Passive Suffrage as Described in the Constitution of Russia: Its Basis and Restriction Range

V.V.Lapaeva

Abstract

The article substantiates the thesis that the passive suffrage restrictions, which the federal legislator imposed to expand the list of prohibitions contained, in Part 3 of Article 32 of the Constitution of the Russian Federation, are unconstitutional. The author disputes approaches that exist in legal literature and in the practice of the Constitutional Court, where the limiting list of passive suffrage indicated in Part 3 of Article 32 of the Constitution of the Russian Federation is interpreted as special or additional restrictions to the general list of reasons according to which human rights can be limited to protect constitutional values of the common good.


Among other things, Russian constitutionalists who promote the idea of constitutional reform typically refer to an existing need of legal constitutional regulation of the electoral system. For example, Suren Avakyan states that the lack of a chapter describing the electoral system in Russian Constitution resulted in "the most important constitutional principles (universality, equality, direct election, secret ballot, voluntariness, freedom of participation for the citizens, etc.) became the object of routine regulation" [1]. However, before we can think about adopting a new Russian Constitution amended with a chapter on electoral system, we should attempt to understand why the only constitutional article dedicated to universal suffrage is not duly followed. After all, if the existing constitutional directive on suffrage is violated (and it is violated indeed, as I will attempt to demonstrate further on), why would any new directive be followed? At the present stage, it seems that legal practitioners would benefit from casting away the judiciary idealism that sidetracks them from working productively and devote themselves to creating a doctrine of interpretation of the Russian Constitution that would promote its legal potential as well as attempt to set this doctrine up to be an authoritative guide for jurisprudence. All the well-known shortcomings aside, the best asset of the Russian Constitution is that "it describes the major features of the whole space regulated by the constitution and the rule of law in particular from the point of view of inherent and inalienable human rights and liberties as having supreme value" [11: 853].

This fact allows us to overcome many shortcomings of the constitutional text through interpretation based on the proper doctrine of human and civil rights and liberties. However, such doctrine that would express the opinio communis doctorum highly respected among legal practitioners has yet to be developed. Otherwise raising the issue of constitutional reform is not worth it.

In the Constitution of Russia, suffrage is enshrined in Article 32 that enunciates "the right to participate in managing state affairs both directly and through their representatives" (part 1), "the right to elect and be elected to state bodies of power and local self-government bodies, and also to participate in referenda" (part 2) and a statute that prohibits "citizens recognized by court as legally unfit, as well as citizens kept in places of confinement by a court sentence" from being elected (part 3). For almost thirteen years since the adoption of the Constitution, the constitutional law experts a priori believed that part 3 of Article 32 expressed the principle of universal suffrage, meaning that suffrage was granted to all groups of citizens not mentioned in the article. In any case, at that time the issue was not discussed by the legal community and practical implementation of electoral legislation was developing based on this particular interpretation of the directive. In 2006, however, the legislator introduced a range of additional amendments prohibiting passive suffrage, which destroyed the established constitutional construct of the principle of universal suffrage.

July of 2006 became the starting point of this deviation from the literal interpretation of the constitutional directive in question when the Federal Law "On Basic Guarantees of Suffrage and the Right to Participate in Referendums of Citizens of Russian Federation" was amended with a clause stating that "citizens of the Russian Federation holding foreign citizenship or resident permit or any other document confirming the right of permanent residence of the citizen of the Russian Federation in a foreign country" do not have the right to be elected into the federal bodies of state authority (Article 6 of the Federal Law No. 128-FZ of July 25, 2006 – SPS ConsultantPlus). As for citizens holding dual citizenship, their rights may actually be denied instead of simply being limited according to part 2 of Article 62 of the Constitution of Russia. The clause states: "dual citizenship does not deny the citizen of the Russian Federation their rights and liberties..., unless otherwise provided for by federal law..." Based on the scope of part 2 of Article 55 of the Constitution of Russia, however, denying a human their right means trespassing on the very essence of right which could in turn lead to complete deprivation [7]. Consequently, only restricted suffrage of citizens holding a resident permit or any other document confirming the right of permanent residence in a foreign country is considered an issue by the Constitution of Russia. The issue did not draw any professional attention: there was no discussion of such an unexpected deviation from the established practical interpretation of this constitutional directive whatsoever [9].

