Article 3 of Protocol No. 1
Vote
Automatic and indiscriminate ban on convicted prisoners’ voting rights: violation
Facts – Both applicants were convicted of murder and other criminal offences and death, later commuted to fifteen years’ imprisonment. They were also debarred from voting, in particular, in elections to the State Duma and in presidential elections, pursuant to Article 32 – 3 of the Russian Constitution. Both applicants challenged that provision before the Russian Constitutional Court, which, however, declined to accept the complaint for examination on the grounds that it had no jurisdiction to check whether certain constitutional provisions were compatible with others.
Law – Article 3 of Protocol No. 1
(a) Election of the Russian President – The obligations imposed on the Contracting States by Article 3 of Protocol No. 1 did not apply to the election of a Head of State.
Conclusion: inadmissible (incompatible ratione materiae).
(b) Parliamentary elections – Article 32 – 3 of the Constitution applied automatically and indiscriminately to all convicted prisoners, regardless of the length of their sentence and irrespective of the nature or gravity of their offence or of their individual circumstances. While the Court was prepared to accept that the applicants’ disenfranchisement had pursued the aims of enhancing civic responsibility and respect for the rule of law and of ensuring the proper functioning of civil society and the democratic regime, it could not accept the Government’s argument regarding the proportionality of the restrictions. Indeed, while a large category of prisoners, namely those in detention during judicial proceedings, retained their right to vote, disenfranchisement nonetheless concerned a wide range of offenders and sentences from two months – the minimum period of imprisonment following conviction in Russia – to life and from relatively minor offences to the most serious ones. Nor was there evidence that, when deciding whether or not an immediate custodial sentence should be imposed, the Russian courts took into account the fact that such a sentence would involve disenfranchisement, or that they could make a realistic assessment of the proportionality of disenfranchisement in the light of the circumstances of each case. The Court reiterated in that connection that removal of the right to vote without any ad hoc judicial decision did not, in itself, give rise to a violation of Article 3 of Protocol No. 1. The fact that the ban on prisoners’ voting rights in Russia was laid down in the Constitution – the basic law of Russia adopted following a nationwide vote – rather than in an act of parliament, was irrelevant as all acts of a member State were subject to scrutiny under the Convention, regardless of the type of measure concerned. Besides, no relevant materials had been provided to the Court showing that an attempt had been made to weigh the competing interests or to assess the proportionality of a blanket ban on convicted prisoners’ voting rights.
In such circumstances, the respondent Government had overstepped the margin of appreciation afforded to them in that field and failed to secure the applicants’ right to vote. As regards the implementation of the judgment, the Court noted the Government’s argument that the ban was imposed by a provision of the Russian Constitution which could not be amended by the Parliament and could only be revised by adopting a new Constitution, which would involve a particularly complex procedure. However, it was primarily for the Russian authorities to choose, subject to the supervision of the Committee of Ministers, the means to be used in order to bring its legislation into line with the Convention once the judgment in the instant case became final. Indeed, it was open to the Government to explore all possible ways to ensure compliance with Article 3 of Protocol No. 1, including through some form of political process or by interpreting the Russian Constitution in harmony with the Convention.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.
11157/04 15162/05 – Legal Summary, [2013] ECHR 791
Bailii
European Convention on Human Rights A3P1
Cited by:
Legal Summary – Anchugov And Gladkov v Russia ECHR 4-Jul-2013
. .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Elections, Prisons
Updated: 19 November 2021; Ref: scu.515130