Free and fair elections are crucial for the legitimacy of democratic States and are protected as a human right. Jurisprudence and scholarship often emphasise the connection between democracy and human rights. For example, the European Convention on Human Rights (ECHR or the Convention) was designed to ‘maintain and promote the ideals and values of a democratic society’.1 According to the European Court of Human Rights (ECtHR or the Court) democracy is the only political model contemplated by the Convention and the only one compatible with it.2 While neither the Court nor other sources have been able to conclusively define democracy,3 the political rights of freedom of expression, association, and assembly as well as participation in free and fair elections are well-established elements. These rights have often been reiterated in ECtHR case law as interrelated and imperative to democracy, and are widely protected under international and regional human rights law.4 While freedom of association, expression, and assembly are guaranteed rights for all people within a State’s jurisdiction, the right to participate in free and fair elections is generally restricted to citizens.5 Rubio-Marin notes that electoral rights are citizen rights, and not just human rights.6 Citizenship in this way constructs ‘the polity that defines the nation’, codifying and institutionalising identity in law.7
In addition to restrictions based on citizenship, other limitations on a citizen’s right to participate in free and fair elections are permissible under human rights law. Despite the fundamental importance of democracy and human rights, these political rights are not absolute and States around the world have imposed restrictions, including restrictions on the franchise. This includes limits on the age of those eligible to vote, limitations on persons convicted of certain crimes, and also limits on the rights of non-resident citizens.8 While limitations are permissible under both regional and international human rights instruments like the ECHR and ICCPR, restrictions on the franchise must not be unreasonable or discriminatory.9 While limitations on the voting rights of convicted criminals has been highly contentious in the European Convention system and received much attention, the restrictions imposed on the voting rights of non-resident citizens has received less attention. As such, this article focuses on the limitations on the franchise of non-resident citizens.
The notion of citizenship embraced by the traditional conception of the nation-state is ‘fundamentally a territorial one’.10 Traditionally, political communities possessed inter-relationships and obligations as a result of sharing the same physical space.11 The relationship between territory and citizenship has been identified as the key dynamic in arguments for or against emigrant citizen franchise.12 A citizen’s relationship with their State necessarily changes when they leave the territory, altering their interactions both with the State and its institutions.13 Historically, residency was a standard requirement of election laws and citizens were sometimes even deprived of their nationality upon emigration —dying a ‘social death’.14 This has changed over time, due in part to developments in transport, communication, technology, society, and the law. States around the world increasingly comprise relatively large numbers of both resident non-citizens and non-resident citizens.15 Today, non-resident citizens more often carry their political rights with them when they go abroad, and there is a growing acceptance of dual citizenship.16 As provided for under human rights law, people have the right to move, to leave their State of origin, and to pass on or change their nationality.17
Tensions about the proper relationship between citizens, the State, and its territory continue to define debates regarding emigrant franchise.18 Citizens who leave their States to join a new society, yet claim active membership in their State of citizenship, challenge the neat picture of nation-states as distinct and separate geopolitical spaces inhabited by a group with a common political destiny and membership status.19 These issues relate generally to the problem of ‘constituting the demos’.20 Citizenship, so long a ‘symbol of rootedness, exclusivity, and permanence’, has been discovered in contemporary times to be ‘portable, exchangeable, and increasingly multiple’ —which requires new analysis.21 In today’s increasingly globalised world, and with the benefits of modern technology, people are becoming both more mobile and more connected. However, immigrants’ voting rights have received far more attention than that of emigrants,22 which some scholars say lacks prominent attention.23 Beckman notes the ‘unresolved relationship’ between democratic rights and territorial borders.24 As such, this article critically assesses the limitations on the voting rights of non-resident citizens, and considers whether limitations on the basis of residency are compatible with the European Convention on Human Rights.
Today, some emigrants submit that their citizenship should entitle them to the right to vote, to run for office, and to participate in their State’s political sphere even when abroad.25 These political membership claims are rooted in their ongoing legal status as citizen of that State.26 However, these claims have been contested in various courts and to date, the right of non-resident citizens to vote under human rights law remains ambiguous.27 This article presents an analysis of the law according to the ECtHR regarding the voting rights of non-resident citizens among Council of Europe member States. The article first sets out the laws protecting the franchise and the permitted limitations on those rights, for example regarding felons and non-resident citizens. The article then considers the reasons for States’ limitations and whether they represent a legitimate aim that is proportionate to the resulting disenfranchisement. This article argues that blanket restrictions on the voting rights of non-resident citizens are an unjustified interference with the citizen’s rights. While the ECHR permits some limitations on franchise, it is contended that the current limitations based on residence do not strike the right balance to protect human rights and democracy.
II. Right to Vote and Permissible Limitations under the ECHR
Despite the great importance of voting rights to democracy, franchise is not absolute and both the ICCPR and ECHR permit similar restrictions. To be permissible according to Article 25 of the ICCPR, restrictions on franchise must be based on objective and reasonable criteria and be established in law.28 The UN Human Rights Committee (HR Committee) has held that restrictions are permissible provided they are not ‘discriminatory or unreasonable’.29 In General Comment No. 25, the HR Committee noted that ‘[i]f residence requirements apply to registration [of voters], they must be reasonable’.30 The discriminatory nature of a provision is to be judged on a case-by-case basis, having regard in particular to the purpose of such restrictions and the principle of proportionality.31 Since residency is not specifically prohibited as a basis for discrimination under Article 2 ICCPR, to which Article 25 refers, it is apparent that residency restrictions may be permissible.32 The ECHR permits similar restrictions.
