ITEMID: 001-101988
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF OKLEŠEN AND POKOPALIŠKO POGREBNE STORITVE LEOPOLD OKLEŠEN S.P. v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of P1-1
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The first applicant, Mr Leopold Oklešen, is a Slovenian national who was born in 1947 and lives in Novo Mesto. The second applicant is a private enterprise called Leopold Oklešen Cemetery and Funeral Services s.p. (Pokopališko pogrebne storitve Leopold Oklešen s.p.) located in Novo Mesto.
6. The second applicant, which was owned, legally represented and run by the first applicant, had held a valid licence issued by Chamber of Crafts (obrtno dovoljenje) for the provision of funerals, landscaping and maintenance of exterior surfaces (zunanja ureditev) since 6 March 1995. The licence confirmed that the second applicant was in compliance with section 9 of the Crafts Act (see paragraph 22 below). The second applicant used to provide all funeral services in Novo Mesto municipality, including preparing and transporting remains, obtaining the necessary documents, arranging cremations, selling funeral items (coffins, funeral wreaths, flowers and so on) and organising ceremonies. It appears that funerals represented an important, if not the main, part of the activities of the second applicant.
7. In September 2000 a Decree on the provision of public utility as regards cemetery and funeral activities, management of cemeteries and funeral ceremonies in Novo Mesto Municipality (“the 2000 Decree”, see paragraphs 24-25 below) came into force. Subsequently, the Novo Mesto Municipal Enterprise (Komunala Novo Mesto, “KNM”) was entrusted with the provision of such services in the municipality's area.
8. According to KNM's website (http://www.komunala-nm.si/, consulted on 3 September 2007), KNM provided services concerning, inter alia, digging and organising graves, obtaining documents concerning the deceased, preparation and storage of remains, funeral home leasing, organisation and performance of funeral ceremonies and services and transportation of remains.
9. By a letter of 1 March 2002, KNM warned the second applicant to comply with the 2000 Decree. This implied, according to KNM, that “all activities relating to those deceased (...) who are to be buried in cemeteries managed by KNM should be carried out solely by KNM!”
10. On 19 April 2002, further to the second applicant's request, Novo Mesto Municipality explained that the second applicant was not eligible to provide funeral services because of the restrictions set out in the 2000 Decree, the 1993 Public Utilities Act and the Cemetery and Funeral Services and Cemetery Management Act (“the 1984 Cemetery and Funeral Act”). The Municipality further stated that the Constitutional Court decision no. U-I-48/97 had confirmed that funerals should be a mandatory public utility (see paragraphs 26-27 below).
11. On 25 November 2002 the second applicant submitted a request to the Constitutional Court for a review of the constitutionality and legality (pobuda za oceno ustavnosti in zakonitosti) of the 2000 Decree, in particular sections 1 and 16. While section 1 provided, inter alia, that funerals should be provided by a public utility, section 16 established that a provider of a public utility, namely a public-law enterprise, should be contacted in the event of a death and should be responsible for transport of the remains.
12. In its request, the second applicant argued that funeral provision should be in the free market, and requested the Constitutional Court to issue an injunction against the 2000 Decree. The second applicant further stated that, following the adoption of the 2000 Decree, KNM had obtained a monopoly in this field and did not allow it to transport remains to cemeteries. It submitted that the 2000 Decree had been introduced with the intention of closing down its successful business.
13. On 1 April 2004 the Constitutional Court rejected the second applicant's request, referring to its earlier decision no. U-I-48/97 (see paragraphs 26-27 below) finding that section 2 of the 1984 Cemetery and Funeral Act was in conformity with the Constitution. The above-mentioned provision read together with section 68 of the 1993 Public Utilities Act determined that the funeral services belonged to the mandatory public utilities. These rules were binding on the Novo Mesto Municipality, which was required to implement them.
14. According to the applicants, as a result of the above situation the second applicant has been unable to provide the core funeral services since the implementation of the 2000 Decree and has lost a large proportion of the clientele due to the 2000 Decree's restrictions.
15. The second applicant continued to operate until 2006. For illustration of the effects of the 2000 Decree's restrictions on the applicants' earnings, it would appear from the first's applicant's tax forms concerning the second applicant's activity, that his taxable income was calculated as follows: in 1998, it was approximately 15,000 euros (EUR), in 1999 it was EUR 26,000, in 2000 it was EUR 39,000 and in 2001 it was 27,000. After the implementation of the 2000 Decree, his taxable income was approximately EUR 17,000 in 2003, EUR 28,000 in 2005 and EUR 18,000 in 2006.
16. On 7 August 2006 the second applicant was removed from the Slovenian register of enterprises. The first applicant retired in November 2006.
