Standpoint of the Human Rights Chamber

The Human Rights Chamber was charged with the task to decide on two appeals of persons who had voted via post in the elections for the National Assembly of the RS, which had been organised by the OSCE in November 1997, whose votes – just as the votes of many other citizens – were invalid due to procedural errors. The Provisional Election Commission, by referring to the principle of simultaneous vote referred to in the Election Rules, declared as invalid the votes of voters from abroad which arrived late, although the delay had occurred as the result of the competent service of the OSCE giving wrong information to the respective voters. The Sub-Commission upheld the decision of the Provisional Election Commission. The reasoning stated that, admittedly, it did not concern a serious violation of the principle of free and fair elections as laid down in the GFAP. Nevertheless, the principle of simultaneous vote must be observed, and as a result thereof these votes must be declared invalid, for even if the appellants were not personally at fault for not being able to meet the deadline for casting their votes, factually speaking the deadline was not observed and thus the votes cannot be recognised, and the appellants cannot be an exception in that sense.³⁴⁴⁶

The Human Rights Chamber rejected the request due to the lack of competence ratione personae for review of the OSCE acts in general and in particular for the review of acts within the scope of Annex 3.³⁴⁴⁷ Unlike the allegations of the applicants and ombudsman, the competence of the Human Rights Chamber neither arises from Article IV of the Framework Agreement,³⁴⁴⁸ nor from Article II of Annex 3 of the GFAP.³⁴⁴⁹ The terminology of these regulations, as further stated in the reasoning of the Human Rights Chamber, is largely reminiscent of other sections in Annexes to the GFAP, such as Article I.2 of Annex 10 and Article I.2 of Annex 11 in connection with the role and tasks of the High Representative, that is IPTF, that the contracting parties had entrusted them with.³⁴⁵⁰ “Undoubtedly”, it is not possible to review the acts of the High Representative, or of IPTF from the aspect of achieving their tasks set forth in the GFAP. Otherwise, the very GFAP would have provided for a regulatory framework for such review.³⁴⁵¹ By this analogy, according to the opinion of the Human Rights Chamber, the same applies to Annex 3 and bodies operating within the scope of the mentioned Annex, as well as to their respective legal acts.³⁴⁵² By concluding the GFAP, the contracting parties, with the support of the international community, had set up a series of bodies and institutions that the respective parties should support during the implementation and achievement of the goals of the peace agreement. Under the GFAP, the contracting parties were obliged to implement decisions of the respective bodies and institutions. Therefore, the tasks of the OSCE, under Annex 3, in essence were to conduct the General Elections in Bosnia and Herzegovina, and cannot be reviewed in the scope provided for in Annex 3.³⁴⁵³ According to the standpoint of the Human Rights Chamber, Annex 3 is a closed system in terms of institutions and in respect of all legal acts enacted within the scope of the Annex.³⁴⁵⁴ The disputed acts came into being exclusively as part of the exercise of the competencies of the OSCE, Provisional Election Commission (PEC) and the Election Appeals Sub-Commission (EASC) under Annex 3 to the GFAP, which does not provide for any participation of the defendants (BiH and the RS) in conducting elections, so that the disputed act does not fall within the jurisdiction of the defendants.³⁴⁵⁵ Although the rights of the appellants referred to in Article 3 of the Additional Protocol No. 1 to the ECHR may have been violated, the defendants are not responsible for that, so that the challenged acts are beyond the domain over which, under Articles II and VIII.1 of Annex 6, the Human Rights Chamber has jurisdiction,³⁴⁵⁶ the Human Rights Chamber concluded. This jurisprudence was upheld at a later stage by the Human Rights Chamber in Case No. CH/00/3933-D.

According to the opinion of the Human Rights Chamber, the legal situation changed when the responsibility for conducting elections was re-transferred from Annex 3 to the domestic institutions or, more precisely, to the Permanent Election Commission, after the entry into force of the Bosnia and Herzegovina Election Law. The very fact that the OHR and SFOR, under Article 19.9.a of the Election Law,³⁴⁵⁷ still have the decisive influence when it comes to approving candidates for elections, in the opinion of the Human Rights Chamber, does not absolve Bosnia and Herzegovina from responsibility under Annex 6. The decisive fact is that the Election Commission and the Court of Bosnia and Herzegovina impose a ban for participating in the elections in accordance with the domestic Election Law.³⁴⁵⁸