Since this "practice run" went largely unnoticed, the legislator introduced a bevy of new prohibitions just a few months later that same year – namely in December. These prohibitions consequently barred the following groups of people from running for office: a) persons sentenced to imprisonment for committing serious and (or) very serious crimes and having an active record of conviction for the said crimes to the election date; b) extremist offenders as provided for by the Criminal Code of the Russian Federation having an active record of conviction for the said crimes to the election date; c) persons with an administrative penalty imposed on them under Article 20.3 of the Administrative Offences Code of the Russian Federation if the election is held before the term of sentence has expired; d) persons whom the court judged to have committed actions specified in Items 7(g) and 8(g) of Article 76 of the Federal Law "On Fundamental Guarantees of Suffrage and the Right to Participate in Referendums of the Citizens of Russian Federation" if the said actions were committed before the election day within the legal time limit of powers of the public authority, local self-government body or the office for which the election is scheduled (Article 1 of the Federal Law of December 5, 2006 No. 225-FZ – SPS ConsultantPlus).

The legal community gave this case with a flaccid reaction as well: the Сonstitutional Сourt handled the related complaint only at the end of 2013. Although it was as early as 2010 that the Constitutional Court formulated its opinion on the possibility of broadening the constitutional justification of prohibitions concerning passive suffrage, when it decreed to "dismiss" the claim that disputed the constitutionality of Item 7(g) of Article 76 of the Federal Law "On Fundamental Guarantees of Suffrage and the Right to Participate in Referendums of the Citizens of Russian Federation." The decree stated that the provision in Part 3 of Article 32 of the Constitution of Russia "neither orders nor permits such interpretation that would rule out other suffrage restrictions completely" [12]. The ruling made by the Constitutional Court in 2013 on the case of the claim that disputed the constitutionality of broadening the justification of prohibitions concerning passive suffrage only strengthened this narrative further.

The people who filed the claim to the Constitutional Court therefore raised with it the issue of constitutionality of barring certain groups of people from running for office: a) persons were at some time sentenced to imprisonment for committing serious and (or) very serious crimes; b) persons referring to the same category if their conviction was spent or released; c) persons referring to the same category if the new criminal law that does not consider their actions as serious and (or) very serious crimes applies to their actions [Item 1.3 of the 13]. The Constitutional Court partially agreed with the claim admitting the unconstitutionality of the following: a) "unlimited and undifferentiated passive suffrage restriction for the citizens of Russian Federation sentenced to imprisonment for committing serious and (or) very serious crimes" and b) refusal to restore passive suffrage for citizens whose conviction was spent or released in case a new law is passed that does not consider their actions as serious and (or) very serious crimes. However, in the more fundamental matter of introducing additional (i.e. expanding the list of Part 3 of Article 32) justifications for restriction of passive suffrage, the Constitutional Court recognized the legislator's case as compliant with the Constitution of Russia.

The arguments that the Court provided in favor of constitutionality of the disputed claims first of all amount to a set of theses, which, together, constitute a framework of legal and dogmatic nature that the Constitutional Court used as the foundation for justifying its decision (Item 1.2 of the ruling's rationale). This issue will be revisited later on.

Item 2.2 of the ruling represents somewhat of a "detour" from the actual legal analysis by stating that "...by creating expedient legal mechanics, the federal legislator is at liberty to set strict requirements for the reputation of persons holding public office positions so that citizens may not harbor doubt in their ethical and moral qualities as well as, naturally, the legality and unselfishness of their actions since this is what expected of a person in public office... The need to observe constitutional balance between public and private interests is built around the idea that people who defy laws would have to face major obstacles if they ever decide to run for office. These obstacles shall not be limited to voters being able to form their own opinion about the candidate from reading their officially published biography, including the record of previous convictions." Russian legal scholarship has readily named this system of restrictions the "crime filter" (although "anti-crime filter" would have been a better fit technically). It is possible to dispute the case for introducing such a system with arguments that show the anti-opposition nature of such restrictions, since not only (or not so much, perhaps) do they act as the anti-crime filter, they also filter out opposition, thereby undermining the principle of popular sovereignty. This case, in its turn, may be argued with no less rationale and even grander theatrics, but we shall leave this domain to politicians and political scientists. Right now, the legal community faces a more important and challenging task of developing a doctrine of interpretation of the Russian Constitution that would at the very least leave the popular sovereignty principle intact and political opposition included.

