Экзамен зачет учебный год 2023 / CASE OF ANCHUGOV AND GLADKOV v. RUSSIA

ANCHUGOV AND GLADKOV v. RUSSIA JUDGMENT

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(9) As to terminology, in the English version the term “internal law” ... covers all provisions of the internal legal order, whether written or unwritten and whether they take the form of constitutional or legislative rules, administrative decrees or judicial decisions.”

C.International Covenant on Civil and Political Rights (adopted by the General Assembly of the United Nations on 16 December 1966)

38.The relevant provisions of the International Covenant on Civil and Political Rights read as follows:

Article 10

“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

...

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation ...”

Article 25

“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:

(a)To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b)To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c)To have access, on general terms of equality, to public service in his country.”

D.United Nations Human Rights Committee

39. In its General Comment no. 25 (1996) on Article 25 of the International Covenant on Civil and Political Rights, the Human Rights Committee expressed the following view:

“14. In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate

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to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.”

40. In its views on the Yevdokimov and Rezanov v. Russian Federation case (21 March 2011, no. 1410/2005), the Human Rights Committee, referring to the Court’s judgment in Hirst (no. 2) [GC] (cited above), stated:

“7.5 ... the State party, whose legislation provides a blanket deprivation of the right to vote to anyone sentenced to a term of imprisonment, did not provide any arguments as to how the restrictions in this particular case would meet the criterion of reasonableness as required by the Covenant. In the circumstances, the Committee concludes there has been a violation of article 25 alone and in conjunction with article 2, paragraph 3, of the Covenant...”

E.Venice Commission Code of Good Practice in Electoral Matters

41.This document, adopted by the European Commission for Democracy through Law (“the Venice Commission”) at its 51st plenary session (5-6 July 2002) and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002, lays down the guidelines developed by the Commission concerning the circumstances in which people may be deprived of the right to vote or to stand for election. The relevant passages read as follows:

“i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:

ii.it must be provided for by law;

iii.the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;

iv.the deprivation must be based on mental incapacity or a criminal conviction for a serious offence;

v.Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.”

F.Law and practice in the Contracting States

42.A comparative law study was carried out in the context of the proceedings before the Grand Chamber of the Court in the case of Scoppola

v.Italy (no. 3) ([GC], no. 126/05, §§ 45-48, 22 May 2012). Nineteen of the forty-three Contracting States examined in that study place no restrictions on the right of convicted prisoners to vote: Albania, Azerbaijan, Croatia, Cyprus, Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania,

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Moldova, Montenegro, Serbia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine.

43.Seven Contracting States (Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the United Kingdom) automatically deprive all convicted prisoners serving prison sentences of the right to vote.

44.The remaining seventeen member States (Austria, Belgium, Bosnia and Herzegovina, France, Germany, Greece, Italy, Luxembourg, Malta, Monaco, Netherlands, Poland, Portugal, Romania, San Marino, Slovakia and Turkey) have adopted an intermediate approach: disenfranchisement of prisoners depends on the type of offence and/or the length of the custodial sentence.

45.In some of the States in this category the decision to deprive convicted prisoners of the right to vote is left to the discretion of the criminal court (Austria, Belgium, France, Germany, Greece, Luxembourg, Netherlands, Poland, Portugal, Romania and San Marino). In Greece and Luxembourg, in the event of particularly serious offences disenfranchisement is applied independently of any court decision.

G. Other materials

46.For other relevant materials see Scoppola (no. 3) [GC], cited above,

§§43, 49-60.

THE LAW

I.ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION

47.The applicants complained that their disenfranchisement on the ground that they were convicted prisoners violated their right to vote and, in particular, that they had been unable to vote in a number of elections held on various dates in 2000 to 2008 (see paragraph 17 above). They relied on Article 3 of Protocol No. 1 to the Convention, which reads as follows:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

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A.Admissibility

1.Compatibility ratione materiae

(a)The Government’s objection

48.The Government submitted that the Constitution was the highestranking legal instrument within the territory of Russia and took precedence over all other legal instruments and provisions of international law. In particular, the Constitution took precedence over international treaties to which Russia was a party, including the Convention. Accordingly, in the Government’s submission, a review of the compatibility of Article 32 of the Constitution with the provisions of the Convention fell outside the Court’s competence.

49.The applicants argued that, on ratification of the Convention, Russia had not made any reservations regarding the applicability of the provisions of Protocol No. 1, including Article 3 of that Protocol, within its territory, and therefore the Government were not justified in arguing that that provision was inapplicable because it conflicted with the Russian Constitution. The applicants maintained that, having ratified the Convention, Russia was under an obligation to integrate the principles set forth in the Convention into its domestic legal system. They also submitted that, by virtue of Article 15 § 4 of the Russian Constitution, the Convention took precedence over any domestic legal instrument in Russia.

