Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2629/2015 * , **

Submitted by:Eduardo Humberto Maldonado Iporre (represented by counsel, Mr. Zambrana Sea)

Alleged victim:The author

State party:Plurinational State of Bolivia

Date of communication:21 May 2015

Document references:Special Rapporteurs’ rule 97 decision, transmitted to the State party on 13 July 2015 (not issued in document form)

Date of adoption of Views:28 March 2018

Subject matter:Disqualification of former senator from seeking the office of mayor

Procedural issues:Non-exhaustion of domestic remedies, abuse of the right of submission, insufficient substantiation of the complaint, incompatibility with the provisions of the Covenant

Substantive issues:Right to be elected and to have access to public service, prohibition of discrimination, due process guarantees

Articles of the Covenant:2 (1–3), 14 (1), 25 and 26

Articles of the Optional Protocol:2, 3 and 5 (2) (b)

1.1The author of the communication is Eduardo Humberto Maldonado Iporre, a national of the Plurinational State of Bolivia born in 1968. He claims that the State party has violated his rights under articles 2 (1–3), 14 (1), 25 and 26 of the Covenant. He is represented by counsel. The Optional Protocol entered into force for the State party on 12 November 1982.

1.2On 29 October 2015, the Special Rapporteurs on new communications and interim measures, acting on behalf of the Committee, rejected the State party’s request that the admissibility of the communication be considered separately from its merits.

The facts as submitted by the author

2.1The author stood as a candidate for senator of the Department of Potosí, as a member of the Movimiento al Socialismo-Instrumento Político por la Soberanía de los Pueblos (MAS) party, in the general elections held in the Plurinational State of Bolivia on 6 December 2009. After MAS won a sweeping electoral victory, the first Plurinational Legislative Assembly was formed for the period 2010–2015, during which time the author was appointed as Chair of the Senate’s Constitution, Human Rights and Elections Committee.

2.2On 29 July 2010, a general strike was called in the Department of Potosí. This triggered a conflict and a “breakdown in the relationship between the central Government and the Department”. The author took various initiatives to persuade the central Government to take action on the Department’s complaints. As those efforts were unsuccessful, the author joined the hunger strike begun by various members of civic organizations in the Department. After the strike was ended on 16 August 2010, a bill on the prohibition of racism and all forms of discrimination was submitted to the Senate committee chaired by the author. The author convened parliamentary hearings in order to build consensus on the bill with human rights organizations and press institutions, and this “displeased” the executive branch. President Evo Morales stated publicly that the legislature “should adopt the bill without changing a single comma”.

2.3On 4 October 2010, the Senate, with the MAS senators providing the necessary two thirds of the votes, removed the author from his position as Chair of the Constitution, Human Rights and Elections Committee. The author states that this unprecedented decision was taken in compliance with politically motivated instructions, which demonstrated the “political intolerance and subordination of the legislative branch to the executive branch”. In 2011, the author criticized various actions taken by the executive branch, including the police repression of an indigenous peoples’ march against the construction of a highway in the Isiboro-Sécure Indigenous Territory and National Park, and a bill under which a portion of the Uyuni salt flats would be made available to mining cooperatives. In 2012 the author opposed another bill on the redistribution of parliamentary seats, and in 2014 he opposed a bill on mining and metallurgy. The author states that his criticisms of the executive branch, which were based on the defence of his Department’s interests, human rights and the protection of natural resources, brought about a gradual estrangement between himself and the governing party.

2.4On 28 April 2014, the authorities of the Plurinational Electoral Branch scheduled general elections for 12 October 2014. In those elections, members of the Plurinational Legislative Assembly (deputies and senators) who were serving in the 2010–2015 term were eligible to stand for re-election to the Assembly for the 2015–2020 term, even though all of them had lived in La Paz during the preceding term, as that was where the legislature was located. While article 149 of the Constitution requires candidates for election to the Plurinational Legislative Assembly to have “resided permanently in the corresponding electoral district for at least the two years immediately preceding the election”, the electoral authorities held that members of the national legislature should be deemed to have permanent residency in the departments they represented, not in the place where they discharged their duties as Assembly members, i.e. La Paz.

2.5Articles 285.I and 287.I of the Constitution specify the same two-year permanent residency requirement for candidates for election to executive bodies, councils and assemblies of autonomous local governments.

2.6On 30 October 2014, Transitional Electoral Act No. 587 on the 2015 subnational elections was promulgated. This law provided that the criteria applied in the preceding elections, held on 4 April 2010, for the composition of and election to subnational bodies should also apply in the subnational elections of 29 March 2015. On 14 November 2014, the Supreme Electoral Court issued circular No. 52/2014, under which candidates were required to prove their residency in the corresponding department by submitting a voluntary statement certified by a notary and a certificate of registration in the voter roll of the place where they were standing for election. In December 2014, regulations for the election of departmental, regional and municipal political authorities in the 2015 subnational elections were adopted; these regulations confirmed the conditions set out in circular No. 52/2014.

