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FIRST
SECTION
CASE OF FRODL v. AUSTRIA
(Application
no. 20201/04)
JUDGMENT
STRASBOURG
8 April 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Frodl v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20201/04) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Helmut Frodl (“the
applicant”), on 25 May 2004.
- The applicant, who had been granted legal aid, was
represented by Ms N. Mole, of the AIRE Centre, a
non-governmental organisation in London. The Austrian Government
(“the Government”) were represented by their Agent,
Ambassador F. Trauttmansdorff, Head of the International Law
Department at the Federal Ministry of Foreign Affairs.
- The
applicant alleged that his disenfranchisement because he was serving
a term of imprisonment of more than one year constituted a breach of
his rights under Article 3 of Protocol No. 1.
- By
a decision of 8 January 2009 the Court declared the application
admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and is currently detained in Garsten
Prison.
- On
22 December 1993 the applicant was convicted of murder by the Vienna
Regional Criminal Court, sitting as an assize court, and sentenced to
life imprisonment.
- On
18 October 2002 the applicant filed an objection (Einspruch)
against the local electoral register (Wählerverzeichnis)
with the Local Electoral Authority (Gemeindewahlbehörde),
complaining that his name had not been entered in the register
although he met the general conditions such as minimum age,
citizenship and residence in the community. He alleged that his
exclusion from the electoral register under section 22 of the
National Assembly Election Act (Nationalratswahlordnung) was
unlawful as this provision was unconstitutional. He invoked, inter
alia, Article 3 of Protocol No. 1 to the Convention.
- The
Local Electoral Authority dismissed the applicant's objection on
30 October 2002 and, referring to section 22 of the National
Assembly Election Act, refused to enter the applicant's name in the
electoral register. On the same day the applicant appealed.
- On
7 November 2002 the District Electoral Authority
(Bezirkswahl-behörde) dismissed the appeal. It found that
the Local Electoral Authority had acted correctly in refusing to
enter the applicant's name in the electoral register and that it was
not the task of these authorities to express a position on the
alleged unconstitutionality of the law applied.
- On
an unspecified date the applicant requested the Constitutional Court
to grant him legal aid to lodge a complaint with that court against
the District Electoral Authority's decision.
- On
3 December 2003 the Constitutional Court refused to grant legal aid
as it found that the applicant's complaint lacked any prospect of
success. It referred in that connection to a previous decision of 27
November 2003 in which it had found that section 22 of the National
Assembly Election Act was not unconstitutional.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions of constitutional and ordinary law
- Article
26 of the Federal Constitutional Act, as in force at the time of the
events and in so far as relevant, reads as follows:
“(1) The National Council is elected by
the nation in accordance with the principles of proportional
representation on the basis of an equal, direct, secret and personal
vote for men and women who by the date of the election have completed
their eighteenth year.
...
(4) All men and women who on the date of the
election are in possession of Austrian nationality and have completed
their nineteenth year shall be eligible for election.
(5) Forfeiture of the right to vote and to
stand for election can only ensue from a court sentence.
...
(7) The electoral register shall be drawn up
by the municipalities as part of their assigned sphere of
competence.”
- Section
22 of the National Assembly Election Act reads as follows:
“(1) Anyone who has been convicted by a
domestic court of one or more criminal offences committed with intent
and sentenced with final effect to a term of imprisonment of more
than one year shall forfeit the right to vote. Disenfranchisement
shall end six months later. Time shall start to run once the sentence
has been enforced and any preventive [detention] measure combined
with the deprivation of liberty has been enforced or dropped; if the
sentence is enforced with the period of detention on remand being
counted towards the sentence, time shall start to run when the
judgment becomes final.
(2) If the legal consequences [of a
conviction] are suspended under other legal provisions or have lapsed
or if all legal consequences or the forfeiture of the right to vote
have been pardoned, the convicted person shall not forfeit the right
to vote; nor shall he or she forfeit the right to vote if the court
has imposed a conditional sentence. If the condition is revoked,
disenfranchisement shall take effect from the day that decision
becomes operative.”
Section
44 of the Criminal Code, entitled “conditional suspension of
concurrent sanctions” (Bedingte Nachsicht bei
Zusammentreffen mehrerer Strafen), as in force until 31 December
1996, read as follows:
“(1) If a term of imprisonment and a
fine are imposed concurrently, both sanctions shall be conditionally
suspended if the relevant requirements are met. If it can be expected
that enforcement of one sanction alone or of part of one sanction
will suffice, sections 43 [conditional remission of sentence] and 43a
[conditional remission of part of a sentence] may be applied.
