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Strasbourg, 4 April 2005
Study
no. 306 / 2004
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CDL-AD(2005)011
Or. Engl.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
REPORT
ON THE ABOLITION OF RESTRICTIONS
ON THE RIGHT TO VOTE
IN GENERAL ELECTIONS
by
Mrs Mirjana Lazarova Trajkovska
(Member, “The Former
Yugoslav Republic of Macedonia”)
Endorsed by the Venice Commission
at its 61st
Plenary Session
(Venice, 3-4 December 2004)
I.
Introduction
1. A
motion for a resolution on “Abolition of restrictions on the right to vote in
general elections” was submitted to the Parliamentary Assembly of the Council
of Europe by Mr Frunda and others on 12
September 2003.On 7 June 2004, the Committee on Legal Affairs and Human Rights of the
Parliamentary Assembly asked the Venice Commission to prepare a report on the legal
framework and practice in different Council of Europe Member States concerning
restrictions to the right to vote in general elections with a special focus on
the situation of national minorities that do not have full citizenship status.
The Venice Commission appointed Mrs Mirjana Lazarova
Trajkovska (“The Former Yugoslav Republic of Macedonia”) and Mr Franz Matscher (Austria) as rapporteurs.
2. The
present report was endorsed by the Commission at its 61st Plenary
Session (Venice, 3 - 4 December 2004).
******
3.
The questions raised in the document of the Parliamentary Assembly on
which this report is based (AS/Jur(2004)16 of 7 June 2004) are closely connected with the core
elements of democracy and particularly of the electoral system. They touch upon
some of the constitutive characteristic of contemporary politics, organised
primarily in nation-states - integrated to a greater or lesser extent in various
international organisations. At the same time, they stimulate relevant debate
about the need to accommodate the existing political organisations and
principles to the overall changes in modern societies.
4.
The right to vote is one of the basic pre-conditions for preserving
other fundamental civil and political rights, but at the same time it is one of
the most significant characteristics of citizenship and, in that way, is closely
linked to the principle of state sovereignty. Both these dimensions are sources
of various legitimate or illegitimate restrictions of the right to vote.
5.
The acceptance of the principles of universality, equality, freedom and
secret and direct elections as building blocks of the European electoral
heritage goes in parallel with the recognition that the right to vote is,
nonetheless, connected to certain requirements. Some individuals living in a
given country or territory do not meet with these requirements. As a result,
the right to vote is subject to certain restrictions imposed by the states. On
such grounds, restrictions based on age, citizenship and residence, criminal
record and mental incapacity are commonly found in most, if not all, democratic
countries. Restrictions are introduced to both dimensions of the electoral rights:
the active dimension (the right to vote) and the passive dimension (the right
to be elected). Yet, the national practice in this field is quite diverse.
6.
In this respect, the present report, drafted on the request of the
Parliamentary Assembly, addresses questions with regard to the restrictions of
the right to vote on the basis of age, citizenship or permanent residence,
criminal record and mental illnesses. Yet, some of these questions are not easy
to deal with from a purely legalistic point of view. They require previous
sociological, philosophical and cultural debate as well.
II.
Age restrictions to the electoral rights
7. Two questions are raised in connection to the
present national practices concerning the right to vote on basis of age. The
first one is about the minimum age requirement which young people have to meet
in order to have a right to vote. The second question is about the differences
between the minimum age for active and for passive voting rights.
8.
As to the first question, all countries seem to accept the idea that
there should be a certain age of "political majority" at which young
people can be expected to cast their vote. The answer to this question is based
on the definition of the maturity (political maturity) that might differ on
cultural grounds. Yet, the proposition that this minimum age shall not be
higher than the age at which young people are conscripted into the army (18)
has strong arguments in favour, political as well as legal. The international
human rights instruments clearly provide that a person obtains political rights
at age of 18. The UN Convention on the Rights of the Child in its Part I, Article 1 prescribes that “for
the purposes of the present Convention, a child means every human being below
the age of eighteen years unless under the law applicable to the child,
majority is attained earlier.”
9.
Based on this, we are of an opinion that the minimum age for attaining
voting rights should not be more than 18. The answer to the question as to when
exactly the person is considered to fulfil this criterion (in the year when
elections are organised or on a day when elections are held), remains open.
