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question to such an extent as to impair their very essence and deprive them of their effectiveness;
that they are imposed in pursuit of a legitimate aim; and that the means are not disproportionate …”
(paragraph 52). This standard has been developed and applied in a number of other cases before
the European Court, such as Gitonas and others v. Greece (Eur. Court HR, judgement of 1 July 1997,
Reports 1997-IV) Ahmed and Others v. the United Kingdom (Eur. Court HR, judgement of 2
September 1998, Reports 1998-VI) and Labita v. Italy (Eur. Court HR, judgement of 6 April, Reports
of Judgements and Decisions 2000-IV). In the Podkolzina v. Latvia case (Eur. Court HR, judgement of
9 April 2002), the European Court considered that the lack of procedural safeguards and
arbitrariness involved in the removal of the applicant’s name from the list of candidates constituted a
violation of Article 3 of the First Protocol to the Convention. Therefore, the Chamber will, having in
mind all circumstances which lead to the denial of the applicant’s right to run for elections, assess
whether the requirements of Article 3 of the First Protocol to the Convention have been met by the
respondent Party, that is whether Article 19.9A of the Election Law excessively curtails the right to
stand for elections and whether this provision seeks a legitimate aim and the means employed are
not disproportionate.
(a) Does Article 19.9 A of the Election Law pursue a legitimate aim?
125. Bosnia and Herzegovina in its submissions does not address the legitimate aim of Article
19.9A of the Election Law, however, the amici curiae have provided ample considerations.
126. Both OSCE and OHR in their amicus curiae submissions stress that Article 19.9A of the
Election Law pursues a legitimate aim. In its submission dated 19 August 2003, the OSCE states,
“the aim of temporarily preventing certain persons from standing for election, as stipulated in Article
19.9A of the Election Law of BiH, is to prevent individuals found to obstruct implementation of the
General Framework Agreement for Peace in Bosnia and Herzegovina from continuing in public
service.” The OSCE further states that the ban is a necessary complement to removals from office
by the High Representative, the COMSFOR and the International Police Task Force, as otherwise,
individuals removed from their position quickly move to other public offices where they continue their
obstructionist activities.
127. Additionally, the Chamber recalls the statement made by the High Representative upon
imposing Article 19.9A of the Election Law referring to the need to ensure that all participants in the
elections comply with the General Framework Agreement, as provided for in Article 1.13 of the
Election Law (see paragraphs 36-39 above).
128. The Chamber can agree that, given the still fledgling nature of the post-war political system in
Bosnia and Herzegovina, and the importance of ensuring that all public officials support the Dayton
Peace Agreement in Bosnia and Herzegovina, the ban on standing for elections for former military
officials removed pursuant to Chapter 14 of the ITP pursues a legitimate aim. In this regard the
Chamber also recalls the Mathieu-Mohin and Clerfayt case, in which the European Court emphasised
that any electoral system must be assessed in the light of the political evolution of the country
concerned, so long as the free expression of the opinion of the people in the choice of the legislature
is ensured (judgement of 2 March 1987, Series A no. 113, paragraphs 23-24).
129. As to the specific application of Article 19.9A of the Election Law in the case at hand, the
Chamber recalls that the applicant was found to have quit his post and to have participated in
political activities prohibited for members of the military, and to have been involved in activities
contrary to the Dayton Peace Agreement, that is to say that he was involved in a movement which
wished to institute “self-rule” of the Croat community in Bosnia and Herzegovina, activities which are
in direct contravention to the General Framework Agreement and which threaten the substance of the
peace process (see paragraph 21 above). Having this in mind, the Chamber also finds that the
application of Article 19.9A of the Election Law in the case at hand, whereby the applicant was
prevented from standing for elections, served a legitimate aim.
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