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The Court’s assessment

(a) General principles

93. The Court reiterates that Article 3 of Protocol No. 1 guarantees subjective rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51, Series A no. 113).

94. It further notes that the rights guaranteed by this Article are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst (no. 2) [GC], cited above, § 58, and Scoppola (no. 3) [GC], cited above, § 82). In addition, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusionand universalsuffrage has become the basic principle (see Mathieu-Mohin and Clerfayt, cited above, § 51;Hirst (no. 2) [GC], cited above, § 59; and Scoppola (no. 3) [GC], cited above, § 82). The same rights are enshrined in Article 25 of the International Covenant on Civil and Political Rights (see paragraph 38above).

95. Nevertheless, the rights enshrined in Article 3 of Protocol No. 1are not absolute. There is room for implied limitations and the Contracting States must be afforded a margin of appreciation in this sphere. The Court has repeatedly affirmed that the margin in this area is wide (see Mathieu‑Mohin and Clerfayt, cited above, § 52; Matthews [GC], cited above, § 63; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina, cited above, § 33). There are 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 is for each Contracting State to mould into its own democratic vision (see Hirst (no. 2) [GC], cited above, § 61, and Scoppola (No. 3) [GC], cited above, § 83).

96. However, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in questionto such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see Hirst (no.2) [GC], cited above, § 62, and Scoppola (No. 3) [GC], cited above, § 84).



97. The Court has already addressedthe issue of the disenfranchisement of convicted prisoners. In particular, intheHirst (no. 2) case, it noted that there is no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion (see Hirst (no. 2) [GC], cited above, § 70). According to the Court, this standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. 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 (ibid., § 71).

98. The Court also considered that where Contracting States had adopted a number of different ways of addressing the question, the Court must confine itself “to determining whether the restriction affecting all convicted prisoners in custody exceed[ed] any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1” (ibid., § 84, andGreens and M.T., cited above, §§113 and 114).

99. In examining the particular circumstances of the Hirst (no. 2) case, the Court considered that the legislation of the United Kingdom depriving all convicted prisoners serving sentences of the right to vote (section 3 of the 1983 Act) was“a blunt instrument [which stripped] of their Convention right to vote a significant category of persons and [did] so in a way which [was] indiscriminate”. It found that the provision “impose[d] a blanket restriction on all convicted prisoners in prison. It applie[d] 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.”It concluded that “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” (ibid., § 82).The Court also notedthat“[the voting bar] concern[ed] a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity” (ibid., § 77).

100. The principles set out in the Hirst(no. 2) case were later reaffirmedin theScoppola(no. 3)[GC] judgment. The Court reiterated, in particular, that when disenfranchisement affected a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it was not compatible with Article 3 of Protocol No. 1 (seeScoppola(no. 3) [GC], cited above, § 96). The Court found no violation of that Convention provision in the particular circumstances of this latter case however, having distinguished it from the Hirst(no. 2) case. It observed that in Italy disenfranchisement was applied only in respect of certain offencesagainst the State or the judicial system, or offences punishable by a term of imprisonment of three years or more, that is, those which the courts considered to warrant a particularly harsh sentence. The Court thus considered that “the legal provisionsin Italy defining the circumstances in which individuals may be deprived of the right to vote show[ed] the legislature’sconcern to adjust the application of the measure to the particular circumstances of [each]case, taking into account such factors as the gravity of the offence committed and the conduct of the offender” (ibid., § 106). As a result, the Italian system could not be said to have a general automatic and indiscriminate character, and therefore the Italian authorities had not overstepped the margin of appreciation afforded to them in that sphere (ibid., §§ 108 and 110).