2.7The author notes that, after it became publicly known that several members of the 2010–2015 Assembly who were dissident members of MAS were planning to stand in the 2015 subnational elections as candidates for mayor in various large municipalities, on 18 December 2014 the Supreme Electoral Court issued circular No. 71/2014, under which persons who had been members of the Plurinational Legislative Assembly in the 2010–2015 term were not permitted to stand for any subnational office except those of governor or member of a departmental assembly.

2.8Also on 18 December 2014, the Senate and the Chamber of Deputies issued separate statements rejecting circular No. 71/2014 as a violation of article 26 of the Constitution, which guarantees the free exercise of citizens’ political rights. That same day, the author submitted his resignation from the office of senator.

2.9On 29 December 2014, the author, through the Poder Popular (“People’s Power”) citizens’ association, registered as a candidate for mayor of the municipality of Potosí, the capital of the Department of Potosí. To certify his residency, he submitted a voluntary statement certified by a notary and a certificate of voter registration in that locality, as required by Transitional Electoral Act No. 587 and circular No. 52/2014. On 13 January 2015, the Departmental Electoral Court of Potosí issued decision No. E-04/2015, whereby it found that the author was ineligible, under circular No. 71/2014, to stand for election to the office of mayor because he had served as a senator during the previous legislative term.

2.10The citizens’ association Poder Popular, acting on behalf of the author, filed an appeal against this ruling with the Supreme Electoral Court. The appeal was dismissed by decision No. 95/2015 of 19 January 2015 on the grounds that the author did not meet the requirement to have resided in Potosí for at least the two years preceding the election, as required by article 285.I of the Constitution, because “for most of that time he resided in the place where the Plurinational Legislative Assembly was in session” during the period 2010–2014. The Court also held that circular No. 71/2014 “does not restrict or exclude political rights, but rather enforces article 281.I of the Constitution”.

2.11The author states that the decision of the Supreme Electoral Court is not subject to appeal, pursuant to article 11 of Act No. 18 on the Plurinational Electoral Branch, and that domestic remedies have therefore been exhausted. Nevertheless, on 30 January 2015, the author and the association Poder Popular filed for the constitutional remedy of amparo against Supreme Electoral Court decision No. 95/2015. On 5 February 2015, the First Civil Division of the Departmental Court of Justice of La Paz, acting as a supervisory court, issued an order requesting the rectification of three issues of form. On 11 February 2015, the Court issued decision No. AA-03/2015 stating that the application for amparo was deemed not to have been submitted because the citizens’ association Poder Popular had not provided proof of legal personality. The author filed a new application for amparo on 19 February 2015. On 4 March 2015, the Court held a hearing and adopted decision No. AA-08/2015, whereby it denied amparo on the grounds that: (a) neither the author nor the citizens’ association Poder Popular had challenged circular No. 71/2014; rather, they had “accepted that reminder” in what was deemed an act of consent; and (b) the association, not the author, had filed the appeal against decision No. E-04/2015 whereby he had been found ineligible to stand for election.

2.12The author states that the supervisory court should have automatically submitted its ruling, within 24 hours, to the Constitutional Court for a review judgment either upholding or overturning the ruling within a maximum of 50 days, in accordance with articles 41 to 43 of the Constitution. However, at the time of submission of the present communication, the Constitutional Court had not yet issued a ruling, even though the statutory deadline had passed.

The complaint

3.1The author maintains that circular No. 71/2014 goes beyond the provisions of the Constitution by not allowing members of the national legislature (deputies and senators) to stand for election to certain subnational positions. The author contends that the two-year residency requirement established in articles 285.I and 287.I of the Constitution is intended to prevent citizens who are unfamiliar with the issues in a given constituency from standing for elective office in those areas, not to prevent members of the national legislature, who were obliged to move to La Paz in order to discharge the mandate conferred by the voters, from standing for election to other representative positions in their constituencies. With circular No. 71/2014, the Supreme Electoral Court has restricted political rights despite not having the authority to interpret the Constitution or to legislate. The author notes that, after he was elected as a senator for the Department of Potosí in the 2009 general elections, throughout the 2010–2015 term he generally went to La Paz during the week to perform his duties as a senator and returned to his permanent residence in Potosí on weekends and for the meetings that were held in Potosí (during the legislature’s “regional weeks”). Accordingly, circular No. 71/2014 and its application to his case in order to disqualify him as a candidate for mayor in the elections of 29 March 2015 violated his right under article 25 (b) of the Covenant.