(2) Confiscation cannot be the subject of
conditional remission. If another subsidiary sanction is imposed it
shall be conditionally suspended if the main sanction is also
conditionally suspended and independent enforcement of the subsidiary
sanction is not necessary. The same shall apply in respect of the
legal consequences of a conviction.”
By
the Criminal Law Amendment Act 1996, Federal Law Gazette no. 1996/762
(Strafrechtsänderungsgesetz 1996, BGBl. Nr. 1996/762),
paragraph 2 of Section 44 was replaced by the following wording:
“(2) Subsidiary sanctions and the legal
consequences of a conviction may be the subject of conditional
remission of a sentence independently from the main sanction.”
B. The case-law of the Constitutional Court
- In
its decision of 27 November 2003 (B669/02 Slgnr. 17058) the
Constitutional Court examined the constitutionality of the conditions
of the disenfranchisement under section 22 of the National Assembly
Election Act of a person convicted of aggravated fraud and serving a
six-year prison term.
The
Constitutional Court held in particular as follows:
“The enactment of legislation providing for
disenfranchisement under section 22(1) of the [National Assembly
Election Act] on the basis of a final sentence (imposed by a domestic
court for one or more offences committed with intent) carrying a term
of imprisonment of more than one year lies, in the Constitutional
Court's view, within the margin of appreciation afforded to the
legislature in matters of election of the legislature. The fact that
as a consequence of this rule citizens who are sentenced to just over
a year's imprisonment for an offence committed with intent are
stripped of their right to vote, whereas citizens who are sentenced
to just under one year's imprisonment (for an intentionally committed
offence) are not, does not make the legal provision in question
unconstitutional (cf. VfSlg. 13.822/1994 mwH). Nor do the factual
submissions advanced by the complainant in this connection (for
instance with reference to the Youth Courts Act) alter this
conclusion in any way.”
In
its decision of 27 September 2007 (B1842/06) the Constitutional Court
again examined the constitutionality of section 22 of the National
Assembly Election Act. The complainant had been convicted of
aggravated robbery and kidnapping and sentenced to nineteen and
twelve years' imprisonment respectively. In its decision, after
referring at length to the judgment of the European Court of Human
Rights in the case of Hirst v. the United Kingdom (no. 2)
([GC], no. 74025/01, ECHR 2005 IX), it held that in view of
that judgment it maintained the findings adopted in its decision of
27 November 2003. It stated in particular as follows:
“In respect of the present complaint it is
established that the legal position in the United Kingdom at issue in
the judgment in the Hirst case differs decisively from the one
in Austria that is relevant here: section 22 of the National Assembly
Election Act does not provide for blanket forfeiture of the right to
vote in respect of all convicted prisoners, irrespective of the type
or seriousness of the offence they have committed or their individual
circumstances. The precondition for imposing forfeiture of the right
to vote is a final sentence for one or more intentionally committed
offences carrying a prison sentence of more than one year; sentences
to a fine, sentences to less than one year's imprisonment and
conditional prison sentences do not result in forfeiture of the right
to vote. Moreover, section 44(2) allows the judge to conditionally
suspend the legal consequences of the conviction, including therefore
disenfranchisement; in this respect the Austrian legal system also
makes legal provision for consideration to be given to the individual
circumstances of the person concerned.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained that his disenfranchisement on the ground of his
criminal conviction violated his rights under Article 3 of Protocol
No. 1, which reads as follows:
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
A. Arguments of the parties
1. The applicant
- The applicant submitted that a limitation on the right
to vote had to be supported by solid reasons and to be proportionate.
In his view, the Government had not put forward convincing arguments
defending the necessity of the restriction imposed on him and, in
particular, had failed to point to any legitimate aim pursued by
disenfranchisement, which in itself was a breach of Article 3 of
Protocol No. 1. Instead, they had merely relied on the gravity of the
crime of which the applicant had been convicted in order to justify
his disenfranchisement and pointed to differences between the
Austrian provision and the one at issue in the Hirst case
(cited above).
- Basing the grounds for denial of voting rights solely
on the severity of the sentence imposed was too indiscriminate, as it
did not take account of the specific circumstances of each case. In
particular, no apparent link between the disenfranchisement and the
conduct and personal circumstances of the applicant had been shown,
such as whether there was a close connection between the offence
committed by the applicant and the functioning of democratic
institutions. However, as the Court had found in the case of Hirst
(cited above, § 70), the principle of proportionality was not
respected in the absence of such a “discernible and sufficient
link”.
