Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia

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In the beginning of October, EJIL: Talk! published a series of posts (here and here) by George Stafford, one of the co-directors of the European Implementation Network, who raised alarm about the status of execution of judgments of the European Court of Human Rights (the ECtHR). Based on the available statistical data, George argued that the problem of non-execution is “far more widespread than many believe.” Our post continues to address the important issue of the execution of judgments of the ECtHR by focusing on a specific case, namely Anchugov and Gladkov v. Russia – a 2013 judgment concerning the disenfranchisement of prisoners in Russia. 

On September 25th, the Committee of Ministers (the CM) of the Council of Europe, which pursuant to Article 46(2) of the European Convention on Human Rights (the ECHR or the Convention) supervises the execution of judgments of the ECtHR, adopted a final resolution CM/ResDH(2019)240, which closed the supervision of Anchugov and Gladkov v. Russia. The closure of the case means that Russia has complied with Anchugov and Gladkov judgment, as per assessment of the CM.

Anchugov and Gladkov became a test case for the Russian Constitutional Court (the RCC) under the domestic mechanism introduced in 2015, which permitted the Russian authorities to refuse the execution of judgments of the ECtHR on the basis of the RCC’s assessment of non-compliance of such judgments with the Russian Constitution. The RCC’s 2016 ruling of 19 April 2016 finding that the execution of Anchugov and Gladkov judgment was “(im)possible” provoked strong criticism from legal scholars and became a symbol of Russia’s resistance to the authority of the ECtHR. The Venice Commission described Russia’s approach as incompatible with its obligations under international law and emphasized the obligation under the Convention “to abide by the interpretation and the application of the Convention made by the Court in cases brought against it.” In 2014, following the ECtHR Anchugov and Gladkov judgment, the Russian authorities informed the CM that the judgment gave rise “to a complicated legal issue requiring consultations with Russian competent state authorities and academic community.” For this reason, the sudden closure of Anchugov and Gladkov case by the CM, which in principle required Russia to reconcile a constitutional ban on prisoners’ voting rights with the requirements of the Convention, merits a closer examination.

In 2013, the ECtHR found a violation of Article 3 of Protocol No. 1 of the ECHR on the basis that Article 32(3) of the Russian Constitution, which provides that “citizens who are kept in places of imprisonment under a court sentence, shall not have the right to elect and be elected”, disproportionately applied “to all persons convicted and serving a custodial sentence, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances.” The ECtHR noted that the interpretation that disenfranchisement applied only to the most serious crimes was not supported by the wording of Article 32(3) of the Russian Constitution and that the Russian Government did not provide support for such conclusion. It was pointed out in the context of the case that the constitutional ban affected around 734,300 prisoners in Russia (para 104).

In 2016, the RCC held that the voting ban in Article 32(3) of the Russian Constitution was “imperative” (“all convicted persons serving sentence in places of deprivation of liberty were disenfranchised”), but that the legislator was free to remove certain groups of convicted persons from the constitutional ban, suggesting recharacterisation of certain kinds of “deprivation of liberty”, such as confinement in “settlement colonies” into a separate penalty. Even if this recommendation was to be implemented, it remained unclear whether Russia could be seen as having executed the ECtHR’s judgment given that Article 32(3) would continue to apply without differentiation, unless the effect of the legislative change would result in such situation where the only category of persons affected by the constitutional ban were those convicted for serious crimes.

Given that since 2013 neither a constitutional nor a legislative amendment suggested by the RCC was adopted, how, in the view of the CM, Russia has executed the ECtHR’s judgment? According to the Action Report submitted by the Russian authorities on 27 June 2019, the judgment was executed through the introduction to the Russian Criminal Code of a new category of criminal punishment – “community work” (translation provided in the Action Report). The Action Report further explained that such punishment is carried out through “placement in correctional centres for community work and may be imposed for committing a small or medium gravity offence or in case of a grave offence is committed for the first time.” The very laconic analysis of Russia’s general measures by the Secretariat noted that such measure was “in line with the indications given by the European Court of Human Rights” as it “appeared to amount to a form of deprivation of liberty” in terms of the Convention. Consequently, the Secretariat concluded that “the blanket ban on voting by persons serving a sentence involving a deprivation of liberty, as identified by the European Court, [was] no longer in place.” The CM’s final resolution simply reiterated the view of the Secretariat and concluded that given the wide margin of appreciation in this area “all the measures required by Article 46 paragraph 1 have been adopted.”