While the ECHR explicitly protects freedom of association, assembly, and expression, its protection of franchise has been extrapolated by the Court based on Article 3 of Protocol No 1.33 This Article guarantees the right to free elections and provides that member States undertake ‘to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’. While this Article does not expressly provide for an individual’s right to vote, the Court has held that the rights to vote and stand for election are implicit in Article 3 of Protocol No 1.34 The Court considers the requirements of Article 3 regarding participation in government to have been met if the people can participate in the composition of the legislature of the member State at regular intervals.35 The ECtHR has emphasised that Article 3 ‘enshrines a characteristic principle of democracy’ that is ‘of prime importance in the Convention system’.36 While Article 3 rights are not absolute and limitations are permissible,37 the exclusion of any groups or categories of the general population from voting must be reconcilable with the purposes underlying Article 3.38
On the basis of the rights grounded in Article 3 of Protocol No 1, individuals have challenged their State’s franchise limitations before the ECtHR.39 The resulting jurisprudence provides insight into the Court’s interpretation of franchise rights and democracy, permissible interferences, and therefore the frontiers of political rights and communities. The sections below consider the ECtHR’s jurisprudence regarding States’ limitations on the right to vote, focusing on the two most common issues of disenfranchisement: non-resident citizens and convicted criminals.
A. Residency Restrictions on Franchise under the ECHR
Council of Europe member States have taken different approaches to the franchise, with some permitting wide ranging voting rights for non-residents, and others imposing various restrictions. Marking the low point of the franchise, eight Council of Europe member States do not allow voting in parliamentary elections from abroad (including Armenia, Ireland, and Malta), while non-resident citizens of more than 30 States retain voting rights (including Austria, Belgium, Spain, and the Netherlands).40 As such, a clear majority of States permit non-resident citizens to vote, however the specifics of the voting rules vary. While some States disenfranchise non-resident citizens only after a certain period abroad (such as Germany after 25 years and the UK after 15 years), 35 States place no restrictions based on the period of absence.41 Furthermore, in France, Italy, Croatia, and Portugal, non-resident citizens have specially designated representatives in parliament.42 The ECtHR has heard several cases brought by applicants challenging their State’s residency-based restrictions on franchise. In almost all of these cases, the Court has found the limitations imposed not to be in violation of Article 3 of Protocol No 1, as they were deemed to fall within the State’s margin of appreciation. These cases are discussed below.
In the oft-cited 1999 case of Hilbe v Liechtenstein, the applicant —a national of Liechtenstein— was disenfranchised due to his residence in Switzerland.43 The ECtHR held that the restrictions on non-resident citizen’s franchise were not in violation of Article 3, and considered the residence requirement to be justified by four factors.44 Firstly, it was deemed justified based on the assumption that a non-resident citizen is less directly concerned with their State’s day-to-day problems and has less knowledge of them. Secondly, it was held impracticable for the parliamentary candidates to present the different electoral issues to citizens abroad, and that non-resident citizens have no influence on the selection of candidates or the formulation of their electoral programs. Thirdly, it was deemed justified based on the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected. Finally, the Court considered the legitimate concern that the legislature may have to limit the influence of citizens residing abroad on issues that primarily affect residents. Despite noting that it was possible that the applicant Hilbe had not severed his ties with Liechtenstein and that some of the above factors were inapplicable to his case, the Court held that the law cannot take account of ‘every individual case and must lay down a general rule’.45 The Court considered that the applicant cannot argue that he is affected by the acts of political institutions to the same extent as resident citizens, and that this fact justified the residency limitations.46 The ECtHR found that such measures were not unreasonable or arbitrary and, therefore, not in violation of Article 3 of Protocol No 1.
Also in 1999, the ECtHR decided the case of Matthews v UK, which is noteworthy as one of the cases in which the Court found the State’s limitations to be in violation of the ECHR.47 In that case, the applicant Matthews was rejected from registering with the Electoral Registration Officer for Gibraltar (a territory of the UK) as a voter in the European Parliament elections. While noting the State’s wide margin of appreciation, the ECtHR held that the applicant, as a resident of Gibraltar, was completely denied the opportunity to express her opinion in the choice of the members of the European Parliament by the UK based on her residency. However, the Court distinguished this position from that of citizens disenfranchised due to non-residence, as ‘such individuals have weakened the link between themselves and the jurisdiction’.48 In Matthews, the Court found that the European Parliament legislation formed part of Gibraltar’s legislation, therefore ‘directly affecting’ the applicant.49 In those circumstances, the applicant’s right to vote was denied and the UK was held in violation of Article 3.
In the 2005 case Py v France, the applicant challenged a restriction in referenda in New Caledonia limiting the franchise to persons who were resident for at least 10 years.50 The ECtHR reiterated that a residence requirement for voting is not, in principle, an arbitrary restriction of the right and, as such, is not incompatible with Article 3.51 The Court held that member States enjoy a wide margin of appreciation given that their electoral laws ‘vary from place to place and from time to time’ and that franchise laws vary according to the historical and political factors in each State.52 As the applicant Py had returned to mainland France, the Court held that they were not affected by the decisions of the New Caledonian political institutions to the same extent as resident citizens. The Court found this position justified the residence requirement for voting.53 Having determined that the restriction served a legitimate aim, the Court considered whether it was proportionate. At the time, New Caledonia was in a transitional phase on its path to acquiring full sovereignty. The ECtHR concluded that given its turbulent history, the 10-year residence requirement was instrumental in alleviating the ‘bloody conflict’.54 The Court considered that the particular history and status of New Caledonia warranted the restrictions on the applicant’s right to vote and found no violation of Article 3 of Protocol No 1. A similar case heard by the UN HR Committee was also deemed not to violate the franchise protections in Article 25 ICCPR.55
One of the most important decisions regarding non-resident citizens’ voting rights is the 2012 Grand Chamber decision in the case of Sitaropoulos and Giakoumopoulos v Greece.56 In this case, the Court directly considered the question of whether Article 3 requires States to introduce a system enabling citizens to vote from abroad. The applicants in the case alleged that Greece had disproportionately interfered with their right to vote by not facilitating their participation in Greek elections from their permanent residence in France. The applicants claimed that they had close connections to Greece, followed political developments, owned taxable property, and were licensed to practice law there.57 To justify their restrictions, Greece argued, inter alia, that they had a wide margin of appreciation, that expatriates were not as affected by parliament as resident citizens, and that expatriates developed social, economic, political and cultural ties in their new host States.58 Importantly, the restrictions on franchise in this case were first determined by the Chamber to be in violation of Article 3,59 however, this contentious finding was unanimously reversed by the Grand Chamber following the State’s request.
