Condensed entry: Every citizen has the right to stand for elections. Distinction between citizens on the grounds of race, color, sex, language, religion, national or social origin, disability, political or other opinion, party membership, literacy or educational status, property, birth or other status is not permitted. The right to stand for elections should be established by law and may be subject only to reasonable restrictions. Restrictions on candidacy such as minimum number of supporters, nomination dates, fees, deposits etc must be reasonable and not act as a barrier to candidacy. Holders of certain offices (eg judiciary, high ranking military office etc) may reasonably be excluded from standing for election. Residency requirements would generally not violate the right to stand for election. A finding that a candidate has failed to meet the eligibility requirements to stand for election must be reached by an impartial body. Comprehensive entry: Article 25(b) of the ICCPR provides for the right to ‘be elected at genuine periodic elections’. The right is guaranteed only to citizens, the only provision in the ICCPR to restrict the right to citizens. Discrimination between citizens on the grounds of race, color, sex, language, religion, national or social origin, disability, political or other opinion, party membership, literacy or educational status, property, birth or other status is not permitted.[1] The refusal to register a candidate because of his membership in an opposition party clearly violates the right to stand for election.[2] The termination of parliamentary mandates of members of opposition parties and their subsequent imprisonment for merely expressing opinions was held by the ECtHR to violate the very essence of the right to stand for election and to hold parliamentary office.[3] The right to stand for elections should be established by law and may be subject only to reasonable conditions.[4] In Sudalenko v Belarus the law allowed the Electoral Commission to ‘refuse registering a candidate when he or she submits data that does not “correspond to reality”, including biographic data and information on income and property.’[5] The HRC held that the provisions of the relevant domestic law can be exploited to unreasonably restrict the rights protected by article 25, paragraphs (a) and (b), of the Covenant.’[6] If a candidate is required to have a minimum number of supporters for nomination, this requirement should be reasonable and may not act as a barrier to candidacy.[7] Conditions relating to nomination dates, fees or deposits should be reasonable and not discriminatory.[8] Thresholds for a party to be elected to a legislative body should not be excessive. The ECtHR has held that a 10% electoral threshold ‘appears excessive’, but was reasonable under the circumstances.[9] If there are reasonable grounds for regarding certain offices as incompatible with tenure of specific positions (eg the judiciary, high-ranking military office, public service), measures to avoid any conflicts of interest should not unduly limit the rights.[10] Legislation barring civil servants from becoming candidates unless they had resigned from their existing positions well in advance of the elections has been upheld by the ECtHR.[11] Denial of the right to standing based on previous participation in undemocratic acts may be reasonable.[12] The removal of the right to stand for elections for one year due to corrupt behavior has been held by the HRC to not raise any issue under the ICCPR.[13] Residency requirements would generally not violate the right to stand for election.[14] A state that allows persons to have multiple citizenships but excludes the right to stand for election of such persons unless they have renounced their other citizenship/s violates the right to participation.[15] A constitutional requirement that a person could only stand for election to the post of President of Côte d’Ivoire if his or her parents were born in Côte d’Ivoire has been held to be unreasonable by the ACHPR.[16] The IACtHR has held that to limit the right to stand for election to those nominated by political parties is reasonable.[17] However, if the result of such legislation clearly discriminates against particular groups it is not allowed.[18] Refusal to allow a citizen to stand for Presidency, notwithstanding the entitlement to stand for the Presidency under Zairian law violated article 25 of the ICCPR.[19] A finding that a candidate has failed to meet the eligibility requirements to stand for election must be reached by an impartial body.[20] The procedure for ruling a candidate ineligible has to guarantee a fair and objective decision, and prevent any abuse of power.[21] Hence, the revocation of a properly issued language proficiency certificate, which was necessary to stand for election, by a single individual in ad hoc manner violated the right to stand for election.[22] In Lukyanchik v Belarus the HRC noted that the ‘registration of the author's initiative group as a whole was denied on the grounds that two out of 64 people indicated in the initiative group's list had been included in it without their consent’.[23] The HRC held that as ‘no assessment of proportionality or reasonableness was provided to justify the denial of the author's right to run for the office of Deputy of the House of Representatives by exclusive reliance on the lack of consent of two individuals, as opposed to the consent of 62 people for their names to be included in the list of the author's initiative group’, article 25 of the ICCPR had been violated.[24]
[2]Sudalenko v Belarus communication 1354/2005 (HRC 2010) paras 6.6, 6.7.
[3]Sadak et al v Turkey application 25144/94, 26149/95 to 26154/95, 27100/95, 27101/95 (ECtHR 2002) para 35.
[4] Art 23(2) of the ACHR sets out that law may only limit the right to political participation ‘on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.’ To be allowed the conditions must be necessary in a democratic society, Castañeda Gutman v Mexico para 185. On restrictions on persons who have been imprisoned see Gorji-Dinka v Cameroon communication 1134/2002 (HRC 2005).
