JOINT DISSENTING OPINION OF JUDGES MIJOVIĆ AND GYULUMYAN

In the present case, which concerns the right to free elections, the majority of the judges have found no violation of Article 3 of Protocol No. 1 . Having gone through the facts of this case, we, to our regret, were unable to follow the majority of the judges for the following reasons.

In the present case a Latvian politician was disqualified from standing for election on account of her former membership of the Communist Party of Latvia (CPL), which during the Soviet period was a regional branch of the Communist Party of the Soviet Union.

In March 1990, as a member of that political party, Tatjana Ždanoka went on to become a member of the Supreme Council of the Soviet Socialist Republ ic of Latvia. After the restoration of Latvia ’ s independence , on 23 August 1991 the CPL was declared unconstitutional, with a stipulation that persons who had participated in the activities of the CPL after 13 January 1991 would be ineligible to stand for political office.

By a decision of the Central Electoral Commission, the applicant was ruled ineligible to stand as a candidate in the parliamentary elections. Her exclusion was based on her former membership of the Communist Party of Latvia.

She complained that her right to stand for election had been infringed as a result of her disqualification.

Although we are aware that this case concerns very sensitive circumstances, we consider that it was not the Court ’ s task to take sides in the historical and political controversies, but rather to examine the legality of the applicant ’ s ineligibility in the context of punitive measures – in other words, to assess whether the lack of a fixed duration for the applicant ’ s ineligibility was appropriate in view of the (temporary) nature of punitive measures.

The Court reiterated that States Parties to the Convention had a wide margin of appreciation in their internal legal orders in subjecting the right to vote and to stand for election to prescribed conditions, and that is something we completely agree with.

We have no difficult y in accepting the legitimacy of a punitive measure, since we cannot exclude the possibility that the restriction in issue could have been justified and proportionate during the first few years after the restoration of Latvia ’ s independence. It is commonly accepted that certain restrictions may be necessary in newly established and vulnerable democratic regimes (just as the requirement of proportionality is), and this approach has been developed by the Court in addressing a number of clearly defined questions. Additionally, it has been established that the law of each and every State P arty to the Convention should be sufficiently clear to allow individuals to foresee such restrictions and to be aware of the way in which their rights will be limited (see Khan v. the United Kingdom , no. 35394/97, ECHR 2000-V).

On the other hand, we strongly believe that such restrictive measures should be temporary in order to be proportionate. In this case the restriction imposed on the applicant seems permanent in that it is of indefinite duration and will continue until legislation putting an end to it is adopted. More than ten years after its initial concerns, we cannot accept that the Latvian p arliament still believes that former CPL members are a threat to democracy. And if this is so, if former members of the CPL were and still are a real threat and danger to democracy, why has the p arliament failed to enact legislation providing for their permanent ineligibility?

We consider that the Latvian p arliament should have decided to impose a time-limit on these restrictions since such limitations on the right to free elections, as we have already mentioned, should exist only for a specific period, a period of vulnerability for a newly established regime. On that basis, we believe that the ineligibility procedure introduced as a result of the Constitutional Court ’ s interpretation was not sufficient, since it did not allow the courts to assess whether a person represented a real threat and danger to democracy. On the other hand, the very same Constitutional Court in its judgment of 30 August 2000 urged the legislature to periodically re-examine the need to maintain the disputed measure.

Furthermore, the applicant had never been convicted of a criminal offence, she was not one of the fifteen members of p arliament who were removed from their seats and there was no evidence that she herself had committed any acts aimed at undermining the new regime.

Having regard to all the above, we strongly believe that the permanent restrictions on standing for election to the Latvian p arliament imposed on the applicant on account of her former membership of the Communist Party of Latvia violated her right to free elections.

[1] 1. During the publ ic hearing the A gent of the Govern ment compared Mrs Ždanoka to Mr Milošević in ex-Yugoslavia.

[2] 2. Ethnic groups in 2002 : Latvians 57.7%, Ru s sians 29.6%, Belarus i ans 4.1%, Ukrainian s 2.7%, Poles 2.5%, Lithuanians 1.4%, other 2%. ( Demographics of Latvia at http://en.wikipedia.org/wiki/Demographics_of_Latvia )

[3] 1. See, for example, paragraph 4 of the joint dissenting opinion of J udges Wildhaber, Bratza, Cabral Barreto, Greve and Maruste in the case of Slivenko v. Latvia .

