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CH/02/12470 87. As to the alleged violation in connection with Article 25 of the ICCPR, OHR states that the applicant fails to show the grounds under which he was discriminated against and did not provide any evidence to that extent. 88. As to whether the sanction provided for in Article 19.9A of the Election Law could be considered to involve ’a determination of a criminal charge’, OHR states that the ban provided for is of a political nature and is meant to forbid persons who have personally obstructed the implementation of the General Framework Agreement and endangered the establishment of a democratic society from standing as candidates for elections. OHR reiterates the purpose of the ban and concludes that it cannot involve ’a determination of a criminal charge’. F. Stabilization Force (SFOR) 89. In its letter dated 24 June 2003, SFOR responded to the Chamber’s letter in order to assist the Chamber and not in the capacity of an amicus curiae. As a preliminary matter, SFOR explains that the term ’removed from service’ means a ’permanent and punitive expulsion’ pursuant to section 1c of Chapter 14 of the ITP. 90. Additionally, SFOR responded to the Chamber’s inquiry about the COMSFOR’s basis for approving the removal of the applicant from his position and service. “COMSFOR is the final interpretive authority over the military aspects of the GFAP and therefor COMSFOR may remove any AFBiH officer who engages in activities that endanger the peace process.” Relying on the letter sent to the COMSFOR by the Federation of BiH Minister of Defence, dated 25 April 2001, the COMSFOR gave its approval for the applicant’s removal from position and service. 91. As to the question why the COMSFOR approved the removal from position and service when it appears that the applicant was already retired on 20 May 2001, SFOR notes that the chronology with respect to the matter of this retirement is somewhat complicated. On 3 September 2001, the Minister of Defence sent a second communication to the (new) COMSFOR asking that the COMSFOR approval for the applicant’s removal be treated as a removal from duty and retirement for which the COMSFOR gave approval, and not as a removal from service. The Minister attached a copy of the procedural decision regarding the applicant’s retirement of 20 May 2001, stating that the applicant’s military service had been terminated and that the applicant is transferred to the reserve as of 20 May 2001. The COMSFOR, in response to the Minister’s letter, approved the retirement. The COMSFOR did this knowing that the approval was necessary in order for the applicant to receive pension. However, SFOR notes in its letter, the original removal from position and service remained in effect. VII. OPINION OF THE CHAMBER A. Admissibility 92. Before considering the merits of the application the Chamber must decide whether to accept it, taking into account the admissibility criteria set out in Article VIII(2) of the Agreement. Under Article VIII(2)(a), the Chamber shall consider whether effective remedies exist and, if so, whether they have been exhausted. Further, pursuant to Article VIII(2)(c), the Chamber shall dismiss any application, which it considers incompatible with the Agreement (ratione materiae or ratione personae) or manifestly ill-founded. 1. Complaint in relation to Article 6 of the Convention 93. Article 6 of the Convention, in relevant part, provides: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ….” 15

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Obradovic v. Bosnia and Herzegovina

Judgment

Question Presented: Whether the plaintiff's dismissal from the military banned him from participating in the General Election?

Alleged Acts: The plaintiff was the Assistant Minister of Defense and released from his duties. The decision was then published in the Official Gazette, to which the plaintiff denies knowing. The plaintiff submitted his application as independent candidate in the General Election in 2002. The Election Commission denied the plaintiff's application because he was discharged in 2001 by the SFOR. The plaintiff asserted he was discharged by the Federation of Ministry of Defense not the SFOR.

Procedural history: The plaintiff brought this case against the Election Commission's decision in 2002. The Court found that the applicant was discharged by COMSFOR. Further, the argument that the plaintiff did not receive the complaint is unfounded because it was publicly available and the plaintiff found out on when he applied to run for the position in 2002.

Summary: In August of 2002 the Election Law was amended to remove prohibit all former military officers from seeking public office. The court considered the evidence surrounding the decision to dismiss him from the military. Accordingly, because the Election Commission was not able to hear the application, the plaintiff was deprived of procedural and legal safeguards that are enacted to preserve fairness and legal certainty.

Conclusion: The provision violated the plaintiff's right to participate in the Election under art. 3 of the First Protocol of the Convention.

Legal Issue(s)

Candidate Registration

Applicable Law(s): First Protocol of the Convention, art. 3; European Convention on Human Rights, art. 6, 3; International Covenant on Civil and Political Rights, art. 25.

Region: Europe and Eurasia

Country: Bosnia and Herzegovina

Language of Decision

English

Court: Appellate Court

Election Type: General

Date of decision: Oct 10, 2003

Geolocation

Latitude: 43.85360605

Longitude: 18.378217221182695

: Geolocation

Primary Documents

Bosnia and Herzegovina- Obradovic v. Bosnia and Herzegovina.pdf
English
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Election Judgments - IFES

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Obradovic v. Bosnia and Herzegovina

Primary Documents

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