60 ŽDANOKA v. LATVIA JUDGMENT – JOINT DISSENTING OPINION OF JUDGES MIJOVIĆ AND GYULUMYAN 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 Republic 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 difficulty 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 Party to the Convention should be sufficiently clear to allow individuals to foresee such restrictions and to be aware of the way in which