Article 3 of Protocol No. 1
Vote
Restriction on voting rights of non-resident citizens: no violation
Facts – The applicant, a British national, left the United Kingdom in 1982 following his retirement and moved to Italy with his Italian wife. After fifteen years residence overseas he was no longer entitled to vote in parliamentary elections in the United Kingdom. In his application to the European Court he argued that the fifteen-year time-limit on non-resident voting rights was not proportionate and violated his right to vote under Article 3 of Protocol No. 1. In that connection, he noted that he had retained very strong ties with the United Kingdom and was affected by matters such as pensions, banking, financial regulations, taxation and health, which were all the subject of political decisions there.
Law – Article 3 of Protocol No. 1: The restriction on non-resident voting pursued the legitimate aim of confining the parliamentary franchise to those citizens with a close connection to the United Kingdom and who would therefore be most directly affected by its laws. The restriction did not impair the very essence of the right to vote as non-residents were permitted to vote in national elections for fifteen years following their emigration and the right was in any event restored if the person concerned returned to live in the United Kingdom.
Since the applicant had contended that any restriction on voting in national elections based on residence was of itself disproportionate, the Court had to examine, firstly, whether Article 3 of Protocol No. 1 required Contracting States to grant the right to vote to non-resident citizens without any restriction based on residence and, secondly, whether the legislation disenfranchising non-residents after fifteen years of non-residence was a proportionate limitation on the right to vote which struck a fair balance between the competing interests.
On the first of these issues, the Court reviewed the activities of various Council of Europe bodies and found that they had demonstrated a growing awareness at European level of the problems posed by migration in terms of political participation in countries of origin and residence. However, none of the material formed a basis for concluding that, as the law currently stood, States were under an obligation to grant non-residents unrestricted access to the franchise. Likewise, although there was a clear trend in the laws and practices of member States in this sphere in favour of allowing voting by non-residents, and a significant majority in favour of an unrestricted right, it could not be said that the stage had been reached where a common approach or consensus in favour of an unlimited right to vote for non-residents could be identified. Although the matter may need to be kept under review, the margin of appreciation enjoyed by the States in this area thus remained wide.
Turning to the second issue (proportionality) the fifteen-year period during which non-residents were allowed to vote after leaving the country was not unsubstantial. The fact that the applicant might personally have preserved a high level of contact with the United Kingdom, have detailed knowledge of its day-to-day problems and be affected by some of them did not render the imposition of the fifteen-year rule disproportionate as, while they require close scrutiny, general measures which do not allow for discretion in their application may nonetheless be compatible with the Convention. Having regard to the significant burden which would be imposed if the respondent State were required to ascertain in every application to vote by a non-resident whether the individual had a sufficiently close connection to the country, the Court was satisfied that the general measure in this case served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing interests on a case-by-case basis. It was also relevant that Parliament had sought to weigh the competing interests in the case on several occasions and had debated the question of non-residents’ voting rights in some detail. Indeed, the evolution of its views could be seen in amendments to the period of non-residence since the introduction of overseas voting in 1985.
In sum, regard being had to the margin of appreciation available to the domestic legislature, the restriction imposed by the respondent State on the applicant’s right to vote could be considered proportionate to the legitimate aim pursued. The legislation thus struck a fair balance between the applicant’s interest in participating in parliamentary elections in his country of origin and the chosen legislative policy of the respondent State to confine the parliamentary franchise to citizens with a close connection with the United Kingdom who would therefore be most directly affected by its laws.
Ineta Ziemele, P
19840/09 – Chamber Judgment, [2013] ECHR 423, 19840/09 – Legal Summary, [2013] ECHR 547
Bailii, Bailii
European Convention on Human Rights P1A3
Human Rights
Citing:
Statement of Facts – Shindler v The United Kingdom ECHR 20-Dec-2010
Statement of Facts . .
Cited by:
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Elections
Updated: 01 November 2021; Ref: scu.510995