THIRD SECTION
CASE OF KALDA v. ESTONIA (No. 2)
(Application no. 14581/20)
 
 
JUDGMENT
 
Art 3 P1 • Thorough assessment by domestic courts of the proportionality of statutory blanket voting ban as applied specifically to applicant, life prisoner convicted of several serious offences • Margin of appreciation not overstepped
 
STRASBOURG
6 December 2022
 
FINAL
 
22/05/2023
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kalda v. Estonia (no. 2),
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Georgios A. Serghides,
 Yonko Grozev,
 Jolien Schukking,
 Darian Pavli,
 Peeter Roosma,
 Andreas Zünd, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 14581/20) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Romeo Kalda (“the applicant”), on 12 March 2020;
the decision to give notice to the Estonian Government (“the Government”) of the complaint concerning prisoners’ voting rights under Article 3 of Protocol No. 1 to the Convention;
the parties’ observations;
Having deliberated in private on 8 November 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the statutory ban on persons who have been convicted of a crime and who are serving their prison sentence from voting in the European Parliament elections. The applicant is serving a life sentence and wanted to vote in the 2019 European Parliament Elections. THE FACTS
2. The applicant was born in 1974 and is detained in Viru Prison. He was granted legal aid and was represented by Mr J. Valdma, a lawyer practising in Tallinn. 3. The Government were initially represented by their Agent, Ms M. Kuurberg, Representative of Estonia to the European Court of Human Rights, and subsequently by Mr T. Kolk, her successor in that office. 4. The facts of the case may be summarised as follows. 5. The applicant has been convicted in different sets of criminal proceedings for numerous criminal offences, including twice for murder (one of them being the murder of a police officer), twice for illegal possession, use, storage or transfer of a firearm or ammunition, twice for escaping from custody or from the place of serving a sentence, and twice for robbery. He was sentenced to life imprisonment and has been serving his sentence since 1996. He has since also been convicted of inciting the murder of another prisoner in a tortuous or cruel manner. 6. According to the 2019 internal prison risk assessment report, the applicant was generally considered highly dangerous. Referring, inter alia, to the applicant’s character, the circumstances of the offences he had committed, his earlier life and the risk assessment report, the domestic courts – while noting a certain improvement in his behaviour – nonetheless dismissed his request for parole in 2020. 7. On 4 April 2019 the applicant applied to the Märjamaa Rural Municipal Government requesting to be allowed to vote in the European Parliament Elections taking place on 26 May 2019. 8. On 8 April 2019 the Märjamaa Rural Municipal Government dismissed his request. He appealed, requesting, inter alia, to be allowed to vote as an interim measure. 9. On 9 May 2019 the Tallinn Administrative Court rejected his appeal and refused to examine his request for the application of an interim measure. He lodged a further appeal. 10. On 31 May 2019 the Tallinn Court of Appeal dismissed his appeal, finding that it had no prospects of success. The court referred to the Supreme Court’s judgments in cases nos. 3-4-1-2-15 and 3-3-1-49-15 (see paragraphs 16-23 below). In these cases, the Supreme Court had addressed the applicant’s previous applications to vote in the national parliament (Riigikogu) elections and European Parliament elections. It had found that although domestic law imposed a blanket ban on prisoners’ voting rights, such a prohibition had been proportionate in the applicant’s specific case, given his criminal record and sentence. In the case at hand, the Tallinn Court of Appeal saw no reason to depart from these earlier judgments of the Supreme Court. 11. On 10 September 2019 the Supreme Court refused to examine the applicant’s subsequent appeal on points of law. The decision was served on him on 13 September 2019. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Relevant legal frameworkThe Constitution

