European Court of Human Rights

FIRST SECTION

Application no. 16824/10
Aleksey Ivanovich BOLSUNOVSKIY
against Russia
lodged on 14 February 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Aleksey Ivanovich Bolsunovskiy, is a Russian national who was born in 1982 and lives in Krasnoyarsk. He is currently serving a sentence of imprisonment in Irkutsk. His application was lodged on 14 February 2010.

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 11 April 2006 the Tsentralny District Court of Krasnoyarsk convicted the applicant of attempted drug trafficking and sentenced him to eight years and three months’ imprisonment. It does not appear that this judgment was appealed against.

2.  The applicant’s attempts to participate in elections

On an unspecified date the applicant was transferred to a penitentiary facility to serve his sentence of imprisonment. Since that date, as a convicted prisoner, he has been barred from participating in any elections by virtue of Article 32 § 3 of the Russian Constitution (“the Constitution”).

In particular, according to the applicant, he was unable to participate in parliamentary elections of 2 December 2007, presidential elections of 2 March 2008, and in elections of a regional legislature held on 8 March 2008 and 14 March 2010.

Thereafter the applicant complained about the provisions of Article 32 § 3 of the Constitution to the Krasnoyarsk prosecutor’s office. The latter replied in letters of 1 April, 26 May and 28 June 2010 that his complaint was pointless and unfounded that the prosecutor’s office had no competence to check the compatibility of constitutional provisions with rules of international law.

In a letter of 13 December 2010 The Central Election Commission confirmed that the applicant, being a convicted prisoner, was deprived the right to vote by virtue of Article 32 § 3 of the Constitution, as 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”

B.  Relevant domestic law

1.  Constitution

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 a 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.”

2.  Other legal acts

The provisions of Article 32 § 3 of the Constitution are 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”, in section 3 (4) of the Federal Law of 10 January 2003 “On Election of the President of the Russian Federation”, and in section 5 (4) of the Federal Law of 18 May 2005 “On Election of Deputies of the State Duma of the Federal Assembly of the Russia Federation”.

COMPLAINTS

The applicant complains about his disenfranchisement which, in his view, violated his rights secured by Articles 3, 7, 10, 14 and 15 of the Convention and Article 3 of Protocol No. 1.

He further complains under Article 13 of the Convention that he has no effective remedies to challenge provisions of domestic law by virtue of which he was disenfranchised.

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, see also Frodl v. Austria, no. 20201/04, 8 April 2010 and Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, 23 November 2010), 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, and tow other cases cited above? If so, in what aspects?