To support the thesis of stricter requirements to public officials being necessary in order to rule out "doubt in their ethical and moral qualities as well as, naturally, the legality and unselfishness of their actions as is expected of a person in public office," the Constitutional Court refers to the UN Conventions against Corruption and Transnational Organized Crime as well as to the Council of Europe Criminal Law Convention on Corruption. Although the directive relevant to the issue under consideration is only found in Item 2 of Article 7 of the UN Convention against Corruption which states that "each State Party shall also consider taking appropriate legislative and administrative measures ... in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties" [14].

Considering this directive and the fact that Russia ratified the Convention (although not completely), it is possible to suggest amending the Russian Constitution with additional passive suffrage restrictions for persons imprisoned for corruption. Whether this amendment of the constitutional text is justified or not, however, is a separate matter that is outside our focus. Still, it is a fact that such selective amendments into the Russian Constitution are indeed mandatory before introducing a federal law that provides new grounds for denying the right to be elected even to corrupt officials, least of all to other groups of people. Otherwise, the federal law cannot be introduced.

At the same time, the Constitutional Court ruling also refers to a series of judgements rendered by the European Court of Human Rights (hereinafter referred to as ECHR), which: a) acknowledge that the state may apply stricter regulations to the right to be elected than to the right to elect, and b) claim that restriction of passive suffrage of convicted persons is balanced out by its differentiation and individual application. However, the fact that certain European states enforce stricter requirements for candidates for public office in their legislations and the ECHR recognizes these requirements as legitimate does not necessarily indicate that the list of restrictions enshrined in the Russian Constitution may be expanded through a federal law: such expansion is only possible through updating Article 32 of the said Constitution. The ECHR does not call for it in our case, however. As for balancing out suffrage restrictions of convicts with the gravity of their offence, Part 3 of Article 32 warrants this balance by denying the right to elect or be elected to persons who committed offences punishable by imprisonment.

What incidentally comes to mind in this situation is the ECHR judgement in the Case of Anchugov and Gladkov v. Russia of July 4, 2013 which stated that the absolute and undifferentiated prohibition of active suffrage for convicts enshrined in Part 3 of Article 32 of the Russian Constitution is not compliant with the European Convention [2] Back then, the Constitutional Court of Russia strongly protested against executing the judgement of the European Court that stipulated for amending the Constitution of Russia. Meanwhile, this was exactly the time to execute ECHR judgement by interpreting the constitutional text, although this would require recognizing the practice of derogation from the provisions of Part 3 of Article 32 as unconstitutional [8].

With that said, the legal mechanic developed by the Constitutional Court is sufficient enough for analyzing the legal position of Russian Constitutional Court on the possibility of expanding the grounds for restricting passive suffrage listed in Part 3 of Article 32. The main theses expressed in this mechanic are as follows:

1. The Constitution of Russia (Part 2 of Article 81 and Part 1 of Article 97) "allows to apply special requirements to candidates for the elective office, the requirements arising out of the constitutional and legal status of persons acting in this office".

2. The right of a citizen to be elected is not absolute and therefore subject to certain restrictions in accordance with the criteria described in the Constitution (Part 3 of Article 17, Parts 1 and 2 of Article 19, Parts 2 and 3 of Article 55 of the Constitution of Russia).

3. The right to be elected is not limited to the citizen's right to participate in the election, it is inextricably linked to the right to hold a public office and exercise political power in doing so. The restrictions imposed on passive suffrage may therefore be tighter than restrictions imposed on active suffrage, meaning certain groups of citizens may be excluded from among persons having the right to run for office.

4. The directive of Part 3 of Article 32 "does not allow the interpretation that excludes the possibility of introducing a federal law that denies the right to passive suffrage to certain persons who have served an imprisonment sentence... In the framework of constitutional rights it constitutes a special restriction on exercising this right..., which, due to its special significance, is outlined as an isolated act of constitutional rights restriction by the constitutional legislator."

