DISSENTING OPINION OF JUDGE BONELLO

Some relevant facts

1. These have been recounted in considerable detail in the judgement. [1] For the purposes of this opinion I believe the following ought to be highlighted.

1.1. The applicant had been, since 1971, an activist, and eventually a prominent member, of the Latvian Communist Party (CPL) a regional branch of the Communist Party of the Soviet Union in Latvia. This nation had lost its independence and its democratic regime in 1940.

1.2 On May 4, 1990 Latvia declared its independence from the Soviet Union . At that time the applicant was an elected member of the Supreme Council of the Soviet Socialist Republic of Latvia. The CPL on that same day condemned the declaration of independence and requested the Soviet Union to intervene.

1.3. In January 1991, according to the respondent Government, the Soviet authorities started military action against the government of independent Latvia . Several persons were killed and wounded in the streets and a “ coup d ’ état ” was organised to overthrow the independent government. The Plenum of the CPL pressed for the dissolution of the Supreme Council of Latvia, to be replaced by a so-called Committee of Public Safety (which included the CPL). This proclaimed the government had forfeited its powers, and claimed to have assumed those powers itself. This coup failed after armed battles in the streets of Riga .

1.4. In August 1991 a “coup d ’ état ” took place in Moscow , by which power was taken over by a State of Emergency Committee . The Riga CPL instantly pledged its support to the Committee and appealed to the Latvian people to cooperate with the new Soviet revolutionary Committee.

1.5. The law relating to municipal and general elections excludes those who “participated actively after the 13 January 1991 ” (date of the coup and popular uprising) in the CPL, the CPUS and some other named organisations. The applicant was barred from standing as candidate in the municipal election of 1997 and the parliamentary elections of 1998. She challenged that ban; she admitted her membership of the CPL and her being an official in the Central Control and Audit Committee of the CPL up to 10 September 1991 , when the CPL was officially dissolved; but claimed this ban violated her rights under international conventions.

1.6 In fully adversarial proceedings in 1998 – 1999, three levels of jurisdiction of the Latvian courts established that the applicant had actively participated in the CPL after 13 January 1991 and this in practice confirmed she had forfeited the right to stand for election, as provided for by Latvian electoral law.

1.7 The applicant claims that this disenfranchisement violates her rights under Article 3 of Protocol No1.

The proportionality test

2.1 I am fund amentally in disagreement with t he majority ’ s finding that the ban on standing for election provide d for by law (in relation to those who persisted in participating actively inside the CPL after the failed “ coup d ’ état ” of Januar y 1991 ) , was disproportionate to the legitimate aims pursued by the law.

2.2. It goes almost without saying it is my “preferred position” that everyone should, in principle, enjoy with the minimum of hindrance, all fundamental rights guaranteed by the Convention, including that of standing for political election. This does not, however, lead me to justify the attainment of these desired optimums even in defiance of historical realities, the weakness of emergent and fragile pluralisms and the contradictions faced by a democracy called to contain democratically those who consider democracy, at best, expendable and, at worst, wholly detrimental. I do not believe that the majority have reached their conclusions only through an a posteriori rationalisation of their own ‘ preferred positions ’ . But I cannot find sufficient value in the other reasons.

2.3 It is my belief that the judicial tensions underlying this controversy should have been settled in the light of the Court ’ s doctrine, reiterated only recently, that “A political party whose leaders ... put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy, cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds.” [2] I have no difficulty in transferring the thrust of this reasoning from political parties to high-ranking officials in political parties.

2.4 The Court has also held that “The freedoms guaranteed by Article 11 and by Articles 9 and 10 of the Convention, cannot deprive the authorities of the State in which an association, through its activities, jeopardises the State ’ s institutions, of the right to protect those institutions.” [3] The line of reasoning that justifies the curtailment of freedom of expression and of association, should govern the political rights implicit in Article 3 of Protocol No. 1, like that of standing for election.

