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Foreign Volunteers or Foreign Fighters? The Emerging Legal Framework Governing Foreign Fighters

[Dr. Daphné Richemond-Barak is an Assistant Professor at the Lauder School of Government, Diplomacy and Strategy at IDC Herzliya, and a Senior Researcher at the International Institute for Counter-Terrorism (ICT). Victoria Barber is a Master’s candidate at the Fletcher School of Law and Diplomacy, where she focuses on International Security Studies.] The emerging legal framework governing foreign fighters, whose importance is set...

Anchugov and Gladkov is not Enforceable: the Russian Constitutional Court Opines in its First ECtHR Implementation Case

[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