Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Thierry Delvigne

Case Number: C 650/13

Relevance of Decision

In this case, the Court of Justice ruled on the legality and proportionality of a ban on voting for European Parliament as a result of a former criminal conviction. It clarified that the Member States when making provision in their national laws for defining who is entitled to vote in elections must comply with the Charter. In this context, the Court of Juctice interpreted Articles 39 and 49 of the Charter.

Facts of the case

In 1988, Mr Delvigne was convicted of a serious crime and given a custodial sentence of 12 years. Under the old criminal code, that sentence entailed the loss of Mr Delvigne’s civil rights by operation of law - including his right to vote and his right to stand for election.

The new Criminal Code, which entered in force into 1994, provides that the total or partial deprivation of civil rights must be the subject of a court ruling and may not exceed ten years in the case of a conviction for a serious offence.

However, in accordance with French law, Mr Delvigne continued to be deprived of his civil rights after 1994, as that deprivation resulted from a criminal conviction that had become final before the new Criminal Code entered into force.

In 2012, the competent administrative commission, on the basis of the electoral code, ordered Mr Delvigne to be removed from the electoral roll for Euroepan Parliament of the municipality in which he resided. Mr Delvigne lodged an application with the referring court to challenge that removal.

Legal Questions

The legal question, in this case, is in how far the deprivation of the right to vote based on a national law which entails removal from the electoral roll for the elections to the European Parliament is compatible with the provisions Article 39 and the last sentence of Article 49(1) of the Charter.  

Do those provisions, first under Article 39 - applicable to elections to the European Parliament, have to be interpreted as precluding the Member States of the European Union from making provision for a general, indefinite and automatic ban on exercising civil and political rights, in order to avoid creating any inequality of treatment between nationals of the Member States? Second, is Article 49 to be interpreted as preventing a provision of national law from maintaining a ban, which is indefinite and disproportionate, on allowing persons convicted before the entry into force of a more lenient criminal law to receive a lighter penalty?

Court Findings

(1) Jurisdiction 

First, the CJEU examined whether it has jurisdiction to consider the case, i.e. whether the situation falls within the scope of EU Law.

The CJEU noted that, according to EU Law (Article 8 of the 1976 Act), the electoral procedure is to be governed in each Member State by its national provisions. Nevertheless, when exercising their competence, Member States are bound to ensure that the election of members of the European Parliament is by direct universal suffrage and free and secret. This is pursuant to Article 1 of the 1976 Act, read in conjunction with Article 14(3) TEU.

The CJEU held that a Member State which, in implementing its obligation under these provisions, makes provisions in national law excluding union citizens like Mr Delvigne from those entitled to vote in elections to the European Parliament, must be considered to be implementing EU law within the meaning of Article 51(1) of the Charter. Hence, the Court found that it has jurisdiction to reply to the questions posed by the referring court.

(2) Compliance with Article 39 of the Charter 

The CJEU recalled that “Article 52(2) of the Charter provides that rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within limits defined by those Treaties”. In this context, the CJEU noted that Article 39(1) of the Charter corresponds to the right guaranteed in Article 20(2)(b) TFEU. With regards to this Article, the CJEU has already held that it only applies to the principle of non-discrimination on the grounds of nationality. Since the Mr Delvigne is a national of France, this provision (and therefore also Article 39(1) of the Charter) was found not to be applicable.

The CJEU further noted that Article 39(2) of the Charter enshrines the right of Union citizens to vote in elections to the European Parliament and corresponds to Article 14(3) TEU. The Court held that the situation of Mr Delvigne was a definite limitation to this right. The CJEU examined whether this limitation is in compliance with Article 52(1) of the Charter. The Court found that the restriction complied with the Charter as it was provided by law, did not affect the essence of the right to vote and could be considered proportionate. Hence, the Court concluded that Article 39(2) of the Charter does not preclude national legislation the deprivation of the right to vote for convicted persons.

(3) Compliance with Article 49(1) of the Charter 

The Court examined the compatibility of French law with the last sentence of Article 49(1) of the Charter, which provides that “If subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.” However, the Court found that this rule of retroactive effect of the more lenient criminal law does not preclude national legislation such as that at issue in the main proceedings. The legislation is limited to maintaining the deprivation of the right to vote resulting, by operation of law, from a criminal conviction delivered at last instance under the old Criminal Code. In this context, the Court also noted French law provides Mr Delvigne with the opportunity to apply for the lifting of his voting ban.

Critical Assessment

In numerous cases, also the European Court of Human Rights ruled on the restriction of prisoners´ voting rights. 

The Court stated and reinsured that the blanket restrictions on prisoner voting, which lacks scrutiny of proportionality by the legislature, are incompatible with the European Convention on Human Rights. In its landmark decision Hirst v the United Kingdom (No 2) 2005, the Court argued that a ban with a 'general, automatic and indiscriminate’ character due to the status as a convicted prisoner violates Article 3 Protocol 1 ECHR. 

In Scoppola v Italy (No 3) 2012, the Court departed from its findings in Frodl v Austria (2011) that an ‘essential element’ in establishing the proportionality of a deprivation of a prisoner’s right to vote is that the decision must be taken by a judge who must provide specific reasoning to explain why a voting ban is necessary. In Scoppola, the Court found that the deprivation of voting rights by general application of law did not itself render the measure disproportionate. In the decision the Court also stated that the States had a wide discretion how it regulates the ban, e.g., for which offences.