As in Hilbe, the Grand Chamber in Sitaropoulos articulated four factors that may justify residence-based restrictions on franchise. These were:
(…) the presumption that non-resident citizens are less directly or less continually concerned with their country’s day-to-day problems and have less knowledge of them; secondly, the fact that non-resident citizens have less influence on the selection of candidates or on the formulation of their electoral programmes; thirdly, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and, fourthly, the legitimate concern the legislature may have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country.60
The Grand Chamber surveyed regional and international law in order to determine that nothing revealed an obligation or consensus that would require Council of Europe member States to facilitate voting for citizens living abroad.61 On this basis, States enjoyed a wide margin of appreciation. Furthermore, given that the applicants in this case could have travelled back to Greece to vote, the restriction on voting from abroad was not deemed disproportionate in the circumstances.62 As such, the Grand Chamber found no violation of Article 3 of Protocol No 1.
Most recently, Shindler brought a case against the UK, claiming to have been deprived of his rights by not being allowed to vote in UK elections after having resided abroad for more than 15 years.63 Shindler’s disenfranchisement came about under the Representation of the People Act 1985, which he challenged before the ECtHR as an unjustified interference with Article 3. Like in Sitaropoulos, Shindler claimed that he maintained close ties to the UK, including his pension, bank accounts, and tax obligations, which were all subject to political decisions by the UK Parliament.64 He argued that the four factors identified by the ECtHR in earlier cases to justify residence restrictions on franchise were now outdated due to globalisation, modern technology, and low cost travel that enabled citizens abroad to maintain connections with their State of citizenship.65 UK citizens could live abroad but continue to work, for example, for UK newspapers as journalists, for UK businesses, or as lawyers advising on UK law.66 Shindler also highlighted the Council of Europe’s numerous statements and recommendations in support of out-of-country voting rights.67 He claimed that the UK laws had the effect of completely disenfranchising him.68 In response, the UK emphasised the Court’s previous case law and wide margin of appreciation, arguing that citizens residing abroad for more than 15 years had a diminished connection with the UK and were not directly subject to UK laws.69
In agreeing with the UK, the Court found no violation of Article 3 of Protocol No 1. The Court emphasised that residence restrictions on the right to vote were not necessarily a violation of Article 3, and reiterated the four factors mentioned above in Sitaropoulos to justify the limitation.70 The Court found that the UK pursued the legitimate aim in this case of restricting the franchise to citizens with a close connection to the UK and to those most directly affected by its laws.71 The case therefore turned on the proportionality of the restriction and whether it struck a fair balance between the competing interests.72 The Court held that the 15-year rule was not disproportionate, even in the face of Shindler’s strong connection with the UK. They held that it would be a ‘significant burden’ for the State to assess every applicant’s connection with the UK in order to determine their eligibility to vote.73 This was despite the fact that while there is a large number of UK expatriates, only a small percentage of them actual vote.74 The ECtHR upheld this general measure as one promoting legal certainty, and avoiding ‘the problems of arbitrariness and inconsistency inherent in weighting interests on a case-by-case basis.’75 The Court held:
(…) that the law could not take account of every individual case but must lay down a general rule (…) while never discounting completely the possibility that in some circumstances the application of a general rule to an individual case could amount to a breach of the Convention.76
Based on the law in 2013, the ECtHR concluded that member States are permitted but not obliged to guarantee non-resident citizens unrestricted franchise.77 The European Commission for Democracy through Law agreed with this assessment of the law based on ‘the principles of the European electoral heritage’.78 The Commission nonetheless suggested that due to European mobility, States should ‘adopt a positive approach’ to non-resident franchise in order to develop national and European citizenship.79 The ECtHR did, however, observe a ‘clear trend in favour’ of non-resident franchise, with 44 States granting the right to vote to citizens abroad, and 35 not imposing any time limits thereon.80 Despite this, the Court concluded that there was as yet no common European approach (consensus), although the issue should be kept under consideration due to the evolving ‘attitudes in European democratic society’.81 The Court identified key issues to be resolved, including whether to focus on promoting political participation in the State of citizenship or residence or both, as well as modalities such as practical issues and security.82
B. Prisoner Disenfranchisement under the ECHR
Contrary to the above cases on franchise restrictions for non-residents where the ECtHR grants States a wide margin of appreciation, the Court is typically stricter regarding limitations on the voting rights of criminals. In such cases, the Court has held States in violation of Article 3 of Protocol No 1 for imposing blanket bans on prisoners from voting. The leading case is the Grand Chamber’s 2005 decision in Hirst v UK (No. 2).83 In that case, the ECtHR held that an automatic blanket ban on all convicted prisoners from voting in UK elections violated Article 3. Despite the UK pursuing the legitimate aim of enhancing civic responsibility and respect for the rule of law by disenfranchising those who had breached society’s basic rules,84 the Court condemned the UK’s legislation as a ‘blunt instrument’ indiscriminately stripping away the voting rights of a significant category of persons.85 This was because the UK law applied automatically to prisoners irrespective of their individual circumstances, the length of their sentence, or the nature or gravity of their offence. The ECtHR held that such a ‘general, automatic and indiscriminate restriction on a vitally important Convention right’ goes beyond any acceptable margin of appreciation and violates Article 3.86 The Court held that ‘[a]ny departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.’87
