PARTLY CONCURRING OPINION OF JU D GE LOUCAIDES

I fully endorse the conclusion of the majority in this case and the reason given for it. However I would like to add additional reasons in support of the finding of a violation of Article 3 of Protocol No. 1.

The judgment of the Special Supreme Court terminating the applicant ’ s term of office as an elected member of p arliament frustrated the wish of the people to be represented by the applicant, contrary to the requirements of democracy and the legitimate expectations of the voters and the applicant and, therefore, to the rights guaranteed by Article 3 of Protocol No. 1. I would also add that the judgment in question did not have sufficient legal basis. It was supposed to be an application of Article 57 of the Constitution, but such an application was evidently wrong because it is clear fro m the relevant provisions of that Article that it was only intended to be applied to parliamentarians elected after it came into force, not to those who had already been elected. Therefore , it was not applicable to parliamentarians like the applicant, who had been elected a year before the introduction of that provision. This is apparent from the fact that the Article prescribes a period of eight days after the election for the parliamentarians concerned to opt between their parliamentary mandate and their professional activities as follows:

“The representatives affected by the first sentence of the preceding paragraph must within eight days from the date on which their election has become definite choose by means of a declaration between the parliamentary mandate and their professional activities mentioned above. If they omit to deposit this declaration within the prescribed time they will be stripped autom atically of their functions as m embers of p arliament . ” (emphasis added)

Furthermore, I find that the absolute nature of the incompatibility rule contained in this Article amounts to a restriction of the rights safeguarded by Article 3 of Protocol No. 1 which is disproportionate to the legitimate aim pursued and therefore not necessary in a democratic society. In this respect, I have taken the following factors into account.

The principal aim pursued by the rule was, accordin g to the Government, to enable m embers of p arliament to concentrate entirely on their parliamentary functions without engaging in other activities. Furthermore, according to the Government, the rule would reinforce the authority and independence of parliamentarians and protect them from any pressure that may emanate from their private clients. However, there does not appear to have been any serious study of the advantages and disadvantages of such an absolute restriction before the rule was introduced; in particular, there has been no consideration of whether the aim pursued could have been achieved by a more qualified and less restrictive rule rather than the absolute one that was adopted. In this respect, it is important to underline that , according to the relevant constitutional provision which introduced the rule, legislation was to be brought in to specify the activities that could be considered compatible with parliamentary office. This legislation has, however, never been enacted and so this matter has been left in abeyance and undecided, although the legislature had already manifested through the provision in question an intention to qualify the rule on incompatibility.

I agree with the applicant that the absolute nature of the rule has a deterrent effect on a large section of the population, especially, in my opinion, those who are successful professionally – who are presumably c ompetent and efficient people – when it comes to standing for election, and so deprives voters of the possibility of being represented by such people. The result is that there has been an interference with the rights safeguarded by Article 3 of Protocol No. 1. I also find quite pertinent the argument that in other States, such as the United Kingdom and France , a similar objective to the one pursued by the rule in question has been attained by far less restrictive means.

Making parliamentarians dependent for their living exclusively on the compensation they receive in that capacity would, I think, affect their independence and make them vulnerable to undue or improper pressure or influence from voters. It would also transform them into lifelong professional parliamentarians forced to seek the renewal of their mandate by all means in order to earn a living.

In the circumstances, I find that the lack of a sufficient legal basis and the absolute nature of the incompatibility rule adopted and applied in this case are additional rea sons for finding a violation of Article 3 of Protocol No. 1.

PARTLY DISSENTING OPINION OF JU D GE SPIELMANN JOINED BY JU D GE TULKENS

(Translation)

1 . I t is recalled that the applicant alleged that, on account of the fact that he had been obliged to withdraw from his parliamentary duties in order to be able to continue his professional activity – a particularly apt field for the development of any individual ’ s personality, talents and skills – he had been subjected to an unjustified interference in his private life which extended to his professional life . In addition, he claimed that, from the date on which the rule on disqualification in question came into force, his income as a lawyer had simply ceased , and accordingly he had suffered heavily from the application of the new A rticle 57 of the Constitution. The applicant consequently concluded that A rticle 8 of the Convention was applicable and had been violated.