17. The relevant provisions of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije, Official Gazette no. 33/91), provide as follows:
“The right to private property and inheritance shall be guaranteed.”
“Free economic initiative shall be guaranteed. The conditions for establishing commercial organisations shall be established by law. Commercial activities may not be pursued in a manner contrary to the public interest. Unfair competition practices and practices which restrict competition in a manner contrary to the law are prohibited.”
18. The relevant provisions of the Constitutional Court Act (Zakon o ustavnem sodišču, Official Gazette no. 15/94), which concern the review of constitutionality and legality, were at the relevant time as follows:
“(1) Anyone who demonstrates a legal interest may submit a request for a procedure to be initiated for a review of the constitutionality or legality of regulations or general acts issued for the exercise of public authority.
(2) A legal interest is deemed to be demonstrated if a regulation or general act issued for the exercise of public authority whose review has been requested by the petitioner directly interferes with his rights, legal interests, or legal position.”
“(1) The Constitutional Court rejects a request if the procedural conditions ... have not been fulfilled.
...”
“...
(2) The Constitutional Court dismisses a request if it is manifestly unfounded or if it cannot be expected that an important legal question will be resolved.
(3) The Constitutional Court decides by an order to accept or dismiss a request by a majority vote of judges present. The order to dismiss a request must include a statement of reasons.
(4) If the Constitutional Court accepts a request, it may immediately proceed to decide on the merits of the case if the factual situation has been clarified and if during consideration of the request the opposing party has been given the opportunity to make statements.”
“In deciding on the constitutionality and legality of a regulation or general act issued for the exercise of public authority, the Constitutional Court is not bound by the production of a request. The Constitutional Court may also review the constitutionality and legality of other provisions of the same or another regulation or general act issued for the exercise of public authority for which a review of constitutionality or legality has not been proposed, if such provisions are mutually related or if this is necessary to resolve the case.”
“...
(2) The Constitutional Court quashes regulations or general acts issued for the exercise of public authority that are unconstitutional or unlawful when it determines that it is necessary to remedy harmful consequences arising from such unconstitutionality or unlawfulness. Quashing has retroactive effect.
...”
“(1) Any person who suffers harmful consequences due to a regulation or general act issued for the exercise of public authority which has been quashed is entitled to request that such consequences be remedied.
...”
19. Section 2 of the 1984 Cemetery and Funeral Act, which was adopted in 1984 and continued to be in force after the independence of Slovenia (Zakon o pokopališki in pogrebni dejavnosti ter o urejanju pokopališč, Official Gazette of the Socialist Republic of Slovenia no. 34/84), provides that cemetery and funeral services, as well as the running of cemeteries, correspond to “municipal activities of special social importance” (komunalna dejavnost posebnega družbenega pomena). According to section 6, transport of the deceased was to be provided by a specially designed vehicle of a local public organisation (komunalne organizacije) or the local community (krajevne skupnosti).
20. The 1993 Public Utilities Act (Zakon o gospodarskih javnih službah, Official Gazette no. 32/93, entered into force on 2 July 1993) provides in section 3 that mandatory public utilities should be established by law. Local decrees should regulate the way the local public utilities operate. Section 6 provides that public utilities may be ensured through the form of a public-law enterprise (javno podjetje), or through concessions (koncesija) granted to private enterprises.
21. Finally, section 68 provides that until the introduction of legislation establishing specific public utilities, “activities of special social importance” should be deemed to be public utilities.
22. Section 9 of the Crafts Act (Obrtni zakon, Official Gazette no. 50/1994) provides the following conditions under which a licence may be issued by the Chamber of Crafts:
“(1) The conditions for obtaining a licence to provide a crafts service are as follows:
– title of master craftsman,
– proof of fulfilment of the minimum requirements prescribed for providing a certain service.
(2) The conditions for obtaining a craft licence to provide a service which is similar to a crafts service are ...
(3) The minimum requirements prescribed for providing a certain service from the preceding paragraphs are as follows:
– minimum technical and other conditions relating to the space where the service is provided, land and other exterior surface, facilities and equipment,
– minimum sanitary and health conditions relating to the space where the service is provided, land and other exterior surface, facilities, equipment and the people who work in the workplace
– minimum conditions relating to the exterior surface (land and other exterior surface).”
