André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

As from DATE the applicant held a leading position in a big hospital . From DATE onwards she suffered increasingly from stress and hypertension to the extent that she experienced burnout and was no longer able to work and therefore went on sick leave as from DATE . At this time she also submitted an occupational injury report ( arbetsskadeanmälan ) to ORG ( Försäkringskassan ) in PERSON .

In DATE ORG granted her an early retirement pension on the ground that she had permanently lost her work capacity because she suffered from hypertension and burnout .

In the meantime , on DATE , the applicant filed an application for life annuity ( livränta ) with ORG , claiming that her burnout and hypertension had been directly caused by her work .

In DATE the applicant submitted a medical certificate from her doctor , PERSON , which stated that she suffered from burnout and hypertension and that her work situation had caused or worsened these conditions . However , on DATE , PERSON , one of ORG own medical doctors ( försäkringsläkare ) , made the assessment that the applicant ’s work had involved such a high level of stress that it had worsened her hypertension but that it had not caused it . As concerned the burnout , there was a lack of scientific consensus that burnout could be caused by factors such as those to which the applicant had been exposed at her work .

On DATE ORG informed the applicant that it was considering rejecting her application for life annuity . It sent her a copy of the case - file and asked her to submit any comments she might have . The applicant replied on DATE that she maintained her claims and , in DATE , she submitted a new medical certificate by PERSON In view of these documents , ORG again asked PERSON to assess the applicant ’s condition . PERSON did not alter his assessment .

On DATE ORG rejected the applicant ’s application for life annuity on the ground that her medical problems could not be regarded as work - related . The medical opinion given on DATE by PERSON was attached to the decision .

By letter dated DATE the applicant appealed to ORG ( länsrätten ) of GPE , claiming that she had a right to a life annuity and maintaining that her medical conditions had been caused by her work .

On DATE ORG rejected the applicant ’s appeal . It found , on the basis of several medical opinions including the ones given by PERSON and PERSON , that it had not been established that the working conditions had caused the burnout and the hypertension .

By letter dated DATE the applicant appealed to ORG ( kammarrätten ) of GPE , reiterating her claims already presented before ORG .

The appellate court decided to request an expert opinion which was received by the court on DATE . By decision of CARDINAL DATE , the court granted leave to appeal . Subsequently , in DATE , the applicant , who was now represented by legal counsel , requested that an expert opinion be obtained from a psychiatrist . The court granted the request and ordered that the opinion be submitted no later than DATE . After the court had contacted the psychiatrist , PERSON , on QUANTITY occasions over the phone and once by mail , the opinion was finally submitted on DATE . Both parties were given the opportunity to comment on the expert opinions and each others’ submissions , which they did . Moreover , the applicant requested and was granted an extension of time - limit to submit her comments and further medical certificates on several occasions .

On DATE ORG rejected the appeal , finding that the applicant ’s working conditions had not contained harmful elements of such scale , duration and intensity that they could have caused , with a high level of probability , her hypertension and burnout .

By letter dated DATE the applicant appealed to ORG ( Regeringsrätten ) , reiterating the grounds of appeal already presented before the lower instances .

On DATE ORG refused the applicant leave to appeal .

LAW deals with the civil liability of the ORG . According to LAW of that chapter , acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault of negligence .

An individual who wants to claim compensation from the ORG may proceed in either of CARDINAL different ways : He or she may either petition the Chancellor of Justice ( NORP ) in accordance with LAW on ORG against the ORG ( ORG om handläggning av skadeståndsanspråk mot staten , CARDINAL:CARDINAL ) , or bring a civil action against the ORG before a district court , with the possibility to appeal to a court of appeal and ORG . No appeal lies against a decision of the Chancellor of ORG . However , if the claim is rejected , the claimant still has the possibility to institute civil proceedings before the courts . In such proceedings , the ORG is represented by the Chancellor of ORG ( LAW [ GPE med instruktion för NORP , DATE ] ) .

In a judgment of DATE ( ORG DATE p. CARDINAL ) ORG dealt with a claim for damages brought by an individual against the NORP State , inter alia , on the basis of an alleged violation of LAW . The case concerned the excessive length of the criminal proceedings and ORG held that the plaintiff ’s right under LAW to have the criminal charges against him determined within a reasonable time had been violated . Based on this finding , and with reference , inter alia , to ORG and CARDINAL of the Convention and the ORG ’s case - law under these provisions , in particular the case of GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALXI ) , ORG concluded that the plaintiff was entitled to compensation under NORP law for both pecuniary and non - pecuniary damage . With respect to the level of compensation for non - pecuniary damage , ORG took note of the criteria established in the ORG ’s case - law stating that the ORG ’s practice constituted a natural point of departure in this regard .

In a decision of CARDINAL DATE ( ORG DATE p. CARDINAL ) , ORG held that the principle concerning a right to damages established in the above - mentioned case of DATE also applied with regard to the rights contained in LAW . ORG stated that the plaintiff ’s right to damages on account of a violation of Article CARDINAL should be assessed in the first place under LAW ( Skadeståndslagen , CARDINAL:CARDINAL ) and LAW and Other Coercive Measures ( NORP om ersättning vid frihetsberövanden och andra tvångsåtgärder , CARDINAL:CARDINAL ) . To the extent necessary , the relevant provisions of domestic law should be interpreted in accordance with the LAW . If GPE ’s obligations under LAW could not be met by such an interpretation , the domestic courts should award compensation without the support of specific legal provisions . As concerned the determination of the level of compensation , ORG repeated that the ORG ’s case - law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from CARDINAL country to another in what should be regarded as a reasonable level of compensation .

In a judgment of DATE ( ORG DATE p. CARDINAL ) , ORG held that the plaintiffs’ right to respect for their private life under LAW had been violated on the basis that a police decision on a medical examination of some of them had not been “ in accordance with the law ” . Having found that compensation for the violation could not be awarded directly on the basis of LAW , ORG held that there was no reason to limit the scope of application of the principle established in the above - mentioned cases of DATE and CARDINAL September CARDINAL to violations of Articles CARDINAL and CARDINAL of the LAW . In view of this and with reference to , inter alia , LAW and the ORG ’s case - law under these ORG , ORG concluded that the plaintiffs should be awarded non - pecuniary damages for the violation of LAW . With regard to the levels of compensation , ORG concluded that they should not be too far removed from the levels which applied when awarding damages under LAW . Generally speaking these levels should , however , be compatible with the case - law of the Court . In the same case , ORG had also concluded , in a judgment dated DATE , that there had been a violation of Article CARDINAL and that an award for non - pecuniary damage should be made on the basis of the principle established in the case of DATE .

A further ORG judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) concerned a claim for damages against the NORP State on the basis of an alleged violation of LAW relating to the suicide of the LAW father while in detention . ORG concluded that the case revealed no violation of LAW . However , in its reasoning leading to this conclusion , ORG noted , inter alia , that according to the ORG ’s case - law there was a right to an effective remedy under LAW connected to the ORG ’s duty under the ORG to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty , which should , in principle , include a possibility of obtaining compensation for damage . ORG referred in particular to the judgment in PERSON v. GPE ( no . CARDINAL , § CARDINAL , ECHR CARDINAL ) .

In a judgment of DATE ( NJA DATE N CARDINAL ) , ORG confirmed its previous case - law in a case concerning claims for damages against the NORP State on account of excessive length of tax proceedings . The court affirmed that it is now a general principle of law that to the extent that GPE has a duty to provide redress to victims of Convention violations through a right to compensation for damages , and that this duty can not be fulfilled even by interpreting national tort law in accordance with the LAW fördagskonform tolkning ) , compensation for damages may be ordered without direct support in law .

Lastly , on DATE ORG ordered compensation for non - pecuniary damage to be paid to an applicant for proceedings which had complied neither with the “ reasonable length ” requirement in Article CARDINAL nor the right to an effective remedy in LAW . The proceedings in question had concerned a claim for damages against the ORG .

In DATE the ORG decided to set up a working group on tort liability and the ORG to study the current legal situation . In DATE the working group submitted its report ( PERSON , ORG CARDINAL:CARDINAL ) to the Government . In the report it is proposed that LAW be amended in order to allow natural and legal persons to obtain damages from the ORG or a municipality for violations of the LAW . Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the ORG has been violated . The aim of the proposal is to provide a legal basis for granting non - pecuniary damages arising from disregard of the LAW and to fulfil , together with the other already existing legal remedies , GPE ’s obligations under LAW .

In its comments on the above report ORG , on DATE , stated that , since the autumn of DATE following ORG case - law developments ( as set out above ) , it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention . It estimated that it had dealt with CARDINAL cases over DATE . During this time the Chancellor of ORG had also represented the NORP State in a number of cases before the civil courts concerning alleged violations of the Convention . A majority of the cases that the ORG had dealt with had concerned non - pecuniary damages for excessive length of proceedings under LAW . Since DATE , it had received CARDINAL such complaints and in CARDINAL of them , the Chancellor of ORG had found a violation and granted compensation . The level of compensation for non - pecuniary damage had been determined with reference to the ORG ’s case - law and varied CARDINAL and SEK CARDINAL ( approximately ORG CARDINAL,CARDINAL and LAW ) . Furthermore , the Chancellor of ORG had dealt with a substantial number of cases ( CARDINAL ) concerning the registration of individuals in the register of ORG . These cases had concerned one or more of Articles CARDINAL , CARDINAL , DATE and DATE of the Convention . There had also been other individual cases relating to alleged violations of Articles CARDINAL and CARDINAL of the LAW , among others .