The following counter-arguments may be used to dispute the first three theses provided by the Constitutional Court to rationalize its legal position:

1. Part 2 of Article 81 and Part 1 of Article 97 of the Russian Constitution encapsulate special requirements to persons holding office as President of the Russian Federation (an age limit of 35 years and 10-year residency in the Russian Federation) and as State Duma deputies (an age limit of 21 years and the right to participate in elections). These requirements do not "arise out of the constitutional and legal status of persons acting in this office" (as is stated in the ruling), but rather define the constitutional and legal status of these persons. Such constitutional status parameters of candidates as age limit, period of residence in the Russian Federation and the right to participate in elections do not allow additional passive suffrage restrictions to be introduced. In the context of Part 3 of Article 32, it is precisely the right to participate in elections outlined in Part 3 of Article 32 that is one of the components of constitutional and legal status of State Duma deputies.

2. The right of a citizen to be elected is indeed not absolute due to the very fact that the reasons for restricting it are already enshrined in Part 3 of Article 32 of the Russian Constitution. This, however, does not imply that the list of reasons for this restriction is not comprehensive. This remains to be confirmed.

3. The fact that "the right to be elected ... is inextricably linked to the right to hold a public office" does not necessarily imply that it is the right to hold a public office precisely that is instrumental in this formula, as in it does not actually determine the extent of suffrage for citizens. Quite the contrary – the right to hold public office is a logical consequence of a more fundamental right to be elected, which in its turn is directly linked to the principle of popular sovereignty: according to Part 3 of Article 3 of the Russian Constitution, the election in particular is the "supreme direct expression of the power of the people." This incidentally implies that terminating the deputy status is only possible if the court sentences the person in office to a prison term [6; 5].

The fourth thesis on the directive of Part 3 of Article 32 representing a special restriction on exercising suffrage, which, due to its special significance, is outlined as an isolated act of constitutional rights restriction by the constitutional legislator (the comprehensive list of such restrictions is presented in Part 3 of Article 55) deserves a more detailed examination.

For a start, let us refer to the literal interpretation of the directive behind Part 3 of Article 32 of the Constitution, which clearly implies that anyone who is not on the exhaustive list described in the provision (meaning anyone who is legally competent and is not held at a detention facility) is entitled to passive suffrage. The literal interpretation of certain constitutional provisions, however, may be amended from the standpoint of systematic interpretation. In their retreat from the literal interpretation of this directive, the federal legislator and the Constitutional Court of Russia refer to the systematic approach that ties its provisions with the contents of Part 3 of Article 55 of the Constitution that lists reasons and limitations for restricting the constitutional rights of citizens: it states that civil rights enshrined in the Constitution "may be limited by the federal law only to such an extent to which it is necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, for ensuring defense of the country and security of the State."

At the same time, legal scholarship put forward two versions of interpretation for this systemic connection between the directives under consideration. According to the authors, this interpretation allowed to extend the list of persons without the right to be elected: in one case the directive of Part 3 of Article 32 was interpreted as a special restriction of suffrage in relation to the comprehensive list of reasons for rights restrictions specified in Part 3 of Article 55 while in the other it was interpreted as an additional restriction. Russian Constitutional Court Ruling of October 10, 2013 (No. 20-P) combined both approaches. The Ruling stated that "...due to its special significance, the special restriction on exercising this right is outlined as an isolated act of constitutional rights restriction by the constitutional legislator" (Item 2.1 of the ruling's rationale). Thus, the Ruling describes a special restriction on the one hand and an isolated restriction that cannot be anything but an addition to the comprehensive list of Part 3 of Article 55 on the other. Let us review both these approaches.

First, a fair question arises with regards to interpreting provisions in Part 3 of Article 32 of the Russian Constitution as special restrictions on suffrage: why were "supreme legal authority" and constitutional sanctity applied to such a legally irrelevant reason for restricting suffrage as being held in a detention facility?

This is where we should above all appeal to common sense, which, for that matter, should never be neglected in legal analysis. Point is, law is inherently the essence of all that is common-sense in human coexistence. Besides, law is written for humans and must therefore be recognized and understood by them at the level of basic legal awareness. This applies even more so to the directives of the Constitution adopted at the referendum: the legal sense that is put into these directives must not contravene the common sense of the people who voted for it.