23. On 27 October 1994 the Novo Mesto Municipal Council adopted a Decree on the provision of public utilities (“the 1994 Decree”, Official Gazette 71/94), which listed funeral services as optional public utility. This Decree was amended on 11 May 1998 (“the 1998 Amendment”, Official Gazette 40/98). The latter listed funeral and cemetery services among the mandatory public utilities and stipulated that with respect to the cemeteries provided under special decree these services should be provided by a public-law enterprise. On 26 April 2001 the Municipal Council adopted a new Decree on the provision of public utilities (“the 2001 Decree”, Official Gazette 40/01), which quashed the previous decree and its amendment. It also listed cemetery and funeral services as mandatory public utilities and stated that a special municipal decree should determine the exact structure by means of which each of the listed public utilities should be provided. On 31 January 2002 the 2001 Decree was amended (“the 2002 Amendment”, Official Gazette 11/02), to include a provision stating that “public utilities .... funeral and cemetery services, which should be carried out by a public-law enterprise according to specific decrees, shall be provided by KNM”. The 2002 Amendment also stated that “provided that a particular public service is not entirely provided by KNM, a part of that service can be carried out by another entity on the basis of a contract signed with KNM...”
24. According to the 2000 Decree (Official Gazette no. 74/00, entered into force in September 2000), cemetery and funeral services, management of cemeteries and funeral ceremonies in Novo Mesto Municipality should be provided by a mandatory public utility in the form of a public-law enterprise (sections 1 and 2). The Decree lists 32 cemeteries situated within the Novo Mesto municipal area; it applies to all of them.
Section 6 of the Decree provides:
“Funerals are normally conducted outside cemeteries and include in particular the following:
- obtaining the required documents;
- preparation of the body and transport of the remains;
- renting graves and managing the registry of cemeteries;
- providing an emergency funeral service;
- providing other services established by the law or this decree.”
25. Section 16 of the 2000 Decree provides that the relatives and the relevant institutions should report the death of a person to the provider of a mandatory public utility. The remains can be taken from a hospital or a retirement home only by the provider of a mandatory public utility. The latter should take the remains from the person or institution concerned and take them to a place specifically designated for this purpose...”
26. On 6 July 2000 the Constitutional Court issued a decision in a case brought by a private funeral provider, P., from Ravne na Koroškem municipality. The court found that section 2 of the 1984 Cemetery and Funeral Act was not in conflict with Article 74 of the Constitution, and neither was the impugned municipality decree, which established funeral services as a local public utility. The Constitutional Court noted that, since no new act had been adopted in this area, funeral and cemetery services were deemed to be public utility on the basis of section 68 of the 1993 Public Utilities Act read together with section 2 of the 1984 Cemetery and Funeral Act.
27. The Constitutional Court found that the restrictions resulting from the system whereby cemetery and funeral services must be provided as a public utility were justified by the public interest. In addition, the court accepted the municipality's argument that for ethical, health and sanitary and hygiene reasons funerals could not be provided in the free market. Finally, the Constitutional Court took into consideration the fact that the impugned regulation was of a transitional nature pending the adoption of a specific law, and found that the duration of this situation had not yet contravened the principle of the rule of law.
28. On 3 October 2002 the Office for Protection of Competition (Urad za varstvo konkurence – “the Competition Office”) issued a decision declaring lack of jurisdiction to deal with the complaint lodged by the private funeral services provider P. The latter argued that the municipal enterprise authorised to provide funeral services on the basis of the municipal decree refused to accept at the cemetery remains transported by it.
29. The Competition Office declared lack of jurisdiction to deal with the complaint, since the impugned decree concerned the State's control of the market. Despite this, the Competition Office expressed criticism concerning the regulation of funerals in Slovenia. It was, in particular, critical of the fact that, due to a legal vacuum, the 1984 Cemetery and Funeral Act, adopted under the previous regime, was still in force. This Act did not distinguish between funerals and cemetery services. Consequently, funerals and cemetery services were automatically considered public utilities on the basis of section 68 of the 1993 Public Utilities Act. The Competition Office further noted that funerals, which could not have been provided freely and privately under the previous regime, had in fact been carried out by registered private enterprises since the independence of Slovenia and the transition of the economic system. These private enterprises had provided all services except those concerning cemeteries.
30. The Competition Office then listed the funeral products and services which should continue to be provided by private funeral enterprises. They included, inter alia, the sale of funeral articles (coffins, upholstery, cremation urns and memorials), funeral flower arrangements, transport of remains (except for emergency services which should be provided through concession), preparing obituary notices, obtaining the necessary permits and documents, organising ceremonies and graveside services, and the sale and installation of tombstones and memorials.
31. The Competition Office was of the opinion that the listed services should undoubtedly be subject to a free market regime and that the restrictions in question could not be justified on ethical, health or sanitary or hygiene grounds.
