CONCURRING OPINION OF JUDGE ZIEMELE

1. I voted with the majority in finding that there has been a violation of Article 13 taken in conjunction with Article 3 of Protocol No. 1. I think that it is important that the Court should further develop its case-law concerning Article 13 (see my dissenting opinion in Zavoloka v. Latvia , no. 58447/00 , 7 July 2009 ) .

2. In the current case, however, the Court in its reasoning under Article 13 simply referred back to the findings under Article 3 of Protocol No. 1 and therefore missed the opportunity to clarify the scope of the obligations that derive from Article 13 of the Convention in circumstances where human rights problems arise in the context of national elections. The Court found that the election law was not sufficiently clear as concerns the provisions on national minorities, that the authorities entrusted to deal with election disputes were not sufficiently impartial and that no court had ruled on the interpretation of the law or indeed the very dispute. This led the Court to find a violation of Article 3. As for the violation of Article 13, the Court noted its findings concerning the absence of judicial review (see paragraph 62 of the judgment).

3. It should be noted that until this judgment the Court had considered the functioning of remedies in respect of alleged election problems under Article 3 of Protocol No. 1 (see Podkolzina v. Latvia , no. 46726/99, § 37 , ECHR 2002 ‑ II ). In the above-mentioned Podkolzina case the Court considered that it was not necessary to examine separately the lack of an effective remedy from the point of view of Article 13 (ibid., § 45). The present case marks a change in the Court ’ s approach, which I can indeed endorse.

4. The question, however, is what are the nature and scope of the obligations that derive from Article 13, as this may be relevant in the circumstances of the case at issue? In other words, what effective remedies should be in place where violations of the right to free elections are alleged? In its case-law so far the Court has developed several elements that clarify the notion of effective remedy under Article 13. The Court has thus accepted that for a remedy to be effective it need not always be a judicial remedy or a single remedy. The Court has accepted the possibility of an aggregate of remedies. Furthermore, the notion of effectiveness is construed as ensuring either the prevention of the alleged violation, or the provision of adequate redress, including compensation, for the victim of a violation (see KudÅ‚a v. Poland [GC], no. 30210/96, § 158 , ECHR 2000 ‑ XI ).

5. In the present case, under Article 13 the applicant alleged that there was no remedy capable of restoring his seat in Parliament, whereas the Government argued that the composition of the C entral E lect oral O ffice complied with the requirement of being an effective remedy. Since the Court referred back to its finding regarding the absence of judicial review, it did not elaborate either on the submissions of the parties or on its own understanding of the notion of effectiveness of a remedy for the purposes of the applicant ’ s claim. I note in this regard that the 2002 Code of Good Practice in Electoral Matters of the Council of Europe ’ s Venice Commission accepts that an effective appeal can exist where such appeals are heard not only by courts but also by electoral commissions (see under Chapter 3. 3 of the Code, cited in paragraph 22 of the judgment). I believe that the Court ’ s reference to the fact that no judicial appeal was available in general, and to the applicant in particular, is not sufficient to answer the question that Article 13 poses, namely whether there was a meaningful system of institutions and procedures that enabled the applicant to challenge in substance the fact that he was allegedly deprived of his mandate and to seek appropriate redress.

[1] Corrected on 29 September 2010: the text was as follows: “Regulation 6 § 6”.