Limitation of Access to Elective Offices for Individuals Who Committed a Crime
By Dr. Alexander Postnikov
1. Background
For the first time in the Soviet period formal democratic election principles were defined in the Constitution of the USSR of 1936. According to this Constitution mentally challenged individuals as well as those convicted by a court of law and deprived of electoral rights (as an optional penalty) were debarred from elections. In fact, according to December 1, 1945 Resolution of the Presidium of the Supreme Soviet of the USSR «On Enrolment of Convicted Individuals and Those Under Investigation in Voter Lists,» any individual persons who were under investigation or held in a temporary detention ward were deprived of their electoral rights.
As the Foundations of Criminal Law of the USSR and the Soviet Republics were adopted in 1958, the deprivation of electoral rights as a separate criminal sanction was abolished. According to Article 96 of the 1977 Constitution, among citizens who reached 18 years of age «only persons who were found mentally disabled» in a legitimate procedure, did not have the right to elect and to be elected. However, the prohibition for persons in prison to participate in elections that was not expressly stipulated in the Constitution and other laws was in effect. Officially it was explained that «electoral precincts» were not established at isolation hospitals for patients with dangerous contagious diseases, in mental institutions, in medical and labor correctional institutions, and in prisons»1.
In the late 80-s amendments were introduced to the Constitution of the USSR and the Constitution of the RSFSR specifying the extent of restrictions imposed on the electoral rights of citizens. These amendments were later incorporated into election laws.
According to Article 2 of the USSR Law «On Elections of People's Deputies of the USSR» on the basis of which the first alternative elections were held in the USSR, citizens with mental diseases who were found disabled by court, persons in prison, and individuals sent to establishments of compulsory treatment do not participate in elections. It is worth mentioning that in practice the term «prison» with regard to elections of People's Deputies of the USSR was construed broadly by the Central Election Commission. In particular, L. Ter-Petrosyan (then Armenian President-to-be) who was held in the ward for persons under pending investigation was not allowed to participate in elections as a candidate for deputy.
According to Article 95 of the Constitution of the USSR (as of January 1991) citizens with mental diseases who were found disabled by court, and persons in prison did not participate in elections. Individuals who are detained in compliance with the criminal and procedural legislation until a decision is made by a court of law do not participate in voting.
In compliance with Article 92 of the Constitution of RSFSR (as of January 1, 1990) persons with mental diseases found disabled by court, persons held in prison by a court sentence or by procurator authorization, and individuals who are held at compulsory treatment establishments do not vote.
According to the Constitution (Fundamental Law) of the Russian Federation -Russia (as of January 1, 1993) citizens with mental diseases who found disabled by court and persons imprisoned by a decision made by a court of law (Article 32) do not participate in elections.
2. Constitutional Aspects
As was mentioned above. Article 32 of the Constitution of the Russian Federation sets forth two grounds for limiting the electoral rights of citizens of the Russian Federation. The criteria for imposing other restrictions on the rights and freedoms of citizens are provided for in paragraph 2 of Article 55 of the Constitution of the Russian Federation according to which the rights and freedoms of an individual and a citizen may be restricted by the federal law only to the extent required to protect the foundations of the constitutional order, ethical principles, health, rights, and lawful interests of other individuals, to protect the country and ensure security of the state.
Article 4 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» contains regulations that determine regarding which issues and to what extent additional conditions for obtaining and exercising the right to elect and be elected may be established. The additional conditions for obtaining and exercising the electoral rights permitted by the Federal Law (actually being restrictions in their essence) that may be introduced by federal constitutional laws, federal laws, and in certain cases by laws of the subjects of the Russian Federation apply to the issues of residence in a certain territory and the age qualifications (over 18 years). However, such restrictions, in terms of their subject matter, do not directly contradict the provisions of Article 32 of the Constitution of the Russian Federation and are related to the specific features of organization of the state power and local self-government at the relevant level (federal, subjects of the Russian Federation, local).
At the same time the extent of limitations to be imposed on citizens' electoral rights in connection with criminal penalties is determined directly by the Constitution of the Russian Federation. It would be extremely problematic to expand these restrictions (by passing federal law in order to protect the foundations of the constitutional order, ethical principles, health, rights, and lawful interests of other individuals, to protect the country and ensure security of the state) in terms of their conformity with the Constitution of the Russian Federation. The main reason therefore is that the issue in question is defined by the Constitution to the fullest possible extent.