2. In its decision on the admissibility of the application, the Court joined to the merits the Government ’ s objections concerning the applicability of A rticle 8 and the applicant ’ s victim status in the context of the complaint under that provision. However, “having regard to the finding of a violation of A rticle 3 of Protocol No. 1, the Court does not consider it necessary to examine the case under A rticle 8 a s well ” ( see paragraph 60 of the judgment ).

Nonetheless, I think that this complaint would have merited separate examination , particularly in view of the Court ’ s recent case-law, which has recognised the right to a private professional life .

3. In its judgment in Sidabras and Džiautas v . Lit h uani a of 27 June 2004, the Cour t held :

“ ... having regard in particular to the notions currently prevailing in democratic States, the Court considers that a far-reaching ban on taking up private sector employment does affect ‘ private life ’ . It attaches particular weight in this respect to the text of Article 1 § 2 of the European Social Charter and the interpretation given by the European Committee of Social Rights ... and to the texts adopted by the ILO .. . It further reiterates that there is no watertight division separating the sphere of social and economic rights from the field covered by the Convention (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26). ” [1]

In its judgment in Campagnano v . Ita ly of 23 March 2006, the Cour t confirmed this case-law :

“ ... the notion of ‘ private life ’ does not exclude in principle activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity of developing relationships with the outside world (see Niemietz v. Germany , 16 December 1992 , § 29, Series A no. 251 ‑ B). Finally, the Court refers to its recent finding that a far ‑ reaching ban on taking up private-sector employment did affect ‘ private life ’ (see Sidabras and Džiautas v. Lithuania , nos. 55480/00 and 59330/00, § 47, ECHR 2004 ‑ VIII), particularly in view of Article 1 § 2 of the European Social Charter, which came into force in respect of Italy on 1 Se ptember 1999, and which states ‘ [w] ith a view to ensuring the effective exercise of the right to work, the Parties undertake ... to protect effectively the right of the worker to earn his living in an occupation freely entered upon ’ . ” [2]

I t is particularly revealing that the Court , in this judgment concerning limitation s on a bankrupt ’ s voting rights , found a dual violation of A rticle 3 of Protocol No. 1 and of A rticle 8 of the Convention.

Finally, in its de cision in Mółka v . Pol and of 11 April 2006, the Court summarised its interpretation of the concept of “private life” in the following way :

“ As the Court has had previous occa sion to remark, the concept of ‘ private life ’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands , [26 March 1985 , § 22 , Series A no. 91] ). It can sometimes embrace aspects of an individual ’ s physical and social identity (see Mik ulić v. Croatia , no. 53176/ 99, § 53, ECHR 2002-I). Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, whic h may fall within the scope of ‘ private life ’ (see, inter alia , Peck v. the United Kingdom , no. 44647/98, § 57, ECHR 2003-I). ” [3]

4. In the instant case, the applicant emphasised the fact that he had been a lawyer since the age of twenty- six and that he had been elected to parliament for the first time at the age of sixty-six, when he was at the height of his career. He informed us that, in his case, politics was therefore a complement to a successful career ; it was not the centre of his life and did not mark the end of his career as a lawyer. However, having been obliged to withdraw from his parliamentary duties in order to be able to pursue his professional activities, he had, in his view, suffered an unjustified interference in his private and professional life ( see paragraph 59 of the judgment ).

In the light of the Court ’ s case-law, this complaint merited separate and detailed examination. The interference in question undoubtedly affected the applicant ’ s ability to practis e his profession as a lawyer and therefore to earn his living, which had obvious repercussions on his private life ( see, mutatis mutandis , Sidabras and Džiautas , cited above, § 48 ). As a recent scholarly article, referring in particular to the above-mentioned Sidabras and Džiautas judgment, has pointed out: “Thus, the seriousness of the difficulties in earning one ’ s living through employment is the principal factor in recognition of the right to private professional life . ” [4]

[1] . Sidabras and Džiautas v. Lithuania , nos. 55480/00 and 59330/00, § 47, ECHR 2004 ‑ VIII.

[2] . Campagnano v. Italy , no. 77955/01, § 53, ECHR 2006-IV .

[3] . Mółka v. Poland ( dec .), no. 56550/00, ECHR 2006 ‑ IV.

[4] . J.-P. Marguénaud and J. Mouly , “ Le droit de gagner sa vie par le travail devant la Cour européenne des droits de l’homme ” , Recueil Dalloz , 16 February 2006, pp. 477 et seq., esp. p. 478.