There is no precise rule about this, and the approach is different from one country
to another. Yet, the states should assure that at least all persons who fulfil the
minimum age requirement on Election Day can vote from that day on.
10.
In connection to the second question of the present differences between
the minimum age for active and for passive voting rights, a comparative
analysis shows that the European states have different minimum age conditions.
The most commonly used argument is that participation in the decision-making
process requires additional knowledge and life experience.
11.
In this regard, we are of an opinion that the Venice Commission has already made clear its
position that “the right to stand for election should
preferably be acquired at the same age as the right to vote and in any case not
later than the age of 25, except where there are specific qualifying ages for
certain offices (e.g. member of the upper house of parliament, Head of State).”
III.
Citizenship and residency requirement
12.
The right or the privilege of voting is most frequently interpreted and
connected to the rights of citizenship or nationality. From this perspective,
it is a duty and privilege of persons owing loyalty to a state or nation. On
that basis, it is most common that constitutions and other legislation
stipulate that in principle voting rights are enjoyed by people possessing
state citizenship, or nationality. At the same time, there is a strong movement
and process of enfranchisement of foreign residents. The process has already
resulted in political and legal achievements - nationally and internationally.
13.
Resolution A/RES/46/137 of the General Assembly (1991) prescribes that “... the right to
participate in a political system based on common and equal citizenship and
universal franchise is essential for the exercise of the principle of periodic
and genuine elections ...”
14.
At the level of the EU, the Maastricht Treaty (Article 8) established
European citizenship for all citizens of the Union: On that basis Article 8.b
provides that “every citizen of the Union residing in a Member State of
which he is not a national shall have the right to vote and to stand as a
candidate at municipal elections in the Member State in which he resides, under
the same conditions as nationals of that State”. As a result, all citizens
of the Union are entitled to vote and to stand for
election for the European Parliament and in local elections in any of the
Member States. The Directive 94/80/EC for the rights related to local elections
grants all citizens of the Union a
right to elect and to stand for election in municipal elections in the Member
States where they reside, without this right being connected to the residence
in the state of their origin.
15.
In the Council of Europe, an important development also occurred since
the adoption of Recommendation 1082 (1988). In 1992 the European Convention on
the Participation of Foreigners in Public Life at Local Level was opened for
signature. Although the number of states that have ratified the Convention is
rather small, its influence on national legislation is widely recognised.
16.
In addition to this, a number of other international documents are
enacted with the idea of establishing participation of foreign residents in
public life. Recommendation 115 (2002) on the participation of foreign residents in
local public life: consultative bodies is of particular interest for our study
here. In item 8 of this Recommendation it is stipulated that “... foreign
residents who are lastingly and legally settled in the territory of a state
should be granted rights, including political rights, in return for their
acceptance of duties toward the host community.” In item 20, the Resolution
“invites the EU to follow the non-discriminatory approach recommended by the
Council of Europe and its conventions, and accordingly to re-examine its
current policies on the participation of foreign residents in public life at
local level so as to secure residence-based citizenship for all foreigners
whatever their country of origin and grant them the same political rights on
the basis of common criteria of residence.”
17.
The Code of Good Practice in Electoral matters, adopted by the VeniceCommission provides in its point I.1.1.b.ii that “… it would be advisable
for foreigners to be allowed to vote in local elections after a certain period
of residence.”
18.
A strong argument in giving a possibility to the long-term non-national
residents to vote, at least in local elections, could be the fact that they pay
taxes in their place of residence and, therefore, contribute to the development
of their community of residence. In this respect the right to participate in
the public life through electoral process for such tax-payers seems to be fully
justified and can be considered as a matter of fairness.
IV.
Citizenship and residency as requirement for
the right to vote
19.
The Council of Europe and, particularly, the CLRAE and the Parliamentary
Assembly have devoted great attention to the issue of integration of foreigners
in the Council of Europe member states, especially in the area of their
participation in decision making. In the past ten to twelve years, special
attention was paid to the participation of non-citizens in local elections.
20.