3.2The author claims to be a victim of discriminatory treatment in relation to the following persons who were national Assembly members in the 2010–2015 term and resided in La Paz during that period: (a) those who were allowed to stand as candidates in the general elections of 12 October 2014 for re-election as senators or deputies for the 2015–2020 term (see para. 2.4); (b) those who stood for election as governors or as members of departmental assemblies in the elections of 29 March 2015, as those positions were excluded, without justification, from the prohibition laid down in circular No. 71/2014, even though they are the highest-ranking positions at the subnational level; and (c) those who stood for election to subnational positions in the Department of La Paz in the elections of 29 March 2015. The circular was intended to ensure that those national legislators who served in the 2010–2015 term and were dissident members of MAS, including the author, were barred from the electoral race by reason of their political opinion or position, in violation of articles 25 (c) and 26 of the Covenant.

3.3The author further alleges that circular No. 71/2014 was neither objective nor reasonable, as it unjustifiably prevented members of the 2010–2015 Plurinational Legislative Assembly from standing as candidates for certain subnational positions but not for others, such as those of governor and departmental assembly member. The author maintains that this distinction was made for political rather than legal reasons. Accordingly, the disqualification of the author as a candidate for mayor was not based on objective and reasonable criteria, in violation of article 25 (a) and (b), read in conjunction with articles 2 (1) and 26, of the Covenant.

3.4The author adds that the residency requirement established by both the Constitution and domestic legislation is “unreasonable” and “discriminatory”. The author claims that his disqualification as a candidate for mayor because of the residency requirement amounts to an additional violation of articles 25 and 26 of the Covenant.

3.5The author contends that the electoral branch, which administers justice in electoral matters through the departmental electoral courts and the Supreme Electoral Court, is not independent of the executive branch, in violation of article 14 (1) of the Covenant. This lack of independence was manifested in the preferential treatment of MAS candidates through the disqualification of candidates belonging to other parties in the subnational elections of March 2015, after the legal personality of those parties was revoked. He also observes that during those elections President Evo Morales and Vice-President Álvaro García publicly threatened to refrain from implementing public works in several municipalities unless the residents voted for MAS candidates. While the electoral branch should have submitted information to the Public Prosecution Service with a view to the criminal investigation of such conduct, it did not take any action. The Office of the Ombudsman, in a public statement issued on 27 March 2015, expressed concern that the electoral branch was not acting with due transparency, efficiency, diligence and responsibility in relation to the elections to be held on 29 March 2015. The close ties between members of the Supreme Electoral Court and MAS are cited as evidence of the Court’s lack of independence. Such members include the Vice-President of the Court, who was appointed directly by President Evo Morales, and three other members, all of whom signed decision No. 95/2015 confirming the author’s disqualification.

3.6The author contends that the Supreme Electoral Court also lacked impartiality, since, in the days preceding the decision on the author’s appeal, there were six instances in which members of the Court let their verdict be known in public statements. The Supreme Electoral Court’s issuance of circular No. 71/2014, which harmed only the interests of candidates who were dissident members of MAS and advanced the interests of other MAS candidates, is another sign that the Court lacked impartiality.

3.7The author observes that both the Supreme Electoral Court and the Departmental Court of Justice of La Paz interpreted domestic provisions in an arbitrary manner, since both the Constitution (arts. 285.I and 287.I) and circular No. 52/2014 require candidates to have been permanent, not temporary, residents for at least the two years immediately preceding the election.

3.8The author contends that the Court that ruled on his application for amparo was neither independent nor impartial, in violation of article 14 (1) of the Covenant, as it was affected by interference on the part of the executive branch. He states that such interference is commonplace throughout the judicial system, as noted by the Committee and other international bodies. Furthermore, the author’s application for amparo took 33 days to process, whereas article 129 of the Constitution requires that such applications be considered and decided upon immediately, within a maximum of 48 hours. He notes that three other cases brought by members of the national legislature who were dissident members of MAS and were disqualified from the subnational elections of 2015 were also unduly delayed by issues of form. In addition to these delays, the author points out that even if the Constitutional Court had subsequently reviewed and reversed the decision on his application for amparo, it would have done so after the elections, meaning that the reversal would not have been an “effective” remedy.

3.9The author maintains that the Constitutional Court’s failure to rule on the review of the amparo decision as at the time of submission of the present communication, despite the existence of a legally prescribed time limit, violates the principle of promptness in the conduct of proceedings (art. 14 (1) of the Covenant) and his right to an effective remedy in accordance with article 2 (3) of the Covenant. It also violates the State party’s obligation to take appropriate measures to give effect to the author’s political rights, in accordance with article 2 (2) of the Covenant.

3.10The author seeks, as reparation: (a) full redress, including public satisfaction and financial compensation to cover the costs incurred for his candidate registration and election campaign, the costs of travel to La Paz to carry out formalities related to his administrative and judicial claims, and the costs of legal representation at the national and international levels; (b) the repeal or amendment of existing legislation that prevents persons who have served in the national legislature from standing as candidates for subnational positions; (c) the repeal of the constitutional and electoral provisions establishing a residency requirement as a condition for the exercise of political rights; (d) the adoption of legislation to guarantee that prompt, suitable and effective remedies are available to individuals wishing to challenge decisions of the electoral branch that infringe their political rights; and (e) the adoption of a transparent and appropriate mechanism for the election of members of the Supreme Electoral Court and the departmental electoral courts so as to ensure their independence and impartiality.

