[The authors claim that they have been subject to a violation of their right to a fair trial and their right to be elected because the Constitutional Court cancelled a ballot paper that would have allowed them to be elected to the office of councillor and their political party to have a majority on the town council. The present draft recommendation proposes that the case should be declared inadmissible for lack of substantiation.]

Subject matter:	Cancellation of a ballot paper in municipal elections
Procedural issues:	Lack of substantiation
Substantive issues:	Right to equality before courts; right to be elected in periodic elections; right to effective remedy
Article of the Covenant:	14, para. 1; 25 (a) and (b); 2, para. 3
Article of the Optional Protocol:	2

The Working Group of the Human Rights Committee recommends that the Committee adopt the text annexed hereto as a decision of the Committee on admissibility.

[ ANNEX ]

Annex

Decision of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (ninety-eighth session)

concerning

Communication No. 1794/2008 **

Submitted by:	María Dolores Barrionuevo and Francisco Bernabé (represented by counsel, José Luis Mazón Costa)
Alleged victims:	The authors
State party:	Spain
Date of the communication:	20 February 2008 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on ... March 2010,

Adopts the following:

Decision on admissibility

[Note: Explanatory footnotes in brackets will be deleted from the text of the final decision.]

1.The authors of the communication, dated 20 February 2008, are María Barrionuevo Álvarez and Francisco Bernabé Pérez, Spanish nationals residing in La Unión, Murcia. They claim to be victims of a violation by Spain of articles 14 and 25 of the Covenant. The authors are represented by counsel, José Luis Mazón Costa.

The facts as submitted by the authors

2.1The authors were standing as candidates for councillors for the Partido Popular (People’s Party) (PP) in the local elections held on 27 May 2007 in the town council of La Unión (Murcia). Mr. Bernabé headed the list and was a candidate for mayor. Ms. Barrionuevo was ninth on the list of candidates for councillor.

2.2According to the authors, the PP candidacy obtained 4,055 votes, which entitled it to nine councillors and meant it would have an absolute majority on the town council, which has 17 seats in all. During the ballot count, the representative of the Partido Socialista Obrero Español (Spanish Socialist Workers Party) (PSOE), which obtained 3,604 votes and seven councillors, disputed the validity of a ballot paper marked with a handwritten “X”. Despite the fact that election law stipulates that ballot papers cannot contain any kind of mark, the polling officers declared the ballot paper valid and dismissed the claim. The validity of the ballot paper was important because, had it been considered void, the PP would have obtained eight seats instead of nine and would have lost their majority on the town council.

2.3The PSOE and Izquierda Unida-Los Verdes (United Left-Greens) parties contested the ballot count in the Electoral Board for the Cartagena area because the ballot paper contained an “X”. On 31 May 2007, the Board dismissed the claim and decided that the ballot paper was valid. It argued that the general principle of maintaining the result of an election, supported by case law on electoral matters, should take precedence and that the constitutional right to cast a vote is overridden only if irregularities in the ballot paper clearly reflect an obvious desire to invalidate, spoil or amend it. This decision was cited by the PSOE and Izquierda Unida-Los Verdes before the Central Electoral Board. On 9 June 2007, the Central Electoral Board concurred with the decision of the Cartagena Electoral Board, considering that the irregularity did not invalidate the ballot paper.

2.4The PSOE lodged an appeal in the Administrative Chamber of the Superior Court of Murcia. On 29 June 2007, the aforementioned court dismissed the appeal, invoking constitutional case law on the matter, and declared that the ballot paper in question was valid.

2.5On 2 July 2007, the PSOE submitted an application for amparo (enforcement of constitutional rights) before the Constitutional Court, invoking a violation of the right to access to public office on equal terms in compliance with the requirements laid down by the law. According to the authors, the application was accepted for consideration without having to justify the “special constitutional role” of the case, as required by law and despite the Prosecutor’s view to the contrary. In its decision of 18 July 2007, the Constitutional Court accepted the application for amparo, declared that the aforementioned rights had been violated and cancelled the disputed ballot paper and the area Electoral Board’s decision on its validity. As a consequence, Ms. Barrionuevo’s mandate as elected councillor was revoked. As for Mr. Bernabé, he was adversely affected as a result of his party losing their absolute majority on the town council, which restricted his independence as mayor.