As a result of this approach, in some Council of Europe member states,
foreign residents are allowed to vote. For example, according to the Article 70
para. 2 of the Constitution of Hungary, “persons residing on the territory
of the Republic of Hungary as immigrants who do not have Hungarian citizenship
also have the right to vote in local government elections of representatives
and the Mayor, as well as the right to participate in local referenda and
popular initiatives, in accordance with the regulations of a separate law,
provided that they are present in the country on the day of the election or
referendum.”
21.
The Constitution of the Portuguese Republic in its Article 15 prescribes that if “...
there is reciprocity, the law may confer upon aliens who reside in the national
territory the right to vote for, and to stand for election as, members of the
organs of local authorities. And provided that there is reciprocity, the law
may also confer upon citizens of the Member States of the European Union,
who reside in Portugal, the right to vote for, and to stand for election as,
Members of the European Parliament.”
22.
The Elections Act of Netherlands in Section B 3 allows that “1.
Persons who are residents of the municipality on nomination day and who have
attained the age of eighteen years on polling day shall elect members of
municipal councils. 2. To be entitled to vote, persons who are not nationals of
a European Union member state should, on nomination day, meet the following
requirements: (a) They are permitted to reside in the Netherlands pursuant to
section 9 or 10 of the Aliens Act or pursuant to a headquarters agreement
between an international organisation and the State of the Netherlands, and (b)
They have been resident in the Netherlands for an uninterrupted period of at
least five years immediately prior to nomination day and have residence rights
as referred to in (a) above or residence rights pursuant to section 9a of the
Aliens Act...”
23.
In general, in many countries people who are legally residing outside of
their own country as foreigners (non-citizens) are given the right to vote in
local elections. This right is conditional on a certain period of residence in
the host country (community). The argumentation supporting this practice is
based on a number of complementary reasons such as integrationist,
representative (legally residing non-national pay taxes) and human rights
reasons, in particular, the right of non-citizens to express their opinion.
24.
In our view, residency could be a criterion for allowing non-citizens
the right to vote not only in local elections, but in regional, national and
presidential elections as well. Equal treatment could be established for all
residents (citizens and non-citizens) without differences in accordance with
the number of foreign residents in proportion to the number of citizens. The
reasoning for this is in that reality, most of those who are permanently
residing as foreigners are more familiar or have stronger interest in the
political life of the host state than in their state of origin.
V.
Citizenship and residency as requirement for
the right to be elected.
25.
In most of the Council of Europe member states, citizenship is a
condition for running for office (passive electoral right). This approach is
quite understandable bearing in mind the competencies of local self-government.
The residents of the municipality cannot be represented by a person who is not
familiar with the community life. Therefore, electoral legislation, especially
on local elections, quite justifiably prescribes citizenship as a prior
condition for exercising the right to be voted. This practice is in accordance
with the Convention on the Participation of Foreigners in Public Life at Local
Level.
26.
The Convention in its Chapter C - Right to vote in local authority
elections, in Article 6 stipulates that “each Party undertakes, subject to
the provisions of Article 9, paragraph 1, to grant to every foreign resident
the right to vote and to stand for election in local authority elections,
provided that he fulfils the same legal requirements as apply to nationals and
furthermore has been a lawful and habitual resident in the State concerned for
the 5 years preceding the elections. However, a Contracting State may declare, when depositing its instrument
of ratification, acceptance, approval or accession that it intends to confine
the application of paragraph 1 to the right to vote only.”
27.
Article 7 of this Convention prescribes that “each Party may, either
unilaterally or by bilateral or multilateral agreement, stipulate that the
residence requirements laid down in Article 6 are satisfied by a shorter period
of residence.”
VI.
Expatriates and right to vote in their home
countries
28.
Most of the citizens in European countries who are temporarily working
or staying abroad are registered in the Voters’ List in their country of
origin. Those persons are mainly registered according to their last place of
residence prior to the departure abroad. This clearly indicates the
determination of the legislators to use residence as a basis for allocation of
the citizens (who have a right to vote) in the Voters’ List. In most countries,
persons who have an active suffrage can exercise it, if they have or had a last
residence on the territory of their home country prior to their departure
abroad, regardless of their place of residence. The method of registration of
the new residence and the cancellation of the old residence or temporary
residence, as well as the registration of the change of the address, is
regulated on the basis of different legislation, which varies from country to
country.
