J, he argued that section 8 of the 2002 (see paragraph 23 above) Act should be “read down” in order to enable him to vote or, in the alternative, a declaration of incompatibility as regards section 3 of the 1983 Act and section 8 of the 2002 Act should be made. He accepted that no argument could be mounted that a “reading down” of section 3 of the 1983 Act would be feasible, within the parameters of the Human Rights Act. 35. The claim was dismissed by Burton J on 28 October 2009. As to the possibility of “reading down” section 8, Burton J held:
“29. ... I am being asked effectively to draft fresh legislation by bolting on to existing legislation additional words which not only dramatically change its nature, but are imminently to be considered by the Legislature. Two competing alternatives are presented to me for consideration. One of these affects the franchise by allowing all convicted prisoners to vote. The other amends the statute so as to allow one particular category of convicted prisoners, the post-tariff lifers, to vote, while still retaining a bar on all other prisoners, including those only serving very short terms of imprisonment, to whom it seems, on any basis, the Government is proposing that the franchise should be extended; and to make such differentiation simply because the claimant in this case happens to be one of the category in whose favour the statute would now be amended. 30. The first proposal is not acceptable, not least for the same reasons as were enunciated by Gillen J in paragraph 9(iv) of his judgment [in Toner and Walsh], which I have cited earlier. Enfranchisement of all prisoners, including those with a minimum term/tariff of life which may or may not be what the legislature after full consultation and discussion of all the issues may consider, but it would be a dramatic change, was not, as Gillen J points out, required by Hirst. As for the alternative, selection of one particular category of prisoner simply because one of that category happens to be the Claimant, to effect what would in fact be a substantial amendment of the legislation, but only as to one category of convicted prisoner, cannot be an appropriate exercise of this jurisdiction. It would lead to piecemeal and possibly continuous amendments, without consideration by Parliament, of legislation dealing with matters of important social policy, all depending upon which claimant happened to be before the Court at any one time.”
36. Burton J concluded that if and in so far as section 8 of the 2002 Act was incompatible with the Convention or with EU law, reading it down was not an available remedy. 37. As to whether it would be appropriate to make a declaration of incompatibility in respect of section 3 of the 1983 Act, Burton J concluded:
“34. ... I am content to say that there is no need for any declaration to be made by yet another court, as one has already been made which is binding on the UK Government. 35. However, towards the end of his submissions, Mr Southey [for the claimant] put forward another basis upon which to support his case for such a declaration. He submitted that, as the grant of a declaration is discretionary, there is no reason why it cannot be made again, if it is made on different grounds. He submits that I can and should make a declaration that s3 of the 1983 Act is incompatible with the ECHR, and do so by reference to the fact that it excludes (together with all other convicted prisoners) post-tariff lifers. Then there would be some point in making the declaration, given that the Government's proposed legislation seems, subject to what may have emerged from the second consultation, to be intended not to make any change in their position. Hence, it would be a declaration as to the incompatibility with regard to the present legislation, but to be made because it does not appear as if there is going to be any amelioration of his client's position by reference to the proposed legislation. This would effectively simply amount to the declaration of incompatibility being a peg upon which Mr Southey can hang his substantive submissions, to which I shall come in a moment. Subject however to that argument ... I reject his suggestion that I should make a declaration of incompatibility.”
38. In respect of the application for a declaration of incompatibility as regards section 8 of the 2002 Act, Burton J said:
“43. I am satisfied that, but for Mr Southey's 'proposed legislation argument', this course is wholly inappropriate as a matter of discretion:
(i) Simply as a matter of context and background, there is no presently intended European election, to which alone s8 would apply ... These proceedings were brought at the time when the June 2009 European elections were still in the future. There will now not be further such elections for 5 years. By that time, whatever the Claimant's personal position may be, new legislation, whatever it may be, will be well in place (and will have been capable of challenge, if appropriate). (ii) More significantly, it is plain that the challenge to s8 is purely parasitic to the real challenge, which is to s3. S8 merely provides that (with the exceptions discussed) the same people can vote in European elections as can vote in UK elections. When there is new legislation in place of s3, s8 will automatically follow. A declaration has already been made in relation to s3, upon which s8 wholly hangs, and legislation is to be put before Parliament with the intention of curing the contravention of the ECHR. 44. For the reasons I have given, namely that there is already a declaration of such incompatibility in relation to the governing section, s3, upon which s8 entirely depends, the same reasons drive me to conclude that there is no basis in the exercise of my discretion to grant a declaration of incompatibility in relation to s8, any more than there is to s3 ...”