2.6The authors provided the Committee with a copy of the Constitutional Court’s ruling. It refers to a ruling of 2003 in which the Court decided that, from a fundamental rights perspective, the legal interpretation that the votes submitted on ballot papers that should have been declared void, due to some of them having been improperly collected pursuant to electoral law, could be considered as valid was inadmissible, when counting such votes as valid would alter the final result of the election. Applying the same criteria to this case, the Court considered that the administrative and legal decisions allowing the ballot paper to be declared valid had not only violated election law; by having a direct bearing on the final result of the election, they had also contravened the right to access to public office on equal terms in compliance with the requirements laid down by the law.

The complaint

3.1The authors claim that the Constitutional Court had not followed its own electoral case law and thus violated article 25, paragraphs (b) and (c), of the Covenant. They argue that the Court wrongly favoured the PSOE in its interpretation of the law, in violation of the guarantee of equality between candidates. This guarantee of equality was also violated since the PP did not at the time contest two similar ballot papers, but in favour of the PSOE, found at other polling stations, because they had considered them valid pursuant to electoral case law. The Cartagena Electoral Board’s decision was to refuse categorically to examine the matter because at the time the PP had not contested those ballot papers. According to the author, this is a violation of article 2, paragraph 3, of the Covenant (effective remedy).

3.2The authors claim that the guarantee of equality, provided for in article 14, paragraph 1, of the Covenant was violated since current electoral case law was ignored to the detriment of the authors; the reporting judge, elected by Congress on the recommendation of the PSOE, should have stepped down from the case because that political party was the plaintiff; and the PSOE was exempt from justifying the “special constitutional role” of the case in amparo, as required by law.

State party’s observations on admissibility and merits

4.The State party contested the admissibility of the communication through notes verbales dated 29 August and 30 December 2008. It pointed out that the issue of the validity of the ballot paper had been dealt with by electoral management bodies and the relevant courts. The final decision should in no way be branded as arbitrary, unreasonable, inadmissible or not in line with the objectives of the Covenant. It also requires an appreciation of the facts and an interpretation of electoral law that must be beyond reproach. The State party therefore considers that the communication must be considered inadmissible as it fails to address any issue relating to the strict compliance with the Covenant and constitutes a use of the Covenant that clearly abuses its purpose pursuant to the provisions of article 3 of the Optional Protocol. The State party also contends that the communication manifestly lacks substantiation and requests the Committee, if it cannot consider it to be inadmissible, to consider that there has been no violation of the Covenant.

Author’s comments on the State party’s submission

5.In its comments of 5 March 2009, the authors outlined their initial complaints and the fact that the Constitutional Court acted arbitrarily by not following case law on ballot papers with marks or signs. The Court’s ruling was contradictory, since, on the one hand, it states that it is strictly a matter of electoral legality, which it could not revise, and, on the other hand, it annulled decisions made by election bodies and the Superior Court of Justice.

Committee’s decision on admissibility

6.1Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether or not the communication is admissible under the Optional Protocol to the Covenant.

6.2As required under article 5, paragraph 2 (a), of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

6.3The authors claim that the Constitutional Court’s ruling declaring that the controversial ballot paper was void violated their rights to a fair trial, to an effective remedy and to be elected, as provided for respectively in article 14, paragraph 1; article 2, paragraph 3; and article 25 (b) and (c) of the Covenant. The Committee observes that these complaints refer to a review of the facts and evidence by the courts of the State party. The Committee recalls its jurisprudence in this respect and reiterates that, generally speaking, it is for the relevant domestic courts to review or evaluate facts and evidence, unless their evaluation is manifestly arbitrary or amounts to a denial of justice. After examining the decisions handed down by the domestic courts, the Committee considers that the authors have not sufficiently substantiated their complaint in order to be able to argue that there has been such arbitrariness or denial of justice and therefore concludes that the communication must be declared inadmissible pursuant to article 2 of the Optional Protocol.

7.The Human Rights Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That this decision shall be communicated to the State party and to the authors and their counsel.

[Adopted in Spanish, French and English, the Spanish text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]