- In
so far as the Government had relied on section 44(2) of the Criminal
Code, which permitted the sentencing judge to suspend the legal
consequences of the conviction, the applicant argued that this
provision had only come into force in 1997 and the Government had
failed to provide any evidence to show that such a possibility had
been open to a person in his position in 1994.
2. The Government
- The Government submitted that the Constitutional Court
had examined the question whether disenfranchisement under section 22
of the National Assembly Election Act was compatible with Article 3
of Protocol No. 1 and, in its decision of 27 November 2003, had
come to the conclusion that the relevant provision was compatible
with the Federal Constitution, including Article 3 of Protocol No. 1,
which, under Austrian law, formed part of the constitutional order.
The Constitutional Court had concluded that the provision at issue
was within the margin of appreciation afforded to the domestic
legislature in matters of election of the legislature. This approach
had been confirmed by the Court in the case of Hirst. In that
case the Court had concluded that a provision imposing a blanket
restriction on all convicted prisoners regarding the right to vote,
which applied automatically to prisoners irrespective of the length
of their sentence and irrespective of the nature or severity of the
offence and their individual circumstances, was in breach of Article
3 of Protocol No. 1 (Hirst, cited above, § 82).
- The legal situation at issue in the Hirst case,
however, differed in important respects from the legal situation in
Austria as under Austrian law there was no indiscriminate
disenfranchisement of all detainees. The precondition for any
restriction of the right to vote was a final conviction for one or
several intentionally committed criminal acts carrying a prison
sentence of more than one year; the imposition of fines or of prison
sentences of less than one year did not lead to disenfranchisement.
Nor was there disenfranchisement in the event of a conditional
conviction. Moreover, section 44(2) of the Criminal Code gave the
judge an opportunity to conditionally suspend the legal consequences
of the conviction, such as disenfranchisement, thus allowing the
individual circumstances and the specific situation of the person
concerned to be taken into account. Accordingly, the Austrian legal
situation was in full compliance with the criteria established by the
Court for disenfranchisement.
B. The Court's assessment
1. General principles
- The
Court observes that, while this might not be obvious from its
wording, Article 3 of Protocol No. 1 enshrines a characteristic
principle of an effective democracy and is accordingly of prime
importance in the Convention system. Democracy constitutes a
fundamental element of the “European public order”, and
the rights guaranteed under Article 3 of Protocol No. 1 are
crucial to establishing and maintaining the foundations of an
effective and meaningful democracy governed by the rule of law (see,
most recently and among many other authorities, Yumak and Sadak v.
Turkey [GC], no. 10226/03, § 105, ECHR 2008-...).
- Free
elections and freedom of expression, and particularly the freedom of
political debate, form the foundation of any democracy (see
Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47,
Series A no. 113, and Lingens v. Austria, 8 July
1986, §§ 41 and 42, Series A no. 103). The rights
bestowed by Article 3 of Protocol No. 1 are not absolute. There is
room for implied limitations and Contracting States must be allowed a
wide margin of appreciation in this sphere since there are numerous
ways of organising and running electoral systems and a wealth of
differences, inter alia, in historical development, cultural
diversity and political thought within Europe which it is for each
Contracting State to mould into their own democratic vision (see
Lykourezos v. Greece, no. 33554/03, § 51, ECHR
2006 VIII).
- It
is, however, for the Court to determine in the last resort whether
the requirements of Article 3 of Protocol No. 1 have been complied
with; it has to satisfy itself that the conditions do not curtail the
rights in question to such an extent as to impair their very essence
and deprive them of their effectiveness; that they are imposed in
pursuit of a legitimate aim; and that the means employed are not
disproportionate (see Mathieu-Mohin and Clerfayt, cited above,
§ 52). In particular, any conditions imposed must not thwart the
free expression of the people in the choice of the legislature –
in other words, they must reflect, or not run counter to, the concern
to maintain the integrity and effectiveness of an electoral procedure
aimed at identifying the will of the people through universal
suffrage. Any departure from the principle of universal suffrage
risks undermining the democratic validity of the legislature thus
elected and the laws it promulgates. Exclusion of any groups or
categories of the general population must accordingly be reconcilable
with the underlying purposes of Article 3 of Protocol No. 1
(see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01,
§ 28, ECHR 2004-V).