29.
For example, in Article 121 paragraph 2 of the Constitution of the
Portuguese Republic prescribes that “the law shall regulate the exercise of
the right to vote held by Portuguese citizens resident abroad, taking into account
their “effective links” with the national community.”
30.
Article 8 of the Electoral Code of the Republic of Albania establishes
that “voters who live in another state have the right to vote only on the
territory of the Republic of Albania at the place where they are registered in
the registry of civil status, provided they are registered in the National
Registry of Voters, in accordance with the procedures in this Code, and possess
a voter card.”
31.
One question arises from the aforesaid facts: why do most of the states
decide to adopt the concept that links the right of a citizen to vote with his
or her residence? The methodology of voter registration determines the
distribution of the polling stations, and accordingly results in the layout of
the electoral districts. But, citizens who are abroad on Election Day in the
same Council of Europe member states may exercise their right to vote in the
diplomatic and consular offices or by mail. However, according to the
legislation of the same countries, they
would have to return to their country and cast their vote in the polling
station located in the municipality where their last residence was before they
left the country. Not all of them might be in a position to do so.
32.
In our view, the country of origin should find a formula to encompass
this category of voters who reside abroad and want to exercise their right to
vote, but cannot come to their country on Election Day. It is up to the citizen
to decide whether or not he/she wishes to exercise this right. The same
approach should be applied to the legal requirement for passive suffrage. Such
a legislative provision will mean that every citizen who meets the general
conditions required can run as a candidate for the national elections and does
not have to be in his home state. The only legal connection with the state,
which a citizen who wants to run for a candidate has to meet, is to be its
citizen. This approach is particularly important for countries with a large numbers
of its nationals living abroad, who, at the same time, maintain relations with state (although the residences
of these people and their successors are abroad, they can run as Members of
Parliament).
VII.
Persons convicted of criminal offences or
sentenced to prison
33.
In a number of countries, persons sentenced to prison or convicted of
criminal offences are allowed to vote without restrictions. Yet, in some states,
prisoners are not allowed to vote or are allowed to vote but not to be elected.
34.
The Armenian Constitution in Article 27 prescribes that “... citizens
found to be incompetent by a court ruling or duly convicted of a crime and
serving a sentence may not vote or be elected.”
35.
The Constitution of the Republic of Estonia in Article 58 stipulates that “the
participation in elections of Estonian citizens who have been convicted by a
court of law and who are serving a sentence in a place of detention may be
restricted by law.”
36.
In Article 70 paragraph 3 of the Constitution of the Republic of Hungary,
“the right to vote shall not be granted ... to persons who are subject to a
final legal judgment forbidding them to participate in public affairs, or to
persons who are incarcerated on the basis of a final legal judgment or who are
under compulsory institutional care on the basis of a final legal judgment
rendered in criminal proceedings.”
37.
The Constitution of the Republic of Poland in Article 62 paragraph 2 prescribes that “persons
who, by a final judgment of a court, have been subjected to legal
incapacitation or deprived of public or electoral rights, shall have no right to
participate in a referendum or a right to vote.”
38.
The Romanian Constitution in Article 34 paragraph 2 states that “...
as well as persons disenfranchised by a final decision of the court cannot vote.”
39.
The Danish Parliamentary Election Act in its Part 1 paragraph 4
regulates “4.-(1) Eligibility for the Folketing is accorded to anyone holding
the right to vote according to section 1, cf. section 2, unless punished for an
act, which in the public opinion renders him unworthy of being a Member of the
Folketing, cf. the Act of the Constitution sections 30 and 33. “...” (2) A
person can nevertheless always stand as candidate in an election regardless of
objections in respect of non-eligibility.”
40.
Article 6 of the Electoral Code of Belgium excludes from the electorate
and does not allow to vote those who have been convicted on a criminal offence.
41.
In the view of the Venice
Commission, prisoners should be allowed to exercise their right to vote without
restrictions unless imposed as part of the penalty for the offence by the court
of law. In pronouncing such sanctions the principle of proportionality and
necessity of a such sanction in a democratic society should be respected. Criminal
penalty leading to imprisonment should not mean an automatic deprivation of one
of the most important political rights - the right to vote.
