Author: Marina Aksenova

[Marina Aksenova is a Post-doc at the Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. You can reach her at: Marina.aksenova@jur.ku.dk.] On 19 April 2016, the Constitutional Court of Russia (CC) issued its pilot decision testing newly acquired powers to refuse the implementation of the rulings of the European Court of Human Rights (ECtHR) contradicting Russia’s Constitution. The case under review of the CC was Anchugov and Gladkov v Russia. In this case, the ECtHR previously found that automatic and indiscriminate ban on Russian prisoners’ voting rights was disproportionate and thus in violation of Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights (ECHR). Ever since it was issued in 2013, the Russian authorities viewed this ruling as problematic because it directly contradicts Article 32(3) of the Russian Constitution, which reads as follows: Deprived of the right to elect and be elected shall be citizens recognized by court as legally unfit, as well as citizens kept in places of confinement by a court sentence. The CC has been enjoying powers to refuse the implementation of contested decisions of the ECtHR for only nine month, and, more precisely, since 14 July 2015 when it issued ground breaking decision to reaffirm the primacy of the Russian Constitution over the conflicting rulings of the ECtHR and any other international bodies tasked with human rights protection (some aspects of this decision are discussed here and in the second half of this post). On 14 December 2015, the legislature, in line with the position of the CC, amended the law regulating the operation of the Russian Constitutional Court, granting the President and the Government the right to appeal to the Court in instances when they suspect that executing the ruling of the ECtHR may contradict the Constitution. Following the introduction of this new internal review mechanism, the Ministry of Justice swiftly filed an appeal to the CC asking it to rule on the possibility of implementing the ECtHR judgment in Anchugov and Gladkov. The CC held on 19 April 2016 that the ECtHR judgment in Anchugov and Gladkov could not be executed. The CC adopted, however, a diplomatic approach by not ruling out the introduction of future penalties involving non-custodial sentences that limit the freedom but do not impede on the voting rights. The CC nonetheless insisted on its previous interpretation of Article 32(3) as sufficiently discriminate to satisfy the requirements Article 3 of Protocol No. 1. The Court further stressed European pluralism in what concerns organisation of the electoral processes in different members states as well as inconsistent position of the ECtHR itself in matters concerning voting rights (the CC contrasted Hirst v UK (2005) and Scoppola v Italy (2012) judgments, pointing to a certain change of heart by the Strasbourg court). The CC distinguished general measures and measures that benefit the applicant in making three important pronouncements:
  • Anchugov and Gladkov cannot be implemented in what concerns general measures involving repealing or changing the imperative provision of Article 32(3) of the Constitution given its supremacy within Russian legal system. The CC found it particularly troubling that the provision in question can only be changed by virtue of adopting a new Constitution;
  • Anchugov and Gladkov can be implemented in what concerns general measures ensuring fairness, differentiation and proportionality of the restrictions on voting rights. Here the CC adopted a rather questionable approach arguing that only a custodial sentence leads to the disenfranchisement of the offender concerned, which ensures sufficient differentiation because most of the first-time offenders charged with minor crimes do not get imprisoned, ergo their voting rights are intact. The ECtHR has however already dismissed this argument in Anchugov and Gladkov (para. 106) pointing to the lack of evidence that courts take into account impending disenfranchisement when deciding on the type of sanction to be imposed on the convicted person. Possibly sensing some weakness in this position, the CC made an additional promise for the future – the legislator may optimise Russian penitentiary system so as to ensure the existence of punishments limiting freedom but not involving imprisonment, thus guaranteeing voting rights to the convicted persons;
  • Finally, Anchugov and Gladkov cannot be executed in what pertains measures benefitting individual applicants because the applicants were convicted for serious offences and sentenced to fifteen years of imprisonment, automatically leading to their disenfranchisement. Moreover, restitutio integrum is simply impossible in this case for the elections that the applicants wished to participate in took place between 2000 and 2008.
14 July 2015 CC Ruling The CC Anchugov and Gladkov ruling was made technically possible due to the adoption of

[Marina Aksenova is a post-doc in the Centre for Excellence for International Courts, Faculty of Law, University of Copenhagen.] The ICC prosecution team has been conducting preliminary examinations in Colombia for over ten years and has yet to decide whether to move to the stage of formal investigations. In doing so, it must assess, among other things, whether reduced or suspended...

[Marina Aksenova is a Researcher/PhD Candidate in complicity issues in international criminal law at the European University Institute.] The Special Court for Sierra Leone recently convicted Charles Taylor to 50 years of imprisonment. This pronouncement stirred public debate as to whether this sentence is acceptable. Kevin Jon Heller, for example, expressed his concern about the length of Taylor’s sentence, mainly because it resonates with the Trial Chamber finding that Taylor is a mere accomplice, rather than a primary perpetrator of the crimes committed during the Sierra Leonean civil war. Arguably, 50 years of imprisonment is a disproportionately lengthy sentence for this type of criminal participation. This conclusion, in turn, leads to a more general question as to whether there was sufficient evidence before the court to find Taylor responsible as a perpetrator in the joint criminal enterprise – a mode of liability that usually justifies heavier sentences. It appears that the judges of the SCSL placed Taylor “in a class of his own” when deciding upon his punishment. His leadership role as the former president of Liberia, and not the particular way in which he got involved in the crimes, appears to have played the central role at sentencing. More detailed analysis will have to wait until the sentencing judgment is released, some initial thoughts could be outlined here. I would like to defend the length of the sentence imposed on Taylor and the mode of criminal participation under which he stands convicted. I am not trying to assess the evidence presented in the proceedings and the appropriateness of Chamber’s findings on the merits. Rather, my goal is to support the hypothesis that complicity, as a mode of liability, is compatible with a relatively heavy punishment given to Taylor. I agree with the Trial Chamber’s decision to assign relatively little weight to Taylor’s form of participation, mainly because it is just one of the factors to be considered at sentencing, and not the definitive one. This is especially true in the absence of the sentencing regime in international criminal law, which would require the judges to follow guidelines or certain rules at sentencing or give reasons for the departure, as it is the case, for example, in England and Wales. In fact, most national jurisdictions follow the principle nulla poena sine lege by stipulating sentencing tariffs in the statutes or formal sentencing guidelines. Usually, these provisions explain the relative importance (if any) to be attributed to the mode of participation of the convicted person.