12. Article 57 § 1 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) provides that Estonian citizens who have reached the age of eighteen have the right to vote. 13. Article 58 provides that participation in voting may be restricted by law for Estonian citizens who have been convicted by a court and are serving a sentence in a penal institution. European Parliament Election Act
14. Section 4(3)(2) of the European Parliament Election Act (Euroopa Parlamendi valimise seadus) provides that a person who has been convicted of a criminal offence by a court and is serving a prison sentence does not have the right to vote. 15. Section 20(3)(1) provides that a person who, according to information in the criminal records database, has been convicted of a criminal offence by a court and whose prison sentence will last until election day (as assessed on the thirtieth day before the elections) will not be entered in the list of voters. Relevant domestic practice
16. The Supreme Court’s judgment of 1 July 2015 in constitutional review case no. 3-4-1-2-15 concerned the applicant’s right to vote in the 2015 parliamentary (Riigikogu) elections. The Riigikogu Election Act (Riigikogu valimise seadus), similarly to the European Parliament Election Act, imposes a statutory ban on voting for persons who have been convicted of a crime and who are serving a prison sentence. In that case, the Tallinn Court of Appeal had previously considered the ban to be unconstitutional and had initiated constitutional review proceedings in the Supreme Court. As the Tallinn Court of Appeal had declared its decision immediately enforceable, the applicant was able to cast his vote in the parliamentary elections. 17. In its judgment, the Supreme Court en banc explained that the prisoners’ voting ban served the purpose of temporarily preventing persons who had seriously undermined the fundamental values of society (including those protected by the Penal Code) from exercising State power through participating in the elections of the legislature. In addition, this restriction protected the rights of those who had not demonstrated such disrespect towards the values underlying collective life, and promoted the rule of law. The Supreme Court considered these aims to be lawful but emphasised that the right to vote, which was of utmost importance in a democratic society, could not be restricted lightly. In any event, the court stressed that mere technical difficulties could not be sufficient to justify voting restrictions in prison. 18. The Supreme Court en banc further noted, referring to the Court’s case-law, that it interpreted Article 57 of the Constitution in a manner similar to how the Court interpreted Article 3 of Protocol No. 1 to the Convention. It agreed that the ban according to which no one who was serving a prison sentence could vote at the parliamentary elections was in principle unconstitutional. 19. However, the Supreme Court en banc explained that it could only assess the constitutionality of a certain legal norm within the framework of a specific procedure and in accordance with the request made to it. In the proceedings under consideration (konkreetne normikontroll), it was therefore tasked to assess whether the legislature had used its discretion to restrict voting rights in a proportionate manner in the specific circumstances of the applicant’s case. It explained that an absolute voting ban which applied to a certain defined group of individuals and did not allow any balancing of interests to take place could nonetheless prove to be proportionate with respect to certain persons belonging to that group. 20. The Supreme Court then listed all the offences of which the applicant had been convicted (more than ten, including, but not limited to those mentioned in paragraph 5 above). Noting that the Constitution expressis verbis permitted restricting the voting rights of at least some prisoners and taking into account the number, nature and gravity of the offences committed by the applicant, as well as the fact that he had been sentenced to life imprisonment and had continued committing offences while in prison, the Supreme Court en banc concluded that the voting ban was proportionate in his case. Accordingly, it dismissed the Tallinn Court of Appeal’s request to declare the ban unconstitutional in this particular case. 21. It added that the Chancellor of Justice could initiate constitutional review proceedings that would enable it to assess the constitutionality of the provisions in question in an abstract manner (abstraktne normikontroll). Parliament also had the power to amend the unconstitutional provisions of its own motion. 22. The Supreme Court’s judgment of 9 November 2015 in case no. 3-3-1-49-15 concerned the applicant’s right to vote in the 2014 European Parliament elections. In that case, the Tallinn Court of Appeal had previously considered the ban to be in violation of European Union law and had refused to apply it. By the time of the Tallinn Court of Appeal’s judgment on 30 January 2015 the elections had already taken place. The applicant appealed against the judgment to the extent that the Tallinn Court of Appeal had not found the ban to be unconstitutional. 23. The Supreme Court reiterated that in the proceedings at hand the proportionality of the prisoners’ voting ban had to be assessed from the perspective of the specific applicant. It considered that banning the applicant from exercising his voting rights at the European Parliament elections did not restrict the right under Article 3 of Protocol No. 1 to the Convention to the extent that it undermined free elections in a manner that thwarted the free expression of the people in the choice of the legislature. Referring, inter alia, to its finding in case no. 3-4-1-2-15, the Supreme Court concluded that the voting restriction had been proportionate in the applicant’s specific circumstances. Although the ban in question clearly violated the rights of many prisoners, the applicant could not rely on the violation of the rights of others in demanding to be granted the right to vote. The Supreme Court therefore refused to declare the prisoners’ voting ban unconstitutional in this particular case. European Union law and practice
24. Article 14(3) of the Treaty on European Union (OJ 2016/C 202/01) provides that the members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot. 25. Article 39(2) of the Charter of Fundamental Rights of the European Union (OJ 2016/C 202/2) also provides that members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. 26. The Court of Justice of the European Union examined, in the case of Delvigne (C-650/13, EU:C:2015:648, judgment of 6 October 2015), the compatibility with Article 39 (2) of the Charter of Fundamental Rights of the European Union of the exclusion, by operation of French law, from those entitled to vote in elections to the European Parliament persons convicted of a serious crime. In Delvigne, the Court of Justice held that the French limitation of prisoners’ voting rights did not call into question the essence of those rights since it had the effect of excluding certain persons, under specific conditions and on account of their conduct, from those entitled to vote in elections to the Parliament, as long as those conditions are fulfilled. In addition, it considered the French limitation was proportionate in so far as it took into account the nature and the gravity of the criminal offence committed and the duration of the penalty (ibid., paragraphs 48-49). THE LAW
ALLEGED VIOLATION OF ARTICLE 3 of Protocol No. 1 TO THE CONVENTION
27. The applicant complained that the prisoners’ voting ban had violated his right to free elections as 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.”
AdmissibilityThe parties’ arguments

28. The Government submitted that at the domestic level the applicant had already contested the statutory ban on prisoners’ voting rights in 2014 in relation to the European Parliament elections and in 2015 in relation to the parliamentary elections. Given that there had been no change in his status and circumstances since then, his application should be considered to have been lodged outside the six-month time-limit. The same complaint could have already been lodged after the Supreme Court’s judgments in 2015 (see paragraphs 16-23 above). Alternatively, in the event that the applicant’s previous applications on the same subject matter were declared inadmissible by the Court in the single-judge formation, his present application should also be considered inadmissible as it was substantially the same as the matter that had already been examined by the Court. In any event, the Government considered the complaint to be manifestly ill-founded for the reasons referred to under the merits (see paragraphs 34-35 below). 29. The applicant contested the Government’s argument, asserting that the voting ban constituted a continuous, ongoing violation. As he had been able to vote in the 2015 parliamentary elections (see paragraph 16 above), there had been no reason for him to lodge a complaint with the Court back then. In any event, the subject matter of the complaint had changed as in the present case he had relied on different arguments before the domestic courts in comparison to the earlier cases. In addition, he had been in contact with the European Commission regarding the voting ban.

Outcome for Article P1-3: no_violation