Legal issue: the constitutionality of rules which exclude the possibility of early voting in the federal, regional and local elections for citizens who on the day of voting are not able for a good reason to vote at their place of residence.
Ratio decidendi: the rules of electoral law must take into account such factors as internal labour migration, seasonal works, periods of countryside vacations and works, and conform to the criteria of necessity, reasonableness and proportionality, so that not to lead to the violation of rights and freedoms guaranteed by the Constitution. The contested rules – to the extent they permit early voting only in a very limited number of cases – preclude in a mandatory fashion the organisation of early voting on other grounds, thus restricting active electoral right of those citizens who for a good reason cannot on the day of voting arrive to the polling place, this restriction not always being compensated by other guarantees and thereby capable of discouraging a citizen about taking part in voting when he may not participate in voting at the place of residence for such reasons as leave from work, business trip, the schedule of work or studies, the performance of public duties. Since the rights of citizens to the freedom of movement, labour, rest, protection of health, education are equally recognised and protected constitutional values as electoral rights, the legal regulation which puts a citizen in the situation of involuntary choice as to which of his constitutional rights he must repudiate in order to make avail of another right, must be regarded as impinging upon this another right and denying it (it least in this particular circumstances). This regulation is all the more unjustified that legislation on referenda does not contain such restrictions.
The federal legislator must make appropriate amendments; till then the guarantees of electoral rights must be analogical to those which are available in case of a referendum.
Restrictions upon early voting made in recent years may well be explained by growing abuses; early voting is far more difficult to control than voting on election day, and the percentage of those who voted for the ruling party in early voting was much higher compared with the results of the election day. Therefore, such restrictions, although they do raise doubts from the standpoint of “constitutional fundamentalism”, may at the current stage of legal and political development of the country serve as a necessary precondition of truly free expression of people’s will. They do not distort the basic content of the constitutional right to elect and be elected and do not impinge upon its substance. “Every fruit must ripen, and unripe fruit may be poisonous”.
The analysis offered by Justice Kazantsev is correct. The practice of application of the contested law does not testify to its rejection by citizens and law-appliers. The Constitutional Court prescribed returning to early voting, having made in fact a new rule under disguise of “temporary” regulation, which gives an exhaustive list of reasons capable of being sufficiently weighty to justify an early voting. This does not conform to the principle of separation of powers.