Concurring opinion of Judge Caflisch in the case of Hirst v. The United Kingdom (No. 2), No. 74025/01, ECtHR (Grand Chamber), 6 October 2005

Exclusion from the exercise of the right to vote in national and local elections for persons sentenced to imprisonment.

Art. 3 Prot. 1 ECHR

1. Contracting States may restrict the right to vote, to elect and to stand for election, as they enjoy a wide margin of appreciation in this respect. There must, however, be limits to these restrictions and it is for the Court, rather than for the Contracting Parties, to determine whether a given restriction is compatible with the individual right to vote, to elect and to stand for election. In making this determination, the Court will rely on the legitimacy of the aim pursued by the exclusionary measure and its proportionality.

2. Furthermore - and this may be the essential point for the present case - in Contracting States where the punishment may comprise a punitive part (punishment and deterrence) and a period of detention based on the risk inherent in the release of the prisoner, the disqualification must remain limited to the punitive part and not be extended to the remainder of the sentence. This reason is therefore no longer relevant as soon as a person ceases to be detained for punitive purposes. This distinction constitutes an important argument for considering that Article 3 of Prot. 1 of the ECHR has been violated.