Eine »Charta für Kriminelle«?

Ever since the European Court of Human Rights first held in Hirst that the deprivation of the right to vote of all prisoners serving a criminal sentence is in violation of the Convention, this issue has been a major irritant in the Court's relationship with the United Kingdom. The article examines the development of the Court's case law on prisoner voting since Hirst, in particular the 2012 Grand Chamber judgment in Scoppola (No. 3), as well as the critical reactions of the British press and politics. This series of cases is, however, not only relevant to the issue of prisoner voting. Britain's reluctance to comply with the more restricted ruling of the Court in Scoppola shows that a much more fundamental question is at stake: What is the role and legitimacy of an international court which, although elected by the Parliamentary Assembly of the Council of Europe is not democratically accountable but empowered to review even decisions of national parliaments? This problem, known as the counter-majoritarian difficulty, is at the core of the United Kingdom's difficult relationship with the Court. It is, in turn, intimately connected to the question which methodology to employ. Some British criticism of the Court's living instrument approach is in this regard reminiscent of a certain strand of originalist thinking that seeks to bind interpretation to the original intent of the drafters of the legal instrument. The challenge to the Court's legitimacy must be answered: Why should an international court be able to overrule decisions of the national level on an exceptionally wide range of issues, e.g. under Article 8 of the Convention? In the end, it is not each and every individual decision, which needs to be acceptable; it is the Court's general role that is in need of acceptance by European States and citizens. The Court's function in relation to the decision-making process of democratic States – and its limits – must be clarified. In this regard, the margin of appreciation should be understood as a device to mediate the legitimacy of the Court and of the national level by adjusting the intensity of review. With Scoppola, the Court tried to hand down a rather Solomonian judgment, retaining the principle decision of Hirst, while restricting the more expansive tendencies of other cases. Considering the importance of democratic rights under the Convention and that prisoners are a minority unlikely to have its interests adequately taken into account in the democratic process, the judgment can hardly be said to be unreasonable. It remains to be seen whether the United Kingdom will accept this attempt at dialogue.