Conclusion. Additional restrictions on convicts' electoral rights cannot be imposed without making changes to the current Constitution of the Russian Federation.
3. Criminal And Legal Aspects
In compliance with the Penal Code of the Russian Federation adopted on May 24, 1996, a person is considered to have a conviction as of the date of the conviction coming into legal force until the conviction is cancelled or abrogated (Article 86). The Penal Code sets forth the time terms for cancellation of conviction. These terms depend on the gravity of a crime committed and the term of sentence. For example, the conviction of persons sentenced for grave offences is cancelled upon expiration of a six-year period after the completion of sentence and that of individuals who committed an extremely grave crime - after eight years following the completion of sentence. The Penal Code also defines the procedures for the abrogation of conviction by motion of a convict.
In accordance with paragraph 6, Article 86 of the Penal Code the cancellation or abrogation of conviction nullifies all legal consequences stemming out of the conviction.
Conclusion: Taking into account the above provisions, one has to be aware that any information about the criminal conviction of an individual may only be disclosed before the conviction is cancelled or abrogated.
Let us pay attention to a criminal and legal issue that is indirectly related to ballot access. The issue related to a possibility to impose a penalty, in the form of deprivation of the right to hold certain offices or conduct certain businesses (Article 47 of the Penal Code), on individuals who are elected deputies acting on a full time basis, and persons elected to certain elective offices (in particular, Heads of municipal units) has not been defined plainly in practical terms. We believe this restriction is quite fair.
In addition to this, federal laws should more clearly define to which elective officials the aforementioned penalty may apply and whether individuals suffering a certain penalty may participate in elections as candidates.
4. Actual Restriction With Regard To The Status Of A Candidate Accused Of A Crime
Although in compliance with the Constitution of the Russian Federation and federal laws, no limitations are stipulated with regard to ballot access to those individuals who are accused of a crime and convicted, their capabilities to participate in election campaign are limited.
Individuals registered as candidates with election commissions (e.g., A. Klimentiev, a candidate for Mayor of Nizhni Novgorod) are deprived of the opportunity to exercise a number of rights established for candidates by election laws (e.g., to meet with voters, carry out certain types of election propaganda, visit election commissions, etc.). Such limitations on the status of a candidate do not deny the right of a citizen to be elected and generally are in conformity with the Constitution and the Penal Code of the RSFSR.
5. Informational Aspects
One of the methods election commissions can use to influence the course of the election campaign afflicted by the participation of the criminal community is disclosure of information regarding criminal records of candidates. Disclosure of such information through the mass media may influence voters' support of candidates who violated the law in the past and have reasons to hide this fact from the voters.
The information concerning the criminal record of candidates was published for the first time by a number of media outlets (in particular, by Moskovski Komsomolets) at the election to the State Duma in 1995. The publications were based on the materials submitted by the Interior Ministry of the Russian Federation to the Central Election Commission of the Russian Federation. It is worth noting that reaction of the public to the action was ambiguous. The list of candidates who have convictions alongside with the persons committed general criminal offences contained the individuals who had been convicted during the Soviet period for political reasons (thus, S.A. Kovalev, civil rights advocate was on the list). The list contained information regarding convictions that had been cancelled long before, which was discriminatory towards the persons against whom no legal status restrictions ought to be applied in terms of the criminal law.
It is worth mentioning that the aforementioned list was made with certain discrepancies. As a result, an appeal was submitted to the Supreme Court of the Russian Federation concerning the actions of the mass media and the Central Election Commission relating to the specific publication of erroneous information on convictions of candidates running to the State Duma.
Currently the federal laws have no regulations that would directly instruct election commissions to publish information on criminal record of candidates. Provisions of paragraph 4 of Article 29 and paragraph 2 of Article 32 of the Constitution of the Russian Federation constitute a legal basis for the solution of the problem. Article 29 stipulates that each individual is entitled to freely seek, receive, transfer, produce and disseminate information in any lawful manner. Article 32 provides for the right of citizens to elect and be elected to the bodies of state power and bodies of local self-government.
Through construing the aforementioned articles of the Constitution, one may conclude that election commissions who are to ensure the realization of electoral rights of citizens are obliged to make it possible for voters to have information on criminal records of candidates.
