Re Execution of Anchugov v Russia Judgment

JurisdictionRusia
CourtRussian Federation Constitutional Court
JudgeZharkova,Zorkin,Gadzhiev,Danilov,Rudkin,Boitsov,Khokhryakova,Yaroslavtsev,Knyazev,Bondar,Melnikov,Zhilin,Kleandrov,Mavrin,Aranovsky,Kazantsev,Kokotov,Krasavchikova
Docket Number(Judgment No 12-P/2016)

Russian Federation, Constitutional Court.

(Zorkin, President; Aranovsky, Boitsov, Bondar, Gadzhiev, Danilov, Zharkova, Zhilin, Kazantsev, Kleandrov, Knyazev, Kokotov, Krasavchikova, Mavrin, Melnikov, Rudkin, Khokhryakova and Yaroslavtsev, Judges)

(Judgment No 12-P/2016)

Re Execution of the Judgment of the European Court of Human Rights in the Case of Anchugov and Gladkov
and
Russia

Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Protocol No 1 to Convention — Article 3 — Russian Constitution — Article 15 of Russian Constitution — Russian Constitution having supreme legal force — Execution of judgment of European Court of Human Rights — Whether possible to execute judgment of European Court of Human Rights in accordance with Russian Constitution

Jurisdiction — Execution of judgments — Judgments of European Court of Human Rights — Hierarchy of legal acts — Article 15 of Constitution of Russian Federation — Supreme legal force of Russian Constitution — International law as part of national legal order — Whether international judgments to be executed only if conforming with Russian Constitution — Power of Russian Constitutional Court to review compatibility of judgments with Russian Constitution

Treaties — Interpretation — European Convention on Human Rights, 1950 — “Evolutive” interpretation — Whether “evolutive” interpretation should be based on consensus between all Contracting States — Whether absence of consensus giving Contracting State right to object to interpretation

Human rights — Execution of judgments — Judgments of European Court of Human Rights — Execution by measure of general character — Execution by amendment of national law — Execution by political process — Achieving conformity through means of application of apparently non-conforming rule

Human rights — Right to vote and stand for election — Article 3 of Protocol No 1 to European Convention on Human Rights, 1950 — Restrictions of right to vote for convicted prisoners — Article 32(3) of Constitution of Russian Federation — Application of provision

Human rights — Execution of judgments — Judgments of European Court of Human Rights — Execution by measure of individual character — Whether execution by measure of individual character possible when applicant may not be considered a victim of established violation — European Court of Human Rights — Competence — Whether review of provisions of national legislation in abstracto permissible — Whether European Court of Human Rights can review a particular application of provision in concreto — Whether finding on violation when applicant not qualifying as victim amounting to review in abstracto — The law of the Russian Federation

Summary:1The facts:—In its judgment of 4 July 2013 the European Court of Human Rights (“the Court”) in Anchugov and Gladkov v. Russia (“the Judgment”) (above, p. 224) held that the disenfranchisement of all convicted prisoners envisaged in Article 32(3) of the Constitution of the Russian Federation (“the Constitution”)2 violated the right to vote under Article 3 of Protocol No 1 to the European Convention on Human Rights, 1950 (“Protocol No 1 to the Convention”).3

The Court found that, in light of the particularly complex procedure of amending the Constitution, the Russian Government could choose the means by which to ensure compliance with Article 3 of Protocol No 1 to the Convention. The Court suggested that this could be achieved either by interpreting Article 32(3) of the Constitution in harmony with Article 3 of Protocol No 1 to the Convention or through some form of political process.

The Ministry of Justice requested the Constitutional Court of the Russian Federation (“the Constitutional Court”) to decide on whether it was possible to execute the Judgment in accordance with the Constitution.

Held:—Execution of the judgment through measures of a general character, in particular, through amendments of the Constitution restricting the application of disenfranchisement was impossible. Execution of the Judgment through measures of a general character, in particular, ensuring justice, proportionality and differentiation of application of disenfranchisement was

possible and was already being carried out. Execution of the Judgment through measures of an individual character was impossible.