39. On the need for a further declaration of incompatibility as a result of the apparently limited scope of the proposed legislation, Burton J considered that any declaratory or other relief which was intended to interfere with the process by which new legislation resulting from the consultation process was put before and debated by Parliament was inappropriate and was not to be granted. In any case, he concluded that the court was:
“... ill-equipped to decide this issue of social policy, and certainly ill-equipped to legislate and provide for the consequences of any view, plain and obvious or otherwise, as to which category of prisoners ought to be enfranchised as a result of the removal of the absolute ban.”
40. The claimant appealed and on 13 May 2010, was granted leave to appeal by the Court of Appeal. The appeal was heard on 3 November 2010 and the judgment is pending. D. The report of the Joint Committee on Human Rights
41. In its recent report, “Enhancing Parliament's role in relation to human rights judgments”, 15th Report of 2009-10, published in March 2010, a parliamentary committee, the Joint Committee on Human Rights, considered domestic developments in the execution of the Grand Chamber's judgment in Hirst and noted:
“108. ... our overriding disappointment is at the lack of progress in this case. We regret that the Government has not yet published the outcome of its second consultation, which closed almost 6 months ago, in September 2009. This appears to show a lack of commitment on the part of the Government to proposing a solution for Parliament to consider.
... 116. It is now almost 5 years since the judgment of the Grand Chamber in Hirst v UK. The Government consultation was finally completed in September 2009. Since then, despite the imminent general election, the Government has not brought forward proposals for consideration by Parliament. We reiterate our view, often repeated, that the delay in this case has been unacceptable.
...
117. ... Where a breach of the Convention is identified, individuals are entitled to an effective remedy by Article 13 ECHR. So long as the Government continues to delay removal of the blanket ban on prisoner voting, it risks not only political embarrassment at the Council of Europe, but also the potentially significant cost of repeat litigation and any associated compensation.”
E. Recent developments
42. On 2 November 2010 a short debate took place in the House of Commons following a question to the Government regarding their plans to give prisoners the right to vote. In the course of that debate, the Minister emphasised that the Government were under a legal obligation to change the law following the judgment in Hirst. He said that the Government were actively considering how to implement the judgment and that once decisions had been made, legislative proposals would be brought forward. 43. On 3 November 2010, in response to a question in the House of Commons, the Prime Minister also emphasised that the Government were required to come forward with proposals to implement the Court's judgment in Hirst. III. RELEVANT RESOLUTIONS AND DECISIONS OF THE COMMITTEE OF MINISTERS
44. On 3 December 2009, in the context of their supervision of the execution of the Court's judgment in Hirst, the Committee of Ministers adopted Interim Resolution CM/ResDH(2009)160, which stated as follows:
“The Committee of Ministers, ... Recalling that, in the present judgment, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
Recalling that the Court, while acknowledging that the rights bestowed by Article 3 of Protocol 1 are not absolute, expressly noted that in the present case the blanket restriction applied automatically to all prisoners, irrespective of the length of their sentence, the nature or gravity of their offence and their individual circumstances;
Recalling further that the Court found 'no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote';
Noting that the blanket restriction imposed by Section 3 of the Representation of the People Act 1983 remains in full force and effect;
Recalling that the United Kingdom authorities, in a revised Action Plan submitted in December 2006, committed to undertaking a two-stage consultation process to determine the measures necessary to implement the judgment of the Court, with a view to introducing the necessary draft legislation before Parliament in May 2008;
Noting that the United Kingdom authorities have provided detailed information as regards the consultation process, and that they are committed to continuing to do so;
Noting however that the second consultation stage ended on 29 September 2009, and the United Kingdom authorities are now undertaking a detailed analysis of the responses thereto, in order to determine how best to implement a system of prisoner enfranchisement based on the length of custodial sentence handed down to prisoners,
EXPRESSES SERIOUS CONCERN that the substantial delay in implementing the judgment has given rise to a significant risk that the next United Kingdom general election, which must take place by June 2010, will be performed in a way that fails to comply with the Convention;
URGES the respondent state, following the end of the second stage consultation period, to rapidly adopt the measures necessary to implement the judgment of the Court;
...”
