Friday, 29 April 2016

The Russian Response to the Prisoner Voting Judgment

The voting rights of prisoners under the European Convention on Human Rights continue to be the object of debate in some countries - whereas in others it is not an issue at all, one may add. In this context, much attention usually goes to the United Kingdom's situation, but it is interesting to see that very recently a Russian Constitutional Court judgment also related to the issue. It deserves attention from an international audience. I am therefore hereby presenting a critical and vocal guest post by three academics on this recent Russian judgment:

Imaginary Dialogue and Fictitious Collaboration: Russian Response to the Prisoner Voting Judgment

written by: Kanstantsin Dzehtsiarou (University of Liverpool, UK), Sergey Golubok (Double Bridge Law, Russia) and Maxim Timofeev (European Humanities University, Belarus/Lithuania)

Since 2005, the European Court of Human Rights (ECtHR or the Court) has been facing a major challenge: its prisoner voting case-law is met with hostile criticism, at least in some Contracting Parties to the European Convention on Human Rights. In this confrontation with the European Court, the UK stands together with countries like Russia and Turkey. On 19 April 2016, the Russian Constitutional Court (RCC) has added yet another page to this growing saga. In this blogpost, we will first briefly describe the Court’s case-law on prisoner voting rights and focus on the Russian response to it. Secondly, we will analyse what the most recent decision of the Russian Constitutional Court actually says and what it means. Finally, we will analyse the judgment of the RCC from the perspective of international law and how it might impact the authority of the Strasbourg system of human rights protection.

A brief history of the prisoner voting case-law

The prisoner voting saga began in 2005 when the Grand Chamber of the Court delivered its judgment in the case of Hirst v UK (No 2). In that case, the Court ruled that blanket indiscriminate and automatic disenfranchisement of convicted prisoners violated Article 3 of Protocol 1. This judgment happened to be problematic. First, it deals with a very unpopular group of people – convicted criminals. Secondly, to execute this judgment Parliament needed to change national law. This meant that the members of Parliament could use this opportunity to boost their popularity through vocal and persistent opposition to the lifting of the prisoner voting ban. And, finally, the respondent state in this case was the UK which is known for its rather suspicious attitude to the ECtHR. Execution of this judgment is indeed challenging, despite the Court’s constant reminders that it needs to be executed. For instance, in 2010 the Court delivered a pilot judgment in the case of Greens and M.T. v UK in which it gave the UK six months to introduce legislative proposals designed to secure compatibility with the Convention. In 2011, the UK House of Commons has overwhelmingly voted against amending the law in this area. When this blogpost was written (April 2016) Hirst No 2 had not been executed yet.

While the Court clearly stated that an automatic and general ban on prisoner voting is not compatible with the Convention, it did not explain which system would comply. In the following decade the Court tried to fine tune its standards in this area. In the case of Frodl v Austria the Court ruled that the decision of disenfranchisement should be made by a national judge in each individual case and only if the offence can justify this disenfranchisement. By doing so, the Court narrowed down the margin of appreciation of the Contracting Parties but this narrow standard did not last long. In the Grand Chamber judgment in Scoppola v Italy (No 3), the Court reconsidered Frodl and concluded that the Italian system that limited disenfranchisement to those who are sentenced to 3 years or more is compatible with the Convention even though national judges do not consider this question in the sentencing stage. The Court thereby departed from its stricter regime of individualised disenfranchisement. These were the optimistic days of the prisoner voting saga: Austria has executed Frodl without major issues and there was no violation in Scoppola No 3, so, Italy did not need to amend its laws at all. Having said that, the scope of what is required from the Contracting Parties has been reviewed again in the recent case of Söyler v Turkey. In Turkey, the prisoner voting ban is not absolute – those who committed involuntary crimes can vote. The ECtHR has nevertheless found a violation because the voting ban imposed on those who committed intentional crimes is tougher than the one in the UK or Italy. For example, those prisoners who are conditionally released still cannot vote until their main sentence is over. The judgment in Söyler is not executed yet.