From the point of view of common sense, it is obvious that such a restriction could have been introduced through a federal law within the framework of Part 3 of Article 55 of the Russian Constitution. However, if the constitutional legislator introduced a special constitutional restriction on suffrage for certain groups of persons into the chapter on human rights, it means they also wanted to emphasize the guarantee of suffrage for everyone who does not belong to said groups.

If we take a step away from the common-sense approach and towards the legal and dogmatic approach, it should be noted that the framework where the special directive adds to and reinforces the general directive negates the dogmatic principle of "lex specialis derogat legi generali." This principle states that the limitations imposed on various rights mean that these limitations are only set by special requirements and the general limitations do not apply to them. Assuming Part 3 of Article 32 describes special reasons for rights restriction (such interpretation is possible and reasonable), it must be acknowledged that general reasons for rights restriction listed in Article 55 do not apply to citizens' right to vote. What we have as a result is quite a logical legal mechanic according to which any seizures from the fundamental principle of universality of suffrage may be carried out only based on the reasons specifically stated in the Constitution. Naturally, these reasons guarantee the universality of suffrage. Apart from Article 32, such special reasons are stipulated by Article 62 of the Constitution which states that "the possession of a foreign citizenship by a citizen of the Russian Federation shall not derogate his rights and freedoms ... unless otherwise provided for by federal law..." as well as mentioned in the directive described above, which reinforce the age limits and residency requirements for the citizen of Russian Federation to run for presidency. There may be no other reasons for suffrage restriction in this approach (unless, of course, you count the electoral qualifications introduced by the Russian Constitution as such, but the author believes they are of different legal nature).

Let us review the other version of interpretation under which Article 32 contains reasons for suffrage restrictions that add to Article 55. This interpretation is represented in the Commentary on the Russian Constitution that was published under the aegis of the Constitutional Court. There the passive suffrage restrictions at issue are clearly described as "balanced electoral rights restrictions that serve as additions to the actual constitutional restrictions" [3: 311]. This commentary states that the provisions restricting the right to elect and the right to be elected for persons held in detention facilities have "supreme legal authority and shall not be abolished or "relaxed" by the legislator since their goal and balance has already been defined in accordance with the general competence of restricting human rights and freedoms (Part 3 of Article 55 of the Russian Constitution) and since they are aimed at "establishing a set of seizures from the constitutionally prescribed legal capacity and competence of an individual that shall be absolute and irreversible under any parliamentary procedure" [3: 310].

Here we can also observe a certain lack of common sense aside from the obvious departure from the phrasing of the legal position of the Constitutional Court where the restrictions at issue are called special (their additional nature can be derived from the context as well, albeit with great reserve): why did the constitutional legislator feel the need to expand an already comprehensive list of rights restrictions enshrined in Article 55 while this list already implies a restriction of rights for persons held in n detention facilities? If we assume that the federal legislator can impose suffrage restrictions under Article 55, such task may obviously be solved by adopting a federal law and does not require introducing any additional constitutional provision. Making an addition to the comprehensive list of citizens' rights restrictions contained in the Constitution goes against the methodological principle of common sense known as "Occam's razor," which states that whatever may be done based on fewer amount of assumptions should not be done based on larger amount of assumptions (entities should not be multiplied without necessity, to put it shortly).

Still, if we make a concession to the opponents and ignore common sense, it is possible to build a framework of legal and dogmatic counter-arguments for interpreting provisions of Part 3 of Article 32 as additional restrictions on the rights of citizens. Finding a legal mechanic will not be as easy as it seems, however. Since it is absent in our constitutional and legal theory, we will have to draw a line of demarcation between inherently different suffrage restrictions enshrined in the Constitution. The two resulting divisions shall be named limiting restriction and disenfranchising restriction. There are qualitative differences between them that lie in differing correlations between the notions they represent and the phenomenon of free will, which is indispensable for law: the subject can overcome the limitation through the force of will, while the same cannot be done with disenfranchisement. For example, the legislator limits passive suffrage for Russian citizens with dual citizenship in full compliance with Part 2 of Article 62 of the Russian Constitution. If it is more important for the citizen to have a right to be elected into public office in Russian Federation, he or she may renounce foreign citizenship. As for the person held in a detention facility, he or she cannot change their situation through will alone: their electoral rights are not limited, they are non-existent for the entire duration of the sentence. Moreover, if the citizen has an active record of conviction for serious and (or) very serious crimes to the election date, or at the time of the election they have an administrative penalty imposed on them under Article 20.3 of the Administrative Offences Code of the Russian Federation, etc., they are also deprived of the right to be elected, it is not simply limited.