32. P. lodged a new complaint in 2003, claiming that the municipal enterprise had acted in a discriminatory manner when it refused to bury the remains transported by him while allowing the remains to be transported by some other private entrepreneurs. Further to the remittal of the case by the Supreme Court, the Competition Office issued a final decision on 13 July 2007. It found that while it was true that P. had suffered damage due to the municipal enterprise's acts, the municipal enterprise had a lawful monopoly on the territory of the respective municipality, which included the transport of remains. It has therefore protected its position by preventing P. from carrying out business which he could not have done lawfully. The other entrepreneurs who were allowed to bring remains to the cemetery were from other municipalities. As obiter dictum, the Competition Office again questioned the appropriateness and constitutionality of the system, which should operate only as a transitional measure.
33. According to the information available to the Court from a number of member States, in most of them funeral services are subject to the free market and provided by private firms. In some countries public bodies may choose to provide funeral services, however if they do they must compete with private enterprises. For example, in Austria, Belgium, Bulgaria and France, funeral services may also be provided by public bodies. If so, they are subject to market regulations and must compete on the free market with private enterprises. On the other hand, in Croatia, as in Slovenia, funeral services are listed as public utilities and are mostly provided by public bodies.
34. As far as can be seen, funeral services providers are regulated by law in some countries, as is the case in Belgium, France, Italy or Slovakia, and unregulated or self-regulated in others, like Germany, Latvia, Ireland and the United Kingdom.
35. In Austria, Croatia, France, Hungary, Italy, Lithuania and Slovakia, for example, private funeral service providers may only operate with a licence or concession from a public body. Permits or licences are granted by local authorities and subject to a number of requirements, such as professional qualifications and competence, fulfilment of technical, security and health protection standards, and analysis of the company's financial situation.
36. Unlike funerals, it would appear that cemetery and crematorium services are generally provided by public bodies, mostly the municipalities, since they are considered essential public services which are intrinsically linked to public health issues. When crematoria were nationalised in Belgium, a transitional period was provided and a certain form of compensation was paid to the private enterprises which had formerly run the country's crematoria.


ITEMID: 001-70442
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2005
DOCNAME: CASE OF HIRST v. THE UNITED KINGDOM (No. 2)
IMPORTANCE: 1
CONCLUSION: Violation of P1-3;No separate issue under Art. 14;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza;Simon Brown
TEXT: 11. The applicant was born in 1950.
12. On 11 February 1980 the applicant pleaded guilty to manslaughter on the ground of diminished responsibility. His guilty plea was accepted on the basis of medical evidence that he was a man with a severe personality disorder to such a degree that he was amoral. He was sentenced to a term of discretionary life imprisonment.
13. The applicant’s tariff (that part of the sentence relating to retribution and deterrence) expired on 25 June 1994. His continued detention was based on considerations of risk and dangerousness, the Parole Board considering that he continued to present a risk of serious harm to the public.
14. The applicant, who is barred by section 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections, issued proceedings in the High Court under section 4 of the Human Rights Act 1998, seeking a declaration that this provision was incompatible with the European Convention on Human Rights.
15. The applicant’s application was heard by the Divisional Court on 21 and 22 March 2001, together with an application for judicial review by two other prisoners, Mr Pearson and Mr Feal-Martinez, who had applied for registration as electors and been refused by the Registration Officer and who also sought a declaration of incompatibility.
16. In the Divisional Court judgment dated 4 April 2001, Lord Justice Kennedy noted that section 3 had a long history and cited the Secretary of State’s reasons, given in the proceedings, for maintaining the current policy:
“By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period. There is more than one element to punishment than forcible detention. Removal from society means removal from the privileges of society, amongst which is the right to vote for one’s representative.”
Examining the state of practice in other jurisdictions, he observed that in Europe only eight countries, including the United Kingdom, did not give convicted prisoners a vote, while twenty did not disenfranchise prisoners and eight imposed a more restricted disenfranchisement. Reference was made to the United States Supreme Court which had rejected a challenge to the Californian Constitution’s disenfranchisement of convicted prisoners (see Richardson v. Ramirez [1974] 418 United States: Supreme Court Reports 24). Some considerable attention was given to Canadian precedents, which were relied on by both parties, in particular that of the Canadian Supreme Court which, in Sauvé v. Canada (no. 1) ([1992] 2 Supreme Court Reports 438), struck down the disenfranchisement of all prisoners as too widely drawn and infringing the minimum impairment rule, and that of the Federal Court of Appeal which, in Sauvé (no. 2) ([2000] 2 Federal Court Reports 117), upheld the subsequent legislative provision restricting the ban to prisoners serving a sentence of two years or more in a correctional institution. While it was noted that the Canadian courts were applying a differently phrased provision in their Charter of Rights and Freedoms, the Divisional Court commented that the judgment of Linden JA in the second case in the Federal Court of Appeal contained helpful observations, in particular as regards the danger of the courts usurping the role of Parliament. The cases before the European Commission of Human Rights and this Court were also reviewed, the Divisional Court noting that the Commission had been consistent in its approach in accepting restrictions on persons convicted and detained.