State party’s observations on admissibility

4.1In its observations dated 3 September 2015, the State party contends that the communication is inadmissible on the grounds of a failure to exhaust domestic remedies. Firstly, the author should have submitted his application for constitutional amparo against circular No. 71/2014 of the Supreme Electoral Court, not against the decisions that disqualified him from standing as a candidate for mayor in the 2015 elections. The author’s failure to file a timely amparo application against circular No. 71/2014 is deemed to constitute an act of “consent” whereby the author accepted the terms of that circular. Secondly, the remedy of amparo incorrectly sought against decision No. 95/2015 of the Supreme Electoral Court has not been exhausted, as the Constitutional Court has not yet ruled on the review of the judgment of the supervisory court that denied amparo, and there has thus been no final decision in the case. Lastly, the author could have raised his allegations of discrimination before a criminal court or administrative body pursuant to Act No. 45 of 8 October 2010 on the prohibition of racism and all forms of discrimination.

4.2The State party also alleges an abuse of the right of submission, because the Committee does not have the authority to “order” States parties to carry out reparation measures such as those sought by the author, especially if they go beyond the legitimate purposes served by subsidiary systems for the protection of human rights. In particular, the expenses incurred by the author for his election campaign and subsequent expenses cannot be attributed to the State party, as they resulted from negligence on the part of the author. Regarding the request for the revision of domestic provisions, the State party notes that these provisions were adopted during the author’s term as a member of the legislature, and the author did not take any action against them.

4.3Finally, the State party submits that the communication is inadmissible for lack of sufficient substantiation of the complaint based on article 26 of the Covenant. Firstly, the right to equality and the prohibition of discrimination set out in article 26 are subordinate to the other rights protected by the Covenant, meaning that violations under this article cannot be claimed independently. Secondly, the author has not substantiated his claim of unfavourable differential treatment in relation to similar situations or comparable cases, nor has he shown that the alleged differential treatment was arbitrary or unreasonable. In this regard, circular No. 71/2014 does not establish any discrimination, since it applies equally to all persons who were members of the Plurinational Legislative Assembly in the 2010–2015 term.

4.4The State party notes that the purpose of the residency requirement for candidates is to ensure that persons who aspire to be elected to represent the interests of a regional or municipal community have direct knowledge of the socioeconomic and cultural conditions of that community. Members of the national legislature do not meet this requirement, as they do not have “permanent residency” in the region or municipality because their duties require them to live in La Paz. In addition, circular No. 71/2014 differentiates between departmental and municipal positions because departmental constituencies encompass a number of municipalities, and it would be impossible to require candidates to reside in each of them. However, the residency requirement for municipal office is justified by the need for a close relationship between the representative and the municipal community, which can be formed only through continuous residence for at least two years. Prior service as a national legislator is, however, compatible with departmental representation because deputies and senators represent their respective departments in carrying out their duties at the national level.

4.5The State party notes that the appointment of the Vice-President of the Supreme Electoral Court is regulated by the Constitution (art. 172) and Act No. 18 on the Plurinational Electoral Branch (art. 13).

Author’s comments on the State party’s observations on admissibility

5.1On 15 October 2015, the author submitted comments maintaining that the constitutional remedy of amparo provided for in article 129 of the Constitution is available only when the person concerned has been directly harmed. According to the case law of the Constitutional Court, amparo cannot be used to challenge a norm in abstracto, since in that case the alleged act or omission would affect overall legal situations but would have no particular significance for the citizen if he or she had not been directly and specifically harmed. Accordingly, amparo may not be invoked against circular No. 71/2014. The author reiterates that ordinary domestic remedies were exhausted with the submission of an appeal to the Supreme Electoral Court and that, in any event, the review of the amparo decision by the Constitutional Court is still pending, which means that the processing of his application has been unduly prolonged beyond the legally established time frame. With regard to the remedy provided for in Act No. 45, the author notes that article 12 of the Act provides that “persons who have been victims of acts of racism or discrimination may opt for constitutional, administrative or disciplinary and/or criminal remedies”. The Act thus does not require the exhaustion of remedies under all types of jurisdiction. In the present case, the author chose to take action through the electoral courts, which he believed to be the most appropriate procedure, as proceedings under criminal law are not intended to provide redress for violations of political rights, but to determine criminal liability and impose penalties on those responsible.

5.2The author submits that the principle of full redress for victims is a basic principle of international human rights law and that his specific request for measures to this effect, including compensation, reimbursement of procedural costs and revision of the relevant provisions, are common measures of reparation that have been ordered by the Committee itself. With regard to the revision of provisions, the author notes that, although he could have brought proceedings, in his capacity as a senator, to challenge the constitutionality of subconstitutional norms, he could not have challenged the residency requirement, as it is a condition established by the Constitution itself.