42.
The Venice Commission in its Code of Good Practice has made
the provisions for depriving individuals from their right to vote conditional
on four cumulative conditions: to be provided by law, to respect the principle
of proportionality, to be based on mental incapacity or a criminal conviction
for a serious offence, and to be imposed by express decision of a court of law.
VIII.
Persons serving military service
43.
Persons serving military service, as well as persons in the police
forces, have a specific position in some societies. As a result, in some
countries they are deprived of their right to vote and to be elected. On the
other side, in many countries where this is not the case, the voting right of
those persons is regulated with additional but not necessarily restrictive norms.
44.
According to Article 2 paragraph 6 of the Electoral Code of Armenia, “citizens
who are military servicemen performing their military service or participating
in military training cannot participate in elections to local self-governing
bodies and National Assembly elections …” Article 10 of this Law even
states that “... the military servicemen who are performing their military
service or participating in the military training and who have not been taken
off the records prior to being drafted for military service, cannot be included
in the voters lists during the elections to local self-governing bodies and
National Assembly elections ...”
45.
The Law on Basic Provisions on Elections and Voter Registers of Turkey,
in Article 7 establishes that “... shall not be eligible for voting 1.
Privates, corporals or sergeants in active service in Turkish Armed Forces
(those on leave due to any cause whatsoever shall strictly be subject to this
provision), 2. Military school students ...”
46.
The Electoral Code of Moldova in Article 13 paragraph 2 lays down that “the
following cannot be elected: a) military personnel in active service; b)
individuals who are incompatible under current laws, until the expiration of
their incompatibilities; c) individuals who do not meet the requirements of
paragraph (1) of this Article.”
47.
The argumentation behind such exclusion and restrictions is based on the
specific historical experiences with the civil-military relations. Yet, the
need for democratic control over the military should not be used as an excuse to
deprive automatically persons serving military service of their voting rights.
They shall also exercise full citizenship rights. This shall not exclude a
possibility for a certain margin of appreciation by States applicable in
circumstances clearly defined by law.
IX.
Persons with mental incapacity
48.
Participation in the democratic life of a society presupposes certain
mental capacities. On this ground, limited restrictions are introduced to the
voting rights of persons with mental incapacity. Such restrictions are common
to most of the Council of Europe countries.
49.
Article 45 paragraph 2 of the Constitution of Albania prescribes that “citizens
who have been declared mentally incompetent by a final court decision do not
have the right to elect.”
50.
The Armenian Electoral Code Article 2 paragraph 5 regulates that “citizens
who have been recognised as incapacitated by a court ruling ... cannot elect
and be elected.” The Constitution of the Republic of Estonia in Article 57 paragraph 2 prescribes that “an
Estonian citizen who has been declared mentally incompetent by a court of law
shall not have the right to vote.”
51.
The Act on Election of Representatives to the Croatian Parliament in
Article 4 regulates that “the representatives in Parliament are being
elected on the basis of direct universal and equal suffrage by all the Croatian
citizens ..., except those who are divested of business capacity by a valid legally
court sentence ...”
52.
The Constitution of the Republic of Poland in Article 62 paragraph 2 states that “persons
who, by a final judgement of a court, have been declared to be in a state of
legal incapacity … shall have no right to participate in a referendum nor a
right to vote.” The Constitution of Romania in Article 34 prescribes that “mentally
deficient or alienated, laid under interdiction, as well as persons
disenfranchised by a final decision of the court cannot vote.”
53.
The Federal Law on the Election of Deputies of the State Duma of the
Federal Assembly of the Russian Federation in Article 4 paragraph 6 states that “a
citizen of the Russian Federation found incapable by a court or kept in places
of confinement under a court sentence shall have no right to elect or be
elected.”
54.
Similar but somewhat specific regulations are found in other countries.
