• No review of judgments of the Election Appeals Sub-Commission

In one more procedure related to Annex 3 (U 41/00) the Serbian Radical Party of the Republika Srpska attempted to challenge its removal and ban from participation in the local elections in April 2000 and in the general elections in November 2000. Besides, this party requested that the general elections be quashed as being unconstitutional. The ban on this party was imposed on the grounds that the appellant, i.e., the very party, had refused to suspend the head of the party (or, to be more precise, the then president of the party Nikola Poplašen).³⁴⁶⁶ According to the opinion of the Provisional Election Commission, the Serbian Radical Party had violated Article 7.35. of the Election Rules, by allowing Poplašen to sign, on behalf of the party, the statement of compliance with the principle of the peace agreement and the Election Rules, which was necessary for the participation in elections, despite the fact that the High Representative had removed Poplašen in March 1999 from the office of the President of the Republika Srpska,³⁴⁶⁷ among other things, on the grounds that he had obstructed the implementation of the election results from 1998. When it comes to the other two party officials, the request of the Provisional Election Commission and the High Representative relied on the decision of the Sub-Commission of 21 September 1998³⁴⁶⁸ by which all persons from the list of the Serbian Radical Party of the Republika Srpska had been banned from participating in the general elections of 1998. Following this removal from the list, Blagojević and Tadić had again conducted themselves inappropriately and encouraged violent actions with the aim to destabilise Bosnia and Herzegovina, as stated thereafter.

After the Provisional Election Commission did not allow them to participate in the elections, the Serbian Radical Party of the Republika Srpska addressed the Sub-Commission, which dismissed their request by its decision of 19 November 1999. The decision read that the decision of the Provisional Election Commission, admittedly, interfered with the individual rights of the appellants, and with the collective rights of the party. Nevertheless, the Sub-Commission may subject the decisions of the Provisional Election Commission to review only to a limited extent, since the Sub-Commission has a subordinate status, its authorisations arise from the authorisations of the Provisional Election Commission and it reports to the Head of the OSCE Mission in BiH. The Sub- Commission further argued that, in view of the aforementioned, it can declare the decision of the Provisional Election Commission null and void only if it violated the law or if it did not have an appropriate legal basis. Yet, in the mentioned case, the Provisional Election Commission still remained within the scope (discretion) it was provided for under Annex 3, and under the Election Rules, as claimed in the decision.

The Serbian Radical Party of the Republika Srpska claimed in the appeal that its rights referred to in Article II.4 (principle of equality), Article II.3(i) (principle of freedom of association) of the Constitution of BiH were violated, as well as the rights referred to in some documents attached to Annex 3 (Copenhagen documents) or, more precisely, the right to candidature to public offices in the general and equal elections without discrimination, the right to found a political party, the right to put forward its candidature as a party against other political parties, and to run its election campaign in a fair and free manner. The appeal was – following a repetitive exchange of reasoning – removed from the list of appeals to be decided on at the plenary session, as the appellant had addressed the Human Rights Chamber earlier.³⁴⁶⁹