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/5

 5 The right to respect for private life: Article 8 of the European Convention of Human Rights

30. The Ombudsperson is called upon to examine whether the repercussions of the removal of the three individuals’ names from the candidates list for the forthcoming elections can be considered to be in compliance with the requirements of Article 8 of the European Convention on Human Rights which states, in so far as relevant:

1. Everyone has the right to respect for his private …life….. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

31. The Ombudsperson recalls that the guarantees afforded by Article 8 encompass, inter alia, the right to protection of one’s good name and against attacks on one’s reputation (mutatis mutandis Niemietz v. Germany judgement of 16 December 1992). The Ombudsperson also recalls that in order to fall within the purview of the Article, any interference with a protected right must be by a public authority.

32. The Ombudsperson observes that the inclusion of the names of the individuals affected in a ‘black list’ that has been widely disseminated in Kosovo and on the basis of which they have been declared ineligible to stand for elections to the Kosovo Assembly constitutes a serious interference with their right to respect for private life. The Ombudsperson further observes that the interference has occurred as a result of actions of public authorities, including the Special Representative of the Secretary-General and the Central Elections Commission.

33. The Ombudsperson has previously found that no legal basis exists for the removal of the individuals affected from the list of candidates for election to the Kosovo Assembly (see para. 27 supra). The Ombudsperson observes that the principles governing lawfulness apply equally to the right to private life guaranteed under Article 8 of the Convention.

Conclusion  34. The Ombudsperson concludes, therefore, that there has been a violation of the right to private life guaranteed under Article 8 of the European Convention on Human Rights.

The right to a fair hearing in the determination of a civil right: Article 6 of the European Convention on Human Rights

35. The Ombudsperson is called upon to examine whether the individuals affected have been afforded their right to a fair and public hearing as guaranteed under para. 1 of Article 6 of the European Convention on Human Rights, which states, in so far as relevant:

In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by independent and impartial tribunal established by law.

36. The Ombudsperson recalls that the European Court of Human Rights has held that the rights to enjoy a good reputation, to protect the honour of one’s family and to restore one’s good name constitute civil rights in the sense of Article 6 of the Convention (Kurzac v. Poland Judgment of 22 February 2001).

37. With reference to his findings above regarding the right to respect for private life guaranteed under Article 8 of the Convention (para. 31), the Ombudsperson observes that the civil nature of the