45. On 4 March 2010 the Committee of Ministers adopted a decision in which they noted that notwithstanding the Grand Chamber's judgment in Hirst, a declaration of incompatibility with the Convention under the Human Rights Act by the highest civil appeal court in Scotland in the case of Smith v. Scott and the large number of persons affected, the automatic and indiscriminate restriction on prisoners' voting rights remained in force; reiterated their serious concern that a failure to implement the Court's judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court; and strongly urged the authorities rapidly to adopt measures, even if of an interim nature, to ensure the execution of the Court's judgment before the then pending general election. 46. On 3 June 2010 the Committee of Ministers adopted a further decision in which they expressed profound regret that despite the repeated calls of the Committee, the United Kingdom general election had been held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place; and expressed confidence that the new United Kingdom government would adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court. 47. On 15 September 2010 the Committee of Ministers adopted their most recent decision on the execution of Hirst, in the following terms:
“The Deputies,
1. recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
2. recalled that since its 1059th meeting (June 2009), the Committee has urged the United Kingdom to prevent future, repetitive applications by adopting general measures to implement the judgment;
3. deeply regretted that despite the Committee's calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1 340 applications;
4. noted, that according to the information provided by the United Kingdom authorities during the meeting, the new government is actively considering the best way of implementing the judgment;
5. regretted, however, that no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment;
6. called upon the United Kingdom, to prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect;
7. highlighted in this connection that, within the margin of appreciation of the state, the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote, such a restriction is proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned;
...”
IV. RELEVANT EUROPEAN UNION MATERIAL
A. The Treaty on the Functioning of the Union (“TFEU”)
48. Article 20(2)(b) TFEU provides:
“2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
... (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
...”
49. Article 22(2) TFEU provides:
“Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.”
50. Article 223 TFEU provides:
“1. The European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions ...”
51. To date, the Council has not adopted an instrument setting out a uniform election procedure. However, certain agreed principles are set out in the 1976 Act (see below). B. The Act of 20 September 1976 concerning the election of the Members of the European Parliament by direct universal suffrage, as last amended by Council Decision 2002/772/EC (“the 1976 Act”)
52. Article 1 of the 1976 Act provides:
“1. In each Member State, members of the European Parliament shall be elected on the basis of proportional representation, using the list system or the single transferable vote. 2. Member States may authorise voting based on a preferential list system in accordance with the procedure they adopt. 3. Elections shall be by direct universal suffrage and shall be free and secret.”
53. The 1976 Act also contains provisions on, inter alia, the allocation of seats, campaign expenses, the term and nature of members' mandates and the organisation of elections. 54. Article 8 clarifies that:
“Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions. These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.”
C. Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
55. Article 1 of Directive 93/109/EC stipulates that the directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate in elections to the European Parliament. 56. Article 3 provides:
“Any person who, on the reference date:
(a) is a citizen of the Union ...;
(b) is not a national of the Member State of residence, but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals,
shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence unless deprived of those rights pursuant to Articles 6 and 7.”
57. In so far as relevant, Article 9 provides:
“... 2. In order to have his name entered on the electoral roll, a Community voter shall produce the same documents as a voter who is a national. He shall also produce a formal declaration ... 3. The Member State of residence may also require a Community voter to:
(a) state in his declaration under paragraph 2 that he has not been deprived of the right to vote in his home Member State;
...”
58. Article 6 refers to the right to stand as a candidate. Article 7 allows the State of residence to verify whether a person seeking to exercise his right to vote under the Directive has been deprived of that right in the home State. If the information provided invalidates the content of the declaration made under Article 9, the State of residence is required to take the appropriate steps to prevent the person concerned from voting. D. The Marleasing principle
59. In a preliminary reference to the European Court of Justice (“ECJ”) in case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA, the ECJ was asked to consider the extent to which national courts were required to interpret national law in light of the wording and the purpose of an EC directive which had not been implemented by the Member State in question. The ECJ held that:
“... the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter ...”
