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 § 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 § 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 § 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 § 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 § 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, § 82)?
2. Can the present case be distinguished from the case of Hirst, cited above? If so, in what aspects?
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