COMMUNICATIONS NOS. 2914/2016, 3040/2017, 3051/2017: DECISION/VIEWS

The authors of the communications are Fatima Dzhandosova (communication No. 2914/2016), Asiya Tulesova (communication No. 3040/2017) and Asel Nurgazieva (communication No. 3051/2017). The authors are nationals of Kazakhstan born in 1970, 1984 and 1978, respectively. They claim that the State party has violated their rights under articles 25 and 26 of the Covenant. The Optional Protocol entered into force for Kazakhstan on 30 September 2009. The authors are represented by counsel.

On 20 October 2023, pursuant to rule 97 (3) of the Committee’s rules of procedure, the Committee decided to join communications No. 2914/2016, No. 3040/2017 and No. 3051/2017, submitted by three different authors, for a joint decision, in view of substantial factual and legal similarity.

On 20 March 2016, the State party announced extraordinary elections to the parliament and local councils. All the authors submitted applications as independent candidates for their local councils and were registered as such; however, they were later disqualified from running by local election commissions for submitting false information in their income declarations.

The facts relevant to each individual communication are summarized below.

On 16 February 2016, the author, who is a civil society activist and a member of a group working with civil society under the auspices of the Nationwide Social Democratic Party, submitted her documents to the regional election commission to be registered as a candidate for the elections to the Astana city Maslikhat.³ On the same day, she received an identification paper certifying her status as a candidate and immediately started her election campaign. On 2 March 2016, she was summoned to the local election commission and informed that she would be disqualified from running because she had submitted false information on her income declaration form. In accordance with the information provided to the election commission by the local tax authorities, the author had incorrectly indicated the amount of money she had in her bank accounts. The letter submitted by the local tax authority to the election commission stated that the author had overdeclared by $0.96 her balance in Eurasian Bank, underdeclared by 4,778.96 tenge⁴ her balance in Kaspi Bank, underdeclared by 0.93 tenge her balance in ATF Bank, overdeclared by 4,926 tenge her balance in Kazkommertsbank and underdeclared the balance in the foreign currency account she held in the same bank by $41.9. The tax authority sent its letter to the election commission on 29 February 2016, without giving the author an opportunity to contest its conclusion or rectify the errors in her income declaration.

3. Maslikhats are local or regional unicameral legislative bodies. ↩
4. At the 2016 exchange rate, 5,000 tenge were worth approximately $12.50. ↩

On 3 March 2016, the author contested her disqualification before the Saryarka District Court. She argued that (a) the information contained in her income declaration was based on statements provided by her banks and (b) the discrepancies identified by the tax authority were so minimal that her disqualification constituted an unreasonable and disproportionate restriction of her right to run for public office. The author notes that the court did not call representatives of the banks where she held accounts or the local tax authority to verify the information they had provided, despite her request that it do so. On 4 March 2016, the Saryarka District Court rejected the author’s complaint because “the court was able to establish the discrepancy in the author’s income declaration and the election commission acted within its powers”.

On 5 March 2016, the author submitted an appeal to the Astana City Court, which was rejected on 6 March 2016. The author also submitted requests for a supervisory review to the Astana City Prosecutor and the Office of the Prosecutor General of Kazakhstan, however her requests were dismissed on 11 and 15 March 2016, respectively.

On 16 February 2016, the author, who is a civil society activist and environmentalist, submitted her documents to the regional election commission to be registered as a candidate for the elections to the Almaty city Maslikhat. On the same day, she received an identification paper certifying her status as a candidate and immediately started her election campaign. On 19 February 2016, she was summoned to the local election commission and informed that she would be disqualified from running because she had submitted false information on her income declaration form. According to the information submitted by the local tax authority to the election commission, the author had incorrectly indicated the amount of money she had in her bank accounts: she had overdeclared her balance in Kazkommertsbank by 0.78 tenge and underdeclared the balance in the foreign currency account she held in the same bank by $18.73. The tax authority sent its letter to the election commission on 19 February 2016, without giving the author an opportunity to contest or rectify the amounts.

On an unspecified date, the author contested her disqualification as a candidate before the Medeu District Court. She argued that on 19 February 2016, she had submitted a new income declaration with corrections to and clarifications of her original declaration. She also noted that she had rounded the numbers in her declaration because there was no space in the form to indicate tiyin⁵ and that the information in her declaration was based on the statements obtained from her bank. A representative of Kazkommertsbank confirmed the authenticity of the statement issued to the author during the court hearing and the fact that the author had 14,925 