It is known that election commissions have no information regarding criminal records of particular individuals. Such information is obtained from law enforcement bodies, in particular the Interior Ministry of the Russian Federation and its territorial bodies.
In accordance with paragraph 13 of Article 21 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum,» state bodies, bodies of local self-government, enterprises with state interest and their officials are obliged to assist election commissions in implementing their powers and respond to their requests within the specified timeframe. It is this norm that regulates the procedures for interaction between election commissions and the bodies who have information on criminal records of candidates.
As the practical interaction between election commissions and relevant law enforcement bodies demonstrates, some provisions of the informatization law inhibit the transfer of relevant data to election commissions. For example, the St. Petersburg Interior Department refused to provide the St. Petersburg Election Commission with criminal records data of candidates running to the St. Petersburg Legislative Assembly justifying their refusal by certain provisions made by the federal informatization laws.
According to Article 11 of the Federal Law «On Information, Informatization and Protection of Information» personal data (information on citizens) are regarded as confidential information. Personal data may not be used to cause damage to property or reputation of citizens, to hinder the realization of the rights and freedoms of citizens of the Russian Federation.» Obviously, this provision would prevent Interior Ministry bodies from supplying candidate criminal record information to election commissions unless the latter are vested with special powers to request and disclose relevant candidate information to the public.
Conclusion: Lack of authority to disclose information on uncanceled convictions of candidates on the part of election commissions of all levels decreases their ability to positively influence elections and debar criminal groups from participation therein.
It is obvious that in order to solve the issue on publication of information on convictions of candidates in the most adequate manner, a regulation obliging relevant election commissions to publish, upon the request of voters, electoral associations, electoral blocs, information on convictions of candidates that are neither cancelled nor abrogated should be introduced to the Federal Law « On Basic Guarantees of the Electoral Rights and the Right of Citizen of the Russian Federation to Participate in a Referendum
6. Possibility To Change Constitutional Regulations
In order to impose limitations on the right to elect or to be elected for persons who have served a court sentence, however, whose conviction is not cancelled or abrogated, changes should be made to the Constitution of the Russian Federation (Article 32). With regard to the fact that Article 32 is under Chapter II of the Constitution of the Russian Federation special complicated procedures are required in order to introduce changes into it: to review the provision of the said article the Constitutional Assembly should be convened.
It is worth mentioning that currently the necessity to make such changes to the Constitution of the Russian Federation is not sufficiently strong. However, many lawmakers and constitutional experts believe that the constitutional limitation of the right to be elected might apply to persons who have uncanceled or unabrogated convictions for grave or extremely grave offences.
7. Conclusions And Recommendations
1. Practical measures undertaken to debar former convicts from accessing elective offices can be regarded as only one in a series of steps taken to prevent criminal groups from influencing the formation of organs of the state power as well as those of the local self-government. Individuals without criminal records can also represent interests of criminal groups in the organs of the state power. In addition, an election campaign can be negatively affected by violating election laws in one or more of the following ways: bribery, intimidation, and falsification of voting results. People choose to resort to such techniques to influence the election campaign do not necessarily always have a criminal record. Therefore, it is important to emphasize that preventive measures designed to debar former convicts from accessing elective offices must be undertaken on a par with other legal and organizational procedures targeted at protecting the society and the government from influence exerted by criminal groups.
2. It is important to provide citizens with up-to-date information about uncanceled and unredeemed court sentences of the candidates. It is also strongly recommended that release of such information to the public and the mass media at their request be made by relevant election commissions and provided for by relevant election legislation, such as the Voting Rights Act, as well as other federal and local election legislation. This information could be made available to election commissions if the law required from candidates to provide their background information at the moment or registration.
3. It is also desirable that the federal legislature define more clearly the applicability of the penalty, provided for by Article 47 of the Penal Code of the Russian Federation disqualifying certain individuals from occupying certain posts and engaging in certain types of activity, to deputies and other elected officials.
Disclaimer
The United States Agency for International Development (USAID) supported the writing of this report. The viewpoints and opinions reflected in this report do not necessarily coincide with those of the USAID or the International Foundation for Election Systems.
1 Constitution of the USSR. Political and legal Comments, M.1982, P 269
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