[4] 2. Article 17 – Prohibition of abuse of rights: “ Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention . ”

[5] 3. See, for example, Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001-II.

[6] 4. “ Si membrum rupsit, ni cum eo pacit, talio esto! ” Leges XII Tabularum, Tabula VII, Fragmentum 2.

[7] 1. Brandenburg v. Ohio , 395 U S 444 (1969) This test was used in Stankov and the United Macedonian Organisation I linden v. Bulgaria , nos. 29221/95 and 29225/95, ECHR 2001 ‑ IX.

[8] 2. In truth this doctrine goes back to Roman law. “ Poena non irrogatur nisi quae quaque vel quo alio iure specialiter, huic delicto imposita est. ” Dig.50.16.131.1, Ulpianus 3 ad l. iul. et pap.

[9] 1. In my view, this is the only “ clear and present danger ” in this case.

[10] 2. It is not difficult to imagine that this population might be over 50% . Despite everything , the legitimate democratic process would then yield the kind o f political leaders such as Mrs Žd anoka who would tend towards re union with the Russian Federation . The independence of Latvia would then hardly amount to something stable. Yet this would not be so unusual. This is made clear by the example of Slovene - populated territories now in Italy and Austria . In both countries the Slovenian population was subject to intense Fascist-Nazi colonisation and fierce assimilation as evidenced even today by the efforts of Mr Haider. The result is ethnic intolerance. Such intolerance broke out – likewise for demographic reasons – in the war between Albanians and Serbians in Kosovo. Such intolerance is the precursor of ethnic cleansing. The historic situation in Broniowski v. Poland ([GC] , no. 31443/96, ECHR 2004-V), for example, was the consequence of such an attempt amounting to the across-the-board displacement of the population resident in the so-called “territories beyond the Bug River ” .

[11] 1. “[P]luralism, tolerance and broa dmindedness are hallmarks of a ‘democratic society’ (p. 23, § 49). Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Accordingly, the mere fact that the applicants’ standpoint was adopted by very few of their colleagues is again not conclusive of the issue now before the Court.” Such was the position of the old Court in Young, James and Webster v. the United Kingdom , 13 August 1981, § 63, Series A no. 44 . The problem in the case at hand is precisely the reverse: Mrs Ždanoka’s views would have been embraced by too many for this to be “politically safe”.

[13] 1. Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, E TS n o. 46, came into force on 2 May 1968 . Article 4 : “Collective expulsion of aliens is prohibited.”

[14] 2. See Daniel Patrick Moynihan’ s Oxford Lectures on this question entitled “ Pand a emonium: Ethnicity in International Politics ” (1993). The title refers to the resulting outbreak of nationalism. “Every spot on this earth – well, nearly every one – is inhabited nowadays by two, three, or more peoples that differ in race, religion, or ethnic background. For each of these disparate groups, the same spot is their inalienable land, their rightful home, their patrimony. The origins of this multi-tribal cohabitation vary greatly. Sometimes one tribe conquered the territory inhabited by another tribe without expelling or killing all the ‘natives’ . In other cases, racially or ethnically disparate people were imported as slaves or indentured labour, or welcomed as voluntary immigrants.” “ Pandaemonium: Ethnicity in Internation al Politics”, review by Fred C. Ikle ( http://www.findarticles.com/p/articles/ mi_m2751/is_n32/ai_14182726/print ).

[15] 3. The growing literature on the doctrine of international law now unveils how international legal scholars such as Vitoria, Grotius, de Vattel, Westlake and others bent their legal reasoning, be it through natural law or positivistic approaches, to serve their s overeigns in justifying expansionist interests. (See Anghie, Antony, Imperialism, Sovereignty and the Making of International Law , Cambridge University Press, Cambridge, 2005; Koskenniemi, Marti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 , Cambridge University Press, Cambridge, 2002; Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant , Oxford University Press, Oxford, 1999.) For an account of how imperialism has impregnated culture to the point that we take it for granted, see the works of Edward W. Said ( Orientalism , Pantheon Books, New York , 1978; Culture and Imperialism , Vintage, London, 1994) . For an overview of imperialism-influenced theories across the spectrum of social thought, see Curtin, Philip D. (ed.), Imperialism , MacMillan, London and Basingstoke, 1972.

[16] 1. [GC], nos. 43577/98 and 43579/98, ECHR 2005-VII.

[17] 2. [GC], no. 59532/00, ECHR 2006-III.