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also have the capacity to grant appropriate relief (Halford v. United Kingdom judgement of 25 June 1997).
45. The Ombudsperson observes that the removal of the names of the three individuals from the list of candidates for the forthcoming elections constitutes a violation of their rights under Articles 8 and 11 of the Convention and Article 3 of Protocol No. 1 to the Convention. The individuals affected thus must be considered to have a right to have their claims reviewed in accordance with Article 13. The Ombudsperson further observes, in this regard, that Section 1 of UNMIK Regulation 1999/1 vests total executive authority in the Special Representative of the Secretary General (SRSG), who has himself determined that the names of the individuals affected should be removed from the list. As the SRSG is both the highest national authority and the person who acted in his official capacity to remove the names from the list, no viable remedy in the sense of Article 13 of the Convention can be considered to exist.
Conclusion
46. The Ombudsperson concludes, therefore, that there has been a violation of the right to an effective remedy guaranteed under Article 13 of the European Convention on Human Rights.
RECAPITULATION OF CONCLUSIONS
47. The Ombudsperson is of the opinion that the removal of the names of Mr. Emrush Xhemajli, Mr. Gafurr Elshani and Mr. Sabit Gashi from the list of candidates for the elections of 17 November 2001 for the Kosovo Assembly and related circumstances as addressed herein constitute violations of:
the right to free elections under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature guaranteed under Article 3 of Protocol No. 1 to the European Convention on Human Rights;
the right to respect for private life guaranteed under Article 8 of the European Convention on Human Rights;
the right to a fair hearing for the determination of a civil right guaranteed under paragraph 1 of Article 6 of the European Convention on Human Rights; the right to freedom of association guaranteed under Article 11 of the European Convention on Human Rights;
the right to an effective remedy before a national authority guaranteed under Article 13 of the European Convention on Human Rights.
RECOMMENDATIONS
48. The Ombudsperson recommends that the Special Representative of the Secretary-General of the United Nations should, no later than 2 November 2001:
Reinstate Mr. Emrush Xhemajli, Mr. Gafurr Elshani and Mr. Sabit Gashi on the list of candidates for the elections of 17 November 2001 for the Kosovo Assembly
Ensure that all means are pursued to ensure that these candidates are provided the same status and guarantees as they would have enjoyed had their names not been unlawfully removed from the aforementioned list.
