Russian denial of prisoner voting rights violates European Convention

Anchugov and Gladkov v Russia [2013] ECHR, Application Nos 11157/04 and 15162/05 (4 July 2013)

Summary

The European Court of Human Rights unanimously held that the Russian Federation’s laws denying prisoners the right to vote violated article 3 of Protocol 1 (right to free elections) of the European Convention on Human Rights.

The case involved two prisoners who argued that their incarceration and consequent disenfranchisement, under article 32 § 3 of the Russian Constitution, violated their right to vote in various parliamentary elections. Despite the severity of the offences for which the applicants had been incarcerated, the Court found that the applicants had been denied their right to vote at the parliamentary elections and article 32 § 3 breached the Convention as it imposed a blanket ban on the right of the prisoners to vote and failed to account for the length of the sentence or the gravity of the offence committed.

Facts

The first applicant, Mr Sergey Borisovich Anchugov, a Russian national, was convicted of murder, theft and fraud in 1998 and sentenced to death. The second applicant, Mr Valdimir Mikhaylovich Gladkov, also a Russian national, was convicted of murder, aggravated robbery, participation in an organised criminal group and resistance to police officers in 1998 and sentenced to death. The applicants appealed their sentences in 1999 and 2000 respectively, and their respective sentences were reduced from death to 15 years’ imprisonment.

Following incarceration, Mr Anchugov and Mr Gladkov were excluded from voting in parliamentary and presidential elections under article 32 § 3 of the Russian Constitution.

Mr Anchugov and Mr Gladkov, on various occasions, unsuccessfully challenged article 32 § 3 of the Constitution before the Russian Constitutional Court. In 2004, Mr Gladkov applied to the European Court of Human Rights, with the application being dispatched in 2005. Mr Gladkov was released on parole in April 2008, while Mr Anchugov remained in prison.

Decision on the violation of article 3 of Protocol No. 1 to the Convention

Mr Anchugov and Mr Gladkov, relying on article 3 of Protocol No. 1 of the Convention, argued that their disenfranchisement had violated their right to vote in various elections held between 2000 and 2008. Further the applicants argued that their disenfranchisement violated their right to express an opinion under article 10 (freedom of expression) of the Convention and was discriminatory, due to their status as prisoners, under article 14 (prohibition of discrimination) of the Convention.

Relying on Hirst v the United Kingdom (No 2) [GC] no 74025/01, the applicants argued that the deprivation of the right to vote on prisoners in detention, regardless of the severity of their offences was a breach of the Convention. The Russian Government argued that Hirst was distinguishable, as a suspension on prisoners' voting rights was enshrined in the Constitution, rather than legislation (as was the case in Hirst). The Court accepted that the rationale for the applicant's constitutional disenfranchisement was directed at instilling a sense of civic responsibility and respect for the rule of law. However, the Court did not accept that the restrictions placed on the applicants were proportional to these aims. The Court found that:

when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the gravity of their offence and their individual circumstances, it is not compatible with article 3 of Protocol No 1 (Scoppola (No 3), {GC} no 126/05 § 96).

The Russian Government further submitted that the Constitution, as the highest ranking legal instrument in Russia, took precedence over all other laws, including international treaties that Russia was a party to. Referring to article 27 of the Vienna Convention on the Law of Treaties, the Court found that a State may not invoke provisions of its internal law as justification for failing to comply with a treaty. As Russia had acceded to the Convention, in the absence of reservations, Russia must ensure that the people of Russia enjoy the rights and freedoms protected in the Convention.

Commentary

The Court’s decision establishes that a blanket dismissal of the rights enshrined in the Convention will lead to a violation of article 3 of Protocol No. 1 of the Convention. Restrictions on prisoner voting rights can be imposed, however they need to take into consideration the seriousness of the offence. In Australia, prisoners serving more than a three year sentence are suspended from voting pursuant to the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Act 2011 (Cth). There are other instruments in Australia, however, that guarantee the right to vote, such as section 18(2)(a) of Victoria’s Charter of Human Rights which provides that every eligible person is entitled to the right and opportunity to vote.

In 2006 the High Court decision of Roach v Electoral Commissioner and Another [2007] HCA 43 confirmed the validity of legislation imposing suspension on the voting rights of prisoners serving a sentence of more than three years. However, the High Court in Roach struck down proposed amendments under the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2006 (Cth) which sought to disenfranchise every person serving a prison sentence.

The High Court noted that the Constitution provides for a system of representative government which, at its heart, consists of the people of Australia voting in elections. The High Court held that the amendments operated to disqualify prisoners from voting, without regard to the culpability of the offender.

In July 2013 the Coalition announced that, if elected in the upcoming federal election, it intends to amend legislation to suspend the voting rights for prisoners serving a custodial sentence of more than one year. Although the High Court rejected the previous similar amendments, it is unclear whether the High Court will accept a more restrictive legislative provision that does not amount to an absolute ban.

This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122260

Dianna Barton is a Law Graduate at Allens.