While the majority of the judges in the Grand Chamber found the UK in violation, five judges dissented. They were critical of the majority, arguing that the case should have been decided along the lines of the Court’s other jurisprudence on voting restrictions (discussed above), with no violation found due to the wide margin of appreciation.88 Many others, particularly in the UK, were also critical of the decision, which has been the subject of much debate and controversy.89 As such, the issue did not end with the Hirst (No. 2) decision, as the UK delayed amending their impugned legislation and several subsequent cases were brought before the ECtHR.90 Other similar cases were also brought before the Court against other member States. For example, in the 2010 case of Frodl v Austria, the ECtHR again found a violation of Article 3 for prisoner disenfranchisement.91Frodl was a prisoner serving a life sentence for murder who was denied the right to vote under Austrian legislation, which disenfranchised any prisoner serving a term of imprisonment for more than one year for an offence committed with intent. The ECtHR found Austria in violation of Article 3, despite that the provisions in question were more narrowly defined than in Hirst (No. 2). The ECtHR found the provisions in violation as a judge had not made the ruling on disenfranchisement, and no link had been made between the offence committed and its relevance to voting rights.92
The issue of prisoner franchise was again before the ECtHR Grand Chamber in the 2012 case of Scoppola (No. 3) v Italy.93 This case is noteworthy as the Grand Chamber reversed the Chamber’s decision to hold no violation of Article 3 of Protocol No 1. The applicant Scoppola complained about being permanently disenfranchised following the imposition of a lifetime prison sentence. In the Chamber’s decision, the Court found Italy in violation of Article 3 due to the automatic nature of the ban and its indiscriminate application.94 However, the Grand Chamber reversed this decision, holding that the disenfranchisement was limited to certain crimes and was not a general, automatic, indiscriminate ban like in Hirst (No 2).95 While distinguishing the facts in the present case, the Court confirmed the general principles set out in Hirst (No 2) and:
(…) the fact that when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with Article 3 (…).96
The Court reaffirmed these principles despite the fact that the UK intervened as a third party in Scoppola, arguing that HirstNo 2 was wrong and inviting the Court to revisit its decision.97 The Court declined to do so, and held that, if anything, a trend was discernible towards permitting fewer restrictions on prisoners’ voting rights.98 Furthermore, Judge Thór Björgvinsson dissented in support of the Chamber’s finding of a violation in Scoppola No 3. His central reason for dissenting was that he found the position taken by the Grand Chamber as incompatible with the Court’s findings in Hirst. He claimed that the Grand Chamber’s decision in Scoppola ‘stripped the Hirst judgment of all its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe.’99Scoppola No 3 is therefore an exceptional decision compared with the Court’s jurisprudence on prisoners’ franchise, and is more in line with cases on non-resident voting, that enjoy a wide margin of appreciation.
Subsequently, there have been a number of other cases regarding prisoner voting in which the Court found a violation of Article 3 of Protocol No 1. For example, in Söyler v Turkey the Court found a violation of Article 3 due to an automatic and indiscriminate voting ban on the applicant who was convicted for unpaid cheques.100 The Court noted that this minor offence could not warrant such a harsh measure on a vitally important Convention right. Another contentious case was the 2013 decision in Anchugov and Gladkov v Russia.101 The applicants in that case argued that the Russian Constitution’s blanket ban on their electoral rights while in prison was a de facto deprivation of their citizenship.102 The ECtHR found a violation of Article 3 as the prisoners were disenfranchised regardless of the length of their sentences, the nature or gravity of their crimes, or their individual circumstances.103 Here, the Court distinguished Scoppola and upheld Hirst, arguing that the Russian measures were disproportionate.104 The Court reiterated that the margin of appreciation was wide, but not all embracing.105 The most recent case is the 2016 decision in Kulinski and Sabev v Bulgaria, where the Court found a violation of Article 3 and reiterated its case law that automatic and indiscriminate bans are disproportionate to any legitimate aim.106 Through numerous cases the Court demonstrated its consistency in finding a violation of Article 3 where States impose automatic and indiscriminate restrictions on prisoners’ voting rights.
C. Franchise Restrictions under the ECHR: Legitimate Aims and Disproportionate Interferences
The ECtHR’s jurisprudence on franchise leads to the conclusion that due to the fundamental importance of voting and democracy, any restrictions on franchise must be justified by a legitimate aim and proportionate. Decisions of the ECtHR demonstrate that the arbitrary denial of the right to vote is a violation of the Convention. The Court has extrapolated Article 3 of Protocol No 1 to imply the principle of equal treatment of all citizens in the exercise of their franchise.107 When considering a limitation imposed by a State, the ECtHR will determine whether the restrictions imposed ‘do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness’, and that they are ‘imposed in pursuit of a legitimate aim, and that the means employed are not disproportionate’.108 Given its importance to democracy, ‘[t]he severe measure of disenfranchisement must not, however, be resorted to lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.’109
Despite the Venice Commission finding a ‘favourable trend’ for out-of-country voting,110 due to the wide variety of systems in place, the ECtHR has held that States maintain a wide margin of appreciation regarding residency restrictions.111 The Court has often reiterated that States enjoy a wide margin of appreciation regarding electoral rules given the ‘numerous ways of organizing and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought’.112 Therefore, the ECtHR held that ‘any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another’.113 While member States have considerable latitude, the rules for parliamentary elections have to be justified on reasonable and objective grounds.114 As such, the margin of appreciation is not unlimited and it is for the Court to determine whether the requirements of Article 3 have been met. However, in making their assessment of franchise restrictions, a clear distinction can be made between the Court’s jurisprudence on the disenfranchisement of prisoners compared to non-resident citizens.
As seen above, the Court has typically been critical of States’ franchise restrictions on prisoners, while at the same time granting a wider margin of appreciation regarding restrictions on non-resident citizens. The Court has ‘acknowledged that any general, automatic and indiscriminate departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’.115 Despite this finding, the Court has upheld blanket bans on non-resident citizens voting, yet struck down blanket bans on prisoners voting. In a similar case regarding automatic, blanket restriction on the franchise of those under partial guardianship (with intellectual or mental disabilities), the Court also found a violation of Article 3.116 In this case the Court held that it could not uphold a blanket ban on the right to vote of all persons under protection regardless of their actual mental faculties.117 If the Court considers such blanket bans to be a violation of the ECHR in these conditions, why not also when applied to non-resident citizens? There appears to be an inconsistency here in the Court’s jurisprudence.
