Current Estonian electoral law, which bars the right of prison inmates to vote in elections, could, in the most extreme situation, lead to an annulment of election results, on the grounds of the law being unconstitutional, the head of Estonia's electoral oversights body says.
The issue was on the table ahead of the last general election in 2019, only to recede afterwards and now to reemerge ahead of the general election next March.
The legislation under discussion only applies to Estonian citizens who are incarcerated.
Oliver Kask, chair of the State Electoral Committee (VVK) called to mind a European Court of Human Rights (ECHR) decision from a few decades ago, which stated that the right to vote cannot be taken away from all prisoners indiscriminately.
Kask said: "This decision primarily concerns persons sentenced to short-term imprisonment."
"These people should still have the main and basic political rights."
The ECHR carried out similar rulings subsequently, Kask said, prompting some European countries to change their laws.
In Estonia, however, that has not been the case, while: "Only two complaints from an individual sentenced to a lengthy term of imprisonment have reached the Estonian courts."
Riigikogu Constitutional Committee Chair Eduard Odinets (SDE) says the law should be amended: "To stipulate specific crimes for which there is a possibility to limit the right to vote."
"This could be as an additional punishment that the court determines in a specific case for certain crimes," Odinets added, providing examples of very serious crimes of violence, along with those directed against the Estonian state.
Another option would be to draw the line in terms of sentence length, so for instance those sentenced to less than three years' prison time could vote – a line also taken in analysis put together for then-Justice Minister, now Foreign Minister, Urmas Reinsalu (Isamaa).
The justice ministry found differentiating by length of sentence rather than category of crime to be simple, while categorizing the deprivation of the right to vote as an additional penalty in certain cases would increase court workload – moreover, all prison inmates at that time, in the lead-up to the last Riigikogu elections in 2019, would still not be entitled to vote even if this change was put in place, the ministry said.
Odinets said that the options must be weight, while he would certainly sound out the MPs who sit on the constitutional committee, potentially drawing up an expedited bill ahead of next spring's general election, if the political will to do so was found.
The issue is not primarily one of party politics, he added, and said that the current committee, made up of MPs from all parties, has seen no need to change current law, so far.
The current Justice Minsiter, Lea Danilson-Järg, says that she sees no reason to raise the issue of giving some inmates the right to vote so soon before the elections, having seen the Kask proposal and taken on board opinion from the ECHR and from Estonia's Supreme Court.
She said: "If a citizen does not respect the laws of the country and commits crimes punishable by imprisonment, he or she does not really have any moral right to elect to the legislature who will get to establish these laws," adding that the fact that misdemeanor or minor offenses in any case do not carry prison terms, meaning culprits of these can still vote.
Oliver Kask himself noted some matters which would need addressing were inmates permitted to vote, including whether electoral campaigning in Estonia's three major prisons would be permitted – which might bring security issues – though in any case inmates have access to the media, he said.
In 2006, then-Chancellor of Justice Allar Jõks said that when the Constitution was drafted, in 1992, restricting inmates' rights to vote was seen as a temporary move, evidenced by the fact that altering that restriction is down to the legislature.
The prison system had developed in leaps and bounds even by 2006, Jõks noted, meaning concerns about maintaining order were lessened.
A decade ago, an inmate serving life appealed to have the right to vote given to him, which the Supreme Court denied, though noted at the time the ECHR's line and the fact that a blanket ban might conflict with the constitution, reiterating this statement in 2015.
Oliver Kask said in many European countries, the line in terms of sentence is around five years, ie. those serving shorter sentences can often vote. This is entirely a matter for those countries, he added.
Current risks in terms of appeals from inmates serving shorter sentences would include very close results (in terms of single-figures in votes ina given constituency), if an inmate announced their desire to vote ahead of election day.
In the most extreme cases, this could result in the annulment of election results, Kask said.
While he was justice minister, ahead of the March 2019 general election, Urmas Reinsalu was essentially opposed to granting inmates the right to vote, though noted in a letter sent to the constitutional committee in spring 2018 that the 2015 Supreme Court decision had altered the picture – and presented a danger of that restriction being declared unconstitutional.
This would, however, likely fly in the face of public opinion, he said, meaning that the law could be amended to gingerly alter the current situation to the smallest extent viable, Reinsalu said later on in 2018.
Reinslau proposed drawing the line at one-sentences, ie. those serving more than a year would be barred from voting.
Had that change been installed, it would have given the vote to 59 inmates, at that time, at the upcoming 2019 election.
Most other constitutional committee discussions since then have not seen a strong line taken by MPs.
The next election is on March 5 2023. Only Estonian citizens are permitted to vote in general elections.
The ECHR predates the EU and pertains to the Council of Europe, set up in 1949 (the establishment of the court came 10 years later), and which covers a far larger geographical definition of Europe than does the EU.
Editor: Andrew Whyte