Ban on prisoners’ electoral rights groundless, say human rights defenders
As part of the campaign "Human Rights Defenders for Free Elections", lawyer Pavel Sapelka analyzes the issue of unjustified restriction of the right to participate in elections imposed on prisoners and people held in custody awaiting trial.
In accordance with the Constitution and the Electoral Code of the Republic of Belarus, persons imprisoned under a court sentence cannot participate in the elections. Persons subjected to a preventive measure of custody under a procedure established by the criminal procedure law are not eligible to vote. The deprivation of the constitutional right of all persons sentenced to imprisonment, and especially suspects and defendants, is unreasonable in relation to convicts, and illegal for those in custody prior to sentencing.
Persons held in custody awaiting trial are, by definition, citizens having full rights, only limited in personal freedom. People held in custody awaiting trial are, due to the presumption of innocence, not guilty, and they, in accordance with both the national laws and international agreements, should be treated respectively.
In particular, Principle 36 of the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment (adopted by the UN General Assembly resolution 43/173 on 9 December 1988), says:
“1. 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.”
The eligibility of convicted prisoners appears to be a more complicated issue, but the question has already received a well-defined answer:
The Guidelines on Elections adopted by the Venice Commission at its 51st Plenary Session (Venice, 5-6 July 2002) provides for certain grounds for the suspension of political rights. However, such grounds must comply with the usual conditions which can result in the limitation of fundamental rights. In other words, they must:
- be provided for by law;
- comply with the proportionality principle;
- be based on mental incapacity or a criminal conviction for a serious offence.
The terms and conditions of deprivation of individuals’ right to be elected may be less severe than the deprivation of their right to vote, as in this case we are talking about the occupation of public office and to deprive this or that person, whose actions in this position could lead to a breach of a weighty public interest, of the right to be elected to these positions could be absolutely legitimate.
The most important of what is enshrined on the matter under the Guidelines is that the deprivation of a person’s political rights is permitted only by the direct decision of the court. For example, this rule is provided for in the Polish law: the Act "On Elections to the Sejm of the Polish Republic and the Senate of the Polish Republic" of 12 April 2001 establishes that the active suffrage, i.e. the right to vote, is possessed by each citizen of Poland, who on the voting day has reached 18 years of age, except for people who: have been disenfranchised by a final court decision; disenfranchised by a final decision of the Supreme Court; declared mentally insane by a final court decision.
Meanwhile, an individual, his rights, freedoms and guarantees for their implementation are the supreme goal and value of society and the state. Belarus recognizes the priority of universally accepted principles of international law, and ensures compliance with them in its domestic law (Constitution of the Republic of Belarus). In particular, Article 2 of the International Covenant on Civil and Political Rights 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: 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.”
The United Nations Human Rights Committee notes in its General Comment No. 21 (1992) “Article 10” 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.”
In order to understand the unfounded nature of restrictions imposed on the electoral rights of convicted persons, it is essential to mention the provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners. The Preliminary Observations indicate that the Rules “seek only, 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 and the management of institutions.” The Rules 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, social security rights and other social benefits of prisoners.”
The final report of the OSCE/ODIHR Election Observation Mission (following the parliamentary elections in Belarus, 2012) says that the “denial of rights of those in pre-trial detention is contrary to the principle of presumption of innocence, while the blanket denial of voting rights for those serving prison sentences lacks proportionality.” According to the OSCE/ODIHR experts, these restrictions are contrary to paragraphs 7.3 and 24 of the 1990 OSCE Copenhagen Document, as well as Article 26 of the Constitution of the Republic of Belarus. One of the priority recommendations said that the “withdrawal of voter and candidate rights of citizens in prison or pre-trial detention, irrespective of the gravity of the crime committed, should be removed from the law. Any restrictions on voter and candidate rights should be proportional and clearly outlined in the law.”
Considering all the above, it is essential to immediately remove from the Constitution and the Electoral Code provisions restricting the right to vote of persons held in custody prior to sentencing, and to take steps to eliminate unjustified discrimination against those who are serving a sentence in prison under a court sentence. The limitation of electoral rights are only possible in case of serious crimes against the state, which should be provided for as a separate criminal law rule.
The procedure for making such a decision is not of great complexity for the Belarusian Parliament: the amendments to the Constitution may be adopted after two readings and approval by the National Assembly with an interval of at least three months by a majority of at least 2/3 of the votes of the full composition of both chambers of the National Assembly. After amending the Constitution, nothing will prevent lawmakers make appropriate changes in the Electoral Code.