50.The Court reiterates that Article 1 requires the States Parties to

“secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. That provision makes no distinction as to the type of rule or measure concerned and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention (see

Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 153, ECHR 2005 VI; Al-Saadoon and Mufdhi v. the United

Kingdom, no. 61498/08, § 128, ECHR 2010 (extracts); and Nada v. Switzerland [GC], no. 10593/08, § 168, ECHR 2012). It is, therefore, with respect to their “jurisdiction” as a whole – which is often exercised in the first place through the Constitution – that the States Parties are called upon to show compliance with the Convention (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports of Judgments and Decisions 1998 I).

51. Furthermore, in accordance with Article 19 of the Convention, the Court’s duty is “to ensure the observance of the engagements undertaken by the High Contracting Parties ...” (see Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 69, Series A no. 246 A). In cases arising from individual petitions, its task is not to review the relevant legislation or an impugned practice in the abstract. Instead, it must confine itself, as far as

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possible, without losing sight of the general context, to examining the issues raised by the case before it (see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 69, 20 October 2011).

52.Turning to the present case, the Court agrees with the applicants that, once having acceded to the Convention, and in the absence of any reservations regarding Protocol No. 1 thereto, Russia undertook to “secure to everyone within its jurisdiction” the rights and freedoms defined, in particular, in that Protocol. It also accepted the Court’s competence to adjudicate on its compliance with that obligation. Therefore the Court’s task in the present case is not to review, in abstracto, the compatibility with the Convention of the relevant provisions of Article 32 of the Russian Constitution, but to determine, in concreto, the effect of those provisions on the applicants’ rights secured by Article 3 of Protocol No. 1 to the Convention (ibid., § 70).

53.Having regard to the foregoing, the Court thus rejects the Government’s relevant objection.

(b)Scope of the present case

54.According to the Court’s established case-law, Article 3 of Protocol No. 1 only concerns “the choice of the legislature” (see, for instance, Paksas v. Lithuania [GC], no. 34932/04, § 71, ECHR 2011 (extracts)). In the present case the applicants complained that pursuant to Article 32 § 3 of the Russian Constitution they were debarred from voting in the election of deputies of the State Duma and in the election of the Russian President. It therefore has to be determined whether the Court is competent ratione materiae to examine the present case. The Court notes the absence of any objection in this respect on the part of the Government. It must, however, examine this issue. It reiterates in this connection that since the scope of its jurisdiction is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case, the mere absence of a plea of incompatibility cannot extend that jurisdiction (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-...).

55.The Court further has no doubt that Article 3 of Protocol No. 1 is applicable to the election of members of the State Duma, which is the lower chamber of the Russian parliament. However, as regards the election of the Russian President, the Court reiterates that the obligations imposed on the Contracting States by Article 3 of Protocol No. 1 do not apply to the election of a Head of State (see Baškauskaitė v. Lithuania, no. 41090/98, Commission decision of 21 October 1998; Guliyev v. Azerbaijan (dec.), no. 35584/02, 27 May 2004; Boškoski v. the former Yugoslav Republic of

Macedonia (dec.), no. 11676/04, 2 September 2004; Niedźwiedź v. Poland (dec.), no. 1345/06, 11 March 2008; Paksas, cited above, § 72; and Krivobokov v. Ukraine (dec.), no. 38707/04, 19 February 2013).

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56.It follows that, in so far as the applicants complained about their ineligibility to vote in presidential elections, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35

§4. The Court therefore has competence to address the applicant’s complaint under Article 3 of Protocol No. 1, on condition that it complies with the other admissibility criteria, only in so far as it concerns the applicants’ inability to vote in elections of members of the State Duma.

2.Exhaustion of domestic remedies

(a)Submissions by the parties

57.In their additional observations relating to application no. 11157/04, the Government seemed to suggest that the first applicant could have sought to have his violated rights restored at the domestic level. On the one hand, they conceded that there was no individual remedy capable of providing redress to the first applicant in his situation. On the other hand, the

Government stressed that “there [was] an opportunity for the citizens of the Russian Federation to amend the existing legal order in their country”. In this latter respect, they referred to Article 134 of the Constitution, which provided that the Constitution may be amended at the suggestion of the Russian President, both chambers of the national parliament, the Russian Government, the legislatures of the regions of Russia, and a group of one fifth of the members of either of the two chambers of the Russian parliament. They further argued that, under Article 33 of the Constitution, Russian citizens had the right to address their suggestions and complaints to the competent authorities in Russia. The Government thus argued that, taking into account the applicant’s active civic position, before applying to the Court, he should have addressed his complaint to the “elected institutions of the Russian authorities, such as the Russian President, or the lower chamber of the Russian parliament”.

