JOINT PARTLY DISSENTING OPINION OF JUDGE S SPIELMAN N AND JEBENS

(Translation)

1. We voted against p oint 4 of the operative provisions, according to which “the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the first and third applicants ” .

2. Such non-redress is inadequate. In our view, the applicants can undoubtedly claim to have sustained non-pecuniary damage on account of the frustration of not being able to exercise their right to vote, a right afforded to them by the Greek Constitution combined with P residential D ecree no. 96/2007. The absence of legislation as regards the conditions of exercise of voting rights and the ensuing violation of Article 3 of P rotocol No. 1 constitute non-pecuniary damage that should give rise to an award of just satisfaction.

3. We would like to repeat here the partly dissenting opinion of Judge s Spielma n n and Malinverni (paragraphs 7-9) annexed to the judgment in Prežec v. Croatia (no. 48185/07, 15 October 2009) and reiterated in the partly dissenting opinion of the same judges (paragraph 4) annexed to the judgment in Alfantakis v. Greece (no. 49330/07, 11 February 2010), which refer to the partly dissenting opinion of Judge Bonello annexed to the Grand Chamber judgment in Aquilina v. Malta ([GC], no. 25642/94, ECHR 1999 ‑ III).

4. “ Generally speaking and independently of the above considerations, one wonders whether the mere finding of a violation of a right – no matter which – protected by the Convention is capable of repairing the harm done to the victim.

5. It is true that Article 41 of the Convention stipulates that the Court shall afford just satisfaction only if necessary. The case-law reveals that the Court has adopted this solution mainly when the victim had the possibility of obtaining satisfaction at the domestic level, when the violation found was of little significance, when the national authorities clearly expressed the will to reform the legislation or practice at the origin of the violation or when, as in this case, the victim had the possibility of requesting the reopening of the domestic proceedings or obtaining satisfaction at the domestic level.

6. But can one really consider that the mere finding of a violation of a fundamental right can possibly afford redress (see Aquilina v. Malta [GC] , no. 25642/94, ECHR 1999-III, dissenting opinion of Judge Bonello )? ”

7. It is difficult to see why, where a vio lation of Article 3 of Protocol No. 1 has been found, “there is no need” to award just satisfaction for the non-pecuniary damage sustained. The judgment is silent in this respect and in the absence of any reasons having been given , [1] we can but note our disagreement with this p oint of the operative provisions.

DISSENTING OPINION OF JUDGE VAJIĆ

1. I do not agree with the majority ’ s conclusion that there has been a violation of Article 3 of Protocol No. 1 to the Convention because the “failure by the Greek State to take effective measures to ensure that the first and third applicants were able to exercise their right to vote in national elections at their place of residence breached the right to free elections” ( see paragraph 47 of the judgment).

2. As the Court has often reiterated in relation to parliamentary elections, the rights safeguarded by Article 3 of Protocol No. 1 are not absolute but subject to restrictions. The Contracting States have a wide margin of appreciation in this sphere to make the right to vote subject to conditions. Moreover, as repeated by the Court on several occasions, having to satisfy a residence requirement in order to have or exercise the right to vote in parliamentary elections is not an unreasonable or arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1. (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 62, ECHR 2005 ‑ IX; Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004-X; Hilbe v. Liechtenstein ( dec. ), no. 31981/96, ECHR 1999-VI; Polacco and Garofalo v. Italy, no. 23450/94, Commission decision of 15 September 1997, Decisions and Reports (DR) 90-A; Luksch v. Germany , application no. 3538 5/97, Commission decision of 21 May 1997, DR 89-B, p. 175; X and Association Y v. Italy , application no. 8987/80, Commission decision of 6 May 1981, DR 24, p. 192; and X v. the United Kingdom, application no. 7730/76, Commission decision of 28 February 1979, DR 15, p. 137).

Thus the Court considered that a residence requirement for voting may be justified on the following grounds: (1) the assumption that a non-resident citizen is less directly or less continually concerned with his country ’ s day ‑ to-day problems and has less knowledge of them; (2) the fact that it is impracticable for the parliamentary candidates to present the different electoral issues to citizens abroad and that non-resident citizens have no influence on the selection of candidates or on the formulation of their electoral programmes; (3) 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; (4) 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 , op. cit. ).

