The Council of Europe condemns British inaction on prisoner voting rights

A version of this article will appear in the September 2010 edition of Around Europe.

Well, actually they haven’t condemned British inaction, at least not recently. However, if past meetings of the Council of Europe’s Committee of Ministers are anything to go by they will do when they meet next week. The British government has persistently failed to implement the rulings of a 2005 European Court of Human Rights case that found the continued political disenfranchisement of all British prisoners illegal. But why should prisoners be allowed to vote at all?

‘Imprisonment is by the deprivation of liberty a punishment in itself’, so state the 2006 European Prison Rules. Whether the ‘deprivation of liberty’ includes the freedom to vote in democratic elections remains contested ground.

At least, it remains contested ground in some quarters. In its 2005 ruling Hirst v. the United Kingdom, the European Court of Human Rights was quite emphatic: ‘Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation’. The ‘Convention’ in question is the 1950 European Convention on Human Rights. Let’s not mince our words: the UK’s blanket ban preventing all prisoners from voting irrespective of the nature of offence committed or length of sentence is both unreasonable and illegal.

The UK is not, however, the only Council of Europe member state to disregard international treaty obligations and European case law. As the table indicates, the international picture varies quite dramatically, and no clear pattern is discernible by either geography or political tradition: the UK and Russia both exclude all prisoners from voting; Ireland and Ukraine do not.

Countries that allow prisoners to vote (without restrictions):	Albania, Bosnia & Herzegovina, Canada, Croatia, Denmark, France, Finland, Iceland, Ireland, Latvia, Lithuania, Kosovo, Monaco, Norway, Serbia, Montenegro, Slovenia, Sweden, Switzerland, Ukraine
Countries that allow prisoners to vote (under certain conditions):	Austria, Czech Republic, Germany, Greece, Italy, Japan, Netherlands, Malta, FYR Macedonia, Moldova, Slovakia, Spain, Turkey
Countries that do not allow prisoners to vote:	Azerbaijan. Bulgaria, Cyprus, Estonia, Georgia, Hungary, Portugal, Romania, Russian Federation, United Kingdom
Countries that do not allow prisoners to vote and continue to impose restrictions after release:	Armenia, Belgium, Luxembourg, United States (differs among states)

The issue remains contentious, and some judge saying somewhere that prisoners should be given the vote is just not going to cut it with the naysayers. Fair enough. Proponents of penal reform need to win the intellectual (and emotional) argument. I hope to put down a few markers in what follows.

The British government’s argument in court that ‘removal from society means removal from the privileges of society, amongst which is the right to vote for one’s representatives’ may not hold legal sway, but there is certainly some emotional logic to the defence. However, it is in society’s interest to reintegrate offenders back into the community upon release from prison; to encourage ex-prisoners to become productive members of said communities; to reduce the likelihood of reoffending, ensuring there are fewer victims in the future. Social exclusion is a key driver of criminality and continued reoffending. Political inclusion can play a part in countering the perverse effects of this exclusion.

The European-based AIRE Centre argued convincingly that the Committee of Ministers’ recommendations regarding the management of ‘lifers’ provide a justification for allowing prisoners to vote.

Recommendation Rec(2003)23 of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long-term prisoners
General principles:
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).

The justification is not explicit. However, the ‘individualisation’, ‘normalisation’ and ‘responsibility’ principles support ‘the extension of the vote to prisoners by fostering their connection with society, increasing their stake in society and taking into account their personal circumstances and characteristics’. The psychological impact of involving prisoners in the ‘normal’ workings of society should not be underestimated. To take the even more seemingly mundane example of bank cards, the reaction of an ex-offender to being symbolically part of society is telling: ‘I know it seems a bit trivial but sometimes it seems important also [because] you just feel like everybody else. It’s been years and years since I ever imagined using a card in a shop’. The research evidence suggests that this emotional dimension is part of a matrix of reasons (both practical and psychological) that explain why assisting prisoners in accessing basic financial services has a positive impact on the rate of reoffending experienced.

Hopefully the Coalition government will not drag its feet in the way Labour managed to for five years. At the very least, denying convicted prisoners the option of fulfilling their democratic obligations serves no purpose in either protecting the public or reforming the offender. At worst, it damages our democracy. In the words of a Canadian high court judge, the limiting of the franchise ‘undermines the legitimacy of the government, the effectiveness of the government, and the rule of law’. That’s not a particularly favourable outcome either.

The article is based on research undertaken for an upcoming report investigating the social reintegration of ex-prisoners in across the Council of Europe.

'Nobody should face expulsion just for being Roma'

A shorter version of this article will appear in the September 2010 issue of Around Europe.

Throughout the summer months, amidst a growing furore and international condemnation, France has expelled over a thousand Roma from the EU Member States of Romania and Bulgaria. Surely in this age of European cooperation we can do better than this?