[7] HRC General Comment 25 para 17; Lukyanchik v Belarus communication 1392/2005 (HRC, 2009) para 8.5.
[8]Sukhovetskyyv Ukraine application 13716/02 (ECtHR 2006) para 72.
[9]Yumakand Sadak v Turkey application 10226/03 (ECtHR 2008) para 147.
[10] General Comment 25 paras 16 & 17. In Debreczeny v The Netherlands communication no 500/1992 (HRC 1995) para 9.3, the HRC upheld a Dutch law that precluded a national police sergeant from membership in the municipal council.
[11]Gitonas v Greece applications 18747/91, 19376/92, 19379/92, 28208/95, 27755/95 (ECtHR 1997) para 44; Ahmed and others v The United Kingdom application 22954/93 (ECtHR 1998) para 76.
[12]Ždanoka v Latvia application 58278/00 (ECtHR (GC 2006).
[13]Crippa et al v France communications 993/2001, 994/2001 and 995/2001 (HRC 2005) para 6.13.
[14]Melnychenko v. Ukraine application 17707/02 (ECtHR 2004).
[15]Tanse v Moldova, application 7/08 (ECtHR 2010) para 180.
[16]Mouvement Ivoirien des Droits Humains (MIDH) v Côte d’Ivoire (2008) AHRLR 75 (ACHPR 2008) para 85.
[17]Castañeda Gutman v MexicoIACHR Series C no 184 (IACtHR 2008) para 205.
[19]Mpaka-Nsusu v Zaire (2001) AHRLR 17 (HRC 1986) para 10.
[20]Sinitsin v Belarus communication 1047/2002 (HRC 2006) para 7.3.
[21] Podkolzina v Latvia application 46726/99 (ECtHR 2002). The Court considered the language requirement for members of parliament was one that pursued a legitimate aim. Nevertheless, the judges underlined that the definition of eligibility conditions in the abstract must be complemented by a fair procedure.
[22]Ignatane v Latvia communication 884/1999 (HRC 2001) para 7.4.
[23]Lukyanchik v Belarus communication 1392/2005 (HRC 2009) para 8.3.
Every citizen has the right to stand for elections. Distinction between citizens on the grounds of race, color, sex, language, religion, national or social origin, disability, political or other opinion, party membership, literacy or educational status, property, birth or other status is not permitted. The right to stand for elections should be established by law and may be subject only to reasonable restrictions.
Restrictions on candidacy such as minimum number of supporters, nomination dates, fees, deposits etc must be reasonable and not act as a barrier to candidacy. Holders of certain offices (eg judiciary, high ranking military office etc) may reasonably be excluded from standing for election. Residency requirements would generally not violate the right to stand for election. A finding that a candidate has failed to meet the eligibility requirements to stand for election must be reached by an impartial body.
Comprehensive entry:
Article 25(b) of the ICCPR provides for the right to ‘be elected at genuine periodic elections’. The right is guaranteed only to citizens, the only provision in the ICCPR to restrict the right to citizens. Discrimination between citizens on the grounds of race, color, sex, language, religion, national or social origin, disability, political or other opinion, party membership, literacy or educational status, property, birth or other status is not permitted.[1] The refusal to register a candidate because of his membership in an opposition party clearly violates the right to stand for election.[2] The termination of parliamentary mandates of members of opposition parties and their subsequent imprisonment for merely expressing opinions was held by the ECtHR to violate the very essence of the right to stand for election and to hold parliamentary office.[3]
The right to stand for elections should be established by law and may be subject only to reasonable conditions.[4] In Sudalenko v Belarus the law allowed the Electoral Commission to ‘refuse registering a candidate when he or she submits data that does not “correspond to reality”, including biographic data and information on income and property.’[5] The HRC held that the provisions of the relevant domestic law can be exploited to unreasonably restrict the rights protected by article 25, paragraphs (a) and (b), of the Covenant.’[6] If a candidate is required to have a minimum number of supporters for nomination, this requirement should be reasonable and may not act as a barrier to candidacy.[7] Conditions relating to nomination dates, fees or deposits should be reasonable and not discriminatory. [8] Thresholds for a party to be elected to a legislative body should not be excessive. The ECtHR has held that a 10% electoral threshold ‘appears excessive’, but was reasonable under the circumstances.[9]
If there are reasonable grounds for regarding certain offices as incompatible with tenure of specific positions (eg the judiciary, high-ranking military office, public service), measures to avoid any conflicts of interest should not unduly limit the rights.[10] Legislation barring civil servants from becoming candidates unless they had resigned from their existing positions well in advance of the elections has been upheld by the ECtHR.[11] Denial of the right to standing based on previous participation in undemocratic acts may be reasonable.[12] The removal of the right to stand for elections for one year due to corrupt behavior has been held by the HRC to not raise any issue under the ICCPR.[13]