Lord Justice Kennedy concluded:
“... I return to what was said by the European Court in paragraph 52 of its judgment in Mathieu-Mohin. Of course as far as an individual prisoner is concerned disenfranchisement does impair the very essence of his right to vote, but that is too simplistic an approach, because what Article 3 of the First Protocol is really concerned with is the wider question of universal franchise, and ‘the free expression of the opinion of the people in the choice of the legislature’. If an individual is to be disenfranchised that must be in the pursuit of a legitimate aim. In the case of a convicted prisoner serving his sentence the aim may not be easy to articulate. Clearly there is an element of punishment, and also an element of electoral law. As the Home Secretary said, Parliament has taken the view that for the period during which they are in custody convicted prisoners have forfeited their right to have a say in the way the country is governed. The Working Group said that such prisoners had lost the moral authority to vote. Perhaps the best course is that suggested by Linden JA, namely to leave to philosophers the true nature of this disenfranchisement whilst recognising that the legislation does different things.
The European Court also requires that the means employed to restrict the implied Convention rights to vote are not disproportionate, and that is the point at which, as it seems to me, it is appropriate for this Court to defer to the legislature. It is easy to be critical of a law which operates against a wide spectrum (e.g. in relation to its effect on post-tariff discretionary life prisoners, and those detained under some provision of the Mental Health Act 1983), but, as is clear from the authorities, those States which disenfranchise following conviction do not all limit the period of disenfranchisement to the period in custody. Parliament in this country could have provided differently in order to meet the objectives which it discerned, and like McLachlin J in Canada, I would accept that the tailoring process seldom admits of perfection, so the courts must afford some leeway to the legislator. As [counsel for the Secretary of State] submits, there is a broad spectrum of approaches among democratic societies, and the United Kingdom falls into the middle of the spectrum. In course of time this position may move, either by way of further fine tuning, as was recently done in relation to remand prisoners and others, or more radically, but its position in the spectrum is plainly a matter for Parliament not for the courts. That applies even to the ‘hard cases’ of post-tariff discretionary life sentence prisoners ... They have all been convicted and if, for example, Parliament were to have said that all those sentenced to life imprisonment lose the franchise for life the apparent anomaly of their position would disappear. ...
If section 3(1) of the 1983 Act can meet the challenge of Article 3 [of the First Protocol] then Article 14 has nothing to offer, any more than Article 10.”
17. The applicant’s claims were accordingly dismissed as were those of the other prisoners.
18. On 2 May 2001 an application for permission to appeal was filed on behalf of Mr Pearson and Mr Feal-Martinez, together with a forty-three-page skeleton argument. On 15 May 2001 Lord Justice Buxton considered the application on the papers and refused permission on the ground that the appeal had no real prospect of success.
19. On 19 May 2001 the applicant filed an application for permission to appeal. On 7 June 2001, his application was considered on the papers by Lord Justice Simon Brown who refused permission for the same reasons as Lord Justice Buxton in relation to the earlier applications. The applicant’s renewed application, together with the renewed applications of Mr Pearson and Mr Feal-Martinez, were refused on 18 June 2001, after oral argument, by Lord Justice Simon Brown.
20. On 25 May 2004 the applicant was released from prison on licence.
21. 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.”
22. This section re-enacted without debate the provisions of section 4 of the Representation of the People Act 1969, the substance of which dated back to the Forfeiture Act 1870 of the previous century, which in turn reflected earlier rules of law relating to the forfeiture of certain rights by a convicted “felon” (the so-called “civic death” of the times of King Edward III).
23. 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)).
24. During the passage through Parliament of the Representation of the People Act 2000 (“the 2000 Act”), which allowed remand prisoners and unconvicted mental patients to vote, Mr Howarth MP, speaking for the government, maintained the view that “it should be part of a convicted prisoner’s punishment that he loses rights and one of them is the right to vote”. The Act was accompanied by a statement of compatibility under section 19 of the Human Rights Act 1998, namely, indicating that, in introducing the measure in Parliament, the Secretary of State considered its provisions to be compatible with the Convention.
25. Section 4 of the Human Rights Act 1998 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. The relevant provisions of the International Covenant on Civil and Political Rights provide:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:
(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) to vote ...”
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
...
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. ...”
27. In General Comment no. 25(57) adopted by the Human Rights Committee under Article 40 § 4 of the International Covenant on Civil and Political Rights on 12 July 1996, the Committee stated, inter alia, concerning the right guaranteed under Article 25:
“14. In their reports, State parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.”