With some reservations, it is possible to agree with a slightly different and more pragmatic criterion for differentiating the notions at issue. The criterion states that "the notion of "limited restriction" should be recognized as a legal requirement to the electorate and candidates while the notion of "disenfranchising restriction" should be recognized as a preventive measure against deviant behavior of citizens or penal measure imposed on law-breakers" [4]. The reservations here refer to "limiting restriction," which in this interpretation includes electoral qualifications. The author believes that the electoral qualifications of universal character refer to the general constitutional and legal status of the citizens rather that rights restrictions. Rights restrictions are seizures from the general legal status, which can be dealt with if the persons subjected to them muster the will to do so. However, in the framework of our analysis, the statement quoted above is important because it recognizes the legal difference between limitations and disenfranchisement. From this angle, the Russian Constitution strips persons of electoral rights not because they are held in detention facilities, but because they have committed a crime, the gravity of which involves being placed in a detention facility: they are punished by being deprived of electoral rights for the fact of committing a crime, not limited in said rights for staying in detention facilities.

Russian legal theory avoids discussing the topic of electoral rights deprivation due to the historical trauma inflicted by the era of proletarian dictatorship when entire social classes became the so-called "lishenets" (the disenfranchised). It appears that this experience precisely is what made the constitutional legislator to cut off the possibility of disfranchisement for the groups of persons not mentioned in Part 3 of Article 32. In any case, without a historical consultation, it is impossible to comprehend the legal sense that the citizens who voted at the 1993 referendum put into the corresponding directives of the Russian Constitution. Besides, the concept of limiting restriction makes more sense from the legal standpoint than that of disenfranchising restriction under electoral legislation, labor legislation (for example, no right to teach for previously convicted persons or persons prosecuted for certain criminal acts) or public service legislation (no right to hold public office for persons who have performed military service) and so on.

The legal nature of the disenfranchisement concept implies that the right may be stripped only as punishment depending on the gravity of the offence within the legal or administrative framework (driver's license revocation, for example). The law is not retroactive in this case, and an individual may their innocence in various court instances while the court may differentiate responsibility (including the period of right deprivation) depending on the extent of responsibility. No guarantees apply if right deprivation is introduced outside the legal or administrative framework under the guise of introducing new requirements towards the legal status of electoral or other rights.

It is indicative that foreign legislation demonstrates extensive use of the notion of "disfranchisement restriction" which is interpreted as temporary or permanent loss of individual suffrage "indicating the preventive or penal measure. The loss of suffrage may be a consequence of either legal (incapacity to act) or illegal (committing an offence) behavior of persons at law. Limiting the legal capacity and competence aside, the loss of suffrage (active and (or) passive) indicates primary or additional punishment manifested in the sanctions, is individual in nature and is appointed by the court with consideration for the gravity of the offence" [4]. This is the approach incorporated into the legislations of Poland, Argentina, Canada and other countries [4].

Summing it up, we can say that Russian constitutional legislator incorporated an exhaustive list of reasons for disenfranchisement precisely to prevent the federal legislator from introducing additional reasons for deprivation (and not at all limitation) of these rights. Such approach to interpreting Article 32 of the Constitution of Russia makes for a much more logical fit for the systemic interpretation that also covers Article 2, which states that "man, his rights and freedoms are the supreme value," Article 3 on popular sovereignty, Article 17 that provides guarantees for the rights and freedoms of man and citizen according to the universally recognized principles and norms of international law and according to the Russian Constitution as well as various other constitutional provisions. Failure to consider the "disenfranchisement" category will result in ample opportunity for actual deprivation of rights under the guise of limitation.

