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/6

6 rights at issue in the instant case brings them within the remit also of Article 6 for the purpose of judicial protection. No such protection has been afforded to the individuals affected.

Conclusion

38. The Ombudsperson concludes, therefore, that there has been a violation of the right to a fair hearing guaranteed under para. 1 of Article 6 of the European Convention for Human Rights.

The right to freedom of association: Article 11 of the European Convention on Human Rights

39. The Ombudsperson is called upon to examine whether the removal of the names of the three individuals from the list of candidates presented by their respective political parties for the forthcoming elections can be considered to be in compliance with the requirements of Article 11 of the European Convention on Human Rights which states, in so far as relevant:

1. Everyone has the right to … freedom of association with others…. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others….

40. The Ombudsperson recalls that one of the underlying purposes of Article 11 is to ensure that governmental authorities refrain from interfering with the development of political party platforms, the choice of candidates for elections or other internal aspects of political party operations. (see e.g. United Communist Party of Turkey and Others v. Turkey judgement of 30 January 1998 and Refah Partisi (the Welfare Party) Erbakan, Kazan and Tekdal v. Turkey judgment of 31 July 2001). The Ombudsperson further recalls that any restrictions on the enjoyment of protected rights must be in accordance with law (see e.g. para. 26 supra).

41. The Ombudsperson observes that his previous findings with respect to Article 3 of Protocol No. 1 to the Convention (see para. 27 and 29) and Article 8 of the Convention (see para. 32 and 34) are equally applicable to the rights protected under Article 11.

Conclusion

42. The Ombudsperson concludes, therefore, that there has been a violation of the right to freedom of association guaranteed under Article 11 of the European Convention on Human Rights.

The right to an effective remedy: Article 13 of the European Convention on Human Rights 

43. The Ombudsperson is called upon to examine whether the individuals whose names have been removed from the list of candidates for the forthcoming elections can be considered to have had available to them an effective remedy as required by Article 13 of the European Convention on Human Rights, which states:

Everyone whose rights and freedoms as set forth in this Convention shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

44. The Ombudsperson recalls that the European Court of Human Rights has held that Article 13 requires that anyone with an arguable claim that his or her rights under the Convention has been violated will be able to have the substance of that claim reviewed by a national authority, which must