28. These rules set out the minimum standards to be applied to conditions of imprisonment, including the following principle:
“64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.”
29. This recommendation, adopted on 9 October 2003, noted the increase in life sentences and aimed to give guidance to member States on the management of long-term prisoners.
30. The aims of the management of such prisoners should be:
“2. ...
– to ensure that prisons are safe and secure places for these prisoners ...;
– to counteract the damaging effects of life and long-term imprisonment;
– to increase and improve the possibilities of these prisoners to be successfully resettled and to lead a law-abiding life following their release.”
31. General principles included the following:
“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).”
32. This document adopted by the European Commission for Democracy through Law (the Venice Commission) at its 51st Plenary Session (5-6 July 2002) and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002 includes the Commission’s guidelines as to the circumstances in which there may be a deprivation of the right to vote or to be elected:
“d. ...
i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:
ii. it must be provided for by law;
iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;
iv. the deprivation must be based on mental incapacity or a criminal conviction for a serious offence;
v. furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.”
33. According to the Government’s survey based on information obtained from its diplomatic representation, eighteen countries allowed prisoners to vote without restriction (Albania, Azerbaijan, Croatia, the Czech Republic, Denmark, Finland, “the former Yugoslav Republic of Macedonia”, Germany, Iceland, Lithuania, Moldova, Montenegro, the Netherlands, Portugal, Slovenia, Sweden, Switzerland and Ukraine), in thirteen countries all prisoners were barred from voting or unable to vote (Armenia, Belgium
, Bulgaria, Cyprus, Estonia, Georgia, Hungary, Ireland, Russia, Serbia, Slovakia, Turkey and the United Kingdom), while in twelve countries prisoners’ right to vote could be limited in some other way (Austria, Bosnia and Herzegovina, France, Greece, Italy, Luxembourg, Malta, Norway, Poland, Romania and Spain).
34. Other material before the Court indicates that in Romania prisoners may be debarred from voting if the principal sentence exceeds two years, while in Latvia prisoners serving a sentence in penitentiaries are not entitled to vote; nor are prisoners in Liechtenstein.
35. In 1992 the Canadian Supreme Court unanimously struck down a legislative provision barring all prisoners from voting (see Sauvé v. Canada (no. 1), cited above). Amendments were introduced limiting the ban to prisoners serving a sentence of two years or more. The Federal Court of Appeal upheld the provision. However, following the decision of the Divisional Court in the present case, the Supreme Court on 31 October 2002 in Sauvé v. the Attorney General of Canada (no. 2) held by five votes to four that section 51(e) of the Canada Elections Act 1985, which denied the right to vote to every person imprisoned in a correctional institution serving a sentence of two years or more, was unconstitutional as it infringed Articles 1 and 3 of the Canadian Charter of Rights and Freedoms, which provides:
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
“3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
36. The majority opinion given by McLachlin CJ considered that the right to vote was fundamental to their democracy and the rule of law and could not be lightly set aside. Limits on this right required not deference, but careful examination. The majority found that the Government had failed to identify the particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test, in particular as the Government had failed to establish a rational connection between the denial of the right to vote and its stated objectives.
As regards the objective of promoting civic responsibility and respect for the law, denying penitentiary inmates the right to vote was more likely to send messages that undermined respect for the law and democracy than messages that enhanced those values. The legitimacy of the law and the obligation to obey the law flowed directly from the right of every citizen to vote. To deny prisoners the right to vote was to lose an important means of teaching them democratic values and social responsibility and ran counter to democratic principles of inclusiveness, equality, and citizen participation and was inconsistent with the respect for the dignity of every person that lay at the heart of Canadian democracy and the Charter.
With regard to the second objective of imposing appropriate punishment, it was considered that the Government had offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of State punishment. Nor could it be regarded as a legitimate form of punishment as it was arbitrary – it was not tailored to the acts and circumstances of the individual offender and bore little relation to the offender’s particular crime – and did not serve a valid criminal-law purpose, as neither the record nor common sense supported the claim that disenfranchisement deterred crime or rehabilitated criminals.