In 2013, the Court delivered a judgment in the case of Anchugov and Gladkov v Russia and this judgment has a potential to be one of the most challenging judgments in the Court’s history. The provision on disenfranchisement of prisoners is enshrined in the Constitution of Russia, in its entrenched part which can only be amended by adoption of a new Constitution. The Russian authorities have argued that the constitutional nature of this ban makes the case in Russia different to Hirst No 2 but the Court rejected this argument and found a violation of Article 3 of Protocol 1.

Prisoner voting saga: Russia strikes back

In Anchugov and Gladkov, the ECtHR invited the RCC to interpret the Russian Constitution in such way that it would comply with the Convention (para. 111). The RCC did not do that: the response of the Russian authorities to this judgment of the ECtHR came in three steps. The first step was the judgment of 14 July 2015 in which the RCC claimed that in exceptional situations the national authorities can depart from their international obligations when the compliance would lead to breaches of the principles of the Russian Constitution. The second step were the amendments to the Law on the RCC which were passed by the Russian Parliament on 14 December 2015. They provided the RCC with the powers to declare execution of an international obligation impossible if it contradicts the Constitution. It should not come as a surprise that the first request to consider whether the execution of an ECtHR judgment is compatible with the Russian Constitution came in relation to Anchugov and Gladkov v Russia.

In its judgment of 19 April 2016, the RCC started out by reiterating the main gist of its earlier judgment of 14 July 2015: although the Convention (as well as the judgments of the ECtHR) is part of the Russian legal system, the Constitution has supremacy in the national legal order. Thus, according to the RCC, the case at hand cannot be decided by virtue of “subordination”, it may only be solved through a “dialogue”. The latter, however, should be based on “the ECtHR’s respect towards national constitutional identity”. The RCC decided that the “constructive dialogue” was possible only under the condition that the last word should always belong to it, not to the ECtHR which will thus be deprived of its role of a guardian of the Convention.

As it has been stated above, the ECtHR invited the RCC to re-interpret the Russian prisoner voting ban and squeeze it within the parameters of European case-law. Instead, the latter Court has characterised the ban as “imperative” and concluded that it cannot be construed as allowing the federal legislature to lift the ban, even partially. The RCC relied heavily on the textual interpretation of the Constitution and for the first time in its history, deployed the travaux préparatoires of the Constitution. These arguments lead to a deadlock between the prisoner voting case-law of the ECtHR and the case law of the RCC.

The RCC questioned the Court’s methods of interpretation, specifically the evolutive interpretation of the Convention when the ECtHR interprets the Convention “in light of the present-day conditions”. The RCC stressed that Russia “has the right to insist” on the original meaning of Article 3 of Protocol 1. This claim is problematic as it makes little sense to interpret the Convention solely on the basis of its “accepted” meaning when Russia acceded to the Convention (in 1998 mid-way through its history). Both technological and social changes have to be reflected in the case law of the ECtHR. Otherwise, the ECtHR would turn into an instrument of human rights mummification and become ineffective. 

After stating that evolutive interpretation should not be applicable in this context, the RCC nevertheless assessed the quality of the reasoning of the ECtHR. The RCC stated that the lack of European consensus on the issue of the prisoner enfranchisement deprives the ECtHR’s judgments on this matter of a sound foundation. The RCC has twisted the facts here: instead of counting only those countries which have banned prisoners to vote, it counted all states in Europe which have some limits on prisoner voting. Although, the ECtHR has never claimed that all limitations should be lifted in this area. As a result of this convenient counting the RCC concluded that there was no consensus on the issue of prisoner voting.

These arguments were supposed to substantiate the first paragraph of the operative part of the judgment of 19 April 2016 which declared that the ECtHR judgment is unenforceable because compliance with the general measures stemming from Anchugov and Gladkov would require enfranchising of some prisoners and this goes against the meaning of the Russian Constitution.

This judgment, however, has a second paragraph in its operative part which states that Anchugov and Gladkov is actually enforceable without any constitutional or legislative amendments. According to the RCC the Russian prisoner voting ban is not general, automatic and indiscriminate.

It is hard to explain how these two paragraphs of the operative part can be reconciled in one judgment; moreover, the ECtHR has clearly stated that the constitutional ban in Russia is blanket and automatic. The RCC has offered the following reasons to substantiate this point.

