DISSENTING OPINION OF JUDGE ROZAKIS

While I concur with a number of the majority ’ s considerations in this case – including their finding that no separate issue arises in so far as Articles 10 and 11 are concerned – I am unable to agree with some of their conclusions which, in my view, are of central importance in this case, and justify my departure from the majority ’ s decision to find that there had been no violation of Article 3 of Protocol No. 1 in the circumstances. I would also like, from the outset, to point out that I can in many respects readily follow the thread of thinking of Judge Zupančič as reflected in his own dissent; still, his approach is basically a principled one and I would like to concentrate here primarily on certain considerations of a more, I would say, technical nature than his own broadly theoretical approach.

Let me start by what I consider an indispensable preliminary clarification, which may be justified by the somewhat dubious position of the majority with regard to the nature of the rights under Article 3 of Protocol No. 1. In paragraph 115 of the judgment the Court considers that “Article 3 ... is phrased in collective and general terms, although it has been interpreted by the Court as also implying specific individual rights”. This sentence, although it ultimately does not have a radical impact on the Court ’ s further pronouncements (the sentence which follows in the same paragraph shows that this finding simply affects the standards to be applied for establishing compliance with Article 3, and does not constitute a complete negation of the Article ’ s substance as containing an individual right), is an obscure generalisation which contradicts not only the drafting history of the Protocol and the previous case-law of the Court, but also the letter of the present judgment itself, paragraph 102 of which states in less dubious, but still open-ended, terms that “the Court has established that this provision also implies individual rights, including the right to vote and to stand for election”.

I consider that, regardless of whether Article 3 of Protocol No. 1 is “phrased in collective and general terms”, it is clear that this Article does not simply imply an individual right but actually provides for one. The drafters ’ aim was to enrich the Convention with a political right not differing from the other individual human rights contained in the original Convention. The Convention lays down, without exception, individual rights whose bearers are indiscriminately entitled to invoke them in their relations vis-à-vis the States P arties and the Convention institutions. Hence, regardless of other possible functions, Article 3 does confer a specific individual right, which does not differ qualitatively from any other right provided for by the Convention. This conclusion is in agreement with the locus classicus of our case-law, the judgment in Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, §§ 49-50 , Series A no. 113), in which the Court stated, inter alia :

“49. Such a r estrictive interpretation [ that Article 3 does not give rise to an individual right] does not stand up to scrutiny. According to its Preamble, Protocol No. 1 ensures ‘ the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention ’ ; furthermore, Article 5 of the Protocol provides: ‘ as between the High Contracting Parties the provisions of Articles 1, 2, 3 and 4 ... shall be regarded as additional Articles to the Convention ’ , all of whose provisions – including Article 25 – ‘ shall apply accordingly ’ . Moreover, the Preamble to Protocol No. 4 refers, inter alia , to the ‘ rights and freedoms ’ protected in ‘ Articles 1 to 3 ’ of Protocol No. 1.

Nor do the travaux préparatoires of Protocol No. 1 disclose any intention of excluding the operation of the right of individual petition as regards Article 3, whereas for a long time the idea was canvassed – only to be finally abandoned – of withholding the subject from the Court ’ s jurisdiction. The travaux préparatoires also frequently refer to ‘ political freedom ’ , ‘ political rights ’ , ‘ the political rights and liberties of the individual ’ , ‘ the right to free elections ’ and ‘ the right of election ’ .

50. Accordingly – and those appearing before the Court were agreed on this point – the inter-State colouring of the wording of Article 3 does not reflect any difference of substance from the other substantive clauses in the Convention and Protocols. The reason for it would seem to lie rather in the desire to give greater solemnity to the commitment undertaken and in the fact that the primary obligation in the field concerned is not one of abstention or non-interference, as with the majority of the civil and political rights, but one of adoption by the State of positive measures to ‘ hold ’ democratic elections.”

Coming now to the findings of the majority which are pertinent to the concrete case before us, my main observation concerns the nature of a parliamentarian ’ s functions in a democratic society. The Court correctly points out, in paragraph 117 of the judgment, that “the criterion of political loyalty which may be applied to public servants is of little, if any relevance, to the circumstances of the instant case, which deals with the very different matter of the eligibility of individuals to stand for Parliament. The criterion of ‘ political neutrality ’ cannot b e applied to members of p arliament in the same way as it pertains to other State officials, given that the former cannot be ‘ politically neutral ’ by definition.”