(b) Application in the present case

101. Turning to the present applications, the Court observes that the circumstances are, on their face, very similar to those examined in the Hirst (no. 2) [GC] judgment. Indeed, the applicants were stripped of their right to vote by virtue of Article 32 § 3 of the Russian Constitution which applied to all persons convicted and serving a custodial sentence,irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances (compare Hirst (no. 2) [GC], cited above, §82 and, compare, by contrast,Scoppola(no. 3) [GC], cited above, §§ 105-10). The Court notes the finding of the Lipetsk Regional Court during the examination of the second applicant’s complaint to the effect that, as a convicted prisoner, he was ineligible to vote in elections, that he hadserved his custodial sentencein prison – a type of detention facilityin which only individuals convicted of particularly seriousoffences punishable by a term of imprisonment exceeding five years were detained (see paragraph 23above). Thisfindingcan be understood as suggesting that the ban on voting rights only applies to convicted prisoners serving their custodial sentence in prison, that is, to those convicted of particularly serious offences and sentenced to a term of imprisonment of more than five years. However, such an interpretation is not in conformity with the wording of Article 32 § 3 of the Russian Constitution (see paragraph 31 above), and the respondent Government adduced no domestic case-law indicating that only those convicted of serious offences were disenfranchised.

102. Having regard to the Government’s submissions (see paragraphs 88-90above), the Court is prepared to accept that the measure under examination pursued the aims of enhancing civic responsibility and respect for the rule of law and ensuring the proper functioning and preservation of civil society and thedemocratic regime, and that those aims could not, as such, be excluded as untenable or incompatible with the provisions of Article 3 of Protocol No. 1 (seeHirst (no. 2) [GC], cited above, §§ 74-75, and Scoppola (no. 3) [GC], cited above, §§ 90-92).

103. However, the Court cannot accept the Government’s arguments regarding the proportionality of the restrictions in question. In particular, in so far as the Government referred to its wide margin of appreciation in the relevant field and to a historical tradition in Russia of imposing a ban on electoral rights of convicted prisoners in detention dating back to the beginning of the nineteenth century (see paragraphs 87 and 88above), and contended that the relevant provisions of Article 32 of the Russian Constitution corresponded to Russia’s current democratic vision (see paragraph 87above), the Court reiterates that although the margin of appreciation is wide, it is not all-embracing (see Hirst (no. 2) [GC], cited above, § 82). Moreover, as has already been noted in paragraph 94above, the right to vote is not a privilege; in the twenty-first century, the presumption in a democratic State must be in favour of inclusionand universalsuffrage has become the basic principle. In the light of modern-day penal policy and of current human rights standards, valid and convincing reasons should be put forward for the continued justification of maintaining such a general restriction on the right of prisoners to vote as that provided for in Article 32 § 3 of the Russian Constitution (ibid., § 79).

104. Further, in so far as the Government argued that the measure in question affected a limited number of Russian citizens (see paragraph 92above), the Court notes that the Government did not indicate any figures to illustrate that assertion, whereas, according to the applicants, some 734,300 prisoners – a number undisputed by the Government – were disenfranchised by virtue of the aforementioned constitutional provision. The Court finds that this is a significant figure and that the measure in question cannot be claimed to be negligible in its effects (ibid.,§ 77).

105. Also, as regards the Government’s argument that only those who had been convicted of criminal offences sufficiently serious to warrant an immediate custodial sentence were disenfranchised (see paragraph 91above),with the result that the bar could notbe said to be indiscriminate, theCourt notes that while it is true that a large category of persons – those in detention during judicial proceedings– retain their right to vote, disenfranchisement nonetheless concerns a wide range of offenders and sentences, from two months (which is the minimum period of imprisonment following conviction in Russia)to lifeand from relatively minor offences to offences of the utmost seriousness.In fact, as has already been noted in paragraph 101 above, Article 32 § 3 of the Russian Constitution imposes a blanket restriction on all convicted prisoners serving their prison sentence (ibid., §§ 77 and 82).

