Prisoners’ Right to Vote
There are increasingly less countries in Europe where prisoners are automatically deprived of the right to vote by law, as is the case in Estonia.
European countries have different regulations. There are countries where prisoners’ right to vote is not restricted and there are countries where some restrictions are made, and there are also countries, including Great Britain and Estonia where prisoners do not have the right to vote. Other European countries besides Estonia and Great Britain that have such laws are Bulgaria, Georgia, Liechtenstein, Hungary and Russia.
The European Court of Human Rights summarised the long-time discussions on prisoners’ right to vote in its judgment in the case Hirst versus United Kingdom (No 2) in 2005. With this judgment, the European Court of Human Rights confirmed that the right to vote is a fundamental right and not a privilege. The general restriction on the right to vote which does not come from a specific criminal offence is disproportionate and undermines the principle of equality and involvement and the belief in the legal order. Participation in elections increases commitment to the civil society and the sense of responsibility and promotes social involvement.
Under § 58 of the Constitution of Estonia, at the Riigikogu, a local government council and the European Parliament elections, the right to vote is restricted for persons who have been convicted of a criminal offence and are serving an imprisonment sentence. Nor can they participate in referendums. The restriction applies to all prisoners regardless of the type of the criminal offence they have committed or the length of the punishment imposed on them. As the Constitution here grants the right of discretion to the legislator, naturally the general principles of the restriction of the fundamental rights have to be followed in exercising this right.
It has been discussed in Estonia whether there is a need to abolish the restriction. After the judgment in Hirst versus United Kingdom (No 2), the Chancellor of Justice also pointed out the problems of our current regulation. Likewise, already after the Riigikogu elections on 4 March 2007, the OSCE has recommended Estonia to make amendments to the Act concerning elections so that it would be in conformity with European standards and with the obligation assumed in regard to the OCSE to the effect that all restrictions of rights and freedoms must be in strict accordance with the meaning of the Act. Although mitigation of the restrictions has been talked about, no action has been taken. In Estonia, like in Great Britain, the solution of the problem has been postponed for a long time although it should be clear that this cannot go on endlessly. There have been concerns about the administrative aspect of the organisation of elections among prisoners. Such concern certainly cannot be considered serious nowadays. Even if there may be some difficulties, it is the responsibility of the state to organise the elections and to find solutions to problems.