Prisoner Voting Rights In Austria: What's The Law?

The right to vote in Austria is dependent on several factors, including citizenship, age, and criminal history. While Austrian citizens aged 16 and above are generally eligible to vote in elections, those with certain criminal convictions may be excluded from exercising their voting rights. Previously, Austria had a strict policy of denying prisoners the right to vote, extending the ban to individuals who had been released from prison for less than six months. However, following a case at the European Court, Austria has had to amend its law and now allows prisoners to vote under certain conditions.

Austria's voting rights and restrictions

The right to vote in Austria, known as the "active" right, refers to citizens' ability to participate in political elections. Austrian citizens aged 16 and above are entitled to vote unless they are excluded due to a court conviction. The voting age was lowered from 18 to 16 in 2007, applying to all federal elections.

Citizens who are sentenced to more than five years of imprisonment can lose their voting rights for the duration of their sentence if the judge determines that such a suspension is warranted. This preclusion period is shortened to one year for specific offenses, such as terrorism, voter fraud, and treason.

Austria previously had a ban on prisoners' voting rights, which extended to those released from jail for up to six months. However, following a case at the European Court, Austria has accepted that it needs to amend its law.

The "passive" right to vote in Austria refers to the right to stand as a candidate for election. The minimum age requirements vary depending on the type of election. For federal presidential elections, citizens must be at least 35 years old, while for national parliamentary elections and provincial parliamentary elections, the minimum age is 18 years.

Citizens of other European Union member states with permanent residence in Austria may vote in European Union and municipal elections. However, non-Austrian EU citizens cannot vote in Vienna's municipal council elections, as these also function as provincial parliament elections, which are reserved for Austrian citizens only.

Austria's judicial system

The Austrian federal president is elected for a six-year term, and federal-level elections include presidential elections and elections to determine the composition of the National Council, the lower house of Austria's bicameral parliament. The upper house, the Federal Council, consists of delegates from the states and is not directly elected.

The right to vote in Austria refers to the right to participate in political elections. Austrian citizens are entitled to vote if they are not excluded from the right to vote because of a court conviction and if they have reached the minimum age specified for the election in question. The voting age in Austria was lowered from 18 to 16 in 2007 for all federal elections, although some states had already lowered the voting age for state and local elections.

Citizens who are sentenced to more than five years of imprisonment can lose their voting rights for the duration of their sentence if the judge determines that such a suspension is warranted. This preclusion period is shortened to one year for specific offenses, such as terrorism, voter fraud, and treason.

The "active" right to vote is the right to cast votes in elections, and the "passive" right to be elected is the right to stand as a candidate. Citizens aged 16 and older may exercise the right to vote in elections at all levels of government, and citizens aged 18 and older may stand as candidates in elections, except for presidential elections, for which the minimum age is 35.

Austria has a multi-party system, and for a party to be represented in the National Council, it must either pass the threshold of at least 4% of all valid votes cast nationwide or win one mandate (seat) in one of the regional electoral districts.

In terms of prisoners' voting rights, Austria previously had a ban on prisoners voting, which went further than the UK's ban by refusing criminals the right to vote until they had been out of jail for six months. However, Austria lost a major case at the European Court and has now accepted that it must amend its law.

Austria's prison conditions and daily life

Prison Conditions and Daily Life in Austria

Prison conditions in Austria are reportedly poor, with a general lack of interest and knowledge about the incarceration system. This has resulted in a lack of urgency to address long-standing issues. One of the most significant challenges is overcrowding, which has been partially attributed to the increase in prison capacity. The odds of being incarcerated are also significantly higher for foreigners than for Austrian nationals.

Prisoners in Austria face several challenges in their daily lives. There is limited access to rehabilitation and re-socialisation programs, and even when such programs are available, they may not always be suitable or effective. For example, a prisoner with an allergy to wood was only offered a carpentry apprenticeship as a means of re-socialisation. Additionally, prisoners' access to the outside world is restricted, with some not even being granted their daily hour outside due to staff shortages.

Prisoners' rights and representation are also limited in Austria. Prisoners' unions have been prevented from existing, and journalists face obstacles in interviewing incarcerated individuals or accessing information about the prison system. The production of prison newspapers, such as Blickpunkte, has also been hindered by decrees that restrict the involvement of inmates in media ownership and publishing.

