Conclusion

80. The Court notes that, in so far as the applicants complained about their disenfranchisement and, in particular, their ineligibility to vote in the parliamentary elections held on 7 December 2003 and 2 December 2007, as regards the first applicant, and on 5 December 2004 and 2 December 2007, as regards the second applicant,this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

(a) The applicants

81. The applicantsmaintained that their disenfranchisement was in breach of Article 3 of Protocol No. 1. They argued, in particular, that their case was similar to the case of Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, ECHR 2005‑IX). Moreover, according to the applicants, the fact that in Russia the ban on electoral rights of convicted prisoners in detention was imposed by a constitutional provision, which could not be changed, only confirmed its absolute nature. In that connection they stressed that the ban was imposed on all prisoners serving their sentences in detention, irrespective of whether they had been convicted of minor offences or particularly serious offences, and irrespective of the length of their sentence. They pointed out that in Russia the measure in question affected some 734,300 prisoners.

82. The applicants further contended that this restriction could not be regarded as part of the punishment for a criminal offence, given that the Russian Criminal Code clearly stipulated that every form of punishment for criminal offences was set forth in that Code.

83. The applicants contested the Government’s argument that convicted prisoners lacked the information necessary to make an objective choice during elections. In that connection they referred to the relevant provisions of the penitentiary legislation to the effect that those detained in penitentiary institutions should be given adequate access to information. The applicants also rejectedthe Government’s argument to the effect that the choice by convicted prisoners in detention could be negatively influenced by leaders of the criminal underworld, stating that this phenomenon could also affect any citizen at liberty.

84. The applicantssubmitted that, even though they had been convicted, they had not ceased to be members of civil society and retained their Russian citizenship, and therefore they should have the right to vote. They added that, being unable to vote, convicted prisoners could notin fact be distinguished from aliens or stateless persons, and therefore a blanket ban on their electoral rights de factodeprived them of their Russian citizenship.

(b) The Government

85. The Government argued that the present case could be distinguished from the case of Hirst (no. 2), although there is no significant difference as regards the factual circumstances of these two cases. In the Government’s view, it was important to note that, whilst in the United Kingdom it was an “ordinary” legal provision that imposed a ban on electoral rights of convicted prisoners in detention, in Russia such a restriction was enacted in the Constitution: the basic lawof Russia.The Government stressed that a draft of the Russian Constitution of 1993 had been thoroughly prepared by specially created institutions, such as the Constitutional Commission of the Congress of People’s Deputies, which had comprised public representatives – legislators and experts – and the Constitutional Council, the composition of which had been even broader. After years of debate and experts’ work, the draft had then been submitted for nationwide public discussion and debate in which every Russian national could have expressed his or her opinion. Thereafter the Constitution, in its present form, had been adopted following a nationwide vote. The Government thus argued that the majority of the Russian citizens who had taken part in that vote had clearly expressed their support for the provisions of the Constitution, including the one disenfranchisingconvicted prisoners serving a prison sentence.

86. The Government also pointed out that, whilst in the United Kingdom provisions of the relevant legal act could be amended by the parliament, Article 32 of the Russian Constitution was enacted in its Chapter 2,which was not subject to any review by the legislature. According to Article 135 of the Russian Constitution, amendments or revision of its Chapter 2 would necessitate adoption of a new Constitution (see paragraph 34 above).

87. The Government furthercited the Court’s case-law to the effect that a State enjoyed a wide margin of appreciation in imposing conditions on the right to vote, and that there were numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it was for each State to mould into their own democratic vision. The Government argued that the relevant provisions of Article 32 of the Russian Constitution corresponded to the democratic vision of Russia, and that the restriction in question pursued a legitimate aim and was not disproportionate.

88. As regards the aim of the alleged interference, the Government pointed out that, according to the Court’s case-law, Article 3 of Protocol No. 1 did not, like other provisions of the Convention, specify or limit the aims which a restriction must pursue, and a wide range of purposes may therefore be compatible with that Article (see, for instance, Podkolzina v. Latvia, no. 46726/99, § 34, ECHR 2002‑II). In the Government’s submission, the restriction in question had been applied as a measure of constitutional liability and pursued the aims of enhancing civic responsibility and respect for the rule of law. They stated that in Russia the policy of imposing a ban on electoral rights of convicted prisoners in detention had been consistently adhered to since the beginning of the nineteenth century, the legislature examining the matter with due diligence each time it came to its attention. The Government further submitted that the ban on electoral rights was one of the elements of punishment of an individual who had committed a crime: by committing a crime liable to a term of imprisonment, an individual consciously condemned himself to certain restrictions of his rights, including his right to liberty and electoral rights.

89. The Government further maintained that the impugned measure was aimed at protecting the interests of civil society and the democratic regime in Russia. Indeed, it was unacceptable that an individual who had disregarded the norms of law and morals and had been isolated from society with a view to ensuring his correction should participate in governing society by voting in elections. The Government stressed the need to strike a balance between the public interest in having conscientious and law-abiding citizens as public representatives and the private interests of certain categories of individuals excluded from the election process by law.

90. The Government also referred to the existence of an informal hierarchy in penitentiaries in almost every State with the result that pressure could be exercised by criminal underworld leaders on individuals serving a custodial sentence that could negatively influence the freedom and objectiveness of the latter’s choice in elections, hence the limitation under examination was also aimed at preventing such a situation. They also pointed out that convicted prisoners in detention had limited access to information as compared with individuals at liberty and therefore their choice could also be distorted by the lack of sufficient information about candidates.

91. The Government further argued that the measure complained of was proportionate to the aims it pursued. In particular, they pointed out that it was applied strictly for the period of imprisonment and was removed as soon as a person affected by it was released from prison. They further stressed that the ban on electoral rights affectedonly those who had been convicted of criminal offences sufficiently serious to warrant an immediate custodial sentence. Moreover, in their choice of the measure of punishment to be imposed in each particular criminal case, the domestic courts carefully examined all relevant circumstances, including the nature and degree of public dangerousness of the crime, the defendant’s personality, and so forth. The Government thus argued that in such circumstances there were no grounds on which to consider the ban absolute, arbitrary or indiscriminate.

92. The Government further argued that the number of convicts serving their sentence in detention was incomparably lower than the overall number of Russian citizens, so it could not be said that the provisions of Article 32 § 3 of the Russian Constitution prevented the free expression of the opinion of the people of Russia. The Government also expressed doubts as to whether it was possible to build civil society and the State on the principles of the rule of law on the basis of the choice made by those who, by committing serious crimes, had opposed the interests of society and demonstrated,in an extreme form, their disrespect for society.

Date: 2015-01-11; view: 764