Page:Kosovo OMBUDSPERSON INSTITUTION in KOSOVO Regarding the Removal of Emrush Xhemajli, Gafurr Elshani and Sabit Gashi from the List of Candidates for the November 2001 Elections E3011029a.pdf/4

4 ANALYSIS

The right to free elections: Article 3 of the Additional Protocol to the European Convention on Human Rights

22. The Ombudsperson is called upon to examine whether the removal of the three named individuals from the list of candidates eligible to be elected to the Kosovo Assembly on 17 November 2001 can be considered to be in compliance with the requirements of Article 3 of the First Protocol to the European Convention on Human Rights which states in so far as relevant:

The High Contracting Parties undertake to hold free elections … under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

23. At the outset, the Ombudsperson recalls that unlike other Articles of the Convention, Article 3 of the First Protocol primarily imposes an obligation on the State rather than guaranteeing a right of an individual. However, the Article does encompass the right of the individual to vote and to stand for election. (Mathieu-Mohin v. Belgium judgment of 2 March 1987 and Gitonas and Others v. Greece judgment of 23 June 1997).

24. The Ombudsperson recalls that implementation of Article 3 of the First Protocol to the European Convention on Human Rights, as "a characteristic principle of democracy', is one of the conditions for the protection and enjoyment of human rights (Mathieu-Mohin v. Belgium Judgment of 2 March 1987). The word ‘choice’ in Article 3 of the First Protocol implies that the authorities must provide for the creation and existence of political parties and must enable the parties to present candidates for the elections. The word ‘free’ enhances this obligation by requiring the state to ensure that political parties are able to select their candidates without pressure or interference.

25. However, the Ombudsperson also recalls that the rights to vote and to stand for election are not absolute. In some circumstances defined by law, a state may prohibit an individual or a political party from running for election (see, e.g. Fryske Nasjonale Partij v. Netherlands, Appl. No 22200/84, 45 DR 240). However, a state may not exercise this power in order to thwart the free expression of the opinion of the people (W, X, Y and Z v. Belgium, Appl. No. 6745/74 and 6746/74, 2 DR 110).

26. As with respect to other rights guaranteed under the European Convention on Human Rights, the Ombudsperson recalls that the first condition to be met by a government imposing restrictions on rights is that any such restrictions must be ‘in accordance with law’. The attributes of lawfulness in the sense of the Convention are set forth, inter alia, in Special Report No. 1 on the Compatibility with Recognized International Standards of UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000) and on the Implementation of the Above Regulation, addressed to Mr. Hans Haekkerup, Special Representative of the Secretary General of the United Nations (26 April 2001)(hereinafter Special Report No. 1).

27. The Ombudsperson observes that no law currently in force in Kosovo provides either criteria or procedures for the removal of individuals from the list of candidates eligible to be elected to the Kosovo Assembly, based solely on the discretion of the SRSG or on Executive documents issued by heads of other States. Such acts therefore have no legal basis. The Ombudsperson further observes that even should a law be promulgated granting power to the executive to order the removal of candidates or otherwise entrenching arbitrariness, any such law would be incompatible with the principles underlying Article 3 of the First Protocol of the European Convention on Human Rights. 28. The Ombudsperson further observes that where the threshold requirements of lawfulness are not met, as here, any further examination of the matter is rendered moot: the violation of the right at issue is caused by the unlawfulness itself (Cf. para. 14 of Special Report No. 1).

Conclusion 29. The Ombudsperson concludes, therefore, that there has been a violation of Article 3 of the First Protocol of the European Convention on Human Rights.