Views of the UN Human Rights Committee dated March 28, 2018 in the case of Rebeca Elvira Delgado Burgoa v. Plurinational State of Bolivia (communication No. 2628/2015).
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Multinational State of Bolivia.
Subject of the message: depriving a former deputy of the right to nominate his candidacy for the post of mayor.
Substantive issues: the right to be elected at elections and to be admitted to public service, prohibition of discrimination, due process of law.
The Committee's legal position: The exercise of the rights enshrined in article 25 of the Covenant, including the right to stand for election, may be suspended or revoked only for objective and justified reasons established by law (paragraph 11.4 of the Views). By virtue of this provision of the Covenant, "every citizen must have, without any discrimination referred to in article 2 and without unreasonable restrictions, the right and opportunity: (a) To take part in the conduct of public affairs, both directly and through freely chosen representatives; (b) To vote and be elected in genuine periodic elections conducted on the basis of universal equal suffrage by secret ballot and ensuring the free expression of the will of voters;
(c) To be admitted to public service in their country on general terms of equality"
The Committee recalls that an important aspect of the fairness of the proceedings is their promptness and that delays that cannot be justified by the complexity of the case or the conduct of the parties constitute a departure from the principle of fair trial enshrined in article 14, paragraph 1, of the Covenant (paragraph 11.8 of the Views).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's allegations under article 25 of the Covenant that, on the basis of circular No. 71/2014 of the Supreme Electoral Court, she was deprived of the right to nominate her candidacy for the post of mayor of the Cercado province of the Cochabamba Department; that the above-mentioned circular prohibited members of the National Legislative Assembly of the 2010-2015 convocation from nominating their candidacies at the municipal and provincial levels in 2015, with the exception of positions at the departmental level - an exception that was not motivated by anything; that this prohibition, without any justification and in the absence of an appropriate regulatory framework, constitutes a departure from previously accepted interpretations and practices, since, although articles 149, 285.I and 287.I of the Constitution already contain a requirement for the qualification of residency for any candidate for positions in legislative and executive authorities, the Multinational Electoral The authority determined that the fulfillment of this requirement is confirmed by registration at the place of residence in the relevant electoral district; that the Supreme Electoral Court itself had previously interpreted this requirement in such a way that the permanent residence of the members of the National Legislative Assembly was the departments they represent, and not La Paz, where they exercised their parliamentary mandate; and that as a result of the introduction of such a ban, the Supreme Electoral Court exceeded its powers to determine the procedure for regulating technical issues by adopting circulars, and unlawfully and unreasonably restricted the author's right to nominate his candidacy for the specified position (paragraph 11.2 of the Considerations).
The State party submits that Circular No. 71/2014 is an organizational and technical document, the purpose of which is only to recall the constitutional requirement to reside for at least two years prior to the election in the electoral district where the candidate is nominated... At the same time, the Committee, without commenting on the interpretation and application of domestic legislation, notes that as a result of the adoption of Circular No. 71/2014, several people who were members (senators and deputies) The Multinational Legislative Assembly of the convocation of 2010-2015, were unable to nominate their candidacies in the 2015 elections, in particular in the elections to municipal councils. The Committee also notes that, according to the interpretation set out in Circular No. 71/2014, the author was deprived of the right to nominate her candidacy for the post of mayor, since during the previous convocation she held the post of deputy. In this regard, the Committee considers that Circular No. 71/2014 and the decisions of the electoral authorities that used this circular to deprive the author of the opportunity to participate in the elections limited her right to nominate her candidacy for the post of mayor during the subnational elections on March 29, 2015 (paragraph 11.3 of the Views).
The State party argues that the purpose of the constitutional requirement for the qualification of settlement is to ensure that persons who will represent the interests of the population of a province or municipality are directly familiar with the socio-economic and cultural situation on the ground, and for this it is necessary that the relevant persons and residents of the district know each other well a friend.... However, the Committee notes that the State party has not provided convincing arguments to justify why a candidate such as the author should be poorly acquainted with the socio-economic and cultural situation in the district that is her place of origin, which she represents and in which she usually resides, only because of that circumstance that during the previous convocation she held the post of deputy and, as part of the implementation of her mandate, had to travel regularly to La Paz to participate in parliamentary meetings, especially taking into account that, that at the end of the week and during the week-long meetings that took place in Cochabamba under her chairmanship as head of the parliamentary group, she returned to her place of permanent residence in that city... In addition, the State party has not provided convincing arguments to justify such a significant distinction between the position of a municipal representative (or provincial representative) and the position of a representative of other electoral districts (at the national and departmental levels), which is not provided for either by the Constitution or national legislation... Finally, the Committee notes that according to the author's allegations, which have not been challenged by the State party, this interpretation was first introduced by Circular No. 71/2014 in relation to the 2015 municipal elections, and was not applied in previous municipal elections... In the light of the above, the Committee concludes that the deprivation of the author's right to stand for election on the basis of Circular No. 71/2014 was not based on reasonable and objective criteria clearly defined by law. Thus, the deprivation of the author's right to stand for mayor in the 2015 elections constitutes an unjustified restriction of her rights under article 25 of the Covenant, in violation of the provisions of that article (paragraph 11.5 of the Views).
The Committee takes note of the author's claim that the constitutional process during which her application for amparo was decided was unreasonably prolonged, in violation of article 14, paragraph 1, of the Covenant. The author claims, in particular, that the decision on her application for the application of the amparo procedure was taken in the first and second instances later than the time limit established by law, as a result of which the decision of the Multinational Constitutional Court was rendered after the end of the elections; that she was not properly notified of several scheduled meetings in the court of first instance, which resulted in repeated postponement of meetings to a later date; that the Multinational Constitutional Court rejected the application for amparo on the grounds that the complaint should have been filed by the United Front political association, while in the case of another deputy, who was not allowed to participate in the elections on the basis of the same circular, the same court rejected the application for amparo because it was submitted by a political association, and not by the injured person (paragraph 11.7 of the Considerations).
The Committee notes that the State party attributes the delays in the first constitutional instance to the negligence with which the author dealt with the elimination of defects in compliance with formalities... The author, for his part, notes that several scheduled meetings were consistently postponed because they were not properly reported to the Cochabamba Department, and then due to the fact that the case materials were not forwarded to this department and that the safeguards court postponed the decision because it considered that it had to wait for a decision The Supreme Electoral Court, contrary to the practice of decision-making in the constitutional instance... The Committee notes that the State party has not provided information to refute these allegations or to justify delays in deciding on the author's application for amparo, despite the time limits set by law. In addition, the State party has not justified the delay with which the Multinational Constitutional Court issued a decision to review the decision on the application for amparo, especially given the fact that the application for amparo was ultimately refused on formal grounds... In the light of the above, the Committee concludes that the unjustified delays in the constitutional process in which the author's application for amparo was considered constitute a violation of the author's right under article 14, paragraph 1, of the Covenant (paragraph 11.8 of the Views).
The Committee.... Concludes that the facts before it reveal a violation of articles 14, paragraph 1, and 25 of the Covenant (paragraph 12 of the Views).