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.” This right could be granted, for example, after 5 years
of permanent 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. This approach should also
apply to such groups as residents of nursing homes, persons who have been convicted
of a criminal offence, nomadic groups and those who are temporally absent.
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.
