A legal analysis of the disenfranchisement of prisoners

Abstract

Voting in elections is perceived to be at the core of democracy. As regulated under Article 3 of Protocol No. 1 to the European Convention on Human Rights, European citizens are guaranteed free and democratic elections. As a general rule, prisoners are deprived of the right to liberty, but all other rights and freedoms enshrined in the Convention should be safeguarded. The rights granted by Article 3 of Protocol No. 1 are not absolute, allowing contracting states a margin of appreciation. Nonetheless, any limitations to the rights established in the Convention must be justified. This study examines the notion of prisoner disenfranchisement, draws on its history, analysing the various rules in different states and identifying the major arguments in favour and against such rules. As it stands today, Maltese law denies prisoners imprisoned for a term exceeding twelve months the right to vote. Essentially, the aim of this study is to determine whether the deprivation of the right to vote constitutes a violation of the fundamental human right. This matter was highly debated following the judgement delivered by the European Court of Human Rights (ECHR) in Hirst (No. 2) v. the United Kingdom 6 October 2005 (Grand Chamber) which challenged the blanket ban on voting in elections. The ECHR held that United Kingdom (UK) had breached the fundamental right to free elections due to the automatic and absolute ban on the applicant’s right to vote. The court declared the restriction was discriminatory as a convicted prisoner should not be disadvantaged due to his status. Finally, upon evaluating the research, the possibility of a legal reform proposal to Article 58(c) of the Maltese Constitution is considered.