CONCURRING OPINION OF JUDGE DEDOV

The present case is very important for the promotion of democracy in the member States as it concerns the proportional representation system of elections. The Court has examined the complaints under Article 3 of Protocol No. 1, and this approach could be justified only, in my view, because the applicants signed a resignation letter before standing for election. However, a more important element relates to the “political differences” between the applicants and their political party. This involves potential violations of Articles 9 and 10 on which the applicant s had also relied, but the Court chose not to give notice of those complaints.

This aspect raises structural issues as regards the proportional representation system. I am not sure that those included on the list of candidates have a free and independent mandate, since the voters provide support to the political agenda of the party in general, but not to specific figures and their individual political preferences. Therefore, some sort of loyalty to the party should be respected. At the same time, the possibility of terminating the office of those MPs who do not agree with the proposed approach (made usually by core members or founders of the party) would prevent open debate on draft laws and parliamentary initiatives within the party. The limitation of democracy within Parliament, as an important democratic institution, weakens the proportional representation system and undermines democracy as a whole. Therefore, to become really independent, or better put, legitimate, candidates for seats in Parliament should be elected by the party members at their conference, and not by a tiny group of influential politicians.

This problem is usually caused by a lack of clarity of the political platform presented by the party or a difficulty in deciding how the values of the party would be affected by a concrete draft law. It happens very often (especially in new democracies) that the name of the political party is completely different from its political platform or preferences in a given case. It seems that the proportional representation system needs to be heavily regulated to avoid all those problems and controversies relating to the status of MPs, in order to guarantee the transparency of the electoral process. Finally, I would like to add that, whatever political platform is used, the fundamental freedoms and democratic values, including transparency in decision-making and effective public debate, should be respected by any political organisation.

PARTLY DIS SENTING OPINION OF JUDGE PASTOR VILANOVA

(Translation)

I fully agree with the finding of a violation by the Court in the present case. In my view it has delivered a very important judgment on a fundamental question, namely the independence of democratically elected members of parliament; in particular because this dispute concerns the very foundation of the fundamental freedoms guaranteed by the Convention: the existence of an “effective political democracy” (see the Preamble to the Convention). As has been established, the removal of the first applicant (hereinafter “the applicant”) from his seat was improper, especially because the Serbian Parliament had endorsed his resignation letter of 15 May 2006 in spite of his immediate protests. Notwithstanding the failure to comply with the procedure laid down in Article 230 of the Parliamentary Rules of Procedure, I consider that one cannot forego future rights. In the present case the applicant had been required to renounce, before the results of the 2003 elections, a future and uncertain elected office. This too constitutes an unacceptable interference with the independence of MPs and their right to the free exercise of their political duties. In that sense, it could even be argued that this is a matter of public policy and that such a mandate cannot be disposed of at will.

Going beyond those preliminary considerations, the Court refused, by a significant majority, to grant the applicant any award by way of non-pecuniary damage. The other judges took the view that the finding of a violation of Article 3 of Protocol No. 1 to the Convention was sufficient. To my regret, I am unable to agree with that conclusion.

In my view, the mere finding of a violation does not represent appropriate satisfaction in itself, in the light of the higher democratic values at stake. It is for that reason that I voted against point 7 of the operative paragraph of the judgment.

Just satisfaction under Article 41 of the Convention must, as far as possible, seek to ensure restitutio in integrum (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, Series A no. 330 ‑ B), especially in cases where the violation has had repercussions on the victim ’ s life that cannot really be denied and can no longer be remedied at domestic level. On that subject, the Court has in the past acknowledged the existence of non-pecuniary damage on various grounds, such as uncertainty ( Guincho v. Portugal , 10 July 1984, Series A no. 81), anxiety ( Keegan v. Ireland , 26 May 1994, Series A no. 290), feelings of powerlessness and frustration ( Papamichalopoulos and Others , cited above ), dismay ( Iprahim Ãœlger v. Turkey , no. 57250/00, 29 July 2004), distress ( AliÅ¡ić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia , no. 60642/08 , 6 November 2012 ) or damage to the applicant ’ s reputation ( Doustaly v. France , 23 April 1998, Reports of Judgments and Decisions 1998 ‑ II). In addition to that broad range of examples, the Grand Chamber in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007 ‑ II) found that the non-pecuniary damage suffered by the applicants would not be sufficiently redressed by the finding of a violation of the Convention.

Returning to the present case, the applicant ’ s observations of 19 July 2010 reveal the serious consequences that his removal from his seat had entailed: depression, insomnia and loss of social and political reputation, fuelled by an unfavourable media campaign. These effects were not denied by the respondent party, which focussed its opposing argument on the amount of the claim in respect of non-pecuniary damage, finding it excessive. Those exchanges have led me to believe that the applicant ’ s arguments were genuine. Some compensation should therefore have been awarded to him.