- As
regards the status of the right to vote of convicted prisoners who
are detained, the Court reiterates that prisoners in general continue
to enjoy all the fundamental rights and freedoms guaranteed under the
Convention save for the right to liberty, where lawfully imposed
detention expressly falls within the scope of Article 5 of the
Convention. It is inconceivable, therefore, that a prisoner should
forfeit his Convention rights merely because of his status as a
person detained following conviction. Nor is there any place under
the Convention system, where tolerance and broadmindedness are the
acknowledged hallmarks of democratic society, for automatic
disenfranchisement based purely on what might offend public opinion
(see Hirst, cited above, § 70).
- This
standard of tolerance does not prevent a democratic society from
taking steps to protect itself against activities intended to destroy
the rights or freedoms set forth in the Convention. Article 3 of
Protocol No. 1, which enshrines the individual's capacity to
influence the composition of the legislature, does not therefore
exclude the possibility of restrictions on electoral rights being
imposed on an individual who has, for example, seriously abused a
public position or whose conduct has threatened to undermine the rule
of law or democratic foundations (see, for example, X v. the
Netherlands, cited above, and, mutatis mutandis,
Glimmerveen and Hagenbeek v. the Netherlands, nos.
8348/78 and 8406/78, Commission decision of 11 October 1979,
Decisions and Reports 18, where the Commission declared inadmissible
two applications concerning the refusal to allow the applicants, who
were the leaders of a proscribed organisation with racist and
xenophobic traits, to stand for election). The severe measure of
disenfranchisement must not, however, be resorted to lightly and the
principle of proportionality requires a discernible and sufficient
link between the sanction and the conduct and circumstances of the
individual concerned.
2. Application in the present case
- Turning
to the application in the present case, the Court observes that the
applicant, who had been convicted of murder and sentenced to life
imprisonment, was disenfranchised. The Court will therefore determine
whether the measure in question pursued a legitimate aim in a
proportionate manner, having regard to the principles identified
above.
- The
Court observes at the outset that the present case has certain
similarities with the case of Hirst (cited above). In that
case the Court found a breach of Article 3 of Protocol No. 1 on
account of Mr Hirst's disenfranchisement as a prisoner following his
conviction for manslaughter. While the Court accepted in principle
that the member States had a wide margin of appreciation and left it
to them to decide which restrictions on the right of prisoners to
vote could legitimately be imposed, it nevertheless set out several
criteria which had to be respected by member States in imposing such
restrictions (see Hirst, cited above, §§ 61 and 82).
Disenfranchisement may only be envisaged for a rather narrowly
defined group of offenders serving a lengthy term of imprisonment;
there should be a direct link between the facts on which a conviction
is based and the sanction of disenfranchisement; and such a measure
should preferably be imposed not by operation of a law but by the
decision of a judge following judicial proceedings (ibid., §§
77-78). In finding a breach of Article 3 of Protocol No. 1, the
Court put much emphasis on the fact that the disenfranchisement
operating under United Kingdom law was a “blunt instrument”,
imposing a blanket restriction on all convicted prisoners in prison
and doing so in a way which was indiscriminate, applying to all
prisoners, irrespective of the length of their sentence and
irrespective of the nature or gravity of their offence and their
individual circumstances (ibid., § 82).
As
regards the existence of a legitimate aim, the applicant emphasised
that the Government did not explicitly list specific aims pursued by
the disenfranchisement of prisoners in Austrian law and argued that
for that reason alone the measure at issue must be regarded as not
being in accordance with Article 3 of Protocol No. 1.
- The
Court points out that Article 3 of Protocol No. 1 does not, like
other provisions of the Convention, specify or limit the aims which a
restriction must pursue. A wide range of purposes may therefore be
compatible with Article 3 (see, for example, Podkolzina v. Latvia,
no. 46726/99, § 34, ECHR 2002 II).
- It
is true that the Government did not structure their submissions by
explicitly setting out first the legitimate aims pursued by the
measure at issue and then demonstrating the proportionality of the
manner in which those aims were pursued. However, given the less
formal structure of the necessity test under Article 3 of Protocol
No. 1, the Court nevertheless considers that it transpires from the
arguments relied on by the Government and the specific references to
those relied on in the Hirst case (cited above), that they
consider that the provisions on disenfranchisement of prisoners under
Austrian law pursued the legitimate aims of preventing crime by
punishing the conduct of convicted prisoners and also of enhancing
civic responsibility and respect for the rule of law. Having regard
to its findings in Hirst, the Court finds no reason to regard
these aims as untenable or incompatible per se with the right
guaranteed under Article 3 of Protocol No. 1.
- As
regards the proportionality of the measures, the Government argued
that the Austrian provisions on disenfranchisement were more narrowly
defined than the rules applicable in the Hirst case and,
moreover, that section 44(2) of the Criminal Code granted the
sentencing judge far-reaching discretion in deciding whether or not
disenfranchisement should be imposed as an additional sanction on the
accused.
- As
to the latter argument, based on section 44 of the Criminal Code, the
Court observes that this provision entered into force only on
1 March 1997 and was therefore not applicable in the
applicant's case. The Court therefore sees no need to examine whether
or not the kind of discretion thus afforded to a sentencing judge
would be a sufficiently discerning means of allowing a differentiated
application of the rules on disenfranchisement, as is required by
Article 3 of Protocol No. 1.
- As
regards the conditions for disenfranchisement set out in section 22
of the National Assembly Election Act, the Court finds that the
provision in question is more detailed than the ones applicable in
Hirst (cited above). It does not apply automatically to all
prisoners irrespective of the length of their sentence and
irrespective of the nature or gravity of their offence, but restricts
disenfranchisement to a more narrowly defined group of persons since
it applies only in the case of a prison sentence exceeding one year
and only to convictions for offences committed with intent.
- Nevertheless,
the Court agrees with the applicant that section 22 of the National
Assembly Election Act does not meet all the criteria established in
Hirst (cited above, § 82). Under the Hirst test,
besides ruling out automatic and blanket restrictions it is an
essential element that the decision on disenfranchisement should be
taken by a judge, taking into account the particular circumstances,
and that there must be a link between the offence committed and
issues relating to elections and democratic institutions (ibid., §
82).
- The
essential purpose of these criteria is to establish
disenfranchisement as an exception even in the case of convicted
prisoners, ensuring that such a measure is accompanied by specific
reasoning given in an individual decision explaining why in the
circumstances of the specific case disenfranchisement was necessary,
taking the above elements into account. The principle of
proportionality requires a discernible and sufficient link between
the sanction and the conduct and circumstances of the individual
concerned (ibid., § 71). However, no such link exists under the
provisions of law which led to the applicant's disenfranchisement.
- The
Court therefore concludes that there has been a breach of Article 3
of Protocol No. 1 in the present case.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Since
the applicant does not claim any damage the Court cannot make an
award under this head.
B. Costs and expenses
- The
applicant sought reimbursement of the costs and expenses incurred
both in the domestic proceedings and in the proceedings before the
Court, in the amount of 12,713.06 euros (EUR).
- In
the Government's view the amount claimed was excessive and not
sufficiently specified. As regards the domestic proceedings, they
noted in particular that the applicant merely claimed a lump-sum
figure of EUR 5,000 without giving any details.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred in order
to prevent or obtain redress for the matter found to constitute a
violation of the Convention and were reasonable as to quantum.
- As
regards the claim concerning the domestic proceedings the applicant
has neither specified which lawyer had assisted him nor submitted any
breakdown of his costs. Moreover, representation by a lawyer in
proceedings before the District Electoral Authority is not mandatory
and in the proceedings before the Constitutional Court the applicant
had merely applied, unsuccessfully, for legal aid. Therefore the
Court cannot make any award under this head.
- As
regards the proceedings before the Court, the applicant was assisted
by a senior lawyer and three junior lawyers; moreover, a substantial
amount of EUR 1,880 was claimed for visiting the applicant in prison
and for communication with him. From the material in the Court's
possession the necessity of these expenses is not clear. Having
regard to the fact that the applicant has received legal aid and to
the awards made in similar cases (see Hirst, cited above, §
98) the Court grants EUR 5,000, plus any tax that may be
chargeable to the applicant on this amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by six votes to one that there has been a
violation of Article 3 of Protocol no. 1 to the Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following declaration of Judge
Kovler is annexed to this judgment.
C.L.R.
S.N.
DECLARATION BY JUDGE KOVLER
I
voted against finding a violation of Article 3 of Protocol No. 1 to
the Convention in the present case for the reasons expressed in the
joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler
and Jebens in the case of Hirst v. the United Kingdom (no. 2)
[GC], no. 74025/01, ECHR 2005-IX).