Violation of Art. 7-1 with regard to first law;Violation of Art. 7-1 with regard to second law;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE . At the material time he was the owner and manager of the company AS GPE .

On DATE the GPE police instituted criminal proceedings against the applicant on charges of tax offences under LAW CARDINAL - CARDINAL § CARDINAL of LAW . In the course of the preliminary investigation the applicant was further charged with the offence of inadequate accounting under LAW as well as with falsification of documents .

On DATE the ORG prosecutor approved the bill of indictment , and the case was sent to ORG ( ORG ) for trial . The charges set out in the indictment related to acts and omissions of the applicant in the period from DATE .

In particular , under LAW the acts which were the subject of the charges against the applicant concerned his failures to pay the required taxes , to file by the set deadline revenue statements for DATE , to inform ORG of the change of his company 's location , and to comply with the order of ORG of CARDINAL DATE to pay the required taxes . Under LAW CARDINAL - CARDINAL of LAW the applicant was accused of having unsatisfactorily arranged his company 's bookkeeping , in breach of the legal requirements . The existing records were incomplete and a number of documents had not been preserved , which made it impossible to determine the company 's performance .

By a judgment of CARDINAL DATE ORG convicted the applicant of the offences under LAW and sentenced him to DATE imprisonment . It also found the applicant guilty of the offence under LAW and sentenced him to DATE imprisonment . As the latter sentence was absorbed by the former , the aggregate sentence imposed on the applicant was DATE imprisonment , which was suspended for DATE .

ORG found that the application of Article CARDINAL - CARDINAL § CARDINAL of LAW , which had been in force as from DATE , was justified in the case on the grounds that the applicant 's failure to pay the required taxes had been intentional and continuous and his criminal activity had lasted until DATE . It ordered the applicant to pay the city tax authorities CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP kroons in outstanding taxes . No fine or tax surcharge was imposed apart from the requirement to pay the taxes which were due under the relevant tax laws .

As regards the offence of inadequate accounting under LAW , which was in force as from DATE , ORG noted that the applicant 's company had operated from DATE until DATE . During that period there had been no recording of its economic activity and it was impossible correctly to determine the company 's performance , income , expenditure , profit , loss , debts , solvency or amount of its assets . The applicant had failed to comply with the obligations imposed on him by the PERSON on personal responsibility for the organisation of accounting . The law came into effect on DATE , i.e. at the time of the operation of the company , and the applicant , being its owner and manager , had to comply with the provisions of the law . The applicant also failed to adopt rules and procedures for bookkeeping and to secure the preservation of the relevant documents , as required under the Government decree of DATE concerning the organisation of accounting .

On DATE the applicant filed an appeal against the judgment to ORG ( GPE ) . He argued that in convicting him under Article CARDINAL - CARDINAL § CARDINAL of LAW of acts committed prior to its entry into force on DATE , ORG had applied the criminal law retrospectively . Before that date a conviction of the offences defined in LAW could follow only if the person concerned had been previously subjected to an administrative sanction for a similar offence .

The applicant further submitted that , in making him responsible for the inadequate bookkeeping in his company during the whole period from CARDINAL DATE until DATE , ORG had also applied retroactively Article CARDINAL - CARDINAL of LAW which had only been in force as from DATE .

On DATE ORG upheld the judgment of ORG . It found that the acts with which the applicant was charged under LAW amounted to ongoing crimes . After his first criminal act on DATE the applicant had embarked upon a criminal enterprise which had lasted until DATE , DATE on which ORG discovered the abuses and issued its order . Therefore , ORG had correctly qualified his acts as falling under that law .

It also considered that the ongoing nature of the applicant 's acts relating to inadequate accounting justified his conviction under LAW .

On DATE the applicant lodged an appeal on points of law to ORG ( NORP ) raising the same arguments as in his appeal to ORG .

By a judgment of DATE ORG dismissed his appeal . It held that , according to the principles of NORP criminal law , the law to be applied to a criminal act was the law which had entered into force before the end of a criminal activity . As the applicant 's criminal activity ended on DATE , his actions fell under the law in force at that time , i.e. Article CARDINAL - CARDINAL § CARDINAL of LAW . The same reasons applied to the applicant 's conviction of inadequate accounting under LAW .

The text of Article CARDINAL - CARDINAL of LAW , in force until DATE , was as follows :

“ Concealment of income or other objects of taxation , or evasion of submission of income tax returns :

( CARDINAL ) Concealment of income or other objects of taxation , or submission of knowingly false data in financial statements , tax calculations , income tax returns or other documents relating to the calculation of taxes or payments and their transfer to the budget , or evasion of submission of an income tax return or failure to submit an income tax return on time , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) The same acts , if committed by a person who has a criminal record for a criminal offence prescribed in paragraph ( CARDINAL ) of this article , are punishable by DATE imprisonment . ”

The text of Article CARDINAL - CARDINAL of LAW , in force as from DATE until DATE , was as follows :

“ Evasion of submission of income tax returns or other tax calculations , concealment of income or other objects of taxation , and tax evasion :

( CARDINAL ) Evasion of submission of an income tax return , or failure to submit an income tax return on time , or submission of falsified data therein by a person who is required to submit an income tax return , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation , or failure to submit or failure to submit on time income tax returns , tax calculations , financial statements or other documents relating to the calculation of taxes or payments and their transfer to the budget , or failure to submit or failure to submit on time accounting documents , contracts or other documents necessary for the assessment and verification of the correctness of taxes , or failure to comply with an order of ORG , by a competent official who is required to perform the corresponding duties , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or DATE imprisonment ;

( CARDINAL ) Failure to pay taxes or failure to pay taxes on time , or inadequate compliance or failure to comply with an order issued by ORG for the compulsory collection of taxes by a bank , by a competent official who is required to perform the corresponding duties , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) Incorrect deduction or failure to deduct personal income tax from the wages ( income ) of employees , or failure to transfer deducted payments to the budget in full or in a timely manner , by a competent official who is required to perform the corresponding duties , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) The same acts , if committed by a person who has a criminal record for a criminal offence prescribed in paragraph ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this article are punishable by DATE imprisonment ;

( CARDINAL ) ORG of acts prescribed in paragraph ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this article on a large - scale basis is punishable by DATE imprisonment . ”

The text of Article CARDINAL - CARDINAL of LAW , in force as from CARDINAL DATE , reads as follows :

( CARDINAL ) Evasion of submission of an income tax return , or failure to submit an income tax return on time , or submission of falsified data therein , if such acts are intentionally committed by a person who is required to submit an income tax return , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation , or failure to submit or failure to submit on time income tax returns , tax calculations , financial statements or other documents relating to the calculation of taxes or payments and their transfer to the budget , or failure to submit or failure to submit on time accounting documents , contracts or other documents necessary for the assessment and verification of the correctness of taxes , or failure to comply with an order of ORG , if the specified acts are intentionally committed by a competent official who is required to perform the corresponding duties , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) Failure to pay taxes or failure to pay taxes on time , or inadequate compliance or failure to comply with a precept issued by ORG for the compulsory collection of taxes by a bank , if such acts are intentionally committed by a competent official who is required to perform the corresponding duties , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) Incorrect deduction or failure to deduct personal income tax from the wages ( income ) of employees , or failure to transfer deducted payments to the budget in full or in a timely manner , if such acts are intentionally committed by a competent official who is required to perform the corresponding duties , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) Submission of incorrect data or documents upon compulsory registration on the basis of an LAW concerning a tax , or concealment of one 's residence , place of employment or place of business from a tax authority , or evasion of payment of the taxes provided for in LAW in any other manner , if such acts are intentionally committed by a competent official who is required to perform the corresponding duties or by a natural person , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;

( CARDINAL ) The same acts , if committed by a person who has a criminal record for a criminal offence prescribed in paragraph ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this article are punishable by DATE imprisonment ;

( CARDINAL ) ORG of acts prescribed in paragraph ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this article on a large - scale basis is punishable by DATE imprisonment . ”

Article CARDINAL of LAW , in force as from DATE , provides as follows :

“ Inadequate organisation of accounting :

Violation of the requirements provided for in legislation regulating accounting or reporting concerning the economic activities , including the commercial or financial activities , or assets of an economic unit , if such violation renders it impossible to correctly ascertain the economic performance , income , expenditure , profit , loss , debts , solvency or amount of assets of the economic unit , is punishable by a fine or deprivation of the right of employment in a particular position or operation in a particular area of activity , or DATE imprisonment . ”

According to the practice of ORG , if a non - payment of taxes is intentional and continuous the latest version of Article CARDINAL - CARDINAL is applicable to acts which occurred prior to its entry into force provided that part of the criminal activity took place after the critical date . Criminal liability arises on CARDINAL alternative , not cumulative , grounds : ( CARDINAL ) if a person has committed the offence intentionally or ( CARDINAL ) if a person has previously been subjected to administrative punishment for the same offence . Article CARDINAL - CARDINAL § CARDINAL does not contain a separate offence , but it only qualifies the elements listed in § § DATE . Thus , a person may be convicted under Article CARDINAL - CARDINAL § CARDINAL only if his acts encompass the elements of the offences set out in § § DATE . ( ORG of ORG of DATE , PERSON DATE , CARDINAL , CARDINAL ; and decision of CARDINAL DATE , PERSON DATE , CARDINAL , ORG ) .

