Pavel Sapelka: “Deprivation of defendants’ right to vote is groundless”
The lists of citizens of Belarus who have
the right to vote has about 7 million voters. Ballots
are usually cast by more than 5 million. Behind
these figures it is difficult to see 40-50 thousand persons deprived of their
right to vote in connection with criminal proceedings.
In accordance with the Constitution and the Electoral Code of the Republic of Belarus, "citizens who are deemed incapable by a court or kept in places of confinement in accordance with a court sentence shall not take part in elections. Persons in respect of whom detention, as a measure of restraint, is selected under the procedure established by the criminal procedural legislation shall not take part in voting." While the restriction of the rights of incapable persons is clear and logical, the deprivation of constitutional rights of prisoners, and suspects and defendants, that is, persons who are not considered to have committed a crime is unreasonable.
In the neighboring states exceptions to the universal suffrage are worded differently:
Article 2 of the Ukrainian Law on Elections of People's Deputies assumes the only restriction: "No citizen found incapable by a court has the right to vote."
Act of April 12, 2001 "On elections to the Sejm of the Polish Republic and the Senate of the Polish Republic" establishes that the active electoral right, that is, the right to vote is vested in “every citizen of Poland who has reached the age at least 18 years on the day of the poll”, except for persons who are: “deprived of public rights by a final ruling of the court; deprived of electoral rights by a final ruling of the Tribunal of State; and deprived of legal capacity by a final ruling of the court.”
In accordance with Article 34 of the Constitution of the Republic of Lithuania, "citizens who are recognised incapable by court shall not participate in elections."
In the Russian Federation and Kazakhstan suffrage is restricted to convicted prisoners.
Article 4 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan" states the following: "The citizens, who have been recognized by a court as legally incapable, including those who kept in places of confinement under the court’s sentence, shall not take part in elections."
Article 32 of the Russian Constitution provides that "deprived of the right to elect and be elected shall be citizens recognized by court as legally unfit, as well as citizens kept in places of confinement by a court sentence."
In Luxembourg, active suffrage is denied to bankrupts, keepers of brothels, in Ecuador – drunkards, vagabonds and fraudsters; a candidate to Pakistan’s National Assembly must have "a good moral reputation".
As can be seen, electoral rights are usually denied to a person serving a sentence of imprisonment under a sentence of the court. In particular, according to Par. 1 of Art. 3 of the British Representation of the People Act 1983, "a convicted person during the time that he is detained in a penal institution in pursuance of his sentence [or unlawfully at large when he would otherwise be so detained] is legally incapable of voting at any parliamentary or local government election." In addition, a person may be deprived of one’s public rights (including voting), or the enforcement of these rights may be suspended without deprivation of liberty by a court ruling.
However, there is a tendency to preserve the constitutional right of criminally pursued citizens to elect and be elected, or to establish the deprivation of this right only by a ruling of the court. In particular, Article 38 of the Constitution of Germany establishes that "anyone who has attained the age of eighteen years is entitled to vote."
The electoral law of Cuba of July 7, 1976 states the following: "Citizens cannot exercise their right [to vote] in case they are insane, recognized as such by a court order, and condemned to deprivation of rights for a crime."
According to Art. 38 of the Constitution of the United Mexican States of 1917, “citizenship rights and prerogatives (including voting rights) shall be suspended, in particular, for those who have been legally declared as either vagrants or drunkards” or “are sentenced to have their citizenship rights suspended.”
Meanwhile, a human being, his rights, freedoms and guarantees for their attainment, constitute the supreme goal and value of society and state. The Republic of Belarus recognizes the priority of generally recognized principles of international law and ensures compliance of the national law (Constitution of the Republic of Belarus).
In particular, Article 2 of the International Covenant on Civil and Political Rights (adopted by the General Assembly’s Resolution 2200 A (XXI) of 16 December 1966) states that "each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." In accordance with Article 25 of the Covenant, " Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”
It seems that the restriction of electoral rights in connection with conviction, and even more so with the detention cannot be considered valid.
Principle 36 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment any form (adopted by General Assembly resolution 43/173 on December 9, 1988) states that “a detained person suspected of or charged with a criminal offence shall be presumed innocent and shall be treated as such until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” “The arrest or detention of such a person pending investigation and trial shall be carried out only for the purposes of the administration of justice on grounds and under conditions and procedures specified by law. The imposition of restrictions upon such a person which are not strictly required for the purpose of the detention or to prevent hindrance to the process of investigation or the administration of justice, or for the maintenance of security and good order in the place of detention shall be forbidden,” says the Treaty.
In its General Comment number 21 (1992), "Article 10", the Human Rights Committee stated that "persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment."
To understand the unreasonable restrictions to the electoral rights of convicted persons it is important to adhere to the Standard Minimum Rules for the Treatment of Prisoners adopted by the First United Nations’ Congress on Crime Prevention and Treatment of Offenders held in Geneva in 1955, and approved by the Economic and Social Council in its resolutions 663 C (XXIV) on July 31, 1957 and 2076 (LXII) on May 13, 1977. Its preliminary observations indicate that the Rules are intended ... “on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners.” The Rules also specify that “Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation. The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Steps should be taken to safeguard, to the maximum extent compatible with the law and the sentence, the rights relating to civil interests.”
Considering the above-mentioned facts, it is necessary to immediately exclude from the Constitution of the Republic of Belarus and the Electoral Code the provisions restricting the right to vote of persons held in custody until sentencing, as well as take steps to eliminate unfair discrimination of those serving sentences in prison upon conviction.
"Human Rights Defenders for Free Elections"