First, the RCC stressed that there are criminal penalties like arrest or compulsory labour that have elements of deprivation of liberty. According to the RCC these modes of punishment might fall within the scope of deprivation of liberty under the ECHR and not under the Russian Constitution. Secondly, the RCC basically reiterated the argument of the Russian Government in Anchugov and Gladkov (para. 91) highlighting that the ban on the right to vote affects only those who were convicted of criminal offences “sufficiently serious to warrant an immediate custodial sentence” and that domestic courts exercise a thorough examination of all the relevant circumstances concerning the seriousness of the crime and defendant’s personality. The UK authorities used the very same argument in Hirst No 2 (para. 77) and the Court has also rejected it. In effect, the RCC held that the ECtHR had erred in Anchugov and Gladkov in its assessment of Russian law on prisoner enfranchisement as general and indiscriminate.

Finally, the RCC advised the Russian parliament to reclassify some custodial regimes such as “settlement colonies”. In these colonies the liberty of inmates is restricted but to a lesser degree than in prisons. Those who committed involuntary crimes and less dangerous intentional crimes can serve their punishment there. Reclassification would mean that the inmates in settlement colonies will cease to be prisoners. This little trick would exempt them from the reach of the constitutional ban.  

Even if the Russian parliament follows the obiter dictum advice of the Constitutional Court and amends the legislation enfranchising some convicts held in “settlement colonies” it might not be enough to implement Anchugov and Gladkov as it would not reach the standard set by the ECtHR. Having said that, it is naive to expect that this will ever happen given that this wish vaguely expressed by the RCC is not binding upon the Russian legislator. It was not even the issue before the RCC. In fact, the question before the RCC was whether to render the judgment of the ECtHR effectively unenforceable. The RCC succeeded in doing just that. 

To sum up, the key aspect of the judgment of 19 April 2016 is that Anchugov and Gladkov cannot be implemented because the ECtHR’s interpretation of the Article 3 of Protocol 1 is in a direct contradiction with the explicit constitutional ban. At the same time, the RCC has suggested that Anchugov and Gladkov, as construed by the RCC, can be executed without any legislative amendments, since there is no absolute voting ban in Russia.  Having said that, one does not get a sweeter taste in one’s mouth no matter how many times one says “halvah”. One should not be misled by expressions like “constructive and mutually respectful dialogue” or “compromise”, as well as the RCC’s assurances as to its genuine search for possible solutions. The truth behind this word play is plain: no dialogue, no trade-offs, and no respect to international obligations. 

Prisoner voting in Russia: wider repercussions

From the standpoint of international law, the issue is relatively straightforward. Under Article 27 of the Vienna Convention on the Law of Treaties, a state may not invoke the provisions of its internal law as a justification for its failure to comply with a treaty. This provision is of course fully applicable in relation to the ECHR. The judgment of the ECtHR in Anchugov and Gladkov v Russia remains valid internationally but it cannot now be enforced domestically. We argue that this will have the following consequences.

The first consequence is the denial of justice to the applicants who were successful in Strasbourg. They are left with the judgment of the ECtHR in their favour which is unenforceable. We know from the jurisprudence of the Strasbourg Court itself that the right to have the judgment in one’s favour enforced forms a part of the right to have an effective access to justice. The right to individual application enshrined in Article 35 of the ECHR is rendered illusory if domestic courts can effectively undermine the legal effect of the judgment of the ECtHR.

Another consequence is more drastic and far-reaching. It is about the integrity and legitimacy of the Strasbourg system. The RCC permitted itself to slap the European judges on the wrist. This gesture is strongly symbolic; the RCC went further than any other court in Europe in criticising the judgments of the ECtHR. If no strong reaction follows on the part of the Convention institutions, such as the Court and the Committee of Ministers, the Russian stance might become contagious – not only in future cases of the same sort that might come before the RCC but also in other jurisdictions. For example, the UK Home Secretary Theresa May has recently accused the ECHR of doing nothing to force states like Russia to effectively protect human rights. This statement is hypocritical as persistent refusal of the UK to execute Hirst No 2 has undermined the authority of the ECtHR in this area. From the political perspective the judgment of the RCC is similar to the UK position on this matter. The constant questioning of the Court’s judgments undermines its authority. Erosion of the legitimacy of the ECtHR may become unstoppable. This process takes time, but it is hard to reverse and its ultimate result can be damning: rendering the Council of Europe obsolete.

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