ORG has also considered that a constant and continuous violation of the obligation to declare one 's sources of income and to pay the required taxes created a persisting criminal state ( Decision of the Criminal Division of ORG of DATE , case no . CARDINAL ) .

ORG has upheld an accused 's conviction under LAW concerning inadequate organisation of accounting DATE and DATE ( Decision of ORG of ORG of DATE , case no . CARDINAL ) .


Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in NORP Town , GPE . He was represented before the ORG by Mr R Posner , a lawyer practising in GPE with ORG .

On DATE , the applicant and another man , B , were stopped and arrested in a car that the applicant was driving . B was sitting in the front passenger seat when the car was stopped . The car was searched and , under the front passenger seat , under a flap in the carpet , a package containing heroin was discovered . The men were taken by police van to a police station and charged . The following day , a metal smoking pipe was found by a police officer , Special Constable M , in the police van , in the cubicle where B had been sitting . She also stated that she had heard a metal “ clang ” in the van when the men were being taken to the police station . The pipe was found to contain traces of cocaine .

Each man blamed the other for placing the package in the car and denied all knowledge of it . At trial , a police officer , Police Constable W , gave evidence that , on the basis of a test he had conducted , it would have been impossible for someone sitting in the front passenger seat to place the package where it had been discovered . He had also tried the seat in different positions . On this basis , B was acquitted by the judge . The jury was discharged and a re - trial ordered in respect of the applicant .

At the applicant ’s re - trial , PC W gave evidence and Special Constable M ’s statement as to the pipe was read to the jury . The applicant was convicted but , on appeal , his conviction was quashed on the basis of fresh expert evidence , which showed it would have been possible for a man of B ’s build , sitting in the passenger seat , to place the package . ORG , in quashing the conviction , ordered a second re - trial .

At the second re - trial , PC W appeared to give different evidence to the effect that he did not move the seat to different positions . He was not cross - examined by the applicant on this inconsistency with his previous testimony because , for tactical reasons , the defence did not wish the jury to know about the previous trials . Special Constable M ’s statement was not read at this trial . The applicant did not give evidence in his own defence . In his summing up , the trial judge erroneously directed the jury that the pipe had been found in the car and contained traces of heroin , not cocaine . He nonetheless observed : “ you [ the jury ] may think that really nothing turns on the pipe in this case . It does not add or subtract to the case one way or another ” .

The applicant was convicted and appealed . On appeal , he argued that : ( i ) had the trial judge been aware of Special Constable M ’s statement he would have directed the jury differently and the applicant would have been able to argue more strongly that B was a drug user , and was thus more likely to have placed the package ; ( ii ) PC W ’s change in evidence was highly material but , because of a tactical decision not to refer to the previous trials , he had been deprived of the ability to cross - examine him . The applicant also submitted that , since PC W ’s evidence had led to the discharge of B , it also deprived the applicant of the opportunity to cross - examine B. This deprived the applicant of the opportunity to put to B the allegation that the heroin belonged to him and that the applicant knew nothing about it .

ORG dismissed the appeal on DATE ( [ DATE ] EWCA Crim CARDINAL ) . It gave the following reasons for its decision ( at paragraphs CARDINAL–CARDINAL of the judgment :

“ ... The question is whether the conviction of the applicant at the third trial is unsafe . Is it unsafe by reason of any material irregularity in the procedure or by any misdirection of law by the judge ? The answer to each must be no .

We deal first with the fact that the evidence of [ Special Constable M ] was not adduced at the third trial . It is clear that this evidence had been adduced at the previous trial . It must have been clear to the applicant that it existed . We think that those who were advising the applicant must have realised of its existence . It is referred to , after all , at the front of the transcript of the summing up of the judge in the second trial . We find it difficult ( if not impossible ) to conclude that its existence was not known to the applicant and the defence team at the time of the third trial .

But , in any event , the evidence about the noise in the police van and finding the pipe in Mr [ B ’s ] cubicle in the van adds either nothing or very little to the case . The pipe was , as the judge said , of no consequence . It contained traces of cocaine , not heroin . The judge was mistaken when he referred to heroin in his summing up . The pipe is an irrelevance . It does not follow , in our view , that because Mr [ B ] dropped the pipe in the van , therefore he and he alone was concerned with the Class A drugs that were found in the car . We do not accept that [ Special Constable M ’s ] evidence would or might have materially affected the minds of the jury as concerns the guilt of the applicant .

Secondly , the error of the judge , if such it were , that the pipe had been found in the FAC car , is also an irrelevance . The pipe had nothing to do with the case against the applicant , as the judge made clear in his summing up . If anything , the remark of the judge about the pipe was helpful to the applicant ’s case on the third trial .

Thirdly , the fact that PC [ W ] had changed his evidence from that given at the first CARDINAL trials and that he now agreed with the experts was , on the face of it , highly favourable to the applicant . The effect was that the CARDINAL experts and PC [ W ] all agreed that it was possible for the heroin to be placed under the carpet under the front passenger seat by a person of PERSON [ B ’s ] height and build . It was easier when the seat was in the rear position , but could even have been done with the seat in a more forward position . That evidence all assisted the applicant ’s case that it was PERSON [ B ] who had the heroin and it was he who hid it under the carpet when the police arrived .

We are unable to see how it could have helped to cross examine PC [ W ] on his previous evidence when the evidence that he gave at the third trial was so much more favourable to the applicant ’s case . We do not accept the argument that if ORG [ which heard the first appeal against conviction and ordered the second re - trial ] had thought that the evidence of PC [ W ] was incorrect , then there would have been no retrial . The fact is that on the appeal the ORG knew that there was a possibility of discrepancy with his earlier evidence because they had received , and regarded as entirely credible , the evidence of the experts about how it was possible to get underneath the seat in whichever position it might be . Despite this potential discrepancy , and therefore the challenge effectively to PC [ W ’s ] version of the facts , ORG was still prepared to order a second retrial .

Accordingly , we have concluded that none of the points raised are capable of demonstrating even an arguable case that this conviction was unsafe . ”

In GPE and GPE a witness is competent if he may lawfully give evidence and compellable if he may lawfully be required to give evidence . Competent witnesses are usually but not necessarily compellable ( [ DATE ] ORG ’s Criminal Pleading , Evidence and Practice at DATE ) .

The test for competence is set out in section CARDINAL of ORG and Criminal Evidence Act DATE , which , where relevant , provides :

“ ( CARDINAL ) At every stage in criminal proceedings all persons are ( whatever their age ) competent to give evidence .

( CARDINAL ) Subsection ( CARDINAL ) has effect subject to subsections ( CARDINAL ) and ( CARDINAL ) .

( CARDINAL ) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—

( a ) understand questions put to him as a witness , and

( b ) give answers to them which can be understood .

( CARDINAL ) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution ( whether he is the only person , or is CARDINAL of CARDINAL or more persons , charged in the proceedings ) .

( CARDINAL ) In subsection ( CARDINAL ) the reference to a person charged in criminal proceedings does not include a person who is not , or is no longer , liable to be convicted of any offence in the proceedings ( whether as a result of pleading guilty or for any other reason ) . ”

The effect of subsections ( CARDINAL ) and ( CARDINAL ) is that a co - accused may only give evidence for the prosecution if he ceases to be a co - accused , for example when he has been acquitted .

In addition , under section CARDINAL(CARDINAL ) of LAW DATE , a person charged in criminal proceedings shall not be called as a witness “ except upon his own application ” . Therefore , a co - accused can only become a competent and compellable witness for any other co - accused once he or she ceases to be a person charged , for example because he or she pleads guilty or is acquitted .


CASE OF SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA

Violation of Art. 14+P1-3;Violation of P12-1;Remainder inadmissible;Non-pecuniary damage - finding of a violation sufficient

Christos Rozakis;Egbert Myjer;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Ledi Bianku;Luis López Guerra;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen

The LAW of GPE ( hereinafter referred to as “ the LAW ” or “ LAW ” when it is necessary to distinguish it from ORG ) is an annex to the DATE LAW in GPE ( “ LAW ” ) , initialled at GPE on DATE and signed in GPE on DATE . Since it was part of a peace treaty , the LAW was drafted and adopted without the application of procedures which could have provided democratic legitimacy . It constitutes the unique case of a constitution which was never officially published in the official languages of the country concerned but was agreed and published in a foreign language , LANGUAGE . LAW confirmed the continuation of the legal existence of GPE as a ORG , while modifying its internal structure . In accordance with the LAW , GPE consists of CARDINAL Entities : ORG and PERSON . LAW failed to resolve ORG in the GPE area , but the parties agreed to a binding arbitration in this regard ( Article V of FAC to LAW ) . Pursuant to an arbitral award of DATE , PERSON has been created under the exclusive sovereignty of the ORG .

