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First Section the Facts FIRST SECTION Application no. 4664/10 Sergey Ivanovich KUCHMARA against Russia lodged on 11 November 2008 STATEMENT OF FACTS THE FACTS The applicant, Mr Sergey Ivanovich Kuchmara, is a Russian national who was born in 1972 and lives in the Kurgan Region. He is currently serving a sentence of imprisonment in Ikovka. His application was lodged on 11 November 2008. He is represented before the Court by Mr D. Babayan, a lawyer practising in Novoulyanovskiy. 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 9 September 2005 the Georgiyevsk Town Court convicted the applicant of aggravated robbery and infliction of damage on one’s health and sentenced him to eight years’ 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 2 KUCHMARA v. RUSSIA – STATEMENT OF FACTS AND QUESTIONS 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, in a letter of 4 February 2008 he requested the President of the Central Electoral Commission to allow his to participate in the presidential elections which were scheduled fro 2 March 2008. In a letter of 15 February 2008 the Central Electoral Commission refused his request, stating that section 4 (3) of the Federal Law “On Fundamental Guarantees of Electoral Rights and A Right to Take Part in a Referendum of the Citizens of the Russian Federation” (“the Electoral Rights Act”) provided that citizens detained in institutions of confinement in pursuance of a court sentence shall not have the right to elect of to be elected. The applicant challenged the above refusal before the Supreme Court of Russia. The latter in a decision of 16 May 2008 declined to examine the applicant’s complaint, stating that the applicant challenged in effect a federal legal act and that the court had no competence over his claim. The court also noted that the question of compatibility of federal legal acts with the Constitution could be examined by the Constitutional Court of Russia “the Constitutional Court”). On 19 August 2008 the Supreme Court of Russia, sitting as an appellate instance, upheld the decision of 16 May 2008 on appeal, stating, inter alia, that the applicant’s right to elect and to be elected was restricted by Article 32 of the Constitution, section 4 (3) of the Federal Law “On Fundamental Guarantees of Electoral Rights and A Right to Take Part in a Referendum of the Citizens of the Russian Federation” and section 3 of the Federal Law “On Election of the President of the Russian Federation” (“the Election of the President Act”). 3. The applicant’s complaints to the Constitutional Court On 14 April 2009 the applicant challenged before the Constitutional Court Article 32 § 3 of the Constitution, section 4 (3) of the Electoral Rights Act and section 3 (4) of the Election of the President Act. In a letter of 7 May 2009 the Secretariat of the Constitutional Court replied that the applicant’s complaint fell outside the Constitutional Court’s competence and therefore had no prospects of success. The applicant appealed against this refusal. By a decision of 16 July 2009 the Constitutional Court declined to accept the applicant’s complaint for examination, stating that it had no jurisdiction to check the compatibility of some constitutional provisions – that is the provisions of Article 32 § 3 of the Constitution which were reproduced word by word in section 4 (3) of the Electoral Rights Act and in section 3(4) of the Election of the President Act – with others. B. Relevant domestic law 1. Constitution Article 32 (Chapter 2) of the Russian Constitution of 12 December 1993 provides: KUCHMARA v. RUSSIA – STATEMENT OF FACTS AND QUESTIONS 3 “... 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 that by virtue of Article 32 § 3 of the Russian Constitution, reproduced in other relevant legal acts, he is deprived of a right to vote, which constitutes a breach of Article 3 of Protocol No 1. He further complains that he is discriminated against as a convicted prisoner, in breach of Article 14 of the Convention and Article 1 of Protocol No. 12. 4 KUCHMARA v. RUSSIA – STATEMENT OF FACTS AND QUESTIONS 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?.
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