PARTLY DISSENTING OPINION OF JUDGE MULARONI

I am in full agreement with the majority as to the reasoning and the conclusions concerning the applicant party ’ s victim status and the first complaint raised by it, namely the voter registration system.

Consequently, this opinion addresses the two other complaints, namely the composition of the electoral commissions and the exclusion of the Khulo and Kobuleti electoral districts from the countrywide vote tally.

A. Composition of the electoral commissions

As the majority recognises, there is no uniform system for the composition and functioning of electoral administrative bodies in Europe (see paragraphs 58-69 and 103 of the judgment). Accordingly, Contracting States enjoy a wide margin of appreciation in this field, so long as the selected system does not hinder the free expression of the opinion of the people in the choice of the legislature.

The crucial element for the Court ’ s assessment is, consequently, whether or not the shortcomings found are significant enough to amount to a brea ch of Article 3 of Protocol No. 1.

Like the majority, I observe that the total number of members of the electoral commissions who were to be appointed by the President of Georgia was particularly high in comparison to other legal orders in Europe (see paragraphs 105 - 06 of the judgment). However, this element alone would not suffice for me to find a violation of Article 3 of Protocol No. 1 , since:

– members appointed by the President of Georgia did not represent the majority inside the commissions; and

– I consider that the Court ’ s task is to examine the specific circumstances of the individual case lodged with the Court, and not the theoretical issues.

Having said that, unlike the majority I consider tha t there was a breach of Article 3 of Protocol No. 1 in the present case. I do not share the view that the applicant party ’ s reference to the OSCE/ODIHR Election Observation Mission Report on the Repe at Parliamentary Election o f 28 March 2004 (see paragraphs 50 ‑ 53 of the judgment) was insufficient.

That R eport, which was submitted by the Government as part of their observations, contains, inter alia , the following passages:

“The CEC [the Central Electoral Commission ] administered these elections in a credible and professional manner. However, at times the CEC appeared to exceed its authority, for example, by extending legal deadlines or modifying other legal provisions through decrees. Several aspects of the election process were improved over previous elections, although some CEC decisions in the post-election period cast doubts about its impartiality ...

The lack of political balance on election commissions remained a source of concern. Some DECs [ District Electoral Commissions] and PECs [ Precinct Electoral Commissions] failed to maintain appropriate distance from the ruling parties, and some local authorities interfered in the work of lower-level election commissions. President Mikheil Saakashvili ’ s offer to reduce the number of his appointees on the DECs and PECs from five to three addressed some of these concerns. However, these changes came late in the electoral process and should have been extended to the CEC. ...

The tabulation of results at district level was marred by irregularities in a number of DECs. In some cases, election material was delivered unsealed or inadequately secured, protocols were completed or changed at the DEC level, and in at least one case, the DEC members ‘ negotiated ’ the results. The handling of election-related complaints at some DECs was also inadequate.

An analysis of the PEC results made available by the CEC showed a number of anomalous or implausible results in a significant minority of districts. Such anomalies included : a rapid increase in voter turnout during the last three hours of voting; an implausible voter turnout, in some cases exceeding 100%, and sometimes coupled with a share of the vote for the ruling parties in excess of 95% ; and instances of an unusually high percentage of invalid votes.

A total of fifty - two polling stations were invalidated by the DECs due to irregularities. The CEC cancelled the results in two districts in Ajaria ( Khulo and Kobuleti ) and ordered repeat elections for 18 April, which did not take place due to security reasons. The CEC ’ s decision to cancel the result s and repeat elections in entire districts appeared to be based on questionable legal arguments . ...

In fact, the CEC simply cancelled the entire district results without hearing testimony or investigating the circumstances at each PEC or establishing with any certainty if the number of votes at the annulled polling stations was sufficient to meet the criteria outlined in Article 105 § 12. Furthermore, the CEC did not examine the electoral material. Elsewhere, where results were annulled this was done by DECs or local courts.

Notwithstanding the fact that violations took place in Khulo and Kobuleti districts, the decision to annul their results and call a repeat polling appeared inconsistent with the fact that major violations in other districts did not result in the annulling of DEC results there . ...”

This is more than enough for me to conclude that Article 3 of Protocol No. 1 was breached in this respect.

B. Exclusion of the Khulo and Kobuleti electoral districts from the countrywide vote tally of 18 April 2004

Here , I share the conclusion of the majority that there was a brea ch of Article 3 of Protocol No. 1. However, I come to this conclusion for reasons which partly differ from those of my distinguished colleagues.

I start by saying that my analysis will be limited to the failure to secure a repeat election in the Khulo and Kobuleti electoral di stricts in the vote tally of 18 April 2004.

I do not share the majority ’ s approach of examining the annulment of the election results in these districts by v irtue of the CEC Ordina nce of 2 April 2004 ( see paragraphs 126 ‑ 30 of the judgment). I consider that this aspect is outside the scope of our examination, the applicant having never raised it before our Court ( see its complaints in paragraph 70 above) or the domestic courts, for a very simple and understandable reaso n: in the repeat election of 28 March 2004 the applicant party did not reach the 7% threshold necessary to enter Parliament. It was consequently very much interested in having that election repeated.

Since the role of our Court is to examine the complaints raised by applicants, I do not see any convincing reason for examining ex officio an issue that has been thoroughly investigated and criticised by other international bodies.

As to the failure of the respondent State to secure repeat elections in Khulo and Kobuleti , I would make the following observations.

The Government recognised the failure in issue, but considered that it should be imputed solely to the Ajarian authorities ( see paragraphs 112-13 and 131 of the judgment).

The existence of tensions between the central and Ajarian authorities on the eve of the repeat p arliamentary election of 18 March an d 18 April 2004 were confirmed by the above-mentioned OSCE/ODIHR Election Observation Miss ion Report ( see paragraphs 50- 53 of the judgment ). That R eport also made clear the difficulties encountered during the pre-election period in Ajaria , where only a late and very limited campaign could take place and no freedom of expression was enjoyed by the media.

I have consequently no difficulty in accepting the respondent Government ’ s argument that the situation was difficult and dangerous and that the Ajarian authorities bear a great responsibility for what happened.

However, the fact remains that no election took place in those two electoral districts.

I observe that no derogation was notified by the respondent Government to the Secretary General of the Council of Europe under Article 15 of the Convention. This represents the only way for Contracting States validly to derogate from their obligations under the Convention and its Protocols, and is accompanied by a strict verification by the Council of Europe and the Convention bodies of the legality, necessity and proportionality of the adopted measure.

In these circumstances, I need no other reason to conclude tha t there was a breach of Article 3 of Protocol No. 1 in this respect also.