In the Preamble to the LAW , ORG , NORP and NORP are described as “ constituent peoples ” . At the ORG level , power - sharing arrangements were introduced , making it impossible to adopt decisions against the will of the representatives of any “ constituent people ” , including a vital interest veto , an Entity veto , a bicameral system ( with ORG composed of CARDINAL Bosniacs and the same number of NORP from ORG and CARDINAL NORP from ORG ) as well as a collective Presidency of CARDINAL members with a PERSON and a NORP from ORG and a NORP from PERSON ( for more details , see paragraphs CARDINAL and CARDINAL below ) .

The applicants were born in DATE and DATE respectively . They have held and still hold prominent public positions . PERSON is now ORG Mission to Bosnia and Herzegovina , having previously served as a member of ORG ( the highest representative body of the local ORG ) and a member of ORG ( a joint body comprising representatives of the local ORG and of the relevant ministries ) . PERSON is now serving as the Ambassador of GPE to GPE , having previously held positions that included being the President of ORG of Bosnia and GPE and the Head of ORG .

The applicants describe themselves to be of GPE and NORP origin respectively . Since they do not declare affiliation with any of the “ constituent peoples ” , they are ineligible to stand for election to ORG ( the second chamber of ORG ) and the Presidency ( the collective Head of ORG ) . PERSON obtained official confirmation in this regard on DATE .

LAW , initialled at FAC near GPE ( GPE ) on DATE and signed in GPE ( GPE ) on DATE , was the culmination of DATE of intermittent negotiations under the auspices of ORG on the former GPE and ORG . It entered into force on the latter date and contains CARDINAL annexes .

The LAW makes a distinction between “ constituent peoples ” ( persons who declare affiliation with ORG , NORP and NORP ) and “ others ” ( members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage , mixed parenthood , or other reasons ) . In the former GPE , a person ’s ethnic affiliation was decided solely by that person , through a system of self - classification . Thus , no objective criteria , such as knowledge of a certain language or belonging to a specific religion were required . There was also no requirement of acceptance by other members of the ethnic group in question . The LAW contains no provisions regarding the determination of one ’s ethnicity : it appears that it was assumed that the traditional self - classification would suffice .

NORP Only persons declaring affiliation with a “ constituent people ” are entitled to run for ORG ( the second chamber of ORG ) and the Presidency ( the collective Head of ORG ) . The following are the relevant provisions of the LAW :

“ ORG shall have CARDINAL chambers : ORG and ORG .

House of NORP . ORG shall comprise CARDINAL delegates , CARDINAL from the Federation ( including CARDINAL NORP and QUANTITY Bosniacs ) and CARDINAL from ORG ( CARDINAL NORP ) .

( a ) The designated NORP and PERSON delegates from the GPE shall be selected respectively by the NORP and PERSON delegates to ORG Delegates from the Republika Srpska shall be selected by ORG .

( b ) Nine members of ORG shall comprise a quorum , provided that CARDINAL PERSON , CARDINAL NORP , and CARDINAL NORP delegates are present .

House of Representatives . ORG shall comprise CARDINAL members , CARDINAL elected from the territory of the Federation , CARDINAL from the territory of ORG .

( a ) Members of ORG shall be directly elected from their Entity in accordance with an election law to be adopted by ORG . The first election , however , shall take place in accordance with LAW to ORG .

( b ) A majority of all members elected to ORG shall comprise a quorum .

Procedures .

( a ) Each chamber shall be convened in GPE not more than DATE after its selection or election .

( b ) Each chamber shall by majority vote adopt its internal rules and select from its members CARDINAL NORP , one PERSON , and CARDINAL NORP to serve as its Chair and Deputy PERSON , with the position of Chair rotating among the CARDINAL persons selected .

( c ) All legislation shall require the approval of both chambers .

( d ) All decisions in both chambers shall be by majority of those present and voting . The delegates and members shall make their best efforts to see that the majority includes CARDINAL of the votes of delegates or members from the territory of each Entity . If a majority vote does not include CARDINAL of the votes of delegates or members from the territory of each Entity , the chair and deputy chairs shall meet as a commission and attempt to obtain approval within DATE of the vote . If those efforts fail , decisions shall be taken by a majority of those present and voting , provided that the dissenting votes do not include CARDINAL or more of the delegates or members elected from either Entity .

( e ) A proposed decision of ORG may be declared to be destructive of a vital interest of the PERSON , NORP , or NORP people by a majority of , as appropriate , the PERSON , NORP , or NORP delegates selected in accordance with paragraph l ( a ) above . Such a proposed decision shall require for approval in ORG a majority of the PERSON , of the NORP , and of the NORP delegates present and voting .

( f ) When a majority of the PERSON , of the NORP , or of the NORP delegates objects to the invocation of paragraph ( e ) , the chair of ORG shall immediately convene a joint commission comprising CARDINAL delegates , CARDINAL each selected by the PERSON , by the NORP , and by the NORP delegates , to resolve the issue . If the commission fails to do so within DATE , the matter will be referred to ORG , which shall in an expedited process review it for procedural regularity .

( g ) ORG may be dissolved by the Presidency or by the ORG itself , provided that the ORG ’s decision to dissolve is approved by a majority that includes the majority of delegates from CARDINAL of the PERSON , NORP , or NORP peoples . ORG elected in the first elections after the entry into force of this LAW may not , however , be dissolved .

( h ) Decisions of the Parliamentary Assembly shall not take effect before publication .

( i ) Both chambers shall publish a complete record of their deliberations and shall , save in exceptional circumstances in accordance with their rules , deliberate publicly .

( j ) Delegates and members shall not be held criminally or civilly liable for any acts carried out within the scope of their duties in ORG .

Powers . ORG shall have responsibility for :

( a ) Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the ORG under LAW .

( b ) Deciding upon the sources and amounts of revenues for the operations of the institutions of GPE and international obligations of GPE .

( c ) Approving a budget for the institutions of GPE .

( d ) Deciding whether to consent to the ratification of treaties .

( e ) Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the ORG . ”

“ The Presidency of GPE and GPE shall consist of QUANTITY members : CARDINAL PERSON and CARDINAL NORP , each directly elected from the territory of the GPE , and CARDINAL NORP directly elected from the territory of ORG .

Election and Term .

( a ) Members of the Presidency shall be directly elected in each Entity ( with each voter voting to fill CARDINAL seat on the Presidency ) in accordance with an election law adopted by ORG . The first election , however , shall take place in accordance with LAW to ORG . Any vacancy in the Presidency shall be filled from the relevant Entity in accordance with a law to be adopted by ORG .

( b ) The term of the members of the Presidency elected in the first election shall be DATE ; the term of members subsequently elected shall be DATE . Members shall be eligible to succeed themselves once and shall thereafter be ineligible for DATE .

Procedures .

( a ) The Presidency shall determine its own rules of procedure , which shall provide for adequate notice of all meetings of the Presidency .

( b ) The members of the Presidency shall appoint from their members a chair . For the first term of the Presidency , the chair shall be the member who received the highest number of votes . Thereafter , the method of selecting the chair , by rotation or otherwise , shall be determined by ORG , subject to LAW .

( c ) The Presidency shall endeavour to adopt all Presidency decisions ( i.e. those concerning matters arising under LAW ( a)-(e ) ) by consensus . Such decisions may , subject to paragraph ( d ) below , nevertheless be adopted by CARDINAL members when all efforts to reach consensus have failed .

( d ) A dissenting member of the Presidency may declare a Presidency decision to be destructive of a vital interest of the Entity from the territory from which he was elected , provided that he does so within DATE of its adoption . Such a decision shall be referred immediately to ORG , if the declaration was made by the member from that territory ; to the PERSON delegates of ORG , if the declaration was made by the PERSON member ; or to the NORP delegates of that body , if the declaration was made by the NORP member . If the declaration is confirmed by CARDINAL vote of those persons within DATE of the referral , the challenged Presidency decision shall not take effect .

Powers . The Presidency shall have responsibility for :

( a ) ORG the foreign policy of GPE .

( b ) Appointing ambassadors and other international representatives of GPE , CARDINAL of whom may be selected from the territory of ORG .

( c ) Representing GPE in international and NORP organisations and institutions and seeking membership in such organisations and institutions of which GPE is not a member .

( d ) Negotiating , denouncing , and , with the consent of ORG , ratifying treaties of GPE .

( e ) Executing decisions of ORG .

( f ) Proposing , upon the recommendation of ORG , an annual budget to ORG .

( g ) Reporting as requested , but not less than DATE , to ORG on expenditures by the Presidency .

( h ) Coordinating as necessary with international and non - governmental organisations in GPE .

( i ) Performing such other functions as may be necessary to carry out its duties , as may be assigned to it by ORG , or as may be agreed by the ORG . ”

The constitutional arrangements contested in the present case were not included in the Agreed Basic Principles which constituted the basic outline for what the future ORG would contain ( see paragraphs CARDINAL and CARDINAL of the Further Agreed Basic Principles of CARDINAL DATE ) . Reportedly , the international mediators reluctantly accepted these arrangements at a later stage because of strong demands to this effect from some of the parties to the conflict ( see PERSON , Achieving Peace or Protecting Human Rights ? Conflicts between Norms Regarding Ethnic Discrimination in ORG , PERSON , DATE , p. CARDINAL , and O’Brien , ORG in GPE : Durable Cease - Fire , Permanent Negotiation , in NORP and ORG ( eds ) , Peace versus ORG : Negotiating Forward- and ORG , ORG , DATE , p. CARDINAL ) .