This is perhaps because prisoners continue to reside in the State where they cannot influence the government via franchise, whereas non-resident citizens are assumed to be less affected by the State and therefore it is more permissible to disenfranchise them. But at the same time, a legitimate aim for disenfranchising prisoners (as part of their criminal punishment) is more readily discernible than for non-resident citizens. With the exception of circumstances regarding special elections (like perhaps the New Caledonia case above), in standard elections it is more difficult to identify a legitimate aim for denying franchise to non-resident citizens. Ziegler has criticised the Court’s ‘non-interventionist’ approach regarding the franchise of non-resident citizens, arguing that the Court failed to provide guidelines on the circumstances in which non-resident citizens’ disenfranchisement may be justified.118 He notes that despite the fact that neither the Government nor the applicant identified a legitimate aim in Shindler, the Court found that the UK pursued the legitimate aim of restricting the franchise to citizens with a close connection to the State and to those most directly affected by its laws.119 Zeigler criticises the Court here for its extremely low level of scrutiny and acceptance of this aim without further assessment. 120 Given the curtailment of a vital Convention right, there must be a compelling, legitimate aim justifying why a non-resident citizen’s rights would be denied —beyond simple assumptions of disconnection or administrative burden.
Trócsányi is also critical of the Court’s jurisprudence regarding franchise restrictions on non-resident citizens. He questions the Court’s finding of no consensus, despite the fact that two-thirds of the Council of Europe member States (more than 30 States) allow non-resident citizens to vote regardless of how long they have been abroad.121 As such, it is only a minority of States that restrict out-of-country voting. He deems this a ‘significant consensus’ and notes that in other cases the ECtHR has been more permissive regarding the existence or not of a consensus.122 Furthermore, the Court itself has noted that such a consensus is not necessarily decisive, holding in Hirst No 2 that ‘even if no common European approach to the problem can be discerned, this cannot in itself be determinative of the issue.’123 Trócsányi argues that the Grand Chamber took political issues into consideration in Sitaropoulos, but that it nonetheless illustrates the European legal development toward the recognition of out-of-country voting.124 This recognition is in line with the Court’s jurisprudence that no restriction on electoral rights should have the effect of excluding groups of persons from participating in the political life of the State.125
III. Justifying Non-Resident Citizen Disenfranchisement: Proportionate, Legitimate Aims?
From the above discussion, it is clear that some ECHR member States limit the right of non-resident citizens to vote in varying circumstances. In order for such restrictions on voting rights to be permissible under the ECHR, they must pursue a legitimate aim and be proportionate. States, the Court, and scholarship have proffered various reasons to justify restrictions on non-resident citizens’ franchise. These reasons include: (1) the reduced impact of State elections on non-resident citizens and their weakened link with the State; (2) the practical difficulties for States in providing for voting from abroad; and (3) irresponsible voting by non-resident citizens. States must balance these concerns against the interference with the citizen’s right to vote, and ensure that any restrictions are proportionate to the aim pursued. This third section addresses these arguments for restricting the franchise of non-resident citizens and considers whether they should be considered legitimate aims and the proportionality of measures under the ECHR.
A. Non-Residents’ Reduced Connection or Stake in the State of Citizenship
As demonstrated by the above analysis, much of the scholarship and jurisprudence on non-resident citizen franchise focuses on the non-resident’s diminished stake in their State of citizenship.126 In Hilbe, the Court held that as non-resident citizens are not directly affected by the acts of the political bodies so elected, the legislature may have a legitimate concern to limit the influence of citizens abroad on issues that primarily affect residents.127 Equally in Matthews v UK, the Court highlighted opposition to non-resident citizen franchise on the basis of direct affect, noting that non-residents ‘have weakened the link between themselves and the jurisdiction’. 128 In Hirst v UK (No. 2), the Court noted that franchise eligibility may be geared to criteria, such as residence, ‘to identify those with sufficiently continuous or close links to, or a stake in, the country concerned.’129 Scholars have noted the vagueness of such expressions and the varying degrees of intensity regarding a non-resident’s connectedness or how their interests are affected by their State of citizenship.130
Scholars have contended that considering the interests of non-resident citizens facilitates an assessment of a political community’s membership that strikes the right balance between denouncing strictly territorial conceptions and ‘conceding that political borders should not be eliminated entirely’.131 Admittedly, non-resident citizens are affected by the laws of their State of citizenship in different ways to residents —or are more affected by some laws and less by others. However, it is incorrect to claim that such an affect is not direct or at times also insubstantial. This is particularly the case today, with widespread migration trends, persistent financial ties, ongoing military obligations, globalisation, and technological developments facilitating communication and transportation. Both Shindler and the applicants in Sitaropoulos claimed to retain strong connections with the UK and Greece respectively. The ‘Brexit’ referendum in the UK on the question of EU membership serves as a powerful example of the impact on citizens abroad of political decisions taken at home.132 Despite the fact that the outcome of the referendum clearly and potentially deeply affected them, UK citizens who had resided abroad for more than 15 years were ineligible to vote. This sub-section considers in turn some issues regarding a non-resident’s connection to or interest/stake in their State of citizenship.
1. Financial Ties to the State of Citizenship
Some scholars have justified disenfranchising non-resident citizens on the basis that non-residents are not (usually) liable to pay taxes in their State of citizenship.133 In this regard, a twist can be put on the old American adage to read ‘no representation without taxation’!134 This argument presents however a double standard, as the suggestion to disenfranchise resident citizens who do not pay tax would never be accepted. Furthermore, this justification is reminiscent of the historical position in which only propertied males could vote, to the exclusion of women, the landless, and slaves.135 General Comment No 25 notes that it is unreasonable to restrict the right to vote on certain grounds, including property requirements.136 Rubio-Marin claims that ‘[b]eing economically productive is not a required civic virtue in our democracies’, noting that the vote of an impoverished artist counts as much as that of a rich entrepreneur.137 She emphatically reminds us that ‘[p]olitical membership (…) is not for sale, nor should it be.’138
In addition to these more philosophical arguments, the case has also been made that often non-resident citizens do retain financial ties to their State of citizenship, including tax liabilities. Even accepting that non-resident citizens may have less extensive interests than those of resident citizens —as territorial absence will typically reduce the impact of governmental power139— many non-resident citizens own property, have pensions, operate businesses, or have other investments in their State of citizenship. Many remain liable for taxes, notwithstanding their non-residence, and many contribute (sometimes very large sums of) money by way of remittances.140 In addition, numerous non-residents return to their State of citizenship to live, and therefore have an important interest in the government and laws there.141 In the face of these interests, it is questionable whether it can be considered a legitimate aim to remove such non-resident citizens from the electorate on the basis of a diminished connection to the State. Furthermore, disenfranchising all non-resident citizens on the basis of a few who have no (or a greatly diminished) interest in the State of citizenship is arguably a disproportionate measure and an unjustifiable interference with their human rights.
