4 May 2016
Source: Institute of Law & Public Policy
On 19 April 2016 the Constitutional Court of the Russian Federation rendered a judgment No. 12-П in the case concerning the review of the possibility of enforcement of the judgment of the European Court of Human Rights of 4 July 2013 in the case of Anchugov and Gladkov v. Russia in compliance with the Constitution of the Russian Federation upon the petition lodged by the Ministry of Justice of the Russian Federation.
In a judgment which has caused much disagreement among scholars and practitioners both with regard to its message and its consequences, the Constitutional Court has for the first time ever declared a judgment of the European Court of Human Rights unenforceable (if only in part) in Russia. At the same time, the Constitutional Court took pains to convince its various audiences that it can sit on two chairs and ensure Russia’s continued commitment to international law while preserving the supremacy of its Constitution.
Subject-matter of the case. The Constitutional Court of the Russian Federation (hereinafter – CCRF) reviewed the possibility of enforcement of the judgement of the European Court of Human Rights (hereinafter - ECtHR) of 4 July 2013 in the case of Anchugov and Gladkov v. Russia in compliance with Article 32(3) of the Russian Constitution.
The CCRF came to the following conclusions:
The CCRF began its analysis by applying linguistic and systemic approaches to the interpretation of Article 32(3) of the Russian Constitution
Linguistic (grammatical) interpretation shows that Article 32(3) constitutes an absolute ban allowing no exceptions. Hence, the CCRF considered it impossible either to interpret it as disenfranchising only individuals convicted of offenses of the utmost gravity, or to renounce that ban altogether based on the principle of universal suffrage.
Furthermore, as Article 16(2) establishes supremacy of the fundamental principles of the constitutional system of the Russian Federation (Chapter 1) over any other provision in the Constitution, all the provisions of the Russian Constitution are in “consistent systemic unity”. Consequently, the CCRF was of the opinion that Article 32(3) of the Constitution “by no means can be read as contradicting the principles of free elections and universal suffrage that are codified therein . . . or as not satisfying the criteria for permissible limitation of the constitutional rights and freedoms”.
In terms of historical approach to the interpretation of Article 32(2) the CCRF noted that the ban on prisoners’ voting rights could be found in the Constitutions of the RSFSR of 1918 and 1937, in the RSFSR Law of 27 October 1989 “On Amendments and Additions to the RSFSR Constitution (Fundamental Law)”. As for the current Constitution of 1993, the Constitutional Assembly of Russia discussed the option of recognizing prisoners’ right to vote in 1993 but ultimately rejected it in favor of the absolute prohibition that is now in force.
The CCRF criticized the ECtHR judgement in Anchugov and Gladkov v. Russia not only as interpreting Article 3 of Protocol No. 1 as necessitating, by implication, amendments to Article 32(2) of the Russian Constitution, what Russia did not consent to when it ratified Protocol No. 1, but also as delivered in violation of the principle of subsidiarity of the ECtHR. According to the CCRF, the ECtHR applied “evolutive” interpretation to Article 3 of Protocol No. 1 in the absence of the so-termed “European consensus” – a relatively uniform approach to a particular legal issue adopted by the majority of States Parties to the Convention.
Finally, the CCRF emphasized that although the Convention is a constituent part of the Russia’s legal system, it is the Russian Constitution that, by virtue of its supreme legal force, takes precedence within the framework of that system. This led the CCRF to the conclusion that the Convention, as an international treaty, “enjoys superior legal force as compared to a federal law, but its legal force is not superior or even equal to the one of the Russian Constitution”. Any possible reading of Article 32(3) of the Russian Constitution in light of the interpretation of Article 3 of Protocol No. 1 by the ECtHR shall not go so far as to contradict “the logics of legal interpretation”.
The CCRF stated that disenfranchisement applies only to persons sentenced to “imprisonment” and does not extend to penalties of a similar nature involving “restriction of liberty in a general sense”, such as compulsory labor, arrest, restriction of liberty or service in a disciplinary military unit.
As the CCRF pondered on the principle of proportionality it referred to the practice of the ECtHR, according to which disenfranchisement of persons sentenced to imprisonment for 3 or more years does not violate Article 3 of Protocol No. 1 to the Convention. In the eyes of the CCRF, Russian criminal legislation “almost entirely” excludes the possibility of actual imprisonment for individuals, convicted of crimes of little gravity with no aggravating circumstances for which the maximum prison sentence does not exceed 3 years. For crimes of average gravity or even for grave crimes Russian courts can pass a jail sentence only taking into account all circumstances of a crime, personality of the accused, and a possibility of their reformation without isolation from the community. To support the conclusion that Russian courts do apply such differentiated approach when passing jail sentences the CCRF drew upon the statistical data published by the Judicial Department at the Supreme Court of the Russian Federation. According to the data during the period from 2011 to 2015 out of all the persons sentenced for imprisonment for each category of crimes only 8,8-11,5% out of those sentenced for crimes of little gravity received the actual prison sentence; out of those sentenced for crimes of average gravity – 18-32%; 46–47% – for grave crimes; and 91–95% – for especially grave crimes.
The CCRF specifically points to the regime of settlement colonies where, as a general rule, persons convicted of negligent crimes and of intentional crimes of little or average gravity serve their prison sentences. In comparison to other regimes of serving a prison sentence settlement colonies place much lighter restrictions on prisoners’ liberties, who are allowed to move freely within the territory of a settlement colony and a respective municipality; wear civilian clothing; work and receive part-time education in educational organizations of higher and professional education etc. All of the above makes the regime of settlement colonies strongly resemble other regimes of punishment unrelated to imprisonment.
The CCRF recalled that under the approach developed by the ECtHR, disenfranchisement of persons sentenced to imprisonment for the term of 3 or more years is not a disproportionate restriction of their voting rights. Since both S.B.Anchugov and V.M.Gladkov were sentenced to 15 years imprisonment, their disenfranchisement did not violate their rights secured by Article 3 of Protocol No. 1 to the Convention.
Institute has filed an independent expert opinion (amicus curiae brief) in which it examined possible ways to interpret Article 32(3) of the Russian Constitution for the purposes of the decision on compliance with the ECtHR ruling of 4 July 2013 in the case of Anchugov and Gladkov v. Russia.
Analysis conducted by the Institute leads to the conclusion that provisions of the Russian Constitution are to be interpreted in such a way that would allow Russia not to violate its international law obligations (the principle of consistent interpretation). Applying systemic, historical and evolutionary approaches to the interpretation of Article 32(3) of the Russian Constitution one comes to the conclusion that an absolute ban on prisoner’s voting rights is not the only possible interpretation of Article 32(3) demonstrate that an absolute ban on prisoners’ voting is not the only possible interpretation of art. 32(3).
The ECtHR judgment in Anchugov and Gladkov v. Russia may be complied with, for instance, by way of enactment of legislation governing prisoners’ voting rights on the basis of such factors as the gravity of offence, mens rea, the length of the prison term, or by empowering the courts to impose a restriction of voting rights on a case by case basis.
Click here to access the amicus curiae brief (in English).