Fully aware that these arrangements were most probably conflicting with human rights , the international mediators considered it to be especially important to make the LAW a dynamic instrument and provide for their possible phasing out . LAW § CARDINAL of the LAW was therefore inserted ( see PERSON , cited above , p. CARDINAL ) . It reads as follows :

“ The rights and freedoms set forth in LAW and its Protocols shall apply directly in GPE . These shall have priority over all other law . ”

While ORG , in decisions ORG . U CARDINAL/CARDINAL of DATE and CARDINAL of CARDINAL DATE , held that LAW did not have priority over LAW , it came to a different conclusion in decision no . ORG CARDINAL of DATE . In the latter decision , it examined a discrimination complaint concerning the appellant ’s ineligibility to stand for election to the Presidency on the ground of his ethnic origin ( a PERSON from ORG ) and rejected it on the merits . The relevant part of the majority opinion reads as follows ( the translation has been provided by ORG ) :

“ CARDINAL . The appellants argue that their rights have been violated , taking into account the fact that LAW stipulates that the rights and freedoms set forth in LAW and its Protocols shall apply directly in GPE and that they shall have priority over all other law . Therefore , the appellants are of the opinion that the candidacy of ORG for a member of the Presidency of GPE was rejected exclusively based on his national / ethnic origin in which they see a violation of LAW No . CARDINAL to ORG which guarantees that the enjoyment of any right set forth by law shall be secured without discrimination and that no one shall be discriminated against by any public authority on any ground including the national / ethnic origin .

There is no dispute that the provision of LAW , as well as the provision of LAW have a restrictive character in a way that they restrict the rights of citizens with respect to the candidacy of ORG and NORP from the territory of ORG and the NORP from the territory of ORG to stand for election as members of the Presidency of GPE . However , the purpose of those provisions is strengthening of the position of constituent peoples in order to secure that the Presidency is composed of the representatives from amongst these CARDINAL constituent peoples . Taking into account the current situation in GPE , the restriction imposed by LAW , which exist with respect to the appellants’ rights in terms of differential treatment of the appellant ’s candidacy in relation to the candidacy of other candidates who are NORP and are directly elected from the territory of ORG , is justified at this moment , since there is a reasonable justification for such treatment . Therefore , given the current situation in GPE and GPE and specific nature of its constitutional order as well as bearing in mind the current constitutional and law arrangements , the challenged decisions of ORG and ORG did not violate the appellants’ rights under LAW No . CARDINAL to LAW and Article CARDINAL of LAW since the mentioned decisions are not arbitrary and are based on the law . It means that they serve a legitimate aim , that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants’ rights are proportional to the objectives of general community in terms of preservation of the established peace , continuation of dialogue , and consequently creation of conditions for amending the mentioned provisions of LAW . ”

As regards amendments to the LAW , its LAW provides as follows :

“ CARDINAL . Amendment procedure . This LAW may be amended by a decision of ORG , including a CARDINAL majority of those present and voting in ORG .

Human Rights and Fundamental Freedoms . No amendment to this LAW may eliminate or diminish any of the rights and freedoms referred to in LAW or alter the present paragraph . ”

On DATE ORG successfully amended the LAW for the first time , in accordance with the above procedure . The amendment at issue concerned the status of GPE .

The Agreement on Civilian Implementation outlines the mandate of the High Representative – the international administrator for GPE , established with the authorisation of ORG by an informal group of ORG actively involved in the peace process ( called ORG ) as an enforcement measure under LAW ( see ORG CARDINAL of DATE ) .

It is well known that ORG powers are extensive ( see PERSON and Others v. GPE ( dec . ) , nos . CARDINAL and others , DATE ) . On numerous occasions , he has imposed ordinary legislation and has amended ORG ( the Entity Constitutions , as opposed to LAW , are not part of LAW ) . Whether the High Representative ’s powers also cover LAW is , however , less clear . LAW is silent on this matter , but an episode concerning a typing error in LAW would suggest a negative answer . DATE after the entry into force of ORG , some of the international lawyers who had been present during the GPE negotiations realised that a reference in LAW ) was wrong ( the reference to LAW ( a)-(e ) was meant to have been a reference to LAW . In DATE the High Representative , PERSON , wrote a letter to the Secretary of ORG of GPE , Mr PERSON , and proposed to correct the error by invoking PERSON CARDINAL to LAW . Mr PERSON considered that Mr PERSON ’s authority under PERSON CARDINAL did not extend to LAW ( see the text of their correspondence in PERSON , cited above , pp . DATE ) . Shortly thereafter , the error was corrected without any formal decision : the High Representative simply informed the Presidency of GPE and published a corrected version of LAW . What is relevant to the present case is that the official position of ORG has ever since been that LAW is beyond their reach . The speech by PERSON , in his capacity as High Representative , to ORG confirms this ( see the ORG from the CARDINALth Plenary Session of ORG , ORG - PV(CARDINAL)CARDINAL of CARDINAL November CARDINAL , p. CARDINAL ) . The relevant part of his speech reads as follows :

“ If GPE wishes to join the [ ORG ] and ORG it will need a fully functioning ORG and nothing less . GPE and GPE political leaders are already beginning to realise that they face a choice : to maintain the current constitution and pay the economic , social and political consequences , or make the constitutional changes required to make GPE and GPE a stable , functional and prosperous country within ORG .

I do not believe that the people of GPE will accept that their constitution should be a barrier to their security and prosperity .

However , we can not remove that barrier for them .

It has consistently been the view of [ the ] ORG and successive ORG , including me , that , provided the Parties observe GPE – and there remains a question mark on this in respect of PERSON compliance with GPE , then LAW should be changed only by the prescribed procedures by ORG of GPE and not by ORG . In other words , that , provided GPE is observed , the powers of the High Representative begin and end with the GPE texts , and that any alteration to the LAW enshrined therein is a matter for the people of GPE and their elected representatives to consider . ”

LAW ( published in Official Gazette of GPE and GPE no . QUANTITY of DATE , amendments published in ORG nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) entered into force on DATE . The relevant provisions of this Act provide :

“ Each citizen of GPE who has attained CARDINAL ( DATE of age shall have the right to vote and to be elected pursuant to this law . ”

“ In order to be certified for the elections , an independent candidate must present to ORG his or her application for participation in the elections , which is to contain at least :

ORG CARDINAL ) signatures of registered voters for elections for members of the Presidency of GPE and GPE ; ... ”

“ The list of candidates shall contain the name and surname of every candidate on the list , their personal identification number ( JMBG number ) , permanent residence address , declared affiliation with a particular ‘ constituent people’ or the group of ‘ others’ , valid ORG card number and place of issue , as well as a signature of the president of the political party or presidents of the political parties in the coalition . Each candidate ’s declaration of acceptance of candidacy , a statement confirming the absence of impediments referred to in section CARDINAL.CARDINAL(CARDINAL)(CARDINAL ) of this LAW and a statement indicating his or her property situation referred to in section CARDINAL of this Act shall be attached to the list . The declaration and statements must be duly certified .

The declaration of affiliation with a particular ‘ constituent people’ or the group of ‘ others’ referred to in the paragraph [ immediately ] above shall be used for purposes of the exercise of the right to hold an elected or appointed position for which such declaration is required in the election cycle for which the list has been submitted .

A candidate shall be entitled not to declare his or her affiliation to a ‘ constituent people’ or the group of ‘ others’ . However , any such failure to declare affiliation shall be considered as a waiver of the right to hold an elected or appointed position for which such declaration is required . ”

“ The members of the Presidency of GPE who are directly elected from the territory of ORG one PERSON and CARDINAL NORP , shall be elected by voters registered to vote in ORG . A voter registered to vote in ORG may vote for either the PERSON or NORP member of the Presidency , but not for both . The PERSON and NORP member who receives the highest number of votes among candidates from the same constituent people shall be elected .

The member of the Presidency of GPE who is directly elected from the territory of GPE DATE a NORP – shall be elected by voters registered to vote in ORG . The candidate who receives the highest number of votes shall be elected .

The mandate for the members of the Presidency of GPE shall be CARDINAL ( DATE . ”

“ NORP and PERSON delegates from ORG to ORG and GPE shall be elected by the NORP and PERSON caucus , as appropriate , in ORG .

NORP and PERSON delegates to ORG GPE shall elect delegates from their respective constituent people .

NORP delegates and delegates of the ‘ others’ to ORG and GPE shall not participate in the process of electing PERSON and NORP delegates for ORG from ORG .

Delegates from ORG ( CARDINAL NORP ) to ORG and GPE shall be elected by ORG .

PERSON and NORP delegates and delegates of the ‘ others’ to ORG of the Republika Srpska shall participate in the process of electing delegates from ORG to ORG . ”

“ PERSON or NORP delegates to ORG and GPE shall be elected in such a way that each political entity participating in the PERSON or NORP caucus or each delegate from the PERSON or the NORP caucus in ORG , shall have the right to nominate CARDINAL or more candidates to the list for the election of PERSON or NORP delegates to ORG .