THE LAW
I. ADMISSIBILITY ISSUES
A. The parties' submissions
1. The Government
60. The Government argued that the applicants had failed to exhaust domestic remedies in that following the rejection of their appeals by the Sheriff (see paragraph 15 above), they had not requested that the Sheriff state a case for the consideration of the Registration Appeals Court or, subsequently, applied for an order from the Court of Session that the Sheriff state a case. The Government pointed out that Mr Beggs had taken these steps and that his application was still pending before the Court of Session (see paragraph 16 above). 61. The Government further referred to the judicial review proceedings commenced by Mr Chester in the High Court (see paragraphs 34-40 above). They relied on Mr Chester's claim for sympathetic interpretation of section 8 of the 2002 Act, in respect of which permission to appeal had recently been granted, as evidencing a potential effective remedy which the applicants had not exhausted. They added that the right to vote in European Parliament elections did not depend on the exercise of free movement rights but was guaranteed to all nationals of EU Member States. Accordingly, the applicants could have relied upon their rights under EU law, notwithstanding the fact that they had not exercised any free movement rights. The Government emphasised that the Scottish courts had not been given the opportunity to examine arguments based on EU law. 62. The Government accepted that applicants were not required to pursue remedies which did not in reality offer any chance of redressing the alleged violation but emphasised that where there was doubt as to the prospects of success of a particular case it should be submitted to the domestic courts for resolution prior to an application being made to the Court. In particular, this Court had had occasion to consider Hirst in the recent cases of Calmanovici v. Romania, no. 42250/02, 1 July 2008 and Frodl v. Austria, no. 20201/04, 8 April 2010; in the Government's view each of those judgments might have had a significant impact upon the approach adopted by the Scottish courts. Accordingly, the Government concluded that the remedies available were potentially effective and therefore required to be exhausted by the applicants. 2. The applicants
63. The applicants disputed that any further remedy was open to them in respect of their complaint. In particular, they pointed out that Mr Beggs was an Irish citizen and that it appeared that his case was based upon the fact that in residing in the United Kingdom he was exercising his right of free movement under European Union law. He therefore sought to argue that he was entitled to rely directly upon his right to vote and stand as a candidate in European Parliament elections in his country of residence, as guaranteed by Article 20(2)(b) of the Treaty on the Functioning of the European Union (see paragraph 48 above). Mr Beggs' position was therefore to be distinguished from that of the applicants, who were both British nationals and were not exercising their free movement rights under EU law. Further, no right derived from EU law existed in respect of national elections. In any event, the judges of the Court of Session, sitting as the Registration Appeals Court in Smith v. Scott, had already stated unequivocally that the ERO had acted lawfully in refusing to enrol serving prisoners on the electoral register (see paragraph 29 above). The only possible relief which the applicants could have obtained had they sought to appeal the decision of the Sheriff in their cases was another declaration of incompatibility, which the applicants contended was not a remedy which they were required to exhaust before bringing their complaints to Strasbourg. 64. As to the Government's suggestion that a claim for a sympathetic interpretation of section 8 of the 2002 Act constituted a potential effective remedy which they had failed to exhaust, the applicants first emphasised that even if successful, such a claim would entitle them to vote only in the European elections and would have had no impact on their disenfranchisement in national elections or elections to the Scottish Parliament. Second, the applicants considered the Government's contention fanciful in light of the observations made by the judges of the Court of Session in Smith v. Scott (see paragraph 29 above). These observations made it clear that courts in Scotland would not even consider, let alone uphold, any further argument based on a sympathetic interpretation of unequivocal legislation banning prisoners from voting in any election. Any suggestion that the proceedings in Chester should be viewed as evidence that there remained an effective remedy which had not been exhausted was, the applicants contended, simply wrong given that the Scottish legal system remained distinct from the English legal system and that decisions of the English courts were not binding on the Court of Session. The Court of Session had made its own views on the matter clear and the fact that English courts might adopt more sympathetic views was irrelevant. 3. The Equality and Human Rights Commission
65. The Equality and Human Right Commission (“EHRC”) noted that a declaration of incompatibility had been made by the Registration Appeal Court in Smith v. Scott and were of the view that once one declaration had been made, the courts would generally decline to offer any further relief. They pointed to the judgment of the Court of Session in Traynor and another and the High Court judgment in Chester (see paragraphs 32 and 37 above). They concluded that there was no possibility for prisoners to bring further applications to court seeking the right to vote. B. The Court's assessment