2. Impact of Globalisation and Technological Developments
Linking the franchise to State territory may have made sense in the past, but makes less sense today. Today, the world is more connected generally via globalisation and people are much more mobile. Through media such as the internet, satellite and digital television and radio, and affordable air travel, one’s physical location can have little bearing on their access to (political) information.142 For example, a citizen living abroad may still email their members in parliament and sign public petitions online regarding issues pertinent to them, despite living thousands of miles away. Via the internet they can watch parliamentary debates and press conferences in real time, and engage in dialogue via online platforms. Furthermore, electoral campaigns are now primarily conducted via online social networks, which have no territorial limitation.143 Therefore, non-resident citizens can more easily remain in touch and up-to-date with domestic issues and make informed decisions at the polling booth.144 Furthermore, many resident citizens may not be as politically engaged as those abroad, yet there has been no suggestion to disenfranchise them. It is submitted that globalisation and technological developments have rendered such territorial based restrictions on franchise less compelling.
It is also important to highlight that the discussion usually assumes that a person has left their State of citizenship and settled in another State, potentially taking up citizenship there. For example this was the case in Shindler who had retired to Italy with his Italian wife. However, non-resident citizens may not take up permanent residence in one other State, but may move between various States over numerous years. This form of migration is also becoming more common, opposed to the old-fashioned emigrant who left their home State to resettle permanently in one other country often far, far away. Even if the person leaves their State of citizenship to reside (semi) permanently in other State, the development of ties in the State of residency does not necessarily mean the loss of connections with the State of citizenship. Also in the case of dual citizenship, a person may retain significant interests in the State where they do not reside. Furthermore, even if a person is franchised in their State of residence, this does not necessarily address their interests in the State of citizenship.
In addition, due to increasing globalisation and international interdependence, what happens in one State may not only impact their citizens, but also those in other States. Improved technology and globalisation mean that non-resident citizens are more directly, and more likely to be directly affected by decisions in their State of citizenship. With the number of international and bilateral agreements, as well as the globalised nature of politics and economics, it is more difficult to argue that someone in Italy is not affected by legislative decisions made in the UK. In a world connected by common concerns, such as free and fair trade, the environment and terrorism, it is important to recognise the non-resident citizen as part of the national political community.145 It is noteworthy to recall that States may retain personal jurisdiction over their citizens abroad, and that some domestic laws, including criminal law, apply extra-territorially.146 There is a body of scholarship devoted to the democratic principle that anyone who is subject to or affected by a law/decision should have a say in its making.147
Given the level of contact, connection, and involvement that non-residents may now have with their State of citizenship, and for decisions taken in that State to affect them even when abroad, the aim of diminishing their input in parliament appears of questionable legitimacy. Once again, disenfranchising a whole category of non-resident citizens based on those who may have reduced connections with the State appears a disproportionate measure.
B. Irresponsible Voting by Non-Resident Citizens
This issue of irresponsible voting has mainly been raised in the scholarship, however, it can potentially be seen as implicit in the concern articulated above that non-resident citizens are less impacted by elections in their State of citizenship. Shaw suggests that the expatriate voter may be a relatively disconnected and ill-informed voter, and thus ‘hardly one who adds to the democratic quality of the electoral process’.148 Some contend that as non-resident citizens are uninformed of the issues in an election, they will not exercise their franchise in a conscientious manner.149 Others argue that individuals who will not be subjected to the decisions of the group should be excluded from their making.150 This concern can be seen in the ECtHR’s judgments in Hilbe and Py, and is connected to the issue of irresponsible voting. This argument is based on concerns that non-resident citizens may lack the information and responsibility to exercise their vote wisely, since they will not be directly affected by their vote’s consequences.151 Permitting non-resident citizens to vote therefore inserts a measure of inequality between the residents who must face the consequences of the State’s political decisions and those non-residents who may be less affected.152
These are, of course, generalisations about non-resident citizens, and while undoubtedly true in some instances, they will not be true in all. It is worthwhile to recall that in addition to inevitable irresponsible and ill-informed non-resident citizens, there are also numerous such resident voters. The suggestion that irresponsible and/or ill-informed resident voters be disenfranchised would not be entertained,153 and it is proposed the same logic should apply to non-resident citizens. Furthermore, non-residents with little interest in or connection to the State ‘will probably not vote anyway’, especially given the efforts needed to enrol and request ballots within certain time periods.154 As such, it appears unlikely that the floodgates will be open to millions of irresponsible citizens seeking to vote from abroad.155 However, there are some special circumstances where States do have relatively large numbers of non-resident citizens. Ireland presents perhaps the best example, as there are almost as many non-resident Irish citizens as resident citizens.156 In this situation, preventing non-resident voters from decisively influencing or ‘upsetting’ home state politics may be a legitimate aim of disenfranchisement.157 However, the measure of disenfranchising this whole category may be viewed as disproportionate given the alternatives available. For example, a representational system like in France, Croatia, and Portugal could be implemented, whereby non-resident citizens are grouped together to elect specific members of parliament to represent citizens abroad.158 In this way, the distinct interests of non-resident citizens can be represented in the legislature without diluting/detracting from the interests of resident citizens.