Each list may include more candidates than the number of delegates to be elected to ORG . ”

“ Election of delegates from ORG to ORG and GPE shall be conducted in such a way that each political party or each delegate to ORG of the Republika Srpska shall have the right to nominate one or more candidates to the list for the election of NORP delegates to ORG .

LAW , adopted under the auspices of ORG on DATE , entered into force in respect of GPE on DATE . The relevant part of its LAW provides :

“ In this Convention , the term ‘ racial discrimination’ shall mean any distinction , exclusion , restriction or preference based on race , colour , descent , or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise , on an equal footing , of human rights and fundamental freedoms in the political , economic , social , cultural or any other field of public life . ”

The relevant parts of LAW read as follows :

“ In compliance with the fundamental obligations laid down in LAW undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone , without distinction as to race , colour , or national or ethnic origin , to equality before the law , notably in the enjoyment of the following rights :

( c ) Political rights , in particular the right to participate in elections DATE to vote and to stand for DATE on the basis of universal and equal suffrage , to take part in the government as well as in the conduct of public affairs at any level and to have equal access to public service ;

The Concluding Observations on GPE of ORG , the body of independent experts set up to monitor the implementation of this treaty , read , in the relevant part , as follows ( document CERD / C / BIH / CO/CARDINAL of DATE , paragraph CARDINAL ) :

“ The ORG is deeply concerned that under ORG and V of LAW , only persons belonging to a group considered by law to be CARDINAL of GPE ‘ constituent peoples’ ( NORP , NORP , and NORP ) , which group also constitutes the dominant majority within the Entity in which the person resides ( e.g. PERSON and NORP within ORG , and NORP within ORG ) , can be elected to ORG and to the tripartite Presidency of GPE . The existing legal structure therefore excludes from ORG and the Presidency all persons who are referred to as ‘ Others’ , that is persons belonging to national minorities or ethnic groups other than NORP , NORP , or NORP . Although the tripartite structure of ORG principal political institutions may have been justified , or even initially necessary to establish peace following the armed conflict within the territory of ORG , the ORG notes that legal distinctions that favour and grant special privileges and preferences to certain ethnic groups are not compatible with Articles CARDINAL and CARDINAL ( c ) of the Convention . The ORG further notes that this is especially true when the exigency for which the special privileges and preferences were undertaken has abated . ( Articles CARDINAL ( CARDINAL ) and CARDINAL ( c ) ) .

The ORG urges ORG to proceed with amending the relevant provisions of LAW and LAW , with a view to ensuring the equal enjoyment of the right to vote and to stand for election by all citizens irrespective of ethnicity . ”

LAW , adopted under the auspices of ORG on DATE , entered into force in respect of GPE on DATE . The following are its relevant provisions :

“ ORG to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present LAW , without distinction of any kind , such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . ”

“ Every citizen shall have the right and the opportunity , without any of the distinctions mentioned in LAW and without unreasonable restrictions :

( a ) To take part in the conduct of public affairs , directly or through freely chosen representatives ;

( b ) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot , guaranteeing the free expression of the will of the electors ;

( c ) To have access , on general terms of equality , to public service in his country . ”

“ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law . In this respect , the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . ”

The Concluding Observations on GPE of ORG , the body of independent experts set up to monitor the implementation of this treaty , read , in the relevant part , as follows ( document LAW of DATE , paragraph CARDINAL) :

“ The ORG is concerned that after the rejection of the relevant constitutional amendment on DATE , LAW continue to exclude ‘ Others’ , i.e. persons not belonging to CARDINAL of ORG ‘ constituent peoples’ ( NORP , NORP and NORP ) , from being elected to ORG and to the tripartite Presidency of GPE . ( Articles CARDINAL , DATE and DATE ) .

ORG should reopen talks on the constitutional reform in a transparent process and on a wide participatory basis , including all stakeholders , with a view to adopting an electoral system that guarantees equal enjoyment of the rights under LAW to all citizens irrespective of ethnicity . ”

NORP In becoming a member of ORG DATE , GPE undertook to “ review within DATE , with the assistance of ORG ) , the electoral legislation in the light of ORG , and to revise it where necessary ” ( see Opinion CARDINAL(CARDINAL ) of ORG of ORG of DATE , paragraph CARDINAL(iv)(b ) ) . Thereafter , ORG of ORG has periodically reminded GPE of this post - accession obligation and urged it to adopt a new constitution before DATE with a view to replacing “ the mechanisms of ethnic representation by representation based on the civic principle , notably by ending the constitutional discrimination against ‘ Others’ ” ( see Resolution CARDINAL ( DATE ) of DATE , paragraph CARDINAL ; Resolution CARDINAL ( DATE ) of DATE , paragraph CARDINAL ; and LAW ( DATE ) of DATE , paragraph CARDINAL) .

ORG , ORG advisory body on constitutional matters , adopted a number of Opinions in this connection .

The Opinion on the constitutional situation in GPE and the powers of ORG ( document LAW of DATE ) reads , in the relevant part , as follows :

“ CARDINAL . On DATE ORG of ORG adopted Resolution CARDINAL on ‘ Strengthening of democratic institutions in GPE and GPE . LAW of the ORG asks ORG to examine several constitutional issues in GPE and GPE .

GPE is a country in transition facing severe economic problems and desiring to take part in NORP integration . The country will only be able to cope with the numerous challenges resulting from this situation if there is a strong and effective government . The constitutional rules on the functioning of the State organs are however not designed to produce strong government but to prevent the majority from taking decisions adversely affecting other groups . It is understandable that in a post - conflict situation there was ( and is ) insufficient trust between ethnic groups to allow government on the basis of the majoritarian principle alone . In such a situation specific safeguards have to be found which ensure that all major groups , in GPE the constituent peoples , can accept the constitutional rules and feel protected by them . As a consequence the GPE LAW ensures the protection of the interests of the constituent peoples not only through territorial arrangements reflecting their interests but also through the composition of the State organs and the rules on their functioning . In such a situation , a balance has indeed to be struck between the need to protect the interests of all constituent peoples on the one hand and the need for effective government on the other . However , in the GPE , there are many provisions ensuring the protection of the interests of the constituent peoples , inter alia : the vital interest veto in ORG , the CARDINAL - chamber system and the collective Presidency on an ethnic basis . The combined effect of these provisions makes effective government extremely difficult , if not impossible . Hitherto the system has more or less functioned due to the paramount role of ORG . This role is however not sustainable .

The vital interest veto

The most important mechanism ensuring that no decisions are taken against the interest of any constituent people is the vital interest veto . If the majority of the PERSON , NORP or NORP delegates in ORG declare that a proposed decision of ORG is destructive to a vital interest of their people , the majority of PERSON , NORP and NORP delegates have to vote for the decision for it to be adopted . The majority of delegates from another people may object to the invocation of the clause . In this case a conciliation procedure is foreseen and ultimately a decision is taken by ORG as to the procedural regularity of the invocation . It is noteworthy that the LAW does not define the notion of vital interest veto , contrary to ORG which provide a ( excessively broad ) definition .

It is obvious , and was confirmed by many interlocutors , that this procedure entails a serious risk of blocking decision - making . Others argued that this risk should not be overestimated since the procedure has rarely been used and ORG in a decision of DATE started to interpret the notion [ see decision U-CARDINAL/CARDINAL on the vital interest veto against LAW on Higher Education ] . The decision indeed indicates that the ORG does not consider that the vital interest is a purely subjective notion within the discretion of each member of parliament and which would not be subject to review by the ORG . On the contrary , the ORG examined the arguments put forward to justify the use of the vital interest veto , upheld CARDINAL argument and rejected another .

The Commission is nevertheless of the opinion that a precise and strict definition of vital interest in the LAW is necessary . The main problem with veto powers is not their use but their preventive effect . Since all politicians involved are fully conscious of the existence of the possibility of a veto , an issue with respect to which a veto can be expected will not even be put to the vote . Due to the existence of the veto , a delegation taking a particularly intransigent position and refusing to compromise is in a strong position . It is true that further case - law from ORG may provide a definition of the vital interest and reduce the risks inherent in the mechanism . This may however take a long time and it also seems inappropriate to leave such a task with major political implications to the ORG alone without providing it with guidance in the text of the LAW .

Under present conditions within GPE , it seems unrealistic to ask for a complete abolition of the vital interest veto . The Commission nevertheless considers that it would be important and urgent to provide a clear definition of the vital interest in the text of the LAW . This definition will have to be agreed by the representatives of the CARDINAL constituent peoples but should not correspond to the present definition in the Entity Constitutions which allows practically anything being defined as vital interest . It should not be excessively broad but focus on rights of particular importance to the respective peoples , mainly in areas such as language , education and culture .

Entity veto

In addition to the vital interest veto , LAW ( d ) of the LAW provides for a veto by CARDINAL of the delegation from either Entity . This veto , which in practice seems potentially relevant only for ORG , appears redundant having regard to the existence of the vital interest veto .