Indeed, the role of a parliamentarian is totally different from all the other roles played by those involved in public matters, including the members of the executive when they exercise their administrative function. In a representative democracy parliamentarians represent, by definition, the opinions and the positions of their electorate – that is, those who have voted for them. They replace them in expressing opinions and positions within and outside Parliament, and, theoretically , act instead of them in a system which, by definition, is not a direct democracy. It is obvious that in this system of representative democracy not everyone can claim to validly represent others. There are at least two safeguards which secure the direct accountability of parliamentarians in faithfully expressing their electorate ’ s broad wishes: first ly , the safety valve of the democratic election (candidates are elected on the basis of their personality, ideas and opinions as revealed to the public before the elections), and, second ly , the safety valve of post-electoral scrutiny: if an elected representative does not stand up to the expectations of his or her electorate, he or she will probably lose their confidence, and, in the end, his or her seat in Parliament.

The election of parliamentarians to express their electorate ’ s expectations lies at the core of a representative democracy, whatever their opinions are, and however displeasing these latter are to other strata of society. In a system of sound democratic governance the criterion of eligibility cannot be determined by whether a politician expresses ideas which seem to be acceptable to the mainstream of the political spectrum, or loyal to the established ideologies of the State and society, but by the real representativeness of his or her ideas vis-à-vis even a very small segment of society. Accordingly, if a politician is prevented from representing part of society ’ s ideas, it is not only he or she who suffers; it is also the electorate which suffers, it is democracy which suffers.

For these reasons prohibitions on eligibility to stand for election should be very exceptional and very carefully circumscribed. One can, of course, understand that a State may introduce eligibility conditions of a technical nature, such as those referred to in the Convention ’ s jurisprudence and considered in some cases already examined by the Strasbourg institutions (see paragraphs 103 et seq. of the judgment). One can also understand that in certain very exceptional circumstances, the very protection of the primary value of democracy may call for a prohibition on the exercise of the rights contained in Article 3 of Protocol No. 1. But in such circumstances, the State cannot of course escape the scrutiny of the Convention institutions, which should carefully delineate the limits of the State ’ s liberty to restrain the passive right of a politician or a political party to be elected.

In this respect, the judgment of this Court in the case of Refah Partisi (the Welfare Party) and Others v. Turkey ([GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II) is extremely illustrative of the way in which the Strasbourg institution has dealt with the very difficult and delicate matter of the prohibition of a political party from participating in national elections. Indeed, in Refah Partisi we were confronted with a situation in which a political party propagating undemocratic ideas directly threatening the fragile political infrastructure of Turkey had had a strong possibility of seizing power by using the democratic electoral procedures provided by the system. The danger was “real and present”, to use the famous dictum of the United States Supreme Court. And our Court correctly considered that, in such exceptional circumstances, a “State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent” (ibid., § 102).

The question is whether we are confronted in the present case with a situation bearing (even remote) similarities with that in Refah Partisi , which would justify treating the case in the same way. My answer is categorically negative, for the following reasons.

First, the applicant was not allowed to take part in the elections, not because of the imminent threat that she posed to the democratic governance of Latvia at the time when the 1995 Act came into force, but because of her past attitude, and mainly her participation in the 1991 events. Leaving aside the argument of the belated emergence of the 1995 Act, and the gap between the events and its enactment, there was no indication in 1995 that the subversive tendencies of her political milieu which had been present in 1991 were still the same in 1995, or that she herself in 1995 would propagate ideas similar to the ones which had been at the forefront of the 1991 events.

But even if we accept – and this is my second observation – that in the circumstances of Latvia ’ s transition to democracy and its efforts to be disentangled from its recent past, such a harsh measure could have been justified during the first difficult years of adapting to the new regime and for the sake of democratic consolidation, the restrictions have nevertheless not been abolished to date, and this despite the fact that in the meantime Latvia has become a member State of NATO and, more importantly, of the European Union. We are now eleven years away from the date of the Act prohibiting the applicant from standing for election, fifteen years from the events which led to the belated promulgation of the Act, five years from the Constitutional Court ’ s decision, and almost two years from the election of the applicant to the European Parliament.

Last, but not least, the situation of a single candidate for a seat in Parliament differs radically from the situation of a whole political party aspiring to become the government of a country. It is undoubtedly clear from the facts of the case that the applicant was not only an isolated candidate representing ideas shared by only part of the pro-Russian electorate, but also that she belonged to an ideological current which was, in any event, a minority strand within the political spectrum of Latvia. In these circumstances, it is difficult to contend that the election of the applicant to the Latvian p arliament would have had adverse effects on the democratic stability of the country.

For all these reasons, I consider that the applicant – together with, implicitly, her followers – was unduly deprived of her rights under Article 3 of Protocol No. 1, and that, consequently, there has been a violation of this Article.