Residency requirements would generally not violate the right to stand for election.[14] A state that allows persons to have multiple citizenships but excludes the right to stand for election of such persons unless they have renounced their other citizenship/s violates the right to participation.[15] A constitutional requirement that a person could only stand for election to the post of President of Côte d’Ivoire if his or her parents were born in Côte d’Ivoire has been held to be unreasonable by the ACHPR.[16] The IACtHR has held that to limit the right to stand for election to those nominated by political parties is reasonable.[17] However, if the result of such legislation clearly discriminates against particular groups it is not allowed.[18] Refusal to allow a citizen to stand for Presidency, notwithstanding the entitlement to stand for the Presidency under Zairian law violated article 25 of the ICCPR.[19]
A finding that a candidate has failed to meet the eligibility requirements to stand for election must be reached by an impartial body.[20] The procedure for ruling a candidate ineligible has to guarantee a fair and objective decision, and prevent any abuse of power.[21] Hence, the revocation of a properly issued language proficiency certificate, which was necessary to stand for election, by a single individual in ad hoc manner violated the right to stand for election.[22]
In Lukyanchik v Belarus the HRC noted that the ‘registration of the author's initiative group as a whole was denied on the grounds that two out of 64 people indicated in the initiative group's list had been included in it without their consent’.[23] The HRC held that as ‘no assessment of proportionality or reasonableness was provided to justify the denial of the author's right to run for the office of Deputy of the House of Representatives by exclusive reliance on the lack of consent of two individuals, as opposed to the consent of 62 people for their names to be included in the list of the author's initiative group’, article 25 of the ICCPR had been violated.[24]
[1] HRC General Comment 25 para 3.
[2] Sudalenko v Belarus communication 1354/2005 (HRC 2010) paras 6.6, 6.7.
[3] Sadak et al v Turkey application 25144/94, 26149/95 to 26154/95, 27100/95, 27101/95 (ECtHR 2002) para 35.
[4] Art 23(2) of the ACHR sets out that law may only limit the right to political participation ‘on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.’ To be allowed the conditions must be necessary in a democratic society, Castañeda Gutman v Mexico para 185. On restrictions on persons who have been imprisoned see Gorji-Dinka v Cameroon communication 1134/2002 (HRC 2005).
[5] Sudalenko v Belarus para 6.4.
[6] Sudalenko v Belarus para 6.5.
[7] HRC General Comment 25 para 17; Lukyanchik v Belarus communication 1392/2005 (HRC, 2009) para 8.5.
[8] Sukhovetskyy v Ukraine application 13716/02 (ECtHR 2006) para 72.
[9] Yumak and Sadak v Turkey application 10226/03 (ECtHR 2008) para 147.
[10] General Comment 25 paras 16 & 17. In Debreczeny v The Netherlands communication no 500/1992 (HRC 1995) para 9.3, the HRC upheld a Dutch law that precluded a national police sergeant from membership in the municipal council.
[11] Gitonas v Greece applications 18747/91, 19376/92, 19379/92, 28208/95, 27755/95 (ECtHR 1997) para 44; Ahmed and others v The United Kingdom application 22954/93 (ECtHR 1998) para 76.
[12] Ždanoka v Latvia application 58278/00 (ECtHR (GC 2006).
[13] Crippa et al v France communications 993/2001, 994/2001 and 995/2001 (HRC 2005) para 6.13.
[14] Melnychenko v. Ukraine application 17707/02 (ECtHR 2004).
[15] Tanse v Moldova, application 7/08 (ECtHR 2010) para 180.
[16] Mouvement Ivoirien des Droits Humains (MIDH) v Côte d’Ivoire (2008) AHRLR 75 (ACHPR 2008) para 85.
[17] Castañeda Gutman v Mexico IACHR Series C no 184 (IACtHR 2008) para 205.
[18] Yatama v Nicaragua (IACtHR 2005).
[19] Mpaka-Nsusu v Zaire (2001) AHRLR 17 (HRC 1986) para 10.
[20] Sinitsin v Belarus communication 1047/2002 (HRC 2006) para 7.3.
[21] Podkolzina v Latvia application 46726/99 (ECtHR 2002). The Court considered the language requirement for members of parliament was one that pursued a legitimate aim. Nevertheless, the judges underlined that the definition of eligibility conditions in the abstract must be complemented by a fair procedure.
[22] Ignatane v Latvia communication 884/1999 (HRC 2001) para 7.4.
[23] Lukyanchik v Belarus communication 1392/2005 (HRC 2009) para 8.3.
[24] Lukyanchik v Belarus para 8.5.