The Federal Electoral Law of Germany in Article 13 paragraph 3 introduces such
restrictions on citizens who are “accommodated in a psychiatric hospital
under an order pursuant to Article 63 of the Penal Code in conjunction with
Article 20 of the Penal Code.” The Hungarian Constitution in Article 70
paragraph 3 regulates that “the right to vote shall not be granted to
persons who are under guardianship limiting or excluding their capacity, to
persons who are subject to a final legal judgement forbidding them to
participate in public affairs, nor to persons who are incarcerated on the basis
of a final legal judgment or who are under compulsory institutional care on the
basis of a final legal judgment rendered in criminal proceedings.” In Belgium the Article 7 of the Electoral law restricts
the right to vote of individuals who have been declared mentally incapable or
placed in Government’s custody in application of the law. The Law on Basic
Provisions on Elections and Voter Registers of Turkey, in Article 8 prescribes
that persons who have been placed under the care of a guardian and who are barred
from public service shall not be entitled to vote.
55.
The legal basis for such restrictions must be clearly defined by law and
the deprivation of the right to vote and to be elected, as a result of mental
incapacity, may only be imposed by a decision of a court of law.
X.
National minorities and persons with dual nationality
56.
Article 15 of the Council of Europe’s Framework Convention for Protection
of National Minorities states that “parties shall create the conditions
necessary for the effective participation of persons belonging to national
minorities in cultural, social and economic life and in public affairs, in
particular those affecting them.”
57.
The affirmative action in the sphere of electoral rules is one of the
ways to establish effective participation of persons belonging to national
minorities. The Venice Commission Code of Good Practice in
Electoral Matters provides some basic principles for developing electoral
affirmative action rules in accordance with European electoral heritage, such
as: Parties representing national minorities, guaranteed reserved seats for
members of nationals, electoral thresholds should not affect the chances of national
minorities to be represented, electoral districts (their number, the size and
form, the magnitude) may be designed with the purpose to enhance the
minorities' participation in the decision-making processes.
58.
Also, the possession of dual or multiple nationality should be no
obstacle for exercising voting rights in both countries. This approach is completely consistent with
Article 17, para. 1 of the European Convention on Nationality, which stipulates
that those citizens enjoy the same rights and duties on the territory of the
country where they live as the other citizens in that country.
XI.
Conclusions
59.
In most of the counties examined the minimum age requirement is
established at the age of 18, while minimum age requirement for the right to be
voted varies. With regard to this, we emphasise the Venice Commission recommendation that “the right
to stand for election should preferably be acquired at the same age as the
right to vote and in any case not later than the age of 25...”
60.
There is a trend in the counties compared that residency prevails over
nationality as a precondition for the right to vote. The countries of the Council
of Europe could follow this approach at least for local elections, and under the
condition of a certain minimum period of residence. With regard to the right to
be elected, the same approach could be applicable with a requirement of a longer
period of minimum residence.
61.
In most of the countries compared, persons convicted of criminal
offences are allowed to enjoy the right to vote (with or without restrictions).
The number of countries where prisoners are allowed the right to be elected is
small. On the basis of the existing court practice, it can be concluded that
restrictions on the right to vote on grounds of criminal conviction are
difficult to defend from a human rights perspective. The restrictions on the
right to be elected have serious argumentation.
62.
In some countries, the voting rights of persons serving military service
as well as persons in the police forces are subject to restrictions - are not
allowed to vote or to be elected. This practice is against the more common approach
that avoids the restriction of the voting right of those persons while applying
certain additional regulations directed at enabling them to participate in
elections without any restrictions.
63.
The restrictions on the voting rights on grounds of mental incapacity
are the most common ones in countries compared. This criterion of deprivation
of the right to vote and to be elected is accepted by all member states of
Council of Europe. Yet, it should be underlined that these restrictions are
legitimate when imposed by a decision of a court of law.
64.
In general, the analysis of the questioned restrictions on the voting
rights in the member states of the Council of Europe shows that the restrictions
are most often not in contradiction with the principles of human rights and the
practices of citizenship. The voting rights are not absolute citizenship rights
and, as such, the restrictions could be justified as far as they are introduced
on a non-discriminatory base. The real question is not whether the present
restrictions on the voting rights on grounds of minimum age, residence and
nationality, mental incapacity, criminal conviction etc. are legal or
legitimate, but whether there is a need for enabling persons with these
characteristics to participate in the democratic decision-making process. If
the normative orientation is to broaden the electoral body, then the limits on
imposing such restrictions shall be stricter and closer to universal.