66. The Court reiterates that where the Government claims non-exhaustion they must satisfy the Court that the remedy proposed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; and Kennedy v. the United Kingdom, no. 26839/05, § 109, ECHR 2010‑...). 67. In the present case, the Government have argued that the applicants could have continued with their challenges to the refusal of the ERO to register their names on the electoral register and could have brought a claim under section 3 of the Human Rights Act seeking the 'reading down' of section 8 of the 2002 Act. 68. As to the former of these two proposed remedies, the Court refers to the judgment of the Registration Appeal Court in Smith v. Scott, in which it declined, in firm terms, to “read-down” section 3(1) of the 1983 Act in favour of the appellant in that case. No further appeal from the Registration Appeal Court, which is composed of three judges of the Court of Session, is possible. Even if a declaration of incompatibility were to be considered an effective remedy, and the Court recalls in this regard that it has recently reiterated that the practice of giving effect to the national courts' declarations of incompatibility by amending offending legislation is not yet sufficiently certain for this to be so (see Kennedy, cited above, § 109), the Court emphasises that the Registration Appeal Court in Smith v. Scott had already made such a declaration. There was no advantage in obtaining a second one, a point made by the Court of Session in Traynor and another and by the High Court in Chester (see paragraphs 32 and 37 above). In the circumstances, there was nothing to be achieved by the applicants in pursuing their legal challenges to the decision of the ERO in the hope of obtaining a further declaration of incompatibility. 69. As to the possibility of seeking the “reading down” of section 8 of the 2002 Act by reference to section 3 of the Human Rights Act and obligations arising under EU law, the Court emphasises at the outset that such an application was of interest only in respect of the applicants' complaint that they were prevented from voting in the European Parliament elections of June 2009. Even if successful, it would have had no bearing on the ban in place as regards national elections. 70. On the substance of the proposed remedy, the Court notes that section 8 of the 2002 Act, so far as it applies to the applicants, establishes a right to vote in elections to the European Parliament “if on the day of the poll [a person] would be entitled to vote as an elector at a parliamentary election”. Section 4 of the 1983 Act provides that a person is entitled to be registered in the register of parliamentary electors if, inter alia, he is not subject to any legal incapacity to vote. Section 3(1) of the same Act stipulates that a convicted person is legally incapable of voting during the time that he is detained in a penal institution in pursuance of his sentence. It is clear that, as Burton J said in Chester, a challenge to section 8 of the 2002 Act is “purely parasitic” to the real challenge which is to section 3 of the 1983 Act (see paragraph 38 above). Given the findings of the Registration Appeal Court in Smith v. Scott as regards the possibility of reading down section 3 of the 1983 Act (see paragraph 29 above) and the approach of the Outer House to an argument based on the Scotland Act 1998 in Traynor and another (see paragraph 31 above), the Court is of the view that the possibility of seeking to circumvent the ban on prisoners voting in European elections by lodging a “parasitic” challenge to section 8 of the 2002 Act did not offer to the applicants reasonable prospects of success. In reaching this conclusion, the Court further refers to, although does not depend on, the opinion of Burton J in the High Court (see paragraphs 35-36 above) and the findings of Gillen J in the High Court of Northern Ireland as to the scope for domestic courts to extend the right to vote to prisoners pending amending legislation (see paragraph 33 above). 71. The Court notes that the claimant in Chester has now been granted permission to appeal the judgment of Burton J and that the appeal has been heard (see paragraph 40 above). The order granting leave has not been provided to the Court and the grounds for granting leave are therefore not clear. In any event, the granting of leave in Chester occurred well after the elections to the European Parliament of June 2009 and almost two years after the applicants had lodged their applications with this Court. To the extent that the grant of leave can now be considered to indicate the availability of a potential remedy, it was not foreseeable prior to the 2009 elections that such an argument could offer reasonable prospects of success and was therefore not a remedy that the applicants in the present case were required to exhaust. 72. The Court therefore concludes that the applicants have satisfied the requirements of Article 35 § 1. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION
73. The applicants complained that as convicted prisoners in detention they had been subject to a blanket ban on voting in elections and had accordingly been prevented from voting in elections to the European Parliament in June 2009 and in the general election of May 2010 and would potentially be banned from voting in the elections to the Scottish Parliament of May 2011, in violation of their rights guaranteed by Article 3 of Protocol No. 1 to the Convention, which reads as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
74. The Government accepted that, if the applications were declared admissible, then there had been a violation of Article 3 of Protocol No. 1 in the applicants' cases as a result of their ineligibility to vote in the European and general elections. 75. The EHRC criticised the Government's delay in implementing this Court's judgment in Hirst, pointing to the concerns expressed by the Joint Committee on Human Rights regarding the delay (see paragraph 41 above). According to statistics provided by the EHRC, there were approximately 70,000 serving prisoners in the United Kingdom in February 2009. They estimated that more than 100,000 prisoners were likely to have been affected by the ban at one time or another since the Court's judgment in Hirst.
76.

Article of the Convention at issue: Article 13
Outcome: no_violation