58.The first applicant maintained that there were no effective domestic remedies that had to be exhausted in his situation and referred to the Government’s concession to that effect.

(b)The Court’s assessment

59.The Court reiterates that where the Government claim nonexhaustion they must satisfy the Court that the remedy proposed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see

Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 66, ECHR 2010 (extracts), with further references).

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60.In the present case the Government suggested that, in order to comply with the exhaustion requirement under Article 35 § 1 of the Convention, the first applicant should have appealed, under Article 33 of the Russian Constitution (see paragraph 32 above), to the Russian President or the State Duma in an attempt to have “the existing legal order in the country” amended, as Article 134 of the Russian Constitution (see paragraph 33 above) vested power in those two State institutions to submit proposals on amendments and/or revision of the Russian Constitution. In other words, according to the Government, before complaining about his disenfranchisement to the Court, the first applicant should have tried to have the Russian Constitution changed at the domestic level.

61.The Court fails to see how, in the circumstances, the suggested remedy can be “effective” within the meaning of Article 35 § 1 of the Convention (see paragraph 59 above). Firstly, its accessibility is more than doubtful, as it is clear that such an appeal could not have prompted an examination of the applicant’s particular situation for the purposes of Article 3 of Protocol No. 1. Moreover, any follow-up to such an appeal would depend entirely on the discretionary powers of the State authorities referred to by the Government, and, in any event, under Article 134 of the Russian Constitution neither the Russian President nor the State Duma have any power to amend or revise the Russian Constitution, but only to make proposals to that end. Also, as is clear from Article 135 of the Russian Constitution, revision of Article 32 § 3 of the Russian Constitution, in Chapter 2 thereof, would involve a particularly complex procedure (see paragraph 34 above).

62.Secondly, even if they were to take any action in reply to the first applicant’s appeal, there is no evidence that any of the aforementioned State authorities were in a position to provide adequate redress to the first applicant in his individual situation, as clearly none of the aforementioned State authorities is entitled to ban or suspend the application of Article 32

§3 of the Russian Constitution either in general or on a case-by-case basis.

63.For the above reasons, the prospects of success of the remedy advanced by the Government would, in the Court’s view, be minimal. It thus regards this remedy as clearly inadequate and ineffective and finds that the first applicant was under no obligation to pursue it. It therefore rejects the Government’s objection in this regard.

3.Compliance with the six-month rule

(a)Submissions by the parties

64.The Government maintained that the applicants had submitted their applications outside the six-month time-limit laid down in Article 35 § 1 of the Convention.

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65.They pointed out first of all that there were discrepancies between the dates accepted by the Court as those on which the present applications had been lodged, that is, 16 February 2004 and 27 February 2005 respectively; the dates indicated on the application forms as those on which the applicants had filled them in, that is, 30 April and 29 December 2004 respectively; and the dates on which, as can be seen from the Court’s stamp on the application forms, these had been received by the Court, that is 23 June 2004 and 30 March 2005 respectively. In the Government’s view, it is the latter dates that should be taken as the dates of introduction of the present applications.

66.They further maintained that the six-month period should run from the dates of the latest elections indicated by the applicants in their application forms as those in which, pursuant to Article 32 § 3 of the Constitution, they had been unable to vote. In the Government’s submission, the applicants’ attempts to challenge Article 32 § 3 of the Constitution before the Russian Constitutional Court could not be taken into account for the purpose of calculating the six-month time-limit, as an application to that court was not an effective remedy in their situation.

67.Accordingly, the first applicant, in the Government’s opinion, should have lodged his application within six months from 7 December 2003, the date of the parliamentary elections in which he, being a convicted prisoner, had been unable to vote. They thus argued that his application had been lodged out of time, given that the Court had received it on 23 June 2004. As regards the second applicant, the Government did not indicate the exact date on which he should have lodged his application. They maintained, however, that the alleged violation of the second applicant’s rights could not be said to have been of a continuing nature, as “the elections were held at strictly established intervals” and the number of elections from which the second applicant had been debarred “had been strictly limited”.

68.The first applicant disputed the Government’s objection, stating that he had sent his introductory letter in February 2004 and had therefore complied with the six-month time-limit. The second applicant remained silent on the issue.