5.3The author submits that the State party has confused the nature of article 2 (1) with that of article 26 of the Covenant. Article 2 (1) requires a link with other substantive articles of the Covenant, but this is not true of article 26, which establishes a stand-alone right. In the present case, violations have been alleged both under article 26 alone and under article 26 in conjunction with article 25 of the Covenant. The author reiterates that he was the victim of unfavourable differential treatment in relation to other persons in the same situation (persons who had been members of the Plurinational Legislative Assembly in the 2010–2015 term).

State party’s observations on the merits

6.1In a submission dated 29 February 2016, the State party notes that, in December 2014, the Supreme Electoral Court adopted regulations for the 2015 subnational elections (see para. 2.6) that specified that the Court could regulate technical and operational aspects of the administration and conduct of the subnational electoral process in 2015 by issuing circulars for that purpose. In this context, circular No. 71/2014 is a strictly operational instrument that clarifies the scope of constitutional rules.

6.2The State party maintains that States parties are allowed to enact limitations or restrictions on the exercise of the rights set forth in the Covenant, provided that such restrictions are consistent with the principles of legality and proportionality. In this regard, the constitutional requirement of two years’ permanent residency in the constituency where the person stands for election is intended to ensure the legitimacy and suitability of such representatives; i.e., the specific, permanent and significant ties that representatives must maintain with their constituencies. The State party notes that several countries in the region have similar provisions. The electoral residency requirement is meant to ensure that representatives protect the interests of the community concerned, for which purpose they must have prior direct knowledge of the social, cultural and economic conditions in that locality. As representation at the municipal level, in particular, is distinct from departmental or national representation, given the nature of the relationship with the population, it is municipal representatives whose capacity to represent the community is most crucial.

6.3The State party reiterates that the appointment of a member of the Supreme Electoral Court by the President of the Plurinational State is a prerogative recognized by the Constitution and domestic legislation (see para. 4.5), and this appointment procedure in no way compromises the impartiality and competence of the electoral branch. The other six members of that Court are elected by the Plurinational Legislative Assembly.

6.4The State party notes that the author submitted two applications for amparo. The first one, filed by the citizens’ association Poder Popular, was rejected because of formal issues that were not rectified (see para. 2.11). On 5 February 2015, the supervisory court raised three issues regarding proof of the association’s legal personality and clarification of the complaint, but these issues were not rectified. On 19 February 2015, the author filed a new application for amparo, which was found admissible on 25 February 2015 and on which a hearing was held on 4 March 2015. On that date the court adopted decision No. AA-08/2015, whereby amparo was denied because the author had not filed a timely application to challenge circular No. 71/2014, to which he was thus deemed to have consented. That decision was upheld by the Constitutional Court in a judgment issued on 29 September 2015.

6.5The State party maintains that the person claiming to be a victim of discrimination bears the burden of proof, but in the present case, the author’s submissions consist not of relevant evidence but of mere unfounded “speculations”. The author attempts to conflate his situation as a candidate for mayor with two other situations that are completely different, namely the situation of candidates for re-election to the Plurinational Legislative Assembly and the situation of candidates for departmental office. The situation of the Plurinational Legislative Assembly members who stood for office in the Department of La Paz is likewise dissimilar, as those candidates had met the constitutional requirement of two years’ residency.

6.6The State party submits that it has complied at all times with the duty to adopt provisions that are consistent with the Covenant and to ensure that effective, relevant and timely remedies are available through both the constitutional and the electoral courts.

Author’s comments on the State party’s observations on the merits

7.1On 1 May 2016, the author submitted comments contending that the two-year residency requirement established by article 285.I of the Constitution applies to all candidates for election to autonomous executive bodies at the departmental, regional and municipal levels, not only to candidates for municipal office. The only differential requirement set out in the Constitution concerns the minimum age (21 years for candidates for municipal office and 25 years for all other authorities). The author submits that the State party’s argument that municipal representatives have a different relationship with the communities they represent is unreasonable and contrary to the Constitution.

7.2The author notes that, before issuing circular No. 71/2014, the Supreme Electoral Court had previously adopted circular No. 52/2014 setting out regulations for the electoral process in the subnational elections of 2015 and specifying the acceptable means of proving two years’ permanent residency. Circular No. 71/2014 was subsequently issued for the sole purpose of disqualifying Plurinational Legislative Assembly members who were dissident members of MAS by setting out specific grounds for disqualification that are not provided for in the Constitution. This is contrary to the State party’s claim that the circular was of a technical and operational nature.

7.3Regarding the constitutional residency requirement for candidates, the author points out that the legal systems of the other Latin American countries cited by the State party do not include a different requirement for positions at the municipal level. He reiterates that, under circular No. 71/2014, the residency requirement is arbitrarily and selectively applied only to certain positions and certain elections (those of March 2015); this was not the case in previous subnational elections.