President Sarkozy’s ‘war’ on delinquency (read: deportation from France of thousands of Romanian and Bulgarian Roma) has brought widespread criticism from human rights organisations, government ministers, the Catholic Church, the UN. Figures from across the political spectrum, in both France and beyond, have thrown in their two cents.

The French government intends to dismantle at least 300 illegal Roma and travellers’ camps. The deportations are not new (10,000 deportation took place last year and already as many as 8,000 in 2010), but following riots in July – including an attack on a police station by members of a Roma community in the Loire Valley - the political rhetoric has been cranked up to boiling point.

Since late July, about a thousand Romanian and Bulgarian nationals have been repatriated. Just over 150 of these were forcibly removed. Many accepted €300 resettlement payments to quit the country quickly and quietly (payments that cannot prevent a hasty return to France a few weeks later).

The measures are raising eyebrows (which comes under the category of decisive action) in Brussels. Viviane Reding, EU Commissioner for Justice, Fundamental Rights and Citizenship (a mouthful even before you add ‘and Vice-President of the European Commission’), issued a statement reminding ‘all Member States [to] respect the commonly agreed EU rules on free movement, non-discrimination and the common values of the European Union, notably the respect for fundamental rights, including the rights of people belonging to minorities’. The Commission has yet to establish whether French policy contravenes EU regulations, but if ‘solid proof’ of illegality emerges action through the courts is a real possibility.

French ministers have played a straight-faced defence thus far. The Interior Minister, Brice Hortefeux, cited skyrocketing crime rates as the primary cause; in the last 18 months crimes committed by Roma people have increased by 259 per cent in Paris, the minister stated. The government is concerned that the camps are ‘sources of illegal trafficking, of profoundly shocking living standards, of exploitation of children for begging, of prostitution and crime’. ‘This is not about stigmatising this or that population’, added the immigration minister Eric Besson, ‘but we cannot close our eyes to reality’.

Monsieur Besson is not wrong. Europe’s Member States have all too often had their eyes firmly shut, ignoring the plight of the continent’s ‘largest minority’. Europe’s ten to 12 million Roma are disproportionately affected by discrimination, violence, unemployment, poverty, bad housing and poor health standards. However, discrimination and abuse in the countries people have left is no excuse for replicating it whilst slapping on a return to sender note.

Roma from Bulgaria and Romania are EU citizens with the same fundamental rights to free movement and residence within all Member States. There are caveats to this. Transitional agreements are in place which allows Member States to introduce the full rights of EU citizenship gradually. Freedom of movement and the right to seek employment without requiring a permit will not fully apply to workers from Bulgaria and Romania (both of whom joined in 2007) until 1 January 2014.

In fact, the right to move freely and reside anywhere in the EU is not unconditional, irrespective of where you are from. EU citizens staying for more than three months must be economically active, have comprehensive medical insurance or have sufficient resources not to become a burden on the state. A Member State has the right to remove an individual after three months if they fail to meet these conditions. Restrictions can be legitimately imposed based on public policy, security and public health. Reasonable enough, it seems.

However, proportionality cannot be discarded on a whim (nor, for that matter, because an increasingly unpopular president is facing re-election soon). The decision must be made exclusively on the grounds of personal conduct; conduct that represents ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on consideration of general prevention shall not be accepted’ (Directive 2004/38/EC Article 27).

Expulsion based on a greater statistical likelihood of someone from your particular social group or ethnicity committing a crime does not fall into this criteria. To put it bluntly, in the words of Viviane Reding: ‘Nobody should face expulsion just for being Roma’.

France has friends. In 2008, Italy led the way – expelling Roma mainly of Romanian extraction – in a phenomenon that is becoming increasingly widespread. Last year Northern Ireland hit the headlines as Roma faced brutal attacks from members of the public; Copenhagen has requested Danish government assistance to deport 400 Roma; the police in Sweden have expelled Roma, in breach of both national and EU laws; and Germany is continuing the repatriation of thousands of Roma children and adolescents to Kosovo, amidst warnings from UNICEF of appalling living conditions and the Council of Europe’s protest that Kosovo is not able to receive refugees ‘in a way that protects their rights’.

Western European Member States are exacerbating a problem the roots of which lie in the economic and social exclusion Roma communities face in their home countries. France should not have to pay for the national policy failings of other Member States. The European Union is not meant to be a charity. At the same time, a more cooperative position towards a Europe-wide ‘problem’ would be more conducive to development and change. challenging the causes rather than acquiesing in the effects. In 2005, Europe kicked off the ‘Decade of Roma Inclusion’. From the halfway point, it would be helpful if Member States started by at least not being so openly exclusionary.

The EU is trying to build a consensus to improve the social integration of Roma across European society. Significant sums have been committed from the European Social Fund. This would be to the benefit of France, as well as the Member States where the money is being spent. Many of the great benefits of European integration – such as the free movement of people and labour – also create difficulties. Cooperation and coordination is needed. European countries, big and small, would do well to remember Commissioner Reding's words: ‘Europe is not just a common market – it is at the same time a Community of values and fundamental rights.’