Restrictions on passive suffrage due to convictions: constitutional legitimacy issues

   Introduction. Considering the criminal record of a person as an acceptable restriction of passive electoral rights, two interrelated aspects must be taken into account: on the one hand, it is necessary to ensure the rights of the people directly, the citizens of the country decide whether a person is worthy to be his representative in power. On the other hand, of course, the current legislation should contain certain mechanisms for protecting law and order, which make it possible to cut off criminals from the authorities.

   Purpose. In this regard, it is important to consider how to institutionalize convictions for individual crimes as a basis for restricting passive suffrage.

   The purpose of this article is to analyze the teleological conditionality of restricting passive voting rights depending on the presence of a criminal record for various types of crimes.

   Methodology. The following methods were used: formal logic method, analysis, synthesis.

   Results. To date, Russian electoral legislation uses three different such methods: categorical, species and casual or individual. The first provides for the restriction of the passive suffrage of persons convicted of crimes that belong to the category of grave and especially grave crimes. This approach proceeds only from the gravity of the crime and does not take into account the nature of the act committed, including the object of the encroachment, the specifics of the subjective side (motive of the crime), etc. It is for this reason that the legislator uses a specific method of legal institutionalization of crimes, the conviction of which entails the restriction of passive electoral rights of citizens. To date, the current legislation identifies only one type of crime, the conviction of which is the basis for restricting passive suffrage – extremist crimes. In 2020, the legislator used this approach, supplementing pt. 3.2 of the Art. 4 of the Law on Basic Guarantees of Electoral Rights, paragraph 1), which provides for a very wide list of specific offenses that should be the basis for restricting passive suffrage. At the same time, it is far from always clear what the legislator was guided by when establishing a criminal record for a particular crime as a basis for restricting passive suffrage. For example, why the murder of a newborn child by a mother (Art. 106 of the Criminal Code of the Russian Federation) is such a basis, and murder in a state of affect – Art. 107 (in the absence of qualifying signs) – no. The solution to this issue should be based on a thorough revision of the corpus delicti provided for by the Criminal Code of the Russian Federation, from the point of view of not only the severity, but also the nature of the act committed. Moreover, the commission of this act should be related to the constitutionally significant goals of restricting passive electoral rights.

   Conclusion. The author identifies four constitutionally legitimate goals of restricting passive voting rights due to a criminal record. Firstly, the inadmissibility of the criminalization of the power apparatus is a criminal qualification. Secondly, the legitimate goal of restricting passive voting rights is to prevent persons involved in extremist activities from entering the government apparatus – the antiextremist qualification. Thirdly, an important goal of restricting passive electoral rights in connection with the presence of a criminal record is the prevention of corruption with the system of public authority – the anti-corruption qualification. Finally (fourthly), one can single out another constitutionally justified goal of restricting passive voting rights in connection with the presence of a criminal record for certain types of crimes – the prevention of possible abuse of power (“qualification of non-abuse of power”).

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