PARTLY DISSENTING OPINION OF JUDGE WILDHABER

I agree with the majority that this case concerns a complaint by the applicant under Article 3 of Protocol No. 1 about her disqualification from standing for election to the national p arliament. If I dissented from the finding that it was not necessary to examine separately the applicant ’ s complaint under Article 11 of the Convention, it was merely to emphasise that the applicant is not and has not been prevented from joining a party of her choice. Nor do the facts underlying her complaint that she was prevented from standing as a candidate in municipal elections give rise to an interference under Article 11.

PARTLY DISSENTING OPINION OF JUDGES SPIELMANN AND JAEGER

(Translation)

1. We do not agree with the majority ’ s decision that no separate examination of the applicant ’ s complaints was warranted under Article 11 of the Convention (see paragraph 141 and point 3 of the operative provisions).

We consider that the applicant ’ s disqualification from standing for election to Parliament and to municipal councils as a result of her active participation in the CPL, a ban maintained more than a decade after the events of which that party was accused, ought to have been examined by the Court from the perspective of its compatibility with Article 11 of the Convention.

2. The applicant ’ s leading position within the CPL and her conduct during the events of 1991 were used to justify the refusal to allow her to stand in either parliamentary or local elections. Those elements, namely the applicant ’ s membership of and leading position within the CPL and her conduct during a crucial period of Latvia ’ s struggle for “democracy through independence” in 1991, are thus at the core of the restriction that the Court has found to be compatible with Article 3 of Protocol No. 1.

An examination of the compatibility of that disqualification was required not only with regard to Article 3 of Protocol No. 1, but also with regard to Article 11.

3. It should be noted that when the crucial events occurred, namely when the attempted coup took place on 13 January 1991 with the CPL ’ s backing, that party was no t prohibited. It was only on 23 August 1991 that the CPL was declared unconstitutional by a decision of the Supreme Council, and, on the following day, that the party ’ s activities were suspended and the Minister of Justice was instructed “ to investigate the unlawful activities of the CPL and to put forward ... a motion on the possibility of authorising its continued operations”. The Supreme Council did not order the party ’ s dissolution until 10 September 1991.

4. Admittedly, the applicant ’ s disqualification was not based solely on the ground of her membership of the CPL. However, in the instant case, such membership was nevertheless one of the sine qua non conditions for the impugned restriction.

Thus, given that her membership of the CPL and her leading position within that party were among the elements used to justify the disqualification, we consider that the scope of the protection ( Schutzbereich ) offered by Article 11 has been brought into play.

5. In this context, it is incumbent on us to emphasise that the right guaranteed under Article 11 of the Convention involves not only the right to join a political party but also restricts the possibilities for penalising past party membership.

6. In addition, the exercise of the ri ghts guaranteed by Article 11 § 1 of the Convention can only be construed within the limits of the second paragraph of that provision, which does not, however, leave States the same margin of appreciation as that granted by the Court in respect of Article 3 of Protocol No. 1 and which is described in the judgment as “wide” (see paragraphs 103, 115 (c), 121 and 135).

The Court has noted this fundamental distinction more specifically in paragraph 115 (a) of the judgment, where it states:

“ ... where an interference with Article 3 of Protocol No. 1 is in issue the Court should not automatically adhere to the same criteria as those applied with regard to the interference permitted by the second paragraphs of Articles 8 to 11 of the Convention, and it should not necessarily base its conclusions under Article 3 of Protocol No. 1 on the principles derived fro m the application of Articles 8 to 11 of the Convention. Because of the relevance of Article 3 of Protocol No. 1 to the institutional order of the State, this provision is cast in very different terms from Articles 8 to 11 of the Convention . Article 3 of Protocol No. 1 is phrased in collective and general terms, although it has been interpreted by the Court as also implying specific individual rights. The standards to be applied for establishing compliance with Article 3 of Protocol No. 1 must therefore be considered to be less stringent than those applied under Articles 8 to 11 of the Convention.”

7. Finally, the parties agreed before the Court that a separate issue arose under this Article. The respondent Government alleged that the interference with the applicant ’ s rights under Article 11 was compatible with the requirements of the second paragraph of that provision and that the impugned measure was “necessary in a democratic society”. The applicant contested the legitimacy of the aims pursued by the impugned measure, and considered that it was disproportionate.

8. In consequence, we consider that the Court ought to have made a separate finding on this important question.