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"