C. Practical Difficulties for the State in Providing for Voting from Abroad
Residency restrictions on franchise may also be based on the (perceived) difficulties and costs associated with out-of-State electoral processes.159 This has been reiterated by the ECtHR in its jurisprudence above, particularly in the case of Sitaropoulos. For example, in that case the Court found that it was not necessary for Greece to facilitate citizens voting from abroad, and that the applicants could travel back to Greece in order to vote.160 Trócsányi notes that in the face of modern technology, the Court’s assessment that the applicants travel back to Greece to vote ‘might seem a little bit anachronistic’.161 In contrast to the Court’s jurisprudence, it is submitted that in most contexts, the perceived practical challenges can be overcome and do not ultimately justify residency-based restrictions on franchise.162 This relates to challenges regarding facilitating secure voting from abroad, as well as potentially identifying those eligible non-resident voters.
Firstly, practical difficulties and costs in facilitating voting from abroad have been identified as a reason to disenfranchise non-resident citizens. These can certainly be legitimate concerns, depending on the number of voters abroad, their locations, and the State’s available resources. Moves to facilitate out-of-country voting by mail (and now increasingly online) can address many logistical concerns and prevent the need for citizens to return home to vote. As an alternative, the Venice Commission has recommended holding voting in embassies and consulates.163 The Commission argues that voting in embassies and consulates can overcome practical difficulties, including organisational difficulties (such as drawing up rolls or providing election equipment), as well as difficulties in securing the integrity of the election process conducted abroad.164 Additionally, UN HR Committee General Comment No. 25 requires States to take measures to ensure that people who are enfranchised are able to vote.165 Absent extenuating circumstances, it is submitted that the ECtHR should not find franchise restrictions based on logistical difficulties a legitimate aim or proportional measure.
Secondly, as noted above, the UK argued in Shindler that the alternative to the general rule disenfranchising those abroad for 15 or more years, was to restrict only certain cases, perhaps based on actual ties with the UK.166 The UK argued that this alternative system would be very difficult to administer fairly in practice,167 and the ECtHR agreed, claiming it would be a ‘significant burden’ for the State to assess every non-resident citizen to determine their eligibility to vote.168 The Court has reiterated that the law cannot necessarily take account of every case, but must set down a general rule, notwithstanding the fact that in some individual cases the general rule may mean a breach of the ECHR.169 This ruling is in contrast to the Court’s jurisprudence on prisoner disenfranchisement, where they specifically hold that States must take individualised decisions reflecting upon the individual circumstance of the convicted person.170 If it is possible regarding prisoners, why is it not for emigrants? One can envisage an administrative process —potentially run by the embassies— whereby non-resident citizens apply for absentee ballots and establish therein their eligibility to vote. Given the importance of the right to vote and its relationship with democracy, this appears to be a reasonable balancing of both the interests of States and individuals.
D. Complete Disenfranchisement in both States of Residency and Citizenship
Finally, another issue often raised regarding franchise restrictions on non-resident citizens is that it may have the effect of completely disenfranchising the individual from local and national elections in both their State of citizenship as well as residency. The ECtHR noted in Aziz v Cyprus171 and above in Matthews v UK, where it found violations of Article 3, that the applicants in those cases were completely precluded from expressing their political opinion due to restrictions on franchise. This will often be the case for citizens residing abroad who do not have dual citizenship and therefore cannot participate in local or national elections in their State of residence. Given the increase in migration today, it is possible that this situation of complete disenfranchisement may be the case for a large and growing number of emigrants. In such circumstances, it is relevant to question whether the State of citizenship’s refusal to allow voting from abroad curtails the ‘very essence’ of the right to vote and renders it ineffective?
The fact that residency restrictions can have the effect of completely disenfranchising citizens has also been raised at the EU level. While the EU provides resident non-citizens with democratic participation rights in local and European elections on the basis of non-discrimination, it does not extend the franchise to regional/national elections.172 Shaw notes the irony that while the EU exists in part to encourage mobility between the member States, it simultaneously creates a democratic and ‘citizenship deficit’.173 This is because persons who exercise their EU mobility rights are excluded from participating in national/regional elections in their State of residence unless they are eligible for and do take on citizenship of the that State.174 As almost every State excludes resident non-citizens from national suffrage,175 it would appear compelling for the ECtHR to find States that disenfranchise non-resident citizens —and thus disenfranchising them completely— to be in violation of Article 3. The Venice Commission noted this outcome, and urged States ‘to find a solution more in keeping with the principle of proportionality by placing certain restrictions on voting rights of citizens residing aboard.’176
E. Justifications for Disenfranchising Non-Resident Citizens: Legitimate and Proportionate?
While the Court’s jurisprudence and scholarship have offered several reasons to justify limitations on the voting rights of non-resident citizens, the above analysis indicates that few of these reasons remain compelling today. For example, technology has closed the gap between the non-resident citizen and their State of citizenship, allowing varied and frequent communication and travel, as well as facilitating voting from abroad. Furthermore, globalisation increases and sustains connections between people and places, weakening the claim that non-residents are not impacted by the political decisions of their State of citizenship. We no longer recognise emigrants today as the person cutting ties and travelling from their home with a one-way ticket to a far-away land. Around the world today we are interconnected, up-to-date, and interacting in ways we could not have anticipated even a short decade ago. In fact, the Venice Commission suggests that it is positive to allow non-resident citizens to vote as it guarantees them equality, maintains ties with them, and ‘boosts their feeling of belonging to a nation’.177
Furthermore, for franchise restrictions on non-resident citizens to be permissible under the ECHR, they must pursue a legitimate aim and be proportionate. It is submitted that while there may be legitimate aims to be pursued, such as restricting the influence of a large diaspora, blanket disenfranchisement of non-resident citizens can be seen as a a disproportionate measure. Other more proportional measures can be implemented that address the legitimate concern of the State without wholesale disenfranchisement of certain groups. States must balance their concerns and interests against the interference with the citizen’s right to vote —a crucially important democratic human right. While some cases like Py may continue to present circumstances warranting limitations on non-resident citizens due to the special nature of the referendum, absent such conditions blanket disenfranchisement can be viewed as a disproportionate response. Arguably, Shindler’s case and that of Sitaropoulos can be distinguished from Py and, as in normal electoral cycles, fail to justify disenfranchising connected, interested, and affected citizens who also happen to be non-residents.