Bicameral system

Article IV of the LAW provides for a bicameral system with ORG and a ORG both having the same powers . Bicameral systems are typical for federal ORG and it is therefore not surprising that the GPE LAW opts for CARDINAL chambers . However , the usual purpose of the second chamber in federal GPE is to ensure a stronger representation of the smaller entities . CARDINAL chamber is composed on the basis of population figures while in the other either all entities have the same number of seats ( GPE , GPE ) or at least smaller entities are overrepresented ( GPE ) . In GPE this is quite different : in both chambers CARDINAL of the members come from GPE , the difference being that in ORG only the Bosniacs and NORP from the Federation and the NORP from ORG are represented . ORG is therefore not a reflection of the federal character of the ORG but an additional mechanism favouring the interests of the constituent peoples . The main function of ORG under the LAW is indeed as the chamber where the vital interest veto is exercised .

The drawback of this arrangement is that ORG becomes the chamber where legislative work is done and necessary compromises are made in order to achieve a majority . The role of ORG is only negative as a veto chamber , where members see as their task to exclusively defend the interests of their people without having a stake in the success of the legislative process . It would therefore seem preferable to move the exercise of the vital interest veto to ORG and abolish ORG . This would streamline procedures and facilitate the adoption of legislation without endangering the legitimate interests of any people . It would also solve the problem of the discriminatory composition of ORG .

The collective Presidency

Article V of the LAW provides for a collective Presidency with one PERSON , CARDINAL NORP and CARDINAL NORP member and a rotating chair . The Presidency endeavours to take its decisions by consensus ( Article V § CARDINAL ( c ) ) . In case of a decision by a majority , a vital interest veto can be exercised by the member in the minority .

A collective Presidency is a highly unusual arrangement . As regards the representational functions of Head of ORG , these are more easily carried out by CARDINAL person . At the top of the executive there is already CARDINAL collegiate body , ORG , and adding a second collegiate body does not seem conducive to effective decision - making . This creates a risk of duplication of decision - making processes and it becomes difficult to distinguish the powers of ORG and of the Presidency . Moreover , the Presidency will either not have the required technical knowledge available within ministries or need substantial staff , creating an additional layer of bureaucracy .

A collective Presidency therefore does not appear functional or efficient . Within the context of GPE , its existence seems again motivated by the need to ensure participation by representatives from all constituent peoples in all important decisions . A single President with important powers seems indeed difficult to envisage for GPE .

NORP The best solution therefore would be to concentrate executive power within ORG as a collegiate body in which all constituent peoples are represented . Then a single President as Head of ORG should be acceptable . Having regard to the multi - ethnic character of the country , an indirect election of the President by ORG with a majority ensuring that the President enjoys wide confidence within all peoples would seem preferable to direct elections . Rules on rotation providing that a newly elected President may not belong to the same constituent people as his predecessor may be added .

In the present case , the distribution of posts in the State organs between the constituent peoples was a central element of ORG making peace in GPE and GPE possible . In such a context , it is difficult to deny legitimacy to norms that may be problematic from the point of view of non - discrimination but necessary to achieve peace and stability and to avoid further loss of human lives . The inclusion of such rules in the text of the LAW [ of GPE ] at that time therefore does not deserve criticism , even though they run counter to the general thrust of the LAW aiming at preventing discrimination .

This justification has to be considered , however , in the light of developments in GPE since the entry into force of the LAW . GPE has become a member of ORG and the country has therefore to be assessed according to the yardstick of common NORP standards . It has now ratified the [ NORP Convention on Human Rights ] and LAW No . CARDINAL [ thereto ] . As set forth above , the situation in GPE has evolved in a positive sense but there remain circumstances requiring a political system that is not a simple reflection of majority rule but which guarantees a distribution of power and positions among ethnic groups . It therefore remains legitimate to try to design electoral rules ensuring appropriate representation for various groups .

DATE . This can , however , be achieved without entering into conflict with international standards . It is not the system of consensual democracy as such which raises problems but the mixing of territorial and ethnic criteria and the apparent exclusion from certain political rights of those who appear particularly vulnerable . It seems possible to redesign the rules on the Presidency to make them compatible with international standards while maintaining the political balance in the country .

A multi - ethnic composition can be ensured in a non - discriminatory way , for example by providing that not CARDINAL member of the Presidency may belong to the same people or the Others and combining this with an electoral system ensuring representation of both Entities . Or , as suggested above , as a more radical solution which would be preferable in the view of the Commission , the collective Presidency could be abolished and replaced by an indirectly elected President with very limited powers .

ORG is a chamber with full legislative powers . LAW CARDINAL to the [ ORG ] is thereby applicable and any discrimination on ethnic grounds is thereby prohibited by LAW ] . As to a possible justification , the same considerations as with respect to the Presidency apply . While it is a legitimate aim to try to ensure an ethnic balance within ORG in the interest of peace and stability , this can justify ethnic discrimination only if there are no other means to achieve this goal and if the rights of minorities are adequately respected . For ORG it would for example be possible to fix a maximum number of seats to be occupied by representatives from each constituent people . Or , as argued above , a more radical solution which would have the preference of the Commission , could be chosen and ORG simply be abolished and the vital national interest mechanism be exercised within ORG . ”

The Opinion on different proposals for the election of the Presidency of GPE ( LAW of DATE ) , in the relevant part , provides :

“ CARDINAL . NORP By letter dated DATE the Chairman of the Presidency of GPE , Mr ORG , asked ORG to provide an ORG on CARDINAL different proposals for the election of the Presidency of this country . This request was made in the framework of negotiations on constitutional reform between the main political parties in GPE . The issue of the election of the Presidency remains to be resolved in order to reach agreement on a comprehensive reform package .

Comments on Proposal I

Proposal I would consist of maintaining the present rules on the election and composition of the Presidency , with CARDINAL PERSON and CARDINAL NORP elected from the territory of the GPE and CARDINAL NORP elected from the territory of PERSON . In its [ Opinion on the constitutional situation in GPE and the powers of the High Representative ] the Commission raised serious concerns as to the compatibility with LAW No . CARDINAL to ORG such a rule , which formally excludes Others as well as ORG and NORP from PERSON and NORP from the GPE from being elected to the Presidency . Maintaining this rule as it stands should therefore be excluded and Proposal I be rejected .

Comments on Proposal II

Proposal II , which is not drafted as text to be included in the LAW but as a summary of possible constitutional content , maintains the system of directly electing CARDINAL members of the Presidency from the Federation and CARDINAL from PERSON , however without mentioning any ethnic criteria for the candidates . The de jure discrimination pointed out in ORG would therefore be removed and adoption of this proposal would constitute a step forward . The Proposal also includes a rotation of the President of the Presidency DATE . Within the logic of a collective Presidency , this appears as a rational solution .

By contrast , the Proposal lacks clarity as to the pluri - ethnic composition of the Presidency . The collective Presidency was introduced , and supposedly will now be maintained , in order to ensure that no single ORG organ is dominated by a representative of a single constituent people . As it stands , under the proposal it would be possible to , for example , elect CARDINAL FAC from the Federation to the Presidency . Legally , this drawback could be remedied in the framework of the Proposal by providing that not CARDINAL member of the Presidency may belong at the same time to the same constituent people or the group of Others . It is the understanding of the Commission that the intention is indeed to include such a provision in the LAW in case this proposal is adopted .

NORP However , the problem would result of having to possibly exclude from the Presidency candidates who have received a higher number of votes . In the GPE it is quite possible that QUANTITY Bosniacs would attain the highest number of votes . In this case , a candidate who obtained more votes would have to be barred from the Presidency in favour of a candidate who obtained fewer votes . These issues should be regulated clearly at the level of the LAW and not be left to ordinary law .

As a further drawback , de facto Bosniacs and NORP from ORG and NORP from the GPE would also continue to have no realistic possibility to elect a candidate of their preference .

Furthermore , the election of the Head of ORG would continue to take place on an Entity basis while it would be desirable to move it to the ORG level as part of the overall approach of strengthening the ORG .

As a minor issue , the proposal would also allow members of the Presidency to hold a leadership position in a political party . This does not seem in line with the overall aim of constitutional reform of transforming the Presidency from an executive body into a ( collective ) Head of ORG .

To sum up , PERSON is a clear improvement with respect to the present constitutional situation . However , it has a number of drawbacks , including the risk that candidates with less votes than others are elected and it does not contribute to the overall aims of the constitutional reform of moving power to ORG and strengthening the ORG level .

Proposal III

Proposal III differs more markedly from the present constitutional situation by introducing a complicated procedure of indirect elections for the Presidency . As set forth above , the main preference of the ORG is for the indirect election of a single President with reduced powers . But also in the case of a collective Presidency , the ORG maintains its preference for indirect elections .

The reason is , first of all , that CARDINAL of the main aims of the constitutional reform would be to reduce the powers of the Presidency and to concentrate executive power in ORG . This change will be more difficult to bring about if the Presidency does have the legitimacy of a direct popular vote .

Moreover , in an indirect election it is easier to devise mechanisms ensuring the desired pluri - ethnic composition of the Presidency . It offers more possibilities for inter - ethnic cooperation and compromise while direct elections for de facto separate ethnic slots provide an incentive to vote for the person considered as the strongest advocate of the respective constituent people and not for the candidate best suited to defend the interests of the country as a whole .

