Information Note on the Court’s case-law 233
Baralija v. Bosnia and Herzegovina – 30100/18
Judgment 29.10.2019 [Section IV]
Article 1 of Protocol No. 12
Inability of resident of a city to vote and stand in local elections for a prolonged period of time: violation
Execution of judgment
Respondent State required to amend electoral legislation to enable the holding of local elections
Facts – The applicant lived in the city of Mostar, where local elections were last held in 2008.
In November 2010 the Constitutional Court declared certain sections of the Election Act 2001 and the Statute of the City of Mostar as unconstitutional. It ordered the Parliamentary Assembly of Bosnia and Herzegovina to amend, within six months of the publication of its decision in the Official Gazette, the unconstitutional provisions of the Election Act 2001. It also ordered Mostar City Council to inform it of the steps taken to bring the Statute of the City of Mostar into line with the Constitution of Bosnia and Herzegovina within three months of the publication in the Official Gazette of amendments made by the Parliamentary Assembly to bring the Election Act 2001 into line with the Constitution of Bosnia and Herzegovina in accordance with its decision.
In January 2012 the Constitutional Court adopted a ruling on the non-enforcement of its decision of November 2010 by the Parliamentary Assembly. It established that the impugned provisions of the Election Act 2001 would cease to be in effect on the day following the publication of its ruling in the Official Gazette. On February 2012 the relevant provisions of the Election Act 2001 lost their legal validity.
Local elections in Mostar could therefore not be held in the election cycles of 2012 and 2016. The current mayor of Mostar was elected by the city council in 2009. Since 2012 he has had a “technical mandate” in the absence of local elections. As at September 2019, the relevant provisions of the Election Act 2001 regulating elections to the city council had still not been adopted.
The applicant complained that her inability to vote or stand in local elections in the city of Mostar amounted to discrimination on the grounds of her place of residence.
Law – Article 1 of Protocol No. 12
(a) Whether the applicant enjoyed a right set forth by law – The applicant had a right set forth by law – namely the right to vote and stand in local elections – for which she met the general conditions for exercising that right.
(b) Whether there was an analogous or relevantly similar situation and a difference in treatment – The applicant, as a person residing in the city, had been in an analogous or relevantly similar situation to a person residing in another part of the country, as regards the enjoyment of the right to vote and stand in local elections.
This case involved the different application of the same legislation depending on a person’s residence. As the difference in treatment complained of was based on “other status”, the applicant enjoyed the protection offered by Article 1 of Protocol No. 12.
(c) Whether sufficient measures had been taken by the authorities to protect the applicant from the alleged discriminatory treatment – The delay in implementing the Constitutional Court’s decision had been justified by the need to establish a long-term and effective power-sharing mechanism for the city council, in order to maintain peace and to facilitate a dialogue between the different ethnic groups in the city. A similar justification had already been examined in the context of the existing constitutional provisions, which had been designed to end a brutal conflict marked by genocide and “ethnic cleansing”, and which had been necessary to ensure peace. The European Court had held that some of the existing power-sharing arrangements – insofar as they had granted special rights for constituent peoples to the exclusion of ethnic minorities and persons who had not declared affiliation with any particular group – were not compatible with the Convention. It had also noted, however, that there was “no requirement under the Convention to abandon totally the power-sharing mechanisms peculiar to Bosnia and Herzegovina and that the time [might] still not [have been] ripe for a political system which would be a simple reflection of majority rule”. However, whereas in previous cases the Strasbourg Court had dealt with the existing legislative arrangements, in this case there was a legal void which had made it impossible for the applicant to exercise her voting rights and her right to stand in local elections for a prolonged period of time.
In the context of Article 3 of Protocol No. 1, the European Court had held that the primary obligation with regard to the right to free elections was not one of abstention or non-interference, as with the majority of civil and political rights, but one of adoption by the State of positive measures to “hold” democratic elections. The same viewpoint had been adopted by the United Nations Human Rights Committee in the context of the rights under Article 25 of the International Covenant on Civil and Political Rights which applied in Bosnia and Herzegovina by virtue of their constitutional status.
The local elections in the city had been last held in 2008. Since 2012 the city had been governed solely by a mayor who had a “technical mandate” and therefore did not enjoy the required democratic legitimacy. Moreover, he could not exercise all the functions of local government, which consequently remained unfulfilled. This situation was not compatible with the concepts of “effective political democracy” and “the rule of law” to which the Preamble to the Convention refers. There was no doubt that democracy was a fundamental feature of the European public order, and that the notion of effective political democracy was just as applicable to the local level as it was to the national level, bearing in mind the extent of decision-making entrusted to local authorities and the proximity of the local electorate to the policies which their local politicians adopted. In this respect the Preamble to the Council of Europe’s European Charter of Local Self-Government proclaimed that local authorities were one of the main foundations of any democratic regime, and that local self-government was to be exercised by councils or assemblies composed of freely elected members.
Against this background, the difficulties in reaching a political agreement for a sustainable power-sharing mechanism was not a sufficient, objective and reasonable justification for the situation complained of, which had already lasted for a long time. In sum, the State had failed to fulfil its positive obligations to adopt measures to hold democratic elections in the city.
Conclusion: violation (unanimously).
Article 46: The matter complained of in the present case had resulted from a failure on the part of the respondent State to implement the decision of the Constitutional Court and its ancillary orders. The failure to implement a final, binding judicial decision would be likely to lead to situations that had been incompatible with the principle of the rule of law which the Contracting States had undertook to respect when they had ratified the Convention. Consequently, having regard to these considerations, and to the large number of potential applicants as well as the urgent need to put an end to the impugned situation, the respondent State had, within six months of the date on which the present judgment became final, to amend the Election Act 2001 in order to enable the holding of local elections in Mostar. If the State failed to do so, the Constitutional Court, under domestic law and practice, had the power to set up interim arrangements as necessary transitional measures.
Article 41: claim in respect of pecuniary damage dismissed; finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
(See also Mathieu-Mohin and Clerfayt v. Belgium, 9267/81, 2 March 1987; Sejdić and Finci v. Bosnia and Herzegovina [GC], 27996/06 and 34836/06, 22 December 2009, Information Note 125; Zornić v. Bosnia and Herzegovina, 3681/06, 15 July 2014, Information Note 176; and Pilav v. Bosnia and Herzegovina, 41939/07, 9 June 2016, Information Note 197)