The absence of electoral provisions and the exclusion of voters from their right to vote is incompatible with the rule of law and constitutes prohibited discrimination

JUDGMENT

Baralija v. Bosnia and Herzegovina 29.10.2019 (no.  30100/18)

see here 

SUMMARY 

The absence of electoral provisions and the exclusion of voters from their right to vote is incompatible with the rule of law and constitutes prohibited discrimination.

Right to vote – stand for election, legal void, democratic legitimacy.

The applicant, a resident of the Mostar region of Bosnia and Herzegovina, was excluded from exercising her right to vote because of a legal void in the electoral legislation. The state unjustifiably delayed to harmonise its electoral legislation with the recommendations of the Constitutional Court, existing legislation allowed for discrimination in the electorate and unequal distribution of seats, and the mayor exercised his power as a de facto body without being legally elected.

SThe Court  once again points out that any difference in treatment of people in similar or comparable situations is discriminatory unless it has ‘objective and reasonable justification’. Excluding a person from the right to vote and stand for election is discriminatory, therefore the Court has held that delaying the harmonization of Mostar constituency law with the requirements of the Constitutional Court to comply with the rule of law is incompatible with  the Convention and the failure of the State to take measures to protect the applicant from discrimination and to ensure democratic elections constitutes a breach of Article 1 of the Protocol th no 12 of the Convention. In view of the urgency of the judgment, the Court according to Article 46 requires the State to amend the electoral law.

PROVISIONS

Article 1 of the 12th Protocol

Article 46

PRINCIPAL FACTS 

The applicant, Irma Baralija, is a national of Bosnia and Herzegovina who was born in 1984. She lives
in Mostar, one of the largest cities in Bosnia and Herzegovina, and is president of the local branch of
the political party Naša stranka.

In November 2010 the Constitutional Court of Bosnia and Herzegovina declared unconstitutional
certain provisions of the Election Act 2001 regulating elections of city councillors. It found that the
arrangements for voting based on those provisions failed to ensure equal suffrage for the voters of
Mostar, in particular as concerned the boundaries of constituencies and the allocation of councillors
to each constituency. It gave the relevant authorities six months to harmonise the provisions with
the Constitution of Bosnia and Herzegovina.

The judgment has, however, still not been enforced. In 2012 the Constitutional Court adopted a
ruling on the non-enforcement and, as a result, the relevant provisions of the Election Act lost their
legal validity. Local elections for the city council could not therefore be held in Mostar in the last cycles, meaning also that the current mayor of Mostar has only had a “technical mandate” since
2012.

THE DECISION OF THE COURT

The Court decided to apply the settled interpretation it had developed in its case-law on
discrimination, namely that any difference in treatment of people in analogous or relevantly similar
situations was discriminatory if it had no “objective and reasonable justification”.

It was not in dispute that Ms Baralija had the right to vote and stand in elections and that, as a
person residing in Mostar, she had been in an analogous or relevantly similar situation to others
residing elsewhere in Bosnia and Herzegovina. As the difference in treatment in this case was based
on an aspect of personal status within the meaning of the Court’s case-law, in particular the same
legislation was applied differently depending on a person’s residence, the Court found that
Ms Baralija enjoyed the protection offered by Article 1 of Protocol No. 12.

The Court noted the Government’s justification for the delay in implementing the Constitutional
Court’s decision, namely the need to establish a long-term and effective power-sharing mechanism
for the city council, in order to maintain peace and to facilitate dialogue between the different
ethnic groups in Mostar.

However, it could not accept that difficulties in reaching a political agreement to establish such a
mechanism was a sufficient, objective and reasonable justification for a situation where the last local
elections in Mostar had been held in 2008 and the city had been governed since 2012 by a mayor
who only had a “technical mandate” and therefore did not have the required democratic legitimacy.
Such a situation was incompatible with the concepts of “effective political democracy” and “the rule
of law” to which the European Convention referred in its Preamble.

In sum, the Court considered that the State had failed to comply with its duty to take measures to
protect Ms Baralija from discriminatory treatment and to hold democratic elections in Mostar. There
had therefore been a violation of Article 1 of Protocol No. 12 to the Convention.

Binding force and implementation (Article 46)

Bearing in mind the large number of potential applicants and the urgent need to put an end to such
a situation, the Court considered that the State had to amend the Election Act 2001 at the latest
within six months of this judgment becoming final, in order to enable the holding of local elections in
Mostar. Should the State fail to do this, the Court noted that the Constitutional Court had the power
to set up interim arrangements.

Just satisfaction (Article 41)

The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant. It further held that Bosnia and Herzegovina was
to pay the applicant 5,000 euros (EUR) in respect of costs and expenses(echrcaselaw.com).


ECHRCaseLaw

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