3. According to Article 4 of the Greek Constitution all Greek citizens over 18 years of age have the right to vote ( see paragraph 13 of the judgment). According to Article 51 § 4 , the conditions for the exercise of the right to vote by persons living outside the c ountry may be specified by statute, adopted by a majority of two thirds of the total number of Members of Parliament ( see paragraph 12 of the judgment).

The proposal of a draft law on that question prepared by the Government was rejected in Parliament a year ago, on 7 April 2009, as it failed to achieve the required majority.

4. I do agree that Greece should try to find arrangements for the exercise of the right to vote of its citizens permanently or temporarily living abroad. In my opinion, however, this is a rather difficult question and a matter of delicate political balance to be found by the Greek Parliament.

States Parties enjoy a wide margin of appreciation in the choice and organi s ation of their respective electoral s ystems as Article 3 of Protocol No. 1 does not create any “obligation to introduce a specific system” ( see Mathieu- Mohin and Clerfayt v. Belgium , 2 March 1987, § 54 , Series A no. 113 ). In this respect the Court has reiterated that the rules in this area vary in accordance with the historical and political factors specific to each State; the large variety of situations provided for in the electoral legislation of numerous member States of the Council of Europe shows the diversity of the possible options. For the purposes of applying Article 3 of the Protocol, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another (see Py v. France , no. 66289/01, § 46, ECHR 2005 ‑ I (extracts)), at least so long as the chosen system provides for conditions which will ensure the “free expression of the opinion of the people in the choice of the legislature”. In countries with a large diaspora , such as Greece, the question of whether, to what extent and under which conditions citizens living abroad should participate in parliamentary elections on issues which primarily affect persons living in the country, should even more so be decided within the country and not in Strasbourg. This process seems to be under way in Greece and it would be in its best interest to resolve it in due time.

5. I am unable to agree with the majority that the present situation is to be distinguished from the existing case-law as it merely concerns the conditions of exercise of the right to vote because “ the Greek Constitution ... authorises the legislature to determine the conditions for exercising the right to vote ”. Even more so, I do not agree that one of the elements to overrule the decision in Χ. a nd Association Y. (cited above) should be the fact that that decision dates back to 1981: “ Moreover, since that Commission decision date s back to 1981, the Court considers it necessary to examine more closely in the context of the present case the evolution of Council of Europe law on the matter at issue ” ( see paragraphs 35 and 44 of the judgment). In my opinion, it would be for the Grand Chamber to deal with this specific issue of the right to vote and, if it decided so, to change the approach to Article 3 of Protocol No. 1 to the Convention. The “Council of Europe law” which is put forward, consisting in a recommendation and a resolution by the Parliamentary Assembly, as well as texts adopted by the Venice Commission, can be seen as an interesting indication of the aims to be pursued in the field. However, they do not as such create any legal obligations for States. As to the comparative law research ( see paragraph 19 of the judgment), it obviously indicates a trend summari s ing recent developments in the laws of the States parties in this sphere . This state of affairs does not create an obligation for Greece to introduce a right to vote for citizens living abroad and certainly not one allowing all of them to vote in their actual place of residence ( see paragraphs 43 and 47 of the judgment). The Court ’ s view has been that where States parties have adopted a number of different ways of addressing the question of the right to vote of certain groups/categories of citizens, the Court must confine itself to determining whether the restriction in issue exceeds any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1 (see, mutatis mutandis , Hirst , op . cit. ).

6. As to the present case, even if the applicants may well still have close links with Greece ( see paragraph 29 of the judgment) and are owners of property that is taxed in the country , the fact remains that since the applicants chose to reside abroad, their situation is significantly different to that of citizens permanently resident in Greece . In a similar situation the Commission was satisfied that the restriction on the applicant ’ s right to vote was not arbitrary, noting that “ as to the correlation between one ’ s right to vote in Parliamentary elections and being directly affected by acts of polit i cal bodies so elected, the applicant cannot claim to be affected by the acts of these political bodies to a similar extent as resident citizens ” ( see X v. the United Kingdom , cited above) .

7. In view of all the above it is my opinion that the majority ’ s opinion departs from the established jurisprudence allowing for a large margin of appreciation in the area of A rticle 3 of Protocol N o. 1. Moreover, it can be understood as introducing a very broad positive obligation, i.e., a general recognition of the right of citizens living abroad to vote in their place of residence ( see paragraphs 43 and 47 of the judgment), which I am unable to accept. If confirmed, such a solution might affect not only large numbers of European citizens but create considerable political, organi s ational and/or economic problems for many member States of the Council of Europe.