Criminal law update: voting rights for criminals

Facts: The European Court of Justice (ECJ) recently considered a French case which concerned the removal of a citizen from the electoral roll of a particular municipality.

Decision: The ECJ’s Grand Chamber stated that the deprivation of the right to vote respected the essence of the right which was referred to in Charter of Fundamental Rights of the European Union (‘ the charter’ ) article 39(2), and it did not call into question that right, as such, because it had the effect of excluding certain persons under specific conditions on account of their conduct. The distinction was made between such persons and those who were otherwise entitled to vote in elections to the European Parliament, as long as certain conditions were fulfilled. That limitation was proportionate, insofar as it took into account both the nature and gravity of the criminal offence which had been committed and the duration of the sentence.

The provision which deprived a person of the right to vote had only applied to those who were convicted of offences that were punishable by a custodial sentence of between five years and life imprisonment. French national law allowed for the possibility of such a person applying for, and obtaining, the removal of the penalty that took away their civic rights, which led to the deprivation of the right to vote.

As far as the retroactive effect of a more lenient regime was concerned, article 49(1) of the charter stated that if subsequent to the commission of a criminal offence, the law provided for a lighter penalty, that penalty would be applicable.

The old French criminal code had been reformed in 1994. The new law abolished the deprivation of the right to vote as an ancillary penalty, replacing this law with an additional penalty that could only be imposed by a court, and which could not be greater than 10 years where a person was convicted of a serious offence and imprisonment for five years in respect of the commission of a less serious offence.

The EJC noted that the charter provided expressly for the possibility of persons affected by such a ruling, for them to apply for and obtain the lifting of such a ban. This option was available to anybody who had been deprived of the right to vote whether under the old or new French criminal code.

In conclusion, the legislation of a member state which excluded the right to vote in elections to the European Parliament of persons who had been convicted of a serious crime and whose conviction became final before 1 March 1994 was not unlawful. It did not breach the charter since European legislation gave such a person the right to apply to have such a ban lifted.

Comment: Although somewhat technical in nature, this case highlights the right of EU member states to make their own provisions relating to certain rights and freedoms. The important point in this case, in respect of the voting rights of convicted criminals, was that the ECJ found a way of interpreting the old French criminal code which did not render its provisions illegal because subsequent legislation gave a person who was subject to any restrictions the right to make an application for those restrictions to be removed.