2.5. I am not unduly impressed by the plea that the applicant does not, as of today, pose a clear and imminent threat to the survival of democracy in Latvia . Fortunately – but hardly thanks to her and her like-minded associates who vote Communist and dream Neanderthal - activists like her

evoke compassion and pathos rather than shock-waves of terror. Latvian democracy, after the horrific and blood-splattered coup meant to reverse the clock of history to the time-freeze in which the applicant is trapped, can today well survive her antics.

2.6. The fundamental question facing the Court was, in my view, the following: is the State justified in limiting political freedoms only when the survival of democracy is threatened? Or is it also justified to restrict some political rights when the authority, the image and the credibility of democracy are at stake? These, on my scale, are values to be protected, cherished and fortified, almost as much as the physical survival of democracy itself. In my book, a State is fully entitled in terms of its own enlightened sovereign policy, not to allow among the players on the democratic stage those who play the game of democracy by their own aberrant rules and for their own aberrant purposes.

2.7. It falls on the Strasbourg Court to exercise the maximum of judicial restraint when it comes to substituting its own rarefied and essentially second-hand vision of what is suitable for a democracy, to that of the prime guarantor of democratic order – which is the democratic State itself. I ask myself if the image of democracy is enhanced by according exactly the same rights and privileges to those who are delighted to die for democracy, as to those who are delighted to live with the negation of democracy. I can think of very few reasons why democracy should morally subsidize those who hold it in contempt.

2.8 In my opinion, it ill-suits the Court to delegitimise a State ’ s efforts to uphold the image, the authority and the credibility of the democratic model when, in the supreme interest of democracy, it opts not to extend each and every democratic faculty to those who, given the least opportunity, would only turn those faculties to the destruction of democracy itself.

“Wide margin of appreciation”

3.1 The Court, (not differently from the Commission) has, since its infancy, held that, in matters of limitations imposed by the State on the ability of persons to vote and to stand for political election, the national authorities enjoy “a wide margin of appreciation”, though it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No 1 have been complied with. [4] The case-law of the Court seems to distinguish, in descending order of amplitude, between “a wide margin of appreciation”, “a certain margin of appreciation” and “a margin of appreciation”. In the matter of electoral rights, the Court assigns to the national authorities the supreme rank in the spread and depth of the discretion allowed.

3.2 In practice, over many years, the Court has, so far at least, always put in practice its theorem that national authorities are better placed than an international court to establish how electoral democracy and the demands of pluralism are best served in the specific light of the current political, historical and social conditions of each particular country. It is only in the most exceptional circumstances that the Court has unsheathed its supervisory powers to second-guess the local authorities in the area of restrictions on the right to vote and to stand for election. Virtually all the limitations prescribed by the national systems have, so far, passed the test of the Strasbourg organs. All, that is, except the Latvian one.

3.3 I believe that it was never for the Court to determine such subjective and elusive questions as the one whether in 1998 the transitional period to a new democracy had been fully played out or otherwise. The majority lays considerable emphasis on the fact that the measure complained of might have been justified in a transitional period, but not in 1998, when the adjustment period was over. I fail to see how an international Court is better placed to impose its own value judgements on such evanescent and ephemeral issues as to exactly when a state of emergency or transition is over, rather than the democratic sensors of the national authorities, in everyday, and far more intimate, contact with the realities of Latvian history. In the absence of objectively identifiable criteria (such as Latvia ’ s entry into NATO and the European Union in 2004) the Court should have considered the determination of when a transition period comes to an end, to fall squarely within the national margin of appreciation.