7.4The author notes that, under article 25 (a) of the Covenant, any limitation must be imposed by means of formal laws. In this case, however, the disqualification was effected by means of an administrative circular, which does not have the status of law.

7.5The author submits that article 14 (1) of the Covenant requires a court not only to be impartial, but also to appear to a reasonable observer to be impartial. In the present case, all the members of the Supreme Electoral Court division that decided on his appeal against the disqualification decision were chosen “because of their close ties to the governing party”. He points out that one of the judges of that Court subsequently “acknowledged” to a media outlet that “it was wrong to disallow the participation of former Assembly members in the subnational elections by accepting circular No. 71/2014”.

7.6The author notes that the State party has not contested his allegations regarding the lack of independence and impartiality in constitutional proceedings. He notes that all the candidates who were disqualified under circular No. 71/2014 filed appeals that were rejected by the constitutional and electoral courts. He adds that the Constitutional Court denied amparo without considering the merits of his claims because it understood that the norm he was challenging was circular No. 71/2014.

7.7Finally, the author points out that the Constitutional Court took 220 days to consider his appeal and issued its ruling after the legal time limit of 50 days and after the subnational elections had already taken place. With regard to the delays in the first-instance constitutional proceedings, the author disputes the State party’s claim that the delays were attributable to the author’s negligence with regard to the correction of formal defects in his application. He stresses that the issues of form raised by the supervisory court were arbitrary and not based on the applicable provisions (see para. 2.11). He also points out that the supervisory court denied amparo on the basis of two formal issues: the failure to challenge circular No. 71/2014 and the fact that the appeal against decision No. E-04/2015 had been submitted by the association Poder Popular and not directly by the author. He maintains that, under Act No. 26 on elections, relations between political organizations and the electoral branch are conducted exclusively through the representatives of those organizations; the supervisory court’s interpretation is thus erroneous and contrary to the law. He adds that the Supreme Electoral Court considered the appeal and issued decision No. 95/2015 without finding that the political organization lacked standing (see para. 2.10).

Additional submissions by the parties

8.1In submissions dated 31 October 2016 and 22 September 2017, the State party reiterates its arguments on admissibility and on the merits. It stresses that the purpose of circular No. 71/2014 was to “remind” candidates of the constitutional residency requirement, without distinguishing between political dissidents and pro-Government candidates. It points out that, while the only distinction provided for in the Constitution concerns the minimum age for elective office, the regulations on the 2015 subnational elections empowered the Supreme Electoral Court to regulate technical and operational issues not covered in the regulations themselves. Circular No. 71/2014 was issued for that purpose and was intended not to impose arbitrary restrictions on rights, but to take account of the particular nature of municipal representation.

8.2The State party notes that the supervisory court denied amparo when it found that it was unable to consider the case on the merits because the application had been submitted by representatives of the association Poder Popular and not by the author in his capacity as the aggrieved party.

9.On 21 November 2017, the author submitted comments stating that the State party’s additional observations did not contain any new information and reaffirming his earlier contentions.

Issues and proceedings before the Committee

Consideration of admissibility

10.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

10.2The Committee takes note of the State party’s argument that domestic remedies have not been exhausted (see para. 4.1) because: (a) the author should have filed an application for amparo against circular No. 71/2014 instead of filing it against the electoral court decisions that disqualified him as a candidate for mayor in the elections of March 2015; (b) the Constitutional Court had not yet ruled on the review of the application for amparo at the time the communication was submitted; and (c) the author should have brought his complaint of discrimination before a criminal court or administrative body pursuant to Act No. 45 on the prohibition of racism and all forms of discrimination. However, the Committee notes the author’s claim — which is not refuted by the State party — that the Constitutional Court has held that the remedy of amparo cannot be sought against a norm in abstracto and the individual concerned must have been directly and specifically harmed (see para. 5.1). The Committee also notes that the Constitutional Court’s judgment of 29 September 2015 upheld the decision on the amparo application, with the result that constitutional remedies appear to have been exhausted (see paras. 6.4 and 7.7). Lastly, the Committee takes note of the author’s claim that Act No. 45, to which the State party refers, does not require that all possible legal avenues be exhausted and that the electoral courts were the most appropriate means of obtaining redress for violations of political rights (see para. 5.1). Accordingly, the Committee considers that article 5 (2) (b) of the Optional Protocol does not constitute a barrier to the admissibility of the communication.

10.3The Committee takes note of the State party’s argument that the author has abused the right of submission because the reparation sought goes beyond the purview of the Committee and the harm suffered was in any event the result of the author’s negligence (see para 4.2). However, the Committee points out that under the procedure established by the Optional Protocol, when it finds violations of the Covenant it is competent to determine the reparation measures that the State party should take in order to remedy the harm caused and prevent future violations. Thus, there is nothing to prevent the authors of communications from requesting or proposing measures of redress, although the Committee is not bound by any such requests. Furthermore, the Committee considers that the determination of whether there was negligence on the author’s part in the context of his actions at the national level is closely related to the merits of the case. The Committee therefore considers that article 3 of the Optional Protocol does not constitute a barrier to the admissibility of the communication.

