The ECHR judgment of 29 October 2019 in the case “Baralia v. Bosnia and Herzegovina (Baralija v. Bosnia and Herzegovina)” (application No. 30100/18).
In 2018, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Bosnia and Herzegovina.
In the case, an application was successfully considered regarding the lack of the ability to vote and stand for election in local elections, which was discrimination at the place of residence. The case has violated the requirements of Article 1 of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant resided in Mostar, where the local elections were last held in 2008.
In November 2010, the Constitutional Court declared certain provisions of the 2001 Election Law and the Constitution of Mostar unconstitutional. The Constitutional Court ordered the Parliamentary Assembly of Bosnia and Herzegovina to amend, within six months from the date of its decision in the official newspaper, the unconstitutional provisions of the 2001 Election Law. The Constitutional Court also ordered the authorities of Mostar to notify him of the actions taken to bring the Statute of Mostar into line with the Constitution of Bosnia and Herzegovina, within three months from the date of publication in the official newspaper of the amendments adopted by the Parliamentary Assembly with the aim of bringing the Law on the elections of 2001 in accordance with the Constitution of Bosnia and Herzegovina and the decision of the Constitutional Court.
In January 2012, the Constitutional Court adopted a ruling on non-enforcement of its ruling of November 2010 by the Parliamentary Assembly. He found that the provisions of the 2001 Election Law, which were declared unconstitutional, would cease to be effective the day after the publication of the Constitutional Court ruling in the official newspaper. In February 2012, the relevant provisions of the 2001 Election Law ceased to be in force.
In this regard, local elections in Mostar could not be held in the prescribed manner in 2012 and 2016. The mayor of Mostar, acting at the time of the trial, was elected by the city council in 2009. Since 2012, he has had a “technical mandate” due to the lack of elections. As of September 2019, the relevant provisions of the 2001 Election Law governing elections to the city council were still not adopted.
The applicant complained that the lack of the ability to vote and run for the local elections in Mostar constituted discrimination at the place of residence.
QUESTIONS OF LAW
Regarding compliance with Article 1 of Protocol No. 12 to the Convention. (a) Whether the applicant had a statutory right. The applicant had the right established by law, namely, to vote and run for office in local elections, and he met the general conditions for the exercise of this right.
(b) Whether there has been a similar or similar situation and a difference in treatment. The applicant, as a person residing in a city, was in a similar or similar situation with respect to a person residing in another part of the country as regards the exercise of the right to vote and stand for election in local elections.
The present case concerned the different application of the same legislation depending on the place of residence of the person. Since the difference in the treatment complained of by the applicant was based on a “different grounds”, the applicant enjoyed the protection of Article 1 of Protocol No. 12 to the Convention.
(c) Have the authorities of Bosnia and Herzegovina taken sufficient measures to protect the applicant from allegedly discriminatory treatment? The delay in the implementation of the Constitutional Court ruling was justified by the need to create a long-term and effective mechanism for the distribution of power in the city council in order to maintain peace and facilitate dialogue between different ethnic groups in the city. A similar rationale has already been examined in the context of existing constitutional provisions designed to put an end to the brutal conflict, during which there was genocide and "ethnic cleansing", and necessary to ensure peace. The Court considers that some of the existing methods of distributing power to the extent that they provided the general population with special rights to exclude ethnic minorities and persons who did not declare their membership in a particular group were not incompatible with the Convention. However, the Court also noted that “the Convention does not require the abolition of all power distribution mechanisms specific to Bosnia and Herzegovina, and that [perhaps] the time has not yet come for the political system to become a simple expression of the majority’s power” . However, if in previous cases the Court considered existing legislative provisions, in the present case the subject of consideration was legal invalidity, which made it impossible for the applicant to exercise his electoral rights for a long period.
In the context of Article 3 of Protocol No. 1 to the Convention, the Court has found that the primary obligation of the state in relation to the right to free elections was not non-interference, as in the case of most civil and political rights, but the adoption of positive measures by the state to “hold” democratic elections. The UN Committee on Human Rights held the same point of view in the context of the rights provided for in article 25 of the International Covenant on Civil and Political Rights, which were valid in Bosnia and Herzegovina by virtue of their constitutional status.
Local elections in the city were last held in 2008. Since 2012, the city was ruled only by a mayor who had a “technical mandate” and therefore did not have the necessary democratic legitimacy. In addition, he could not carry out all the functions of local government, which, therefore, remained unattainable. This situation was not compatible with the concepts of “truly democratic regime” and “rule of law”, which are mentioned in the Preamble to the Convention. There was no doubt that democracy was a fundamental characteristic of European public order, and the concept of a truly democratic regime was applied at the local level as well as at the country level, taking into account the limits of decision-making authority granted to local authorities and the proximity of local voters to the policies pursued by local politicians. In this regard, the Preamble to the Council of Europe Charter on Local Self-Government states that local authorities constitute one of the main pillars of any democratic system and that local self-government is carried out by councils or assemblies consisting of members elected by free voting.
Against this background, the difficulties of reaching a political agreement on a stable mechanism for the distribution of power were not a sufficient, objective and reasonable justification for the situation the applicant complained about and which had been going on for a long time. In general, the authorities did not fulfill their positive obligations to hold democratic elections in the city.
In the case there was a violation of the requirements of Article 1 of Protocol No. 12 to the Convention (adopted unanimously).
In application of Article 46 of the Convention. The Court has indicated that in the present case the complaint was related to the failure by the authorities of Bosnia and Herzegovina to comply with the judgment of the Constitutional Court and the related judgments. Failure to comply with a final, enforceable judgment could lead to situations that were incompatible with the rule of law, which the Contracting States undertook to comply with when ratifying the Convention. Consequently, taking into account these considerations and the large number of potential applicants, as well as the urgent need to put an end to the situation complained of, the authorities of Bosnia and Herzegovina are required to amend the Election Act 2001 in order to ensure local elections are held within six months after the entry into force of this Resolution elections in Mostar. If the authorities of Bosnia and Herzegovina do not do this, the Constitutional Court is entitled, in accordance with the legislation of the country and existing practice, to establish intermediate rules as necessary transitional measures.
In application of Article 41 of the Convention. The Court dismissed the claim for pecuniary damage and held that the finding of a violation of the Convention constituted sufficient just satisfaction in respect of any non-pecuniary damage.