(1) Article 15 of the Constitution4 established the principles of supremacy and supreme legal force of the Constitution over all other sources of law, including international law acts. Therefore, the implementation of the Judgment was permissible only if it conformed to the provisions of the Constitution. In its judgment of 14 July 2015 No 21-P,5 the Constitutional Court had resolved this question in such a way as to ensure that such execution did not result in a conflict with the fundamental principles of the constitutional order of the Russian Federation (paras. 1.2 and 4.4).

(2) Execution of the Judgment through making amendments to Article 32(3) of the Constitution that would restrict the application of disenfranchisement was impossible. First, that provision contained an imperative ban applicable to all convicted prisoners; any other interpretation would be inconsistent with its literal meaning. Secondly, under Article 16(2) of the Constitution,6 all provisions constituted a non-contradictory systematic unity. In the absence of any internal contradiction, the Constitutional Court would have no ground to exercise its power to interpret Article 32(3) of the Constitution. Thirdly, during the discussions of the Constitution's final draft, various options were considered with respect to the exact formulation of the restriction of the elective rights of convicted prisoners. Preference was given to the formulation of the restriction as it appeared in Article 32(3) of the Constitution. Therefore, any other interpretation would contradict the clearly expressed intentions of the constitutional legislator (paras. 4.1 and 4.4).

(3) Constitutional law collisions arising out of implementation of the Convention should be resolved in the context of the circumstances and conditions in which Russia had signed and ratified it. Article 15 of the

Constitution established the principles of supremacy and supreme legal force of the Constitution over all other sources of law. Russia was not entitled to conclude international treaties that were not in conformity with the Constitution. At the time of the conclusion of the Convention, Russia had understood Article 32(3) of the Constitution to be in full conformity with Article 3 of Protocol No 1 to the Convention. The Council of Europe had not alerted Russia to any problems with conformity. The Judgment had given Article 3 of Protocol No 1 to the Convention a meaning that was different from the understanding of the provision relied upon by Russia and the Council of Europe during its signing. Russia could therefore insist on the initial understanding of the provision (paras. 4.2 and 4.4).

(4) Legal positions of the European Court of Human Rights with respect to permissible restrictions of the right to vote were far from established and had been subject to substantial changes through “evolutive” interpretation. “Evolutive” interpretation had to have a substantial basis confirmed by consent of States Parties to the Convention. The legal positions of Contracting States demonstrated no such consensus. Therefore, Russia exercised its right to object (paras. 4.3–4.4).

(5) Execution of the Judgment by ensuring justice, proportionality and a differentiation of application of disenfranchisement was possible and was already being carried out. The application of Article 32(3) of the Constitution in the context of federal legislation and established jurisprudence was not automatic and indiscriminate and therefore achieved conformity with Article 3 of Protocol No 1 to the Convention (paras. 5 and 5.4).

(6) The application of Article 32(3) of the Constitution in the context of the federal legislation did not allow the conclusion that the ban on the right to vote was carried out automatically and in an undifferentiated manner. Therefore, it conformed with Article 3 of Protocol No 1 to the Convention. First, under the Criminal Code of the Russian Federation (“the Criminal Code”), deprivation of liberty was a separate criminal penalty with a meaning specific to criminal law, which was narrower than the meaning of “deprivation of liberty by law” under Article 5(1) of the Convention. Only deprivation of liberty in its narrow and specific criminal law meaning provided by the Criminal Code triggered the ban on the right to vote. Secondly, under the Criminal Code, a person convicted of a minor crime could be sentenced to deprivation of liberty only in specific and exceptional circumstances listed in the Criminal Code. By virtue of this provision, the application of the penalty to these crimes was practically excluded for persons having committed minor crimes for the first time in the absence of aggravating circumstances. Finally, even when the penalty of the deprivation of liberty was prescribed, the courts were under an obligation to take into consideration the fact that such sentence would trigger the restriction of the right to vote. Therefore, the restriction of that right as applied and understood in the context of the federal legislation was in fact not a general and indiscriminate one, and therefore conformed with Article 3 of Protocol No 1 to the Convention (paras. 5 and 5.1–5.2).

(7) Official statistics prepared by the Judicial Department attached to the Supreme Court of the Russian Federation confirmed that only persons convicted of the commission of the most serious crimes were in fact deprived of the right to vote. This also refuted the argument that the restriction of the right to vote was applied automatically and in an undifferentiated manner (para. 5.3).

(8) Execution of the Judgment through measures of...

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