We are unable to agree with the Secretariat’s analysis and find it regrettable that the CM endorsed the misguided recommendation to close the supervision of the case without at least discussing the proposed remedial measure in one of its quarterly Human Rights meetings. As it is well established in the ECtHR’s case-law and the CM’s practice, the aim of general measures is to address the causes of structural problems in order to prevent similar violations to those found or to put an end to continuing violations. The measure proposed by the Russian authorities and described by the Secretariat as “an adequate response” to the judgment of the ECtHR falls short of achieving these aims.

To begin with, принудительные работы or “compulsory labour” (incorrectly translated by the Russian authorities as “community work”) was introduced to the Russian Criminal Code on 7 December 2011, nearly two years prior to Anchugov and Gladkov ruling, and only entered into force on 1 January 2017. In December 2018, a new amendment to the Criminal Code specifically prescribed the imposition of compulsory labor instead of imprisonment in case the court finds “rehabilitation of the convicted person being possible without serving the prison sentence”. Such measure, however, remained fully discretionary and did not change the legal regulation of imprisonment, including disenfranchisement. The Secretariat concludes that the introduction of “community work” resulted in the removal of “the blanket ban on voting by persons serving a sentence involving a deprivation of liberty, as identified by the European Court.” However, the ECtHR has never assessed a voting ban on “persons serving a sentence involving a deprivation of liberty”, but specifically focused on the ban on “convicted prisoners”. The case-law concerning prisoners’ voting rights explicitly refers to the right to vote of “convicted prisoners” (paras 101, 107 Anchugov and Gladkov; para 63 Hirst v. the UK (No. 2); para 85 (Scoppola v. Italy (no. 3)), not of “persons deprived of liberty”. In Anchugov and Gladkov the judges specifically noted that a large category of persons such as those in detention during judicial proceedings retained the right to vote, but that the disenfranchisement in question concerned “a wide range of offenders… sentenced from two months to life and from relatively minor offences to offences of the utmost seriousness” (para 105). In the subsequent sentence, the judges expressly emphasized that “Article 32(3) of the Russian Constitution imposes a blanket restriction on all convicted prisoners serving their prison sentence.” Thus, it is impossible to interpret Anchugov and Gladkov judgment as requiring Russia to grant the right to vote to the category of persons “deprived of their liberty” and the fact that the Russian legal system currently allows such persons to vote is of no relevance for the voting rights of “convicted prisoners serving their prison sentence” in the sense of Article 32(3) of the Russian Constitution.

Secondly, one might perhaps argue that through the imposition of “community work” instead of “deprivation of liberty” in the sense of Article 32(3), one could remove a certain category of persons (those punished for small and medium gravity crimes) from the constitutional ban. Given the Court’s existing case-law on prisoners voting, one might say that such outcome could fall within Russia’s margin of appreciation. Yet, the general measure proposed by the Russian authorities and approved by the Secretariat and the CM does not achieve such an effect. The legislation in force does not oblige the domestic judges to apply the alternative punishment of “community work” (the Action Report states that “community work” may be imposed) and according to the statistics provided by the Russian authorities, in one year such punishment was applied only 3,000 times. However, as noted in the RCC’s 2016 ruling, in 2015, as many as 36,218 persons were convicted to deprivation of liberty for small gravity crimes and 53,353 persons – for medium gravity crimes. Thus, presuming that the numbers remain similar, a mere 3,000 of the total of 89,571 of such convicted prisoners would be enfranchised (the total number of persons imprisoned for all types of crimes is much higher). In other words, under the currently applicable provisions of Russian criminal law it is still possible that a person convicted for the offence of small gravity to a term of imprisonment of two months will be disenfranchised. Thus, the blanket ban stands and continues to affect “a wide range of offenders… sentenced from two months to life and from relatively minor offences to offences of the utmost seriousness.”

The CM’s 2018 decision to accept the United Kingdom’s shallow compliance in Hirst v. the United Kingdom (no. 2) was assessed critically by various commentators who expressed concern about the readiness of the CM to give in to the pressure of the states at the cost of human rights protection provided by the Court in its judgments. Anchugov and Gladkov provided an opportunity for the CM to reaffirm its commitment to judgment execution supervision, which ensures that the states are implementing the Court’s judgments in a manner which makes the protection of the Convention rights practical and effective, as emphasized by the ECtHR in its recent Grand Chamber judgment delivered under Article 46(4) (para 217). The closure of Anchugov and Gladkov case, where no general measures capable of resolving the structural problem and preventing similar violations from reoccurring have been adopted, not only constitutes a serious blow to the legitimacy of the judgment execution supervision mechanism, but also sets a worrying precedent for other Contracting Parties unwilling to execute the Court’s judgments in good faith. Whereas the margin of appreciation in this area might be wide, for the sake of the credibility of the system, the appearance of execution of a judgment should fall outside the acceptable limits of such margin.


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