The ECtHR’s above jurisprudence on Article 3, particularly in relation to prisoners, indicates that restrictions on franchise must not be done in a general or automatic way, as blanket restrictions that apply indiscriminately violate the ECHR.178 It is on the basis of this jurisprudence that automatic disenfranchisement of non-resident citizens should be held to violate Article 3. Such a law is a ‘blunt instrument’ that fails to consider the individual circumstances of the non-resident citizen and the impact of disenfranchisement upon them.179 Individualised assessment would tailor the limitations to adequately distinguish those non-resident voters maintaining an interest and stake in the State of citizenship, from those who have emigrated permanently, cut ties, or warrant restriction for another reason. The third party intervener in Sitaropoulos argued for objective criterion by which to assess whether or not expats still had meaningful links to their State of citizenship or not, and therefore whether they could vote.180 Of note, in cases including Hilbe and Sitaropoulos, the ECtHR submitted that the law cannot take account of every individual case and must lay down a general rule. However, the Court takes the opposite view in the felony disenfranchisement cases where it specifically requires the consideration of individual circumstances.181 It is unclear why the Court takes such contrary positions on the issue of blanket restrictions on the same right. This is especially so in the face of the growing consensus permitting non-resident voting rights.
Consensus among ECHR member States is compelling for the ECtHR when determining a State’s margin of appreciation on a given topic. Although some States still limit the franchise of non-resident citizens, the trend is toward allowing and facilitating greater electoral participation.182 Blanket disenfranchisement of non-resident citizens appears to be increasingly rare.183 Furthermore, the trend appears to be unidirectional towards inclusive franchise, with no State having moved to restrict the franchise once extended to non-resident citizens.184 While previously finding that there was no uniform State practice on electoral participation by expatriate citizens,185 the ECtHR noted that the great majority of States in 2010 permitted non-resident citizens to vote in parliamentary elections.186 This would appear to indicate consensus around granting non-resident citizens franchise, therefore limiting the scope of the margin of appreciation enjoyed by States.187 In Sitaropoulos, the Court reiterated that regard must be had to the changing conditions in the member States, and that it must respond to any ‘emerging consensus as to the aims to be achieved’.188 On the basis of these developments, plus changed circumstances due to technology and globalisation, it is open to the Court to revise and refine its jurisprudence on non-resident citizen franchise.
IV. Conclusions: Inclusive Democracy and the Future of European Franchise
The question of who should or should not have the right to vote is complex, and contemporary migration is presenting challenges for modern democracies, political communities, and citizenship models.189 While Barry argues that a broader conception of citizenship is needed,190 it is clear that citizen franchise as determined by residency also needs interrogation. This article has argued that under human rights law, non-resident citizens have the right to vote and to determine the political destiny of their State of citizenship. Due to developments in transportation and communication, citizens can easily stay in touch and are more affected even from abroad, rendering arguments of distance and impact less compelling as legitimate reasons for disenfranchisement. Furthermore, differentiation of citizens’ franchise on the basis of residency can create a second, lower class, of citizen, and on occasion, even the complete disenfranchisement of an individual. The UK’s ‘Brexit’ referendum on EU membership is a potent illustration of the impact on citizens abroad of political decisions taken at home.
This article critically assessed the limitations on the voting rights of non-resident citizens under Article 3 of Protocol No 1 ECHR, concluding that the current permissible limitations based on residence do not strike the right balance to protect human rights and democracy. The analysis indicated that some of the aims pursued by the franchise restrictions based on residency are not legitimate today, or that where a legitimate aim is pursued, blanket restrictions can be seen as disproportionate measures and unjustified interferences with an individual’s human rights. According to its own case law, the ECtHR has held that voting is a right not a privilege, and that in ‘the twenty-first century, the presumption in a democratic State must be in favour of inclusion.’191 Franchise can be seen as a societal recognition of human dignity, and an entitlement to participate in communal decision-making.192 This article proposes that franchise is the goal, and that laws should err on the side of inclusion rather than exclusion for the furtherance of democracy. This view is also supported by the trend identified in European law and policy in support of franchise generally, as well as specifically for non-resident citizens.
The Council of Europe has regularly called for the enfranchisement of emigrants, advocating an ‘unrestricted right to vote’,193 and inviting States to ‘grant electoral rights to all their citizens (nationals), without imposing residency requirements’.194 The Council noted that electoral rights should be given ‘to the highest possible number of citizens’, and that based on ‘the importance of the right to vote in a democratic society, the member countries (…) should enable their citizens living abroad to vote during national elections’.195 Support for extending voting rights in national elections to EU citizens, either in the State where they reside or in their State of origin, has also come from the European Parliament.196 EU member States have also extended voting rights at the local level to non-nationals.197 As such, there is a notable policy in Europe for States to expand, rather than restrict, franchise, which is also reflected internationally. Already in 2007, Collyer and Vathi concluded that extra-territorial voting is the norm and that residence has ‘lost its status as a universal requirement of the eligibility to vote’.198 Blais, Massicotte and Yoshinaka concluded that ‘stronger’ democracies are less inclined to disfranchise non-resident citizens.199
As the Council of Europe has noted, tens of millions of Europeans are residing outside their States of origin and migration within Europe is constantly increasing.200 Given that emigration is a growing phenomenon, the need to address related issues becomes all the more pressing.201 Therefore, it is likely that the issue of disenfranchisement based on residency is likely to come before the ECtHR again. The Court is invited to continue to consider such cases in light of these changing circumstances. That the ECHR is a living instrument to be interpreted in the light of present-day conditions and the ideas prevailing in democratic States is firmly rooted in the Court’s case law.202 The Council of Europe noted that electoral rights should ‘evolve to follow the progress of modern societies towards ever inclusive democracy’.203 Previous restrictions on franchise were accepted,204 which are now viewed as unacceptable in today’s world. Given the trajectory of globalisation, migration, human rights and democracy, it is likely that franchise restrictions on residency will share the same fate. Until then, it is clear that ‘the long journey of the extension of universal suffrage has not ended yet’.205