37. The minority opinion given by Gonthier J found that the objectives of the measure were pressing and substantial and based upon a reasonable and rational social or political philosophy. The first objective, that of enhancing civic responsibility and respect for the rule of law, related to the promotion of good citizenship. The social rejection of serious crime reflected a moral line which safeguarded the social contract and the rule of law and bolstered the importance of the nexus between individuals and the community. The ‘promotion of civic responsibility’ might be abstract or symbolic, but symbolic or abstract purposes could be valid of their own accord and should not be downplayed simply for being symbolic. As regards the second objective, that of enhancing the general purposes of the criminal sanction, the measure clearly had a punitive aspect with a retributive function. It was a valid objective for Parliament to develop appropriate sanctions and punishments for serious crime. The disenfranchisement was a civil disability arising from the criminal conviction. It was also proportionate, as the measure was rationally connected to the objectives and carefully tailored to apply to perpetrators of serious crimes. The disenfranchisement of serious criminal offenders served to deliver a message to both the community and the offenders themselves that serious criminal activity would not be tolerated by the community. Society, on this view, could choose to curtail temporarily the availability of the vote to serious criminals to insist that civic responsibility and respect for the rule of law, as goals worthy of pursuit, were prerequisites to democratic participation. The minority referred to the need to respect the limits imposed by Parliament and to be sensitive to the fact that there may be many possible reasonable and rational balances.
38. On 1 April 1999, in August and Another v. Electoral Commission and Others (CCT8/99: 1999 (3) SA 1), the Constitutional Court of South Africa considered the application of prisoners for a declaration and orders that the Electoral Commission take measures enabling them and other prisoners to register and vote while in prison. It noted that, under the South African Constitution, the right of every adult citizen to vote in elections for legislative bodies was set out in unqualified terms and it underlined the importance of the right:
“The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.”
39. The Constitutional Court found that the right to vote by its very nature imposed positive obligations upon the legislature and the executive and that the Electoral Act must be interpreted in a way that gave effect to constitutional declarations, guarantees and responsibilities. It noted that many democratic societies imposed voting disabilities on some categories of prisoners. Although there were no comparable provisions in the Constitution, it recognised that limitations might be imposed upon the exercise of fundamental rights, provided they were, inter alia, reasonable and justifiable. The question whether legislation barring prisoners would be justified under the Constitution was not raised in the proceedings and it emphasised that the judgment was not to be read as preventing Parliament from disenfranchising certain categories of prisoners. In the absence of such legislation, prisoners had the constitutional right to vote and neither the Electoral Commission nor the Constitutional Court had the power to disenfranchise them. It concluded that the Commission was under the obligation to make reasonable arrangements for prisoners to vote.


ITEMID: 001-85802
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SHAVROV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicant, Mr Yevgen Oleksandrovych Shavrov, is a Ukrainian national who was born in 1964 and lives in the city of Mariupol. He is a former share-holder (40% of shares) and the head of the board of the joint stock company “Donservispak” (hereinafter “Donservispak”).
The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 February 1998 the Public Prosecutor of Donetsk (hereinafter “the Public Prosecutor”) instituted criminal proceedings against the applicant on charge of theft of collective property (Article 84 of the Criminal Code of 1960). The allegation was that from October 1996 to December 1997 the applicant’s university studies as well as service charges for his apartment were met by Donservispak, causing it UAH 2,280 (1,079 ECU) damage.
On 8 May 1998 the Public Prosecutor issued an indictment. The applicant was obliged not to leave the place of his permanent residence.
On 5 June 1998 the investigator of the Public Prosecutor’s office ordered the applicant’s dismissal from his position.
On 9 June 1998 the investigation was suspended as the applicant was ill.
On 26 June 1998 the investigation was resumed and a witness was questioned. On the same day the investigator suspended the proceedings as the applicant was in hospital.
On 15 September 1998 the investigator of the Public Prosecutor’s office put the applicant on the list of wanted persons.
On 30 September 1998 the Public Prosecutor quashed this decision as unsubstantiated.
On 12 October 1998 the Deputy Public Prosecutor extended the time-limit for the pre-trial investigation.
On 20 October 1998 the investigator of the Public Prosecutor’s office suspended the proceedings because the applicant could not be found at his permanent residence. The Donetsk Department of the Interior was ordered to find the applicant.
On 10 August 1999 the prosecutor of the Public Prosecutor’s office quashed this decision on the ground that the investigator had not taken all procedural measures that could be accomplished in the applicant’s absence.
On 13 August 1999 the investigator of the Public Prosecutor’s office suspended the proceedings in view of the applicant’s absence.
On 8 October 1999 the applicant presented himself to the Public Prosecutor’s office and the proceedings were resumed.
On 11 October 1999 the applicant was informed that the pre-trial investigation had been completed.
On 15 October 1999 the criminal proceedings against the applicant were terminated as no crime had been committed.
On 30 November 1999 the senior prosecutor of Public Prosecutor’s office quashed this decision and remitted the case for additional investigation.
On 12 January 2000 the investigator ordered an accountant’s report, the results of which were received by the Public Prosecutor’s office on 25 January 2000.
On 25 January 2000 the Public Prosecutor issued a new indictment under Article 165 of the Criminal Code, relating to charges of abuse of position.
