CONCURRING OPINION OF JUDGE KALAYDJIEVA

I agree with the conclusion that there has been no violation of Article 3 of Protocol No. 1 to the Convention in the present case and I am fully prepared to accept the position of the United Kingdom Government expressed in paragraphs 94-97 of the judgment as sufficiently convincing for the purposes of the “implied limitations” under Article 3 of Protocol No. 1. The denial of a right to vote to citizens living abroad is clearly based on the assumption that their interest in the national political life is limited and there is nothing in the present case to make this assumption unreasonable. It also seems correct that an effort to afford an individualised approach in the assessment of the level of preserved individual interest in each case would require practical measures, which are not necessarily justifiable in view of their limited overall impact on the manner in which the authorities “undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.

The Court has previously expressed its views as follows (see Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 69, ECHR 2012):

“As regards restrictions on expatriate voting rights based on the criterion of residence, the Convention institutions have accepted in the past that these might be justified by several factors: firstly, the presumption that non-resident citizens are less directly or less continually concerned with their country’s day-to-day problems and have less knowledge of them; secondly, the fact that non-resident citizens have less influence on the selection of candidates or on the formulation of their electoral programmes; thirdly, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and, fourthly, the legitimate concern the legislature may have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (see Hilbe , cited above; see also X and Association Y. v. Italy , application no. 8987/80, Commission decision of 6 May 1981, Decisions and Reports (DR) 24, p. 192, and Polacco and Garofalo v. Italy , no. 23450/94, Commission decision of 15 September 1997, DR 90-A, p. 5). More recently, the Court has taken the view that having to satisfy a residence or length-of-residence requirement in order to have or exercise the right to vote in elections is not, in principle, an arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1 (see Doyle v. the United Kingdom (dec.), no. 30158/06, 6 February 2007).”

I disagree with the majority on certain aspects of the use of the margin of appreciation as part of the balancing exercise through which they arrived at the conclusion that there had been no violation of Article 3 of Protocol No. 1. In the present case, this was possible as a result of the unnecessary introduction, proprio motu , of some unknown “legitimate aim” and an unjustified opposition between the obligation to organise elections and the individual right to vote.

In its earlier cases the Court noted that this provision was:

“not limited by any specific list of ‘legitimate aims’ such as those enumerated in Articles 8 to 11 of the Convention [and that] the Contracting States [were] therefore free to rely on an aim not contained in that list to justify a restriction, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention [was] proved in the particular circumstances of a case” (see Ždanoka v. Latvia [GC], no. 58278/00, § 115, ECHR 2006 ‑ IV, with further references).

In the present case the UK Government indicated practical difficulties, but not necessarily any specific aim pursued by the restriction. The grounds on which the majority found the restriction proportionate to an unknown aim (paragraph 118) thus remain unclear.

While it is true that the Convention bodies have interpreted this provision as one phrased in terms of the obligation of the High Contracting Parties to hold elections, but also as implying individual rights, including the right to vote, I am not convinced that this is sufficient to make them “competing” (see paragraph 117), or necessarily implies some genuine and inherent “conflict of interest” between an individual’s wish to participate in parliamentary elections in his/her country of origin and the chosen legislative policy to confine the parliamentary franchise to those citizens with a close connection to it (paragraph 118).

These two proprio motu steps in the analysis appear to lead the majority to have unnecessary recourse to the tool of the margin of appreciation in their reasoning, rather than relying on the elaborated concept of “implied limitations” under Article 3 of Protocol No. 1. As rightly pointed out by Judge Rozakis in his concurring opinion in the case of Odièvre v. France ([GC], no. 42326/98, ECHR 2003 ‑ III), “when ... the Court has in its hands an abundance of elements leading to the conclusion that the test of necessity is satisfied by itself ... reference to the margin of appreciation should be duly confined to a subsidiary role”.