However, there have been some efforts to improve conditions and reduce recidivism rates. Electronic surveillance was introduced in 2010, allowing about 4% of the prison population to serve their sentences at home with ankle bracelets. This approach aims to keep individuals connected to their social and work environments, but it also comes with strict restrictions on movement and constant stress due to the need for pre-approvals and reporting.

Additionally, organisations like Neustart focus on re-socialisation and crime prevention, advocating for alternatives to incarceration. They propose "extrajudicial offence resolution," which brings victims and offenders together to negotiate a solution. This approach aligns with the restorative justice movement, prioritising reconciliation and compensation over punishment.

The European Court of Human Rights' ruling on prisoner voting rights

The European Court of Human Rights (ECHR) has ruled that the UK's blanket ban on prisoner voting rights is a breach of human rights laws. The court's decision, made in 2004 and upheld in 2005, stated that the UK's ban violated Protocol 1, Article 3 of the European Convention on Human Rights, which guarantees the right to a free election. The court did not say that all prisoners should be given the right to vote, but rather that any removal of the franchise must be compatible with this article.

The UK government initially attempted to introduce legislation to comply with the ruling, but this was rejected by the British Parliament. Since then, the government has repeatedly stated that prisoners will not be given the right to vote, despite a string of cases reaching the European Court. In 2015, a case involving 1,015 prisoners again found that there had been a violation of their human rights.

The dispute was resolved in 2024, with the UK granting voting rights to around 100 inmates in England and Wales released on "temporary licence". This resolution was accepted "with satisfaction" by the Committee of Ministers of the Council of Europe, which supervises the implementation of ECHR judgments.

Austria had a similar ban on prisoner voting rights, which went further than the UK by refusing criminals the right to vote until they had been out of jail for six months. However, Austria lost a major case at the European Court and has now accepted that it must amend its law.

In Austria, the right to vote can only be withdrawn on the basis of an individual judicial decision. This can occur if an individual has been convicted of a premeditated criminal offence and sentenced to more than five years in prison, or if they have been convicted of certain offences such as treason, electoral fraud, terrorism, etc. and sentenced to more than one year's imprisonment.

The UK's stance on prisoner voting rights

The UK has long refused to give serving prisoners the right to vote. This stance was challenged in 2001 by three convicted prisoners, but the domestic courts rejected their challenge. One of the prisoners, John Hirst, then took his case to the European Court of Human Rights (ECtHR). In 2005, the ECtHR ruled that the UK's ban on prisoner voting contravened Article 3 of Protocol No 1 of the European Convention on Human Rights (ECHR), which states that signatory states should "hold free elections ... under conditions which will ensure the free expression of the opinion of the people". The Court found that the UK's blanket ban on prisoner voting was indiscriminate and disproportionate.

The Hirst judgment sparked a political debate, focusing on the constitutional issues raised by the ruling, including the UK's relationship with the ECtHR, reform of the Human Rights Act 1998, and parliamentary sovereignty. Some saw the judgment as an example of the ECtHR overstepping its role and encroaching on Parliament's legislative authority.

In 2012, the Coalition Government published a draft Bill outlining three options for the right to vote in UK parliamentary and European Parliament elections: maintaining the status quo (an outright ban), a ban for prisoners sentenced to 4 years or more, or a ban for prisoners sentenced to more than 6 months. In 2013, a Joint Committee scrutinising the Bill recommended that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections. However, these proposals were not taken forward.

In 2015, the Conservative Government made no mention of any plans to change the legislative position on prisoner voting rights, and David Cameron implied that the blanket ban would not be changed during his tenure as Prime Minister.

In 2017, the Secretary of State for Justice, David Lidington, published more limited proposals, with the main change being to allow prisoners on Temporary Licence to vote. These proposals were welcomed by the Council of Europe, which agreed that they addressed the criticisms raised by the Hirst judgment. The dispute between the UK Government and the ECtHR was resolved, and the case was closed in September 2018.

While the UK Government's dispute with the ECtHR has been resolved, the responsibility for local and devolved elections in Scotland and Wales is now devolved. The Scottish Government has introduced legislation to extend voting rights to prisoners serving sentences of 12 months or less for Scottish Parliamentary and local elections. Meanwhile, the Welsh Government has dropped plans to amend legislation to allow prisoners sentenced to less than four years to register to vote in local elections.

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