This (obvious, in the author's opinion) interpretation of the legal sense of provisions in Part 3 of Article 32 is not widely accepted at all even within the more liberal professional community. At the end of 2018, Arkady Lyubarev surveyed 108 legal practitioners for the Movement for Defense of Voters' Rights "Golos." Analysis of the survey results proved this lack of professional acceptance. One of the questions in the inquiry form asked whether we should "remove passive suffrage restrictions that are not covered by the Russian Constitution, meaning the criminal record, foreign citizenship, etc. The restrictions can alternatively be relaxed or partially removed (removing restrictions based on having a residence permit of another country in particular)" [10: 18]. The responses received were as follows: 76% for "yes," 19.8% for "no" and two people were undecided.

As can be seen from the results, almost one fifth and one third of the surveyed experts and legal practitioners respectively responded positively to removing restrictions that are not covered by the Russian Constitution (and hence literally violate its provisions). However, the comments that respondents left with their answers indicate that many of them do not consider the restrictions that add to the provisions of Part 3 of Article 32 as violating the Constitution. The author of the survey maintains a similar position when summarizing the results: "The question of whether or not the Russian Constitution allows to introduce additional passive suffrage restrictions continues to be discussed despite the Constitutional Court explicitly stating that it does. It indeed seems so, at least because Article 32 of the Constitution does not provide for age limits being absolutely necessary" [10: P. 21]. The fact that Article 32 does not provide for age limits does not mean that the Constitution itself does not. These age limits are covered in Article 60 that defines constitutional and legal status of a citizen as well as in Articles 81 and 97 discussed while determining the constitutional and legal status of the President of Russian Federations and State Duma deputies. These limits are not covered in the Articles defining suffrage restrictions because, as the author mentioned before, they are not rights restrictions by legal nature. As for regional elections, the government agencies in federal subjects enjoy a certain degree of freedom when it comes to passive suffrage (the age limits are typically set at the regional level). This freedom is a consequence of the state's federal nature prescribed in Article 1 of the Russian Constitution. This same idea applies to regional parties, outlawing which would go against the federal nature of Russian Federation.

As for the argument on the position of the Constitutional Court, the author would like to recall a saying by Mikhail Shargorodsky that was very popular in the Soviet era: "The legal science begins wherever it says "no" to the legislator." Nowadays saying "no" to the legislator is the domain of the Constitutional Court, which means that today legal science begins wherever it says "no" to the Constitutional Court.

The fact that stands out while comparing responses received from legal practitioners and political scientists is that only 68% of legal practitioners agreed with the need to "remove passive suffrage restrictions not covered by the Russian Constitution" while the result among political scientists reached 78%. The author believes that such difference stems from the fact that installing an anti-crime filter is more relevant for the legal profession while political scientists have a better understanding of how quickly this filter becomes anti-oppositional in practice. We can convince others and ourselves that we are in danger of criminal elements rising to power all we want, but if this actual danger is used as a front for blocking political opposition, out of the two evils we should choose the one that does not suppress productive political activity in our society. We should not think that in a context of fair canvassing and complete transparency about candidates' backgrounds Russian voters will be unable to elect those who are most worthy of it. It is also important to remember that passive suffrage restriction for certain candidates may certainly lead to active suffrage restriction for millions of their prospective voters.

Received 31.10.2019


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  12. Opredeleniye Konstitutsionnogo Suda RF ot 1 iyunya 2010 g. N 757-O-O "Ob otkaze v prinyatii k rassmotreniyu zhaloby grazhdanina Leonova Vladimira Nikolayevicha na narusheniye yego konstitutsionnykh prav polozheniyami podpunkta "g" punkta 3.2 stati 4 i podpunkta "zh" punkta 7 stati 76 Federal'nogo zakona "Ob osnovnykh garantiyakh izbiratelnykh prav i prava na uchastiye v referendume grazhdan Rossiyskoy Federatsii" [Russian Constitutional Court Decree No. 757-O-O of June 1, 2010 "On Dismissal of the Claim Filed by Vladimir Leonov About Violation of Constitutional Rights By Provisions Described in Item 3.2(d) of Article 4 and Item 7(g) of Article 76 of the Federal Law "On Fundamental Guarantees of Suffrage and the Right to Participate in Referendums of the Citizens of Russian Federation"] – SPS Konsul'tantPlyus. (In Russ.)
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