PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I agree that in the instant case there has been a violation of Article 1 of Protocol No. 12, but I do not share the view that Bosnia and Herzegovina has violated Article 14 of the Convention taken in conjunction with Article 3 of Protocol No 1.

2. I note that the case raises very complex issues belonging to the scope of constitutional law. The majority decided to follow the approach adopted in the Grand Chamber judgment in the case of Sejdić and Finci v. Bosnia and Herzegovina , ( nos. 27996/06 and 34836/06, ECHR 2009 ). In th at judgment, the Court proceeded in four steps. Firstly, it analysed the powers of the House of Peoples of Bosnia and Hercegovina and emphasised their broad scope (par agraph 41). Secondly, given the broad scope of the powers enjoyed by this parliamentary chamber, it concluded that elections to it f e ll within the scope of Article 3 of Protocol No. 1. Thirdly, the Court verified whether the applicants ’ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina had an objective and reasonable justification. Fourthly, after carrying out an analys is of Bosnian law, it concluded that “the applicants ’ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina lack [ ed ] an objective and reasonable justification and ha [d] therefore breached Article 14 taken in conjunction with Article 3 of Protocol No. 1” ( see par agraph 50 of the Sejdić and Finci judgment ).

The reasoning in the case of Sejdić and Finci seems to be based on the following implicit assumptions concerning the meaning of Article 3 of Protocol No. 1: ( i ) if the second chamber has relatively broad legislative powers, then it must be elected; (ii) the elections to this second chamber should meet the same criteria as the elections to the first chamber; and (iii) every adult citizen therefore has a subjective right to stand for election to such a second chamber. I am not persuaded that the wording of Article 3 of Protocol No. 1 justifies accepting these assumptions as the necessary legal consequences of this provision. If we apply the proposed approach with consistency, then certain other European S tates with a bicameral legislature may be in breach of Article 3 of the Convention.

According to the case-law of the Court , Article 3 is applicable to the legislature of the European Union ( see Matthews v. the United Kingdom [GC], no. 24833/94, ECHR 1999 ‑ I ). The European Union has a Parliament which is elected through universal but unequal suffrage and an unelected Council which enjoys wide legislative powers. In this context, serious doubts may arise as to whether the constitutional system of the European Union would pass the test implicitly laid down in the Sejdić and Finci case.

3. The Preamble to the Convention contains important guidelines concerning the interpretation of the Convention. At least two of them are of paramount importance in cases concerning questions of constitutional law. Firstly, the Preamble refers to the “common understanding and observance of human rights”. The Convention should therefore be construed in a way which reflects the common understanding of human rights among the High Contracting Parties. When different interpretations are possible under the applicable rules of treaty interpretation, preference should be given to the solution which better reflects the common understanding of human rights.

Secondly, the P reamble refers to “a common heritage of political traditions, ideals, freedom and the rule of law”. The interpretation of the Convention should therefore take this common heritage into due account . When different interpretations are possible under the applicable rules of treaty interpretation, preference should be given to the solution which better reflects the common heritage of political traditions. The same idea may also be expressed in slightly different words: the interpretation of the Convention should take into due account the common European constitutional heritage. The paradigm of European constitutionalism is an inescapable point of reference for interpretation of the Convention.

4. It is important to note the great variety of electoral laws across Europe , as well as the diversity of solutions concerning the organi s ation of legislat ive power. There exist a multitude of electoral systems which fulfil the criteria of free elections , and a multitude of models of bicameralism which fulfil the criteria of democracy.

The very idea of bicameralism presupposes that there exists a second chamber which is different in many respects from the first , and whose members may be chosen in a very different manner from the election s to the first chamber. Whereas the first chamber represents the Nation , understood as a political community consisting of citizens, the second chamber may be based on a different idea of representation. One of the possible justifications for a second chamber is to correct representational shortcomings in the first chamber . C onstitution-makers may therefore devise a second chamber ensuring representation of special interests and opt for an electoral system which gives a stronger voice to certain social groups. This is the so-called model of incongruent bicameralism.

