CH/02/12470 ANNEX In accordance with Rule 61 of the Chamber’s Rules of Procedure, this Annex contains the partly dissenting opinion of Mr. Dietrich Rauschning. PARTLY DISSENTING OPINION OF MR. DIETRICH RAUSCHNING 1. I disagree with the Chamber’s conclusion no. 7 ”that Bosnia and Herzegovina has violated the right of the applicant to run for elections within the meaning of Article 3 of the First Protocol“ to the Convention and consequently also with conclusions nos. 8 to 12. 2. From an examination of the case file, I underline the following essential facts: The applicant was discharged in spring 2001 from his position as a Lieutenant General of the Federation of BiH Army after his involvement in the Croat movement in March 2001 in which he left his post in common action with more than 7,000 Bosnian Croat troops in support of the call for self-rule, following the announcements of the HDZ (see paragraphs 1, 21 of the decision). He was dismissed with the co-operation of the Minister of Defence of the Federation of BiH and the SFOR Commander, who approved the dismissal in a letter which was received by the Ministry on 20 June 2001. 3. The applicant applied to the Election Commission for certification as an independent candidate for the general elections in Bosnia and Herzegovina in 2002. Upon the request of the Election Commission, the SFOR Commander notified the Commission on 13 May 2002, that a number of officers were “suspended or removed by action of the COMSFOR”; this letter states that the applicant was removed on 19 June 2001. The Election Commission requested additional information on the personal data of the applicant, and SFOR transmitted this data in a second letter received on 29 May 2002. 4. The Election Commission rejected the applicant’s application for certification as an independent candidate in its decision of 6 June 2002, which was confirmed on review on 12 June 2002. The Court of Bosnia and Herzegovina rejected the applicant’s appeal against these decisions in its decision of 5 July 2002. In its reasoning, the Court of Bosnia and Herzegovina refers to the letter of COMSFOR to the Election Commission of 29 May 2002 and to the provisions of the election law as amended. It states as a final reason: ”Namely, according to the stated decision, no former or present military official that was replaced based on Chapter 14 of the Guidelines to the Parties, issued by COMSFOR in accordance with Article VI paragraph 5 of Annex I.A of the General Framework Agreement for Peace”, can run for the elections. 5. I agree with the reasoning of the Chamber that “the ban on standing for elections for former military officials removed pursuant to Chapter 14 of the ITP pursues a legitimate aim” (see paragraph 128 of the decision). I support as well the statement that the specific application of Article 19.9A of the Election Law in the case at hand served a legitimate aim, recalling that the applicant “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” (see paragraph 129 of the decision). On this basis the Chamber also concludes that the nature and severity of the ban are sufficiently circumscribed in the law so as to be proportionate to the aims sought (see paragraph 131 of the decision). 6. This reasoning presupposes that the requirements to apply the ban according to Article 19.9A of the Election Law have been met, namely, that the applicant has been removed from office pursuant to Chapter 14 of the ITP (see paragraph 39 of the decision). Article 19.9A of the Election Law does not set as a condition that the person in question is discharged by COMSFOR; rather, the ban follows ex lege the removal from service pursuant to Chapter 14 of the ITP. All the participants in the proceedings before the Chamber, including the applicant, agree that the applicant has been discharged from his military position. No one contests that this was done in agreement between the Ministry of Defence and COMSFOR. Neither the Election Law, Article 19.9A, nor Chapter 14 of the ITP requires that the act of dismissal is itself performed by COMSFOR. The applicant has been dismissed after being involved in “activities which are in direct contravention to the General Framework Agreement and which threaten the substance of the peace process” (see paragraph 129 27