EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT OPINION
ON PARLIAMENTARY ASSEMBLY
RECOMMENDATION 1714 (2005)
ON THE ABOLITION OF RESTRICTIONS
ON THE RIGHT TO VOTE
on the
basis of contributions by
Ms Mirjana Lazarova
Trajkovska
(Member, The
“Former Yugoslav Republic of Macedonia”)
Mr Franz MATSCHER (Member, Austria)
I.
General
observations
1. The Venice Commission has studied the issue
of the right to vote (both active and passive) on a number of occasions and
reaffirmed on numerous occasions the importance of this right in any democracy.
The Commission has studied this issue both as a general subject of interest to
the Council of Europe Member States, as well as in the concrete case of the participation
of minorities in public life. The right to vote was also subject to discussions
and comments in the light of the Venice Commission’s co-operation on
constitutional matters with some countries.
2. The problem of restrictions to the right to
vote was the subject of two reports by Mrs M. Lazarova Trajkovska and Mr F.
Matscher (CDL-AD(2005)011 and 012) endorsed by the Venice Commission at its 61st
Plenary session on 3 - 4 December 2004.
3. The right to vote as one of the fundamental
political rights is also fundamental for the fulfilment of a number of civil
and social rights. At the same time the principles of universality, equality,
freedom and secret ballots are the four pillars of the European electoral
heritage and they are introduced into the constitutions and electoral
legislation of the member and observer states of the Council of Europe. In this
respect the abolition of existing restrictions on the right to vote should be
of interest to states and it should also serve as an issue for further
activities of the Council of Europe and other international organisations.
4. In some
member and observer states of the Council of Europe, the implementation of
existing standards and general principles is deeply influenced by customs, and
traditions, but most of all by the level of political culture. In a number of
cases and situations in countries of Europe and elsewhere various norms and practices have been
established which restrict the right to vote to certain categories of people.
Such restrictions are problematic from a human rights perspective. European
institutions and in this case the Parliamentary Assembly of the Council of
Europe are working to overcome such restrictions.
5. This
opinion has been drafted at the request of the Parliamentary Assembly, and its
aim is to address Recommendation 1714 (2005) on the abolition of restrictions
on the right to vote. The Recommendation refers to Resolution 1459 (2005) and
should be analysed and discussed in the light of this document.
6. The
Recommendation calls upon the Committee of Ministers to, firstly, appeal to
member and observer states to consider this issue in the light of the latest
developments in Europe; secondly, to invite the corresponding services of the
Council of Europe, in particular the European Commission for Democracy through
Law (Venice Commission) and its Council for Democratic Elections, to
develop their activities aimed at improving the conditions for the effective
exercise of election rights by groups facing special difficulties; and thirdly, to review
existing instruments with a view to facilitating the exercise of
electoral rights of expatriates.
II.
Appeal to member and observer states
7. Referring to Resolution 1459 (2005) the Parliamentary
Assembly calls upon the Committee of Ministers to appeal to member and observer
states on two issues: in the first place to sign and ratify the 1992 Council of
Europe Convention on the Participation of the Foreigners in Public Life at
Local Level (ETS No. 144) granting active and passive electoral rights in local
elections to all legal residents and, secondly to reconsider existing
restrictions on the electoral rights of prisoners and members of the military,
with a view to abolishing all those which are no longer necessary and
proportionate in the pursuit of a legitimate aim.
8. The appeal
to member and observer states to sign and ratify the 1992 Council of Europe
Convention on the Participation of Foreigners in Public Life at Local Level
(ETS No. 144) with the idea of granting active and passive electoral rights in
local elections to all legal residents is to be welcomed. This approach is in
accordance with the Code of Good Practice in Electoral matters,
which in its point I.1.1.b.ii stipulates that “… it would be advisable for
foreigners to be allowed to vote in local elections after a certain period of
residence.”
9. The appeal
to member and observer states to reconsider existing restrictions on the
electoral rights of prisoners and members of the military, with a view to
abolishing all those that are no longer necessary and proportionate in the pursuit
of a legitimate aim, is of particular importance. In some countries, the voting
rights of persons serving in the police force are subject to restrictions (not
being allowed to vote or to be elected). This practice is against the more
common approach which avoids the restriction of the voting rights of these people
and in our view people serving in the police force should also be allowed to
fully enjoy electoral rights. This approach should also apply to residents of
nursing homes, persons who have been convicted of a criminal offence and
nomadic groups.
III.
Further
activities of the Venice Commission and the Council for
Democratic Elections
10. The Parliamentary Assembly invites the services
of the Council of Europe, in particular the Venice Commission and its Council
for Democratic Elections to develop their activities by improving the conditions
for the effective exercise of election rights by groups facing special
difficulties, such as expatriates, prison inmates, persons who have been convicted
of a criminal offence, residents of nursing homes, soldiers or nomadic groups.
We will add here national minorities and persons with dual nationality. In our
opinion these two groups are also facing restrictions or are discriminated
against.
11. The Venice Commission and its Council
for Democratic Elections are following the achievements in the area of
democratic elections and in respect of voting rights as one of the basic human
rights which will continue to influence improvements in international and
national legislation through expert opinions, studies, consultative meetings
and seminars. In this field it is of great importance to co-ordinate through
the Council for Democratic Elections activities with other Council of Europe bodies,
particularly with the Parliamentary Assembly, the Congress on Regional and
Local Authorities, as well as with OSCE/ODIHR.