5. Article 3 of Protocol No. 1 is worded in a very specific way. As rightly pointed out in the joint dissenting opinion of J udges Wildhaber , Costa, Lorenzen , Kovler and Jebens to the Grand Chamber judgment in the case of Hirst v. the United Kingdom (no. 2) ( no. 74025/01, ECHR 2005 ‑ IX ), the wording of this provision is different from nearly all other substantive clauses of the Convention. It is also completely different from the wording of A rticle 25 of the International Covenant on Civil and Political Rights , which s tates that “every citizen shall have the right and the opportunity, without any of the distinctions mentioned in A rticle 2 and without unreasonable restrictions ... to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”.

In the Convention , the accent is p laced on the objective guarantees of free elections rather than on the subjective rights of the right-holders. This focus on the objective law is of paramount importance for establishing the scope and content of the provision under consideration. There can be no doubt that free elections to the legislature refers to universal suffrage , understood as a lack of unreasonable restrictions on the right to vote and on the right to be elected. At the same time , democratic European constitutionalism has accepted certain inherent limitations o n the scope of those rights . E lectoral rights in respect of parliament are to be granted to adult citizens and do not necessarily encompass incapacitated persons or persons deprived of their right to vote in connection with a criminal conviction. Further restrictions and qualifications may be acceptable in the elections to the second chamber of parliaments.

6. Article 3 of Protocol No . 1 raises the very delicate issue of the adequacy between the scope of the second chamber ’ s powers and the method of selecting its members. I agree that the distribution of legislative powers between the chambers of a national parliament is an important parameter from the perspective of this provision. If the second chamber has only limited powers , and if its opposition may be overcome by the first chamber, then the freedom to shap e the method of selecti ng its members is extremely wide. If , however, the second chamber enjoys legislative powers equal to those of the first, then the scope of constitutional autonomy left to the S tates in shaping the method of selecting the members of the second chamber is much more restricted. However, I am not persuaded that in such a situation Article 3 of Protocol N o . 1 not only imposes an obligation to elect the second chamber , but also lays down the same standards for such an election as for election s to the first chamber.

It is obvious that Article 3 of Protocol No . 1 imposes strict standards for election s to the first chamber of parliament. I agree with the view that this provision enshrines an individual and enforceable right to free elections to the “first” chamber of parliament , and that unreasonable limitations on the right to vote and on the right to stand for election are incompatible with the concept of free elections. Furthermore, it would be difficult to accept a first chamber elected by an indirect ballot.

As to the problem of the second chamber, it is impossible to disagree with the view reiterated in the Sejdić and Finci judgment (par agraph 40) , to the effect that “Article 3 of Protocol No. 1 was carefully drafted so as to avoid terms which could be interpreted as an absolute obligation to hold elections for both chambers in each and every bicameral system (see Mathieu- Mohin and Clerfayt v. Belgium , 2 March 1987, § 53 , Series A no. 113 )”. Furthermore, in my view, if Article 3 of Protocol N o . 1 allows a method of selecting the members of the second chamber other than through election by citizens, we can derive from this provision neither a subjective right to vote nor a subjective right to stand in elections to this chamber. In the absence of a right protected by the Convention and its Protocols, Article 14 is not applicable. This latter provision cannot apply to a right to stand for election to the second chamber which is enshrined only in domestic legislation.

In my opinion, Article 3 of Protocol N o . 1 sets up a more general and a more flexible test as the basis for assess ing the method of selecting members of the second chamber. The provision in question requires that the constitutional system as a whole complies with the following standard. Free and direct elections to the first chamber , coupled with the adopted system of choosing the members of the second chamber , should ensure the free expression of the opinion of the people in the choice of the legislature. As mentioned above , this general assessment has to take account, among other things, of the scope of the powers enjoyed by each chamber of the national parliament. The constitutional architecture should enable citizens to determine the political orientation of the legislative power , considered as a whole.

[1] Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska, and the Brčko District.

[2] Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” ( Bošnjaci ) should not be confused with the term “Bosnians ” ( Bosanci ) which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.

[3] The Croats are an ethnic group whose members may be natives of Croatia or of other former component republics of the SFRY including Bosnia and Herzegovina. The expression “Croat” is normally used (both as a noun and as an adjective) to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with “Croatian”, which normally refers to nationals of Croatia.

[4] The Serbs are an ethnic group whose members may be natives of Serbia or of other former component republics of the SFRY including Bosnia and Herzegovina. The expression “Serb” is normally used (both as a noun and as an adjective) to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with “Serbian”, which normally refers to nationals of Serbia.