Finally , the Proposal moves the election to ORG . It is indeed desirable and in line with the overall aim of strengthening the ORG to have the election of the Head of ORG at this level .

From the point of view of the overall approach , Proposal III therefore seems preferable . There are nevertheless some drawbacks .

First of all , the proposal seems complicated with too many steps and possibilities for stalemate . Nominations can be put forward by members of ORG or ORG , the selection of the candidates takes place by the CARDINAL separate ethnic caucuses in ORG and thereafter the slate of candidates has to be confirmed both by the CARDINAL caucuses in ORG and by ORG .

Within the parameters of the proposal , it would seem preferable to have a simpler procedure with more focus on ORG as the body having direct democratic legitimacy derived from the people as a whole . The possibility to nominate candidates should be reserved to members of ORG , selection among these candidates could take place in the CARDINAL separate ethnic caucuses of ORG to ensure that the interests of all CARDINAL constituent peoples are respected and the slate of candidates would have to be confirmed by the majority of the composition of ORG , ensuring that all CARDINAL members have legitimacy as representatives of the people of GPE as a whole .

In addition , it should be clarified how the positions of the President and Vice - Presidents are to be distributed . As it stands , Proposal III leaves this important decision implicitly to backroom dealing between the CARDINAL ethnic caucuses since a slate identifying President and Vice - Presidents has to be submitted to ORG , while no indication is provided on how this choice has to be made . This seems the worst possible solution and likely to lead to stalemate . The rotation envisaged by PERSON seems more feasible .

There are also other aspects of Proposal III which are not in accordance with the preferences of ORG . In its above - mentioned ORG , the ORG argued in favour of abolishing ORG . Giving it a strong role in the selection of the Presidency can not therefore be considered a positive step . The role of ethnic caucuses makes the election of candidates not belonging to a constituent people extremely unlikely . This is however not peculiar to this Proposal but reflects the political situation . The proposal at least ensures that the representatives of ORG in ORG will take part in the vote and that NORP from ORG and NORP from PERSON are no longer disadvantaged since their representatives in ORG will be able to vote for the candidates of their choice .

Even in the framework of a collective Presidency , solutions for indirect elections could be devised , which would appear preferable . For example , within ORG , slates of CARDINAL candidates not coming from the same constituent people or the group of Others could be nominated and the vote could take place between such slates . This would nevertheless be a different proposal and not an amendment to Proposal III .

To sum up , Proposal III is also a clear improvement with respect to the present situation . If it were to be adjusted as suggested in DATE , it would appear suitable as a solution ( although not an ideal one ) for the first stage of constitutional reform .

Conclusions

In conclusion , the ORG strongly welcomes that the political parties in GPE have found the courage to try adopting a comprehensive constitutional reform before the forthcoming elections in DATE . It acknowledges that a reform adopted at this stage can have an interim character only , as a step towards the comprehensive reform the country clearly needs .

With respect to the CARDINAL proposals submitted to the ORG , adoption of the first proposal could only be regarded as a failure of constitutional reform on this issue and should be excluded . By contrast , both PERSON and Proposal III deserve , subject to some additions and amendments , to be considered at the present stage as important steps forward , but by no means as ideal solutions .

Between Proposal II and PERSON , the Commission would – though not without hesitation DATE give preference to Proposal III , subject to some adjustments as indicated above . An indirect election in line with the aim of the constitutional reform of reducing the powers of the Presidency makes it easier to ensure a balanced composition of the Presidency and thereby corresponds better to the raison d’être of DATE unusual – institution . The Proposal also moves the election to the ORG level , in accordance with the overall aim to strengthen ORG . However , sight should not be lost of the ultimate aim of constitutional reform in this area : having in future a single President elected in a manner ensuring that he or she enjoys trust beyond the ethnic group to which he or she belongs . ”

The relevant part of the ORG on the draft amendments to LAW ( ORG - AD(CARDINAL)CARDINAL of DATE ) provides as follows :

“ CARDINAL . NORP By letter dated DATE the Chairman of the Presidency of GPE , Mr ORG , asked ORG to give an Opinion on the text of the agreement on the modalities of the first phase of constitutional reform reached by the leaders of political parties in GPE on DATE . Since the constitutional reform has to be adopted urgently in order to make it possible to take it into account at the parliamentary elections scheduled for DATE , he expressed the wish to receive the Opinion of the Venice Commission ‘ shortly’ .

PERSON to LAW on ORG

The main aim of the LAW is to move from a bicameralism with CARDINAL equal chambers to a new system where ORG ... would have only limited powers with a focus on the vital national interests veto . The new structure of the LAW , systematically putting ORG ... first , reflects this aim . The reform would be a step in the direction of the ORG recommendation to abolish the [ ORG ] and to streamline decision - making within the ORG institutions .

Sub - section ( d ) would increase the number of members of the [ House of NORP ] from CARDINAL to CARDINAL . The justification of the increase in the membership of this ORG is less apparent since its powers are greatly reduced . Nevertheless , this is an issue entirely within the discretion of the national authorities . If they feel that this increase is required to ensure that the ORG adequately represents the political spectrum , this step seems justifiable .

More problematic is the circumstance that membership in this ORG remains limited under sub - section ( d ) to people belonging to CARDINAL of the CARDINAL constituent peoples . In its Opinion [ on the constitutional situation in GPE and the powers of the High Representative ] ORG noted that the previous composition of this ORG along similar lines seemed to contradict LAW ] in conjunction with LAW No . CARDINAL ] .

Following the reform ORG would however no longer be a full legislative chamber but a body dealing mainly with the vital national interests veto . It seems therefore questionable whether LAW No . CARDINAL ] and thereby LAW of the [ Convention ] would still be applicable . The problem of the compatibility of this provision with LAW No . CARDINAL [ to the Convention ] remains however . In the absence of any case - law on this LAW , it can be interpreted only with prudence . ...

In the present case the legitimate aim could be seen in the main role of the ORG as a body in which the vital national interests veto is exercised . The [ GPE LAW reserves the right to exercise this veto to the CARDINAL constituent peoples and does not give it to the Others . From that perspective it would not seem required to include ‘ LOC in the composition of this ORG . The other responsibilities of the ORG , to participate in the election of the Presidency and to approve constitutional amendments – though not beyond criticism DATE , do not lead to a different result . They show that the function of the [ House of NORP ] is to be a corrective mechanism , ensuring that the application of the democratic principle reflected in the composition of the [ ORG ] does not disturb the balance among the CARDINAL constituent peoples . The need for such a mechanism seems still to be felt in [ GPE ] . In that case it seems possible to regard this need as a legitimate aim justifying an unequal treatment of Others in respect to representation in the [ ORG ] .

LAW V of the LAW on the Presidency

The main aim of the LAW is to strengthen the powers of ORG and increase its efficiency and reduce the role of the Presidency . This is entirely in line with the Opinion [ on the constitutional situation in GPE and the powers of the High Representative ] of ORG . In addition , the Commission would have preferred having a single President instead of a collective Presidency . This does however not seem politically possible at the moment . LAW takes a first step in this direction .

ORG adopted an Opinion on the CARDINAL alternative proposals for electing the Presidency at its last session ( CDL - AD(CARDINAL)CARDINAL ) . It would serve no purpose to re - open this discussion at the present moment . The absence of a dead - lock breaking mechanism if the [ ORG ] refuses to confirm the proposal of the [ ORG ] is however a concern .

ORG against Racism and Intolerance ( ECRI ) is ORG independent human rights monitoring body specialised in combating racism , racial discrimination , xenophobia , anti - Semitism and intolerance . In its General Policy Recommendation No . CARDINAL , adopted on DATE , ORG defines racism as “ the belief that a ground such as race , colour , language , religion , nationality or national or ethnic origin justifies contempt for a person or a group of persons , or the notion of superiority of a person or a group of persons ” .

NORP In a report concerning the general elections held in DATE , ORG , the lead agency in LOC in election observation , held as follows :

“ The DATE general elections in GPE and GPE were the first elections since the DATE ORG to be fully administered by the GPE and GPE authorities . The manner in which these elections were conducted was generally in line with international standards for democratic elections , although further efforts are needed , particularly with regard to the vote count . Therefore , overall , the elections represented further progress in the consolidation of democracy and the rule of law . However , it was regrettable that , due to constitutional ethnicity - based limitations to the right to stand for office , the elections were again in violation of LAW No . CARDINAL to ORG ) and of the commitments made to ORG , as well as LAW the OSCE DATE ORG . ”

In DATE GPE signed and ratified LAW with ORG and thereby committed itself to addressing ORG priorities . CARDINAL of the key priorities for GPE , expected to be accomplished within DATE , is to “ amend electoral legislation regarding members of the GPE Presidency and ORG delegates to ensure full compliance with ORG post - accession commitments ” ( see ORG of DATE on the principles , priorities and conditions contained in ORG with GPE and repealing Decision CARDINAL , Official Journal of ORG ( DATE ) ) .

On DATE ORG adopted its DATE strategy document explaining its policy on enlargement . On DATE progress reports were published , in which the Commission services monitor and assess the achievements of each of the candidate countries and potential candidates ( such as GPE ) over DATE .