3.4. Again, I fail to see why the respondent Government should have been penalised by the Court precisely because it exacted less than the full pound of flesh from the applicant. Any State, in the wake of a violent coup discoloured in blood, would have been justified in instituting criminal proceedings against those perceived to have been associated with an armed attempt to overthrow the democratic order. Had the applicant been found guilty in criminal proceedings, loss of election rights would have followed automatically. The Latvian authorities, (whether in a spirit of reconciliation, or for reasons of the fragility of the power structures is as unclear as it is irrelevant) spared the applicant severe criminal prosecution and instead favoured her with the far softer option of a penalty based on fully adversarial civil-law proceedings. The Court would not, presumably, have objected to a criminal sentence coupled with loss of electoral rights. It is, in my view, paradoxical that, for having spared the applicant the trauma of criminal penalties, Latvia then finds itself unable to discipline the applicant at all.

3.5 In the present case, the national authorities were driven by a manifest concern to safeguard the image and credibility of democracy; they feared that, by allowing militant non-democrats to stand for election shoulder to shoulder with those who, for the fulfilment of democracy, had been prepared to pay the ultimate cost, would destabilise the very moral authority of democracy itself, and obfuscate the unequivocal inspiration the image of pluralism should evoke. It is far from painless for me to see that it was only in the present case that the Court, in substance, abandoned its doctrine of “wide margin of appreciation”, to substitute a text-book political and historical credo for that of a State that had lost democracy through the proficiency of the likes of the applicant, regained it notwithstanding the impenitent struggles of the likes of the applicant, and retains it despite the cravings of the likes of the applicant.

Loss of electoral rights according to the Court

4.1 The Court has always accepted that the political rights implicit in Article 3 of Protocol No 1, i.e., to vote and to stand for election, are not absolute and may be restricted, provided the limitations do not impair the very essence of the right, are imposed in the pursuit of a legitimate aim, and that the means employed in curtailing those rights are not disproportionate. [5]

4.2 In the furtherance of this now sacrosanct doctrine, the Strasbourg organs have, at least so far, accepted as legitimate the widest spectrum of limitations on the right to vote and to stand for elections devised by the national authorities of various member states.

4.3 Thus, limitations on these political rights based on residence have repeatedly passed the Strasbourg test [6] – even when the disenfranchisement was based on a “four years continuous residence” requirement. [7] The inability to exercise political rights due to nationality or citizenship requirements [8] , or consequent on double nationality [9] , has also been approved by Strasbourg . Age limitations in general [10] , including a minimum age of forty to stand as candidate for the Belgian senate [11] have been accepted, as also the ban on standing for election if the candidate is already a member of parliament of another state [12] . Language proficiency was also found to be a sufficient reason to qualify or disqualify a person from standing for election [13] ; similarly, regulations that made the right to stand as candidate dependent on a requirement to take the oath of office in a particular language. [14] The disenfranchisement of persons in detention [15] , of persons previously convicted of serious crimes [16] , also obtained the Strasbourg seal of approval.

4.4 Very recently the Court, in an exceptional manner, struck down the loss of political rights imposed by U.K. law on all those serving a prison sentence. But this solely because the ban hit indiscriminately all those convicted, whether of a serious or of a petty offence, whether condemned to minimal terms or to life sentences. It was only the indiscriminate blanket effect of the ban that caused the Court to find a violation. [17]

4.5 To date, limitations on political rights to vote or to stand for election, not aimed in any way at securing the survival or the authority of the democratic principle, have received the blessing of the Strasbourg organs. It is disconcerting to discover that it was only a restriction inspired by a concern to foster the moral image of democracy that today failed the Strasbourg test.

4.6 It is perfectly acceptable, it seems, that a person with an inadequate knowledge of a particular language should be denied the right to stand for election – though that candidature would create absolutely no distress for democracy. It is not, on the other hand, acceptable, that a person who has spent a lifetime living and imposing dogmas of anti-democracy, be restricted in reaping a few of the benefits of that democracy which, had it been left to her, would have receded to an indifferent footnote of history.

4.7 The Court has been generous to those whose rapport with democracy was and is wholly dysfunctional, and has been severe in its punishment of those who tried to shield it from the bane of self-satisfied and entrenched non-democrats.