10.4The State party has also argued that the author’s complaint under article 26 of the Covenant has not been sufficiently substantiated, asserting that that article cannot be invoked independently and that the author did not provide examples of similar situations to justify his claim of unfavourable discriminatory treatment (see para. 4.3). The Committee recalls, however, that article 26 of the Covenant does not merely duplicate the guarantee already provided for in article 2 (1) but establishes an autonomous right. Furthermore, the Committee considers that the author has provided sufficient arguments to substantiate the claim that he was treated less favourably than other candidates in the subnational elections of 2015 (see paras. 3.2–3.8). It also finds that these allegations are closely related to the merits of the case and decides to consider them on the merits.

10.5The Committee takes note of the author’s claim, based on article 14 (1) of the Covenant, that the electoral branch is not independent or impartial (see paras. 3.5 and 3.7). The Committee also notes, however, that the actions of that branch that are described by the author refer to cases that are different from the present case, which relates to the author’s disqualification as a candidate for mayor in the subnational elections of 2015. The Committee finds that the author has also failed to show how the composition of the Supreme Electoral Court detracted from its independence in ruling on his appeal. Moreover, he has not shown that the independence of the members of that Court was not duly safeguarded by the manner in which they were chosen. Lastly, the Committee observes that the statements in support of circular No. 71/2014 that were made by members of the Court before the issuance of decision No. 93/2015 were of a general nature and did not refer specifically to the author’s disqualification. Consequently, the Committee finds that, for the purpose of admissibility, the author has not sufficiently substantiated this claim, based on article 14 (1) of the Covenant, that the independence of the Court was not maintained in law and in practice, and declares it inadmissible under article 2 of the Optional Protocol.

10.6The Committee also notes the author’s claim, under article 14 (1) of the Covenant, that the executive branch interfered in the work of the Court that ruled on his application for amparo, thereby undermining the independence of the Court (see para. 3.10). The Committee notes, however, that the author has not provided any specific information to support the claim that the executive branch interfered in the constitutional amparo proceedings. Accordingly, the Committee considers that this part of the claim has not been sufficiently substantiated by the author and declares it inadmissible under article 2 of the Optional Protocol.

10.7With regard to the author’s claims under article 2 (2) and (3) of the Covenant, concerning the issuance of the Constitutional Court’s ruling after the legally established deadline (see paras. 2.12, 3.8 and 3.9), the Committee recalls its jurisprudence to the effect that the provisions of article 2 of the Covenant set forth a general obligation for States parties and cannot give rise, when invoked separately, to a claim in a communication under the Optional Protocol. Consequently, the Committee declares this part of the communication to be incompatible with the provisions of the Covenant and inadmissible under article 3 of the Optional Protocol.

10.8However, the Committee finds that the author’s claims under articles 25 and 26 of the Covenant, concerning his disqualification as a candidate for mayor in the subnational elections of 2015, as well as the claims under article 14 (1) of the Covenant, concerning the undue delays in the constitutional proceedings on his application for amparo, have been sufficiently substantiated for the purpose of admissibility, declares them admissible and proceeds to consider them on the merits.

Consideration of the merits

11.1The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

11.2The Committee takes note of the author’s claims under article 25 of the Covenant, to the effect that he was deemed ineligible to stand for election to the office of mayor of Potosí under the terms of circular No. 71/2014 issued by the Supreme Electoral Court; that this circular prohibited persons who were members of the Plurinational Legislative Assembly in the 2010–2015 term from standing for election to subnational office in 2015, while excluding department-level positions from this prohibition, for reasons that were left unspecified; that this prohibition diverged, with no justification whatsoever and without the required legal basis, from the interpretation and practice that had been followed until that time, given that, while articles 149, 285.I and 287.I of the Constitution set out a requirement of two years’ “permanent residency” prior to the elections for all candidates to parliamentary and executive office, the electoral branch had decided that voter registration in the constituency in question and a notarized statement should be deemed to constitute proof of such residency; that the Supreme Electoral Court itself had until that time held that members of the national Assembly had permanent residency in the departments they represented, not in La Paz, where they carried out their legislative duties; and that, with the introduction of this prohibition, the Supreme Electoral Court went beyond its power to regulate technical issues by means of circulars, thereby unlawfully and unreasonably restricting the author’s right to stand for election to the office in question (see paras. 2.3–2.6 and 3.1–3.4).