On 9 March 2000 the applicant was arrested. He was released the next day. He was obliged not to leave the place of his permanent residence.
On 29 March 2000 the criminal case was transferred to the Voroshylivsky District Court of Donetsk (“the Voroshylivsky Court”).
Between 19 April 2000 and 23 March 2001 two out of nineteen hearings were adjourned due to the applicant’s failure to appear before the court, one due to the applicant’s and witnesses’ failure to appear before the court, two due to the applicant’s illness, and five due to the witnesses and/or the prosecutor’s failure to appear before the court.
On 2 April 2001 the Voroshylivsky Court convicted the applicant and imposed a suspended sentence of five years’ imprisonment.
On 4 April 2001 the applicant lodged a cassation appeal and on 14 April 2001 the case-file was transferred to the Donetsk Regional Court (hereinafter “the Regional Court”).
On 27 April 2001 the Regional Court returned the case-file to the first instance court for rectification of procedural shortcomings (the applicant, his representative and the prosecutor had not been informed about the date of hearing before the Regional Court; the applicant had not been provided with a copy of the judgment).
On 21 May 2001 the case-file was transferred to the Regional Court.
On 15 June 2001 the Regional Court returned the case-file to the first instance court for rectification of procedural shortcomings (the civil party, Donservispak, had not been informed about the date of hearing before the Regional Court and had not been provided with the copy of the cassation appeal).
On 21 June 2001 the case-file was transferred to the Regional Court.
On 27 July 2001 the Donetsk Regional Court of Appeal (former Regional Court, hereinafter “the Court of Appeal”), following the applicant’s request, appointed forensic book-keeping examination, which was terminated on 8 November 2001.
On 14 March 2002 the Court of Appeal returned the case-file to the first instance court for rectification of procedural shortcomings (Donservispak had not been informed about the date of hearing before the Court of Appeal).
On 26 April 2002 the Court of Appeal quashed the judgment of 2 April 2001 and acquitted the applicant.
On 17 June 2002 the Deputy Public Prosecutor lodged a cassation appeal.
On 3 October 2002 the hearings were resumed before the Supreme Court.
On 14 November 2002 the Supreme Court quashed the judgment of 26 April 2002 and remitted the case to the Court of Appeal.
On 28 February 2003 the Court of Appeal rejected the applicant’s appeal and partially modified the judgment of 2 April 2001. The applicant was convicted and a suspended sentence of three years’ imprisonment was imposed under Article 364 of the Criminal Code of 2001.
On 27 January 2004 the Supreme Court rejected the applicant’s cassation appeal against this ruling.
On 7 July 2002 the applicant addressed the Voroshylivsky Court with a request to calculate the pecuniary and non-pecuniary damage caused by his criminal prosecution and by alleged violations of the law committed by officials of the Public Prosecutor’s office and courts.
On 22 July 2002 the court decided not to deal with the request because the applicant had failed to comply with the formal requirements. It allowed the applicant time to rectify the shortcomings.
On 30 August 2002 the applicant’s request was returned as had not lodged a rectified version. The applicant did not appeal against this ruling.
On 2 August 2002 the applicant lodged a claim with the Court of Appeal asking for compensation for pecuniary and non-pecuniary damage caused by his criminal prosecution and the alleged violations of the law.
On 7 August 2002 the court found that the claim fell outside its jurisdiction. The applicant lodged a cassation appeal against this ruling. There is no information about the outcome of the proceedings.
In September 2002 the applicant instituted proceedings against the Public Prosecutor’s office and the Voroshylivsky Court for compensation for pecuniary and non-pecuniary damage caused by the prosecution.
The Voroshylivsky Court decided not to deal with the claim because the applicant had failed to comply with the formal requirements. It allowed the applicant until 7 October 2002 to rectify the shortcomings.
On 14 October 2002 the same court returned without examination the applicant’s claim for failure to rectify the mistakes. The applicant did not appeal against this ruling.
On 16 December 1997 the Donetsk Commercial Court, upon the claim of the public prosecutor in the interest of the Kuibyshevsky Department of the Communal Property, annulled the rent contract of Donservispak’s office and ordered its eviction.
On 26 February 1998 the Deputy President of the Donetsk Commercial Court upheld this decision.
On 5 October 2000 the Donetsk Commercial Court, upon the motion of the Voroshylivsky Office of the State Tax Inspectorate in Donetsk, declared Donserviskpak bankrupt.
On 27 March 2002 the same court terminated the bankruptcy proceedings and ordered the liquidation of Donservispak
On 22 April 2002 the applicant’s appeal against this ruling was returned without examination for failure to comply with the formalities. The applicant did not pursue the proceedings.