Судебное дело "Заключенные России отстаивают свое право голосовать "
27.02.2005
20 October 2009
FIRST SECTION
Application no. 15162/05
by Vladimir Mikhaylovich GLADKOV
against Russia
lodged on 27 February 2005
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Vladimir Mikhaylovich Gladkov, is a Russian national
who was born in 1966 and lives in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
1. The applicant's criminal history
On 20 January 1995 the applicant was arrested on suspicion of having
committed a criminal offence and placed in pre-trial detention.
On 27 November 1995 the applicant was convicted in the first instance
and sentenced to five years' imprisonment. The sentence was upheld on
appeal on 19 June 1996.
On 13 November 1998 the applicant was convicted of murder, aggravated
robbery, participation in an organised criminal group and resistance
to the police and was sentenced to death. On 15 February 2000 his
conviction was upheld on appeal, but the death sentence was replaced
with fifteen years' imprisonment, of which fourteen should have been
served in prison and the last year should have been served in a
correctional facility.
On 23 April 2008 the applicant was released from prison on parole.
2. The applicant's attempts to participate in elections
Between 20 January 1995 and 22 March 2000 the applicant was detained
in pre-trial remand centres. During this period he voted several times
in parliamentary and presidential elections as well as in the
elections of an executive official at a regional level.
On 22 March 2000 the applicant was transferred to a prison to continue
to serve his sentence. From that date until the date of his release
from prison he was barred from participating in any elections by
virtue of Article 32 S: 3 of the Russian Constitution ("the
Constitution").
On 26 May 2004 the applicant challenged the said constitutional
provision before the Russian Constitutional Court ("the Constitutional
Court") stating that it violated his various constitutional rights.
In a letter of 6 April 2004 the Secretariat of the Constitutional
Court informed the applicant that his complaint fell outside the
court's competence and therefore had no prospects of success. The
applicant appealed against the refusal to the President of the
Constitutional Court.
By a decision of 27 May 2004 the Constitutional Court declined to
accept the applicant's complaint for examination, stating that it had
no jurisdiction to check the compatibility of some constitutional
provisions with others.
On 19 July 2004 the Secretariat of the Constitutional Court forwarded
the court's decision to the applicant. In a letter of 5 August 2004 a
regional department of the execution of punishments sent the
Secretariat's letter of 19 July 2004 to the applicant's prison.
According to the applicant, this correspondence, including the
decision of 19 July 2004, was delivered to him on 1 September 2004.
3. Proceedings against election commissions
Thereafter the applicant repeatedly brought court proceedings against
election commissions at various levels in connection with their
refusals to allow him to vote in parliamentary and presidential
elections. His complaints were rejected either on formal grounds or on
the merits. Final decisions were taken by appellate courts on 1
December 2007 and 3 April, 5 May, 4 June and 29 September 2008. The
domestic courts mainly invoked Article 32 S: 3 of the Constitution and
the fact that the applicant was a convicted prisoner. In its decision
of 1 December 2007 the Lipetsk Regional Court also stated, as follows:
"In the judgment of the European Court of Human Rights dated 6 October
2005 in the case of Hirst v. the United Kingdom the applicant's
disenfranchisement on account of his serving a sentence of
imprisonment was found to be in breach of Article 3 of Protocol No 1
to the Convention.
The European Court has noted in this judgment that prisoners in
general continue to enjoy all the fundamental rights and freedoms
guaranteed under the Convention save for the right to liberty, where
lawfully imposed detention expressly falls within the scope of Article
5 of the Convention.
It has also been pointed out that a blanket disenfranchisement of all
convicted prisoners in prison established in law (of the United
Kingdom) applies automatically to such prisoners, irrespective of the
length of their sentence and irrespective of the nature or gravity of
their offence and their individual circumstances. Such a general,
automatic and indiscriminate restriction on a vitally important
Convention right must be seen as falling outside any acceptable margin
of appreciation, however wide that margin might be, and as being
incompatible with Article 3 of Protocol No. 1.
... The Russian Federation accepts ... as binding the jurisdiction of
the European Court of Human Rights in questions of interpretation and
application of the Convention and its Protocols in situations of the
alleged violations of those legal instruments by the Russian
Federation where the alleged violation took place after their entry
into force in respect of the Russian Federation.
However, the aforementioned judgment of the European Court does not
allow a conclusion to be reached as to the unreasonableness of
restrictions on electoral rights established in the legislation of the
Russian Federation in respect of individuals serving a sentence of
imprisonment after their conviction by a court.
Apart from the foregoing, the said judgment of the European Court
provides that any restrictions on other rights of prisoners (save for
the right to liberty) must be justified, although such justification
may well be found in the considerations of security, in particular the
prevention of crime and disorder, which inevitably flow from the
circumstances of imprisonment.
Also, it is noted that Article 3 of Protocol No. 1, which enshrines
the individual's capacity to influence the composition of the
law-making power, does not therefore exclude that restrictions on
electoral rights could be imposed on an individual who has, for
example, seriously abused a public position or whose conduct
threatened to undermine the rule of law or democratic foundations. The
severe measure of disenfranchisement must not, however, be resorted to
lightly and the principle of proportionality requires a discernible
and sufficient link between the sanction and the conduct and
circumstances of the individual concerned.
Therefore, without ruling out the very possibility of restricting
electoral rights of convicted prisoners, the European Court attaches
decisive weight to the proportionality and reasonableness of
establishing this measure in law.
The criteria which the European Court has considered as decisive when
determining a question of proportionality of, and justification for,
limiting electoral rights of convicted prisoners - the nature and
seriousness of their offence and their individual circumstances - were
taken into account when [the applicant's] punishment was chosen, in
accordance with provisions of the [Russian] legislation which have not
been analysed in the aforementioned judgment.
According to [a relevant provision] of the Russian Penitentiary Code
it is the individuals convicted of particularly grave offences, or of
particularly grave recurrent offences, and sentenced to a term of
imprisonment exceeding five years ... that serve their sentence in
prison.
It shall also be noted that, in accordance with Article 10 S: 3 of the
International Covenant on Civil and Political Rights of 16 December
1966, the penitentiary system shall comprise treatment of prisoners
the essential aim of which shall be their reformation and social
rehabilitation.
[A relevant provision] of the Russian Code of Criminal Procedure also
lists the reform of a convict as one of the aims of punishment, along
with prevention of new crimes.
Therefore, taking into account the aforementioned criteria, [it can be
concluded that] the temporary (for the period of imprisonment)
restriction of the electoral rights established in the legislation of
the Russian Federation in respect of individuals serving a sentence of
imprisonment is, from its inception, reasonable, justified and in the
public interest, being a preventive measure aiming at reform of a
convict and deterring that convict from committing crimes and
breaching public order in the future, including in the period when
elections are held.
The same [reasoning] applies to the restriction of [the applicant's]
electoral rights."
4. Other proceedings
The applicant also attempted to bring proceedings in connection with
the refusal of the head of a local election commission to give him
copies of certain documents.
On 27 December 2007 the Lipetsk Regional Court returned the
applicant's claim, stating that it should be lodged with a lower
court.
On 4 June 2008 the Supreme Court upheld the above decision on appeal.
B. Relevant domestic law
Article 32 (Chapter 2) of the Russian Constitution of 12 December 1993
provides:
"...
2. Citizens of the Russian Federation shall have the right to elect
and to be elected to bodies of state governance and to organs of local
self-government, as well as to take part in a referendum.
3. ... citizens detained in institutions of confinement in pursuance
of a court sentence shall not have the right to elect or to be
elected.
...".
Article 135 (Chapter 9) of the Constitution provides:
"1. The provisions of Chapters 1, 2 and 9 of the Constitution of the
Russian Federation may not be revised by the Federal Assembly.
2. If a proposal to revise any provisions in Chapters 1, 2 and 9 of
the Constitution of the Russian Federation is supported by
three-fifths of the total number of deputies of the Federation Council
and the State Duma, a Constitutional Assembly shall be convened in
accordance with the federal constitutional law.
3. The Constitutional Assembly may either confirm the inviolability
of the Constitution of the Russian Federation or work out a new draft
of the Constitution of the Russian Federation which shall be adopted
by two-thirds of the total number of deputies to the Constitutional
Assembly or submitted to a nationwide vote. In the event of a
nationwide vote, the Constitution of the Russian Federation shall be
considered as adopted if more than half of those voting have voted for
[the Constitution], provided that more than half of the electorate
have taken part in the voting."
The provisions of Article 32 S: 3 of the Constitution is reproduced in
section 4 (3) of the Federal Law of 12 June 2002 "On Fundamental
Guarantees of Electoral Rights and a Right to Take Part in a
Referendum of the Citizens of the Russian Federation" and in section 3
(4) of the Federal Law of 10 January 2003 "On Election of the
President of the Russian Federation".
COMPLAINTS
The applicant complains under Article 3 of Protocol No. 1 to the
Convention that he was disenfranchised, that his disenfranchisement
violated his right secured by Article 10 of the Convention to express
his opinion freely and that he was discriminated against as a
convicted prisoner, in breach of Article 14 of the Convention. The
applicant also relies on Article 10 of the Convention complaining that
his right to receive information had been violated by a public
official's refusal to give him certain documents. The applicant
further complains under Article 6 of the Convention that there were
various irregularities in the court proceedings brought by him.
QUESTIONS TO THE PARTIES
1. Regard being had to the findings made in the judgment of Hirst v.
the United Kingdom (no. 2) ([GC], no. 74025/01, ECHR 2005-IX), has the
restriction on the applicant's right to vote imposed by Article 32 S:
3 of the Russian Constitution disclosed a violation of:
(a) Article 3 of Protocol No. 1;
(b) Article 10 of the Convention;
(c) Article 3 of Protocol No. 1 taken in conjunction with Article 14
of the Convention?
In particular, did the restriction in question pursue a legitimate
aim? If so, was it proportionate to that aim, given that it applied to
all convicted prisoners, irrespective of the length of their sentence
and irrespective of the nature or gravity of their offence and their
individual circumstances (see Hirst, cited above, S: 82)?
2. Can the present case be distinguished from the case of Hirst,
cited above? If so, in what aspects?
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