11.3The State party has argued that circular No. 71/2014 is a rule of a technical and operational nature intended merely to serve as a reminder of the constitutional requirement that candidates must have resided in the constituency in which they are seeking office for at least the two years preceding the election (see paras. 4.4 and 6.1). Although the Committee does not wish to express an opinion on the interpretation and application of domestic law, it notes that circular No. 71/2014 prevented several persons who had been members of the Plurinational Legislative Assembly (senators and deputies) in the 2010–2015 term from standing for positions on municipal councils and other bodies in the 2015 elections. The Committee also notes that, in the light of the interpretation established by circular No. 71/2014, the author was deemed ineligible to stand for election to the office of mayor because he had held the post of senator in the previous term. The Committee thus considers that circular No. 52/2014 (see para. 2.6), circular No. 71/2014 and the electoral court decisions issued pursuant to the latter circular restricted the author’s right to stand for election to the office of mayor in the subnational elections of 29 March 2015 by declaring him to be ineligible.

11.4The Committee must therefore decide whether this restriction was warranted. The Committee recalls that the exercise of the rights recognized in article 25 of the Covenant, including the right to stand for election, may not be suspended or excluded except on grounds that are established by law and that are objective and reasonable.

11.5In the present case, the State party has argued that the intent of the constitutional residency requirement for candidates is to ensure that representatives have direct knowledge of the socioeconomic and cultural conditions of the communities they represent, and that the duty of representation is especially incumbent on municipal representatives because of the close relationship that they must have with the locality (see paras. 4.4 and 6.2). The Committee notes, however, that the State party has not explained why a candidate such as the author would cease to be aware of the socioeconomic and cultural situation of the community from which he comes, which he represents, and where he has his habitual residence, merely because he was a senator in the previous legislative term and had to go to La Paz on a regular basis to attend meetings of the legislature in the discharge of his duties, particularly as he returned to his permanent residence in Potosí on weekends and for the meetings that were held in that city during the legislature’s “regional weeks” (see para. 3.1). The State party has also failed to argue convincingly that the office of municipal (or regional) representative differs substantially from that of representatives of other constituencies (national and departmental), to such a degree that it warrants a significant distinction that is not provided for in the Constitution or domestic legislation (see paras. 2.4–2.6). Lastly, the Committee notes that, as the author argues and the State party does not dispute, that interpretation was introduced for the first time by circular No. 71/2014 in the context of the 2015 subnational elections and had not been applied to previous municipal elections (see paras. 2.7 and 7.3). In the light of the foregoing, the Committee finds that the author’s disqualification under circular No. 71/2014 was not based on objective and reasonable criteria that were clearly established by law. Accordingly, the disqualification of the author as a candidate for mayor in the subnational elections of 2015 unduly restricted his rights under article 25 of the Covenant, in violation of that provision.

11.6Having found a violation of article 25 of the Covenant, the Committee will not separately consider the author’s claim that the same acts constituted a violation of article 26 of the Covenant.

11.7The Committee takes note of the author’s claim that the constitutional proceedings concerning his application for amparo suffered from undue delays, in violation of article 14 (1) of the Covenant. The author contends, in particular, that the adjudication of his application for amparo in first and second instance was unjustifiably delayed beyond the legally established time frames, with the result that the Constitutional Court’s ruling was issued after the elections had already taken place; he further contends that the application was rejected on the grounds that it should have been filed by the author and not by the political association Poder Popular (see paras. 2.11, 2.12, 3.8, 3.9, 7.6 and 7.7).

11.8The Committee recalls that an important aspect of the fairness of a hearing is its expeditiousness and that delays that cannot be justified by the complexity of the case or the behaviour of the parties detract from the principle of a fair hearing enshrined in article 14 (1). In the present case, the Committee notes that the State party has attributed the delays in the court’s decision at first instance to the negligence of the organization Poder Popular in failing to address issues of form (see para. 6.4). The Committee also notes, however, that the State party has not explained why the decision on the author’s application for amparo was delayed beyond the legally established time limit after the second application for amparo was filed on 19 February 2015 (see paras. 2.12 and 7.7). The State party likewise has not justified the Constitutional Court’s delay in adopting a review judgment on the amparo application, particularly considering that amparo was ultimately denied for technical reasons, i.e. because the author and the association had not challenged circular No. 71/2014 and because the association did not have standing to bring proceedings before the Supreme Electoral Court (see paras. 2.11 and 6.4). In the light of the circumstances of the case, the Committee finds that the undue delays that affected the constitutional proceedings concerning the author’s application for amparo constituted a violation of his right under article 14 (1) of the Covenant.

12.The Committee, acting under article 5 (4) of the Optional Protocol to the Covenant, is of the view that the facts before it disclose a violation of articles 14 (1) and 25 of the Covenant.

13.In accordance with article 2 (3) (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires that full reparation be made to individuals whose Covenant rights have been violated. In this regard, the State party should, among other measures, offer adequate compensation to the author, including the costs of legal representation at the national and international levels. The State party is also under an obligation to take appropriate steps to prevent similar violations in the future, including by ensuring that the regulatory framework governing the electoral process and the application of that framework are consistent with article 25 of the Covenant.

14.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views, have them translated into the official languages of the State party and disseminate them widely.