In the case of Kulinski and Sabev v. Bulgaria, the European Court of Human Rights (ECtHR) heard a case of two Bulgarian nationals who were imprisoned in Sofia on charges of hooliganism respectively robbery and murder. They complained about the fact that they were not allowed on the basis of the Bulgarian Constitution to vote in the elections for the European Parliament and the Bulgarian Parliament. According to Kulinski and Sabev, this violated their right to free elections (as recognised in article 3 of Protocol no. 1 to the European Convention on Human Rights (ECHR)).
In deciding on the merits of the case, the ECtHR refers to its usual framework that guides complaints under article 3 of Protocol no. 1 to the ECHR. An interference with one’s right to vote is, according to the Court, only justified if it has a legitimate aim and if it is proportionate. The ECtHR accepts that there is a legitimate aim in the given case: indeed, as the Bulgarian authorities have argued, the aim of the interference is to enhance civic responsibility and respect for the rule of law. However, the ECtHR deems the interference not proportionate given that it is absolute and provides no room for individual assessment. That is to say, the right to vote of all prisoners is restricted under Bulgarian legislation, providing no decision-making room for the authorities to decide differently on the basis of the circumstances of individual cases, the severity of the criminal act or the behaviour of the convict. Whilst states enjoy a certain ‘margin of appreciation’ in deciding whether an interference is proportionate, a blanket ban on the right to vote falls outside the scope of this margin and therefore constitutes a violation of the right to vote under article 3 of Protocol no. 1 to the ECHR.
As I recently outlined elsewhere (in Dutch), this judgment appears problematic in two ways. These two problematic aspects will be revisited below. Also, I will briefly touch upon the framework of ‘crimmigration’ and the way in which it appears to be in play in the case of Kulinski and Sabev. A significant amount of work has already been published at Leiden Law Blog that involves the concept of ‘crimmigration’, but in this blog I would like to frame the concept slightly differently to also include the disenfranchisement of criminals through the criminal justice system. As I will briefly argue, criminal and penal laws and practices indeed contribute to a progressive ‘othering’ of those that previously enjoyed full membership of society and citizenry.
A legitimate aim?
The first problem with the decision by the ECtHR in the given case is that the judgment that the interference with the right to vote serves a legitimate aim seems to be based on very little empirical analysis. In previous case law, most notably in Hirst v. UK no. 2 (Grand Chamber), the Court held that in the circumstances of that specific case the aims of enhancing civic responsibility and respect for the rule of law were not excluded on the basis of doubts about the effectivity of the interference with the right to vote to achieve those aims. However, in the case of Kulinski and Sabev the Court seems to go substantially further by stating that the aims of enhancing civic responsibility and respect for the rule of law are legitimate aims for interferences with article 3 of Protocol no. 1 to the ECHR. In doing so, the Court no longer indicates that it takes the circumstances of the specific case into account. Indeed, nowhere in the judgment – not in the considerations of the Court and not in the arguments of the Bulgarian government – can one find an explanation of why and how an interference with the right to vote would enhance civic responsibility and respect for the rule of law. This is particularly problematic given that the causal relationship between the interference and the aims cannot be assumed but demands at a minimum further motivation or empirical substantiation. How can the deprivation of the right to vote, arguably one of the most fundamental pillars of the rule of law and civic responsibility – contribute to the enhancement of that very same rule of law and civic responsibility? Without further motivation or empirical testing, this relationship indeed is not a priori apparent.
A proportionate interference?
In light of the foregoing, the assessment of the interference’s proportionality also appears problematic. How can the proportionality of the interference be judged when it is unclear to what extent it contributes to the realisation of the given aims? In order to test whether an interference is proportionate, one should at least know whether the interference goes beyond what is necessary to achieve the aims of the interference, yet it is exactly this knowledge about the causal relationship between the interference and the aims that is fully absent in the given case as outlined above. Instead, the Court bases its assessment on the extent to which States distinguish convicts on the basis of the length of their sentences in applying the interference. It is very questionable whether this criterion is sound: indeed, the deprivation of the right to vote of long-term convicts is arguably not per se a proportionate measure to effectively enhance civic responsibility and respect for the rule of law. Instead, the individual circumstances of the case, the offender and the offence should be taken into account. Thus, it may well be that the interference with the right to vote is effective to achieve the given aims in relation to, say, an individual who is convicted for the abuse of a public position or for a criminal act that threatens to undermine the rule of law or the democratic foundations of the nation State (cf. Hirst v. UK no. 2 (Grand Chamber), para. 71). At the same time, the interference may be less effective in relation to for example those convicted for robbery. In any event, it seems that a case-by-case assessment is more apt to determine whether an interference is proportionate in light of specified aims than the application of a generic divide between short-term and long-term sentences.
Crimmigration? The disenfranchisement of convicts
Why would the ‘crimmigration’ framework – denoting the merger between immigration law and criminal law – be applicable to this case? Certainly not all scholars in the field of this merger would frame the given casus in terms of crimmigration, but I think it is interesting to explore how criminal law can be used to disenfranchise (or ‘immigrationalise’) individuals via the application of criminal and penal law and practices. By depriving convicted individuals of the right to vote, a key tool of civic participation is taken away from those in prison. In that sense, they are to a certain extent moved outside the realm of citizenship and participation on the basis of arguments about protecting the rule of law and enhancing civic responsibility. Slowly but fundamentally, they become an ‘Other’ to be distinguished from the citizenry, or the ‘Us’. The question remains whether the disenfranchisement that results from the application of such interferences is desirable and legitimate. Of course, in some instances it can be justified to take away the right to vote, but such interferences should not be applied too lightly for they go to the core of citizenship and have severe implications for the ability to participate in a democratic society. At the end of the day, taking away one’s right to vote has a fundamental impact on the way in which we furnish our democratic society and the processes by which decisions are made. Being diligent and prudent in this regard to protect the legitimacy and accountability of the democratic system seems to be an aim in and of itself that both States and judiciaries should not lose sight of in judging the legitimacy of alternative aims and the proportionality of interferences. At a minimum, such legitimacy and proportionality should arguably be established beyond reasonable doubt in each and every case.