(b)The Court’s assessment

(i)Dates of introduction of the applications

69.As regards the Government’s argument that the dates of introduction of the present applications should be those of receipt by the Court of the present applications, the Court reiterates that, in accordance with Rule 47

§5 of the Rules of Court, the date of introduction of the application is as a general rule considered to be the date of the first communication from the applicant setting out, even summarily, the object of the application. The date of introduction is accordingly the date on which the first letter was written

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by the applicant or, where there is an undue delay between this date and the date on which the letter was posted, the Court may decide that the date of

posting shall be	considered	to be the date of introduction (see Gaspari
v. Slovenia, no.	21055/03, §	35, 21 July 2009; Calleja v. Malta (dec.),

no. 75274/01, 18 March 2004; Arslan v. Turkey (dec.), no. 36747/02, ECHR 2002-X (extracts); and Andrushko v. Russia, no. 4260/04, § 32, 14 October 2010).

70. It notes also that, when lodging their applications with the Court, applicants are expected to take reasonable steps to inform themselves, inter alia, about the time-limit provided for in Article 35 § 1 of the Convention and act accordingly to comply with that time-limit (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 61, 29 June 2012). However, applicants cannot be held responsible for any delays that may affect their correspondence with the Court in transit; to hold otherwise would mean unjustifiably shortening the six-month period set forth in Article 35 § 1 of the Convention and negatively affecting the right of individual petition.

71.In the present case, the Court observes that the first applicant had clearly described the circumstances of his case and formulated his relevant complaint in his letter of 16 February 2004, which was dispatched the next day. The application form dated 30 April 2004 referred to by the Government merely reproduced his original submissions. Against this background, the Court sees no reason to doubt that the application was indeed produced by the first applicant on 16 February 2004, and it therefore accepts that date as the date of introduction of his application (see, for a similar conclusion in a comparable situation, Ismailova v. Russia (dec.), no. 37614/02, 31 August 2006).

72.As regards the second applicant, the Court observes that in his first letter to the Court the second applicant submitted the Court’s official application form describing the circumstances of his case and complaining about the disenfranchisement. The application form was dated 29 December

2004, but,	as is	clear from the	postmark, was not	dispatched until
27 February	2005.	In the absence	of any explanation	from the second

applicant in respect of that delay of nearly two months, the Court considers it reasonable to accept the latter date as the date of introduction of his application.

(ii)Compliance with the six-month time-limit

73.In so far as the Government argued that the applicants had failed to comply with the relevant requirement of Article 35 § 1 of the Convention, having lodged their applications more than six months after the elections in which they were ineligible to vote had taken place, the Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or

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measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). In cases featuring a continuing situation, the six-month period does not apply and runs only from the cessation of that situation (see Sabri Güneş [GC], cited above, § 54). The concept of a “continuing situation” refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim (see Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002-VII).

74.In the present case the applicants complained that, as convicted prisoners, they were or had been disenfranchised pursuant to Article 32 § 3 of the Russian Constitution, and, in particular, that they had been ineligible to vote in the parliamentary elections of 7 December 2003 and 2 December 2007, as regards both of them, and in the additional parliamentary elections of 5 December 2004 as regards the second applicant.

75.The Court accepts the Government’s argument that, in so far as the applicants complained about their inability to take part in particular parliamentary elections, they should have lodged their applications within six months from the date of the elections concerned: an act occurring at a given point in time. The Court also notes the absence of any effective remedies in this respect. It is clear that the court proceedings against elections commissions instituted by the second applicant were doomed to failure and therefore were not a remedy that had to be pursued. Indeed, as the domestic courts later confirmed, the election commissions’ refusals to include the second applicant in the lists of voters were based on law, namely, Article 32 § 3 of the Russian Constitution (see paragraph 23 above).

76.In the light of the foregoing and having regard to the dates of introduction of the present application, the Court thus finds that the second applicant’s complaint about his inability to vote in the parliamentary elections of 7 December 2003 was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

77.On the other hand, the Court observes that the applicants’ complaint about their disenfranchisement concerned a general provision, namely, Article 32 § 3 of the Russian Constitution, which did not give rise in their case to any individual measure of implementation amenable to an appeal that could have led to a “final decision” marking the start of the six-month period provided for in Article 35 § 1 of the Convention (see Paksas, cited above, § 82). It is clear that the impugned provision produced a continuing state of affairs, against which no domestic remedy was in fact available to the applicants, as acknowledged by the Government (see paragraph 66 above). It is furthermore clear, on a more general level, that such a state of affairs can end only when the provision in question no longer exists or when it is no longer applicable to the applicants, that is, after their release.