106. In so far as the Government contended that, in their choice of the measure of punishment, the domestic courts usually took into consideration all relevant circumstances, including the nature and degree of public dangerousness of the criminal offence, the defendant’s personality, and so on (see paragraph 91above), the Court is prepared to accept that, when sentencing, the Russian courts may indeed have regard to all those circumstances before choosing a sanction. However, there is no evidence that, when deciding whether or not an immediate custodial sentence should be imposed,they take into account the fact that such a sentence will involve the disenfranchisement of the offender concerned, or that they can make any realistic assessment of the proportionality of disenfranchisement in the light of the particular circumstances of each case. It is therefore not apparent, beyond the fact that a court considers it appropriate to impose a sentence of imprisonment, that there is any direct link between the facts of any individual case and the removal of the right to vote (ibid, § 77).

107. The Court emphasises that its considerations in the previous paragraph are only pertinent for the purpose of dealing with the Government’s relevant argument; they are not to be regarded as establishing any general principles. The Court reiterates in this connection that removal of the right to vote without any ad hocjudicial decision does not, in itself, give rise to a violation of Article 3 of Protocol No. 1 (see Scoppola (no. 3) [GC], cited above, § 104). With a view to securing the rights guaranteed by Article 3 of Protocol No. 1, the Contracting States may decide either to leave it to the courts todetermine the proportionalityof a measure restricting convicted prisoners’ voting rights, orto incorporate provisions into their laws defining the circumstances inwhich such a measure should be applied. Inthis latter case, it will be for the legislatureitself to balance the competing interestsin order to avoid any general,automatic and indiscriminate restriction (ibid., § 102).

108. The Court further notes the Government’s argument that the present case is distinguishable from Hirst (no. 2), as in Russia a provision imposing a voting bar on convicted prisoners is laid down in the Constitution – the basic law of Russia adopted following a nationwide vote – rather than in an “ordinary” legal instrument enacted by a parliament, as was the case in the United Kingdom (see paragraph 85 above). In that connection the Court reiterates that, according to its established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations (see, among other authorities,Nada, cited above, § 168). As has been noted in paragraph50 above, Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a member State’s “jurisdiction” – which is often exercised in the first place through the Constitution – from scrutiny under Convention. The Court notes that this interpretation is in line with the principle set forth in Article 27 of the 1969 Vienna Convention on the Law of Treaties (see paragraph 36above).

109. Further, as to the Government’s argument that the adoption of the Russian Constitution was preceded by extensive public debate at various levels of Russian society (see paragraph 85 above), the Court observes that the Government have submitted no relevant materials which would enable it to consider whether at any stage of the debate referred to by the Government any attempt was made to weigh the competing interests or to assess the proportionality of a blanket ban on convicted prisoners’ voting rights (seeHirst (no. 2) [GC], cited above, § 79). Nor can the Court discern in the Government’s argument any other factor leading it to another conclusion.

110. In such circumstances, the Court is bound to conclude that the respondent Government have overstepped the margin of appreciation afforded to them in this field and have failed to secure the applicants’ right to vote guaranteed by Article 3 of Protocol No. 1.

111. The Court notes the Government’s argument that the restriction complained of is enacted in a chapter of the Russian Constitution,amendments to or revision of which may involve a particularly complex procedure (see paragraph 86above).It reiterates in this connection that its function is in principle to rule on the compatibility with the Convention of the existing measures. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (ibid., § 83).As has been noted in paragraph 107 above, there may be various approaches to addressing the question of the right of convicted prisoners to vote. In the present case, it is open to the respondent Government to explore all possible ways in that respect and to decide whether their compliance with Article 3 of Protocol No. 1 can be achieved through some form of political process or by interpreting the Russian Constitution by the competent authorities – the Russian Constitutional Court in the first place – in harmony with the Convention in such a way as to coordinate their effects and avoid any conflict between them.

112. Having regard to the above, the Court concludes that there has been a violation of Article 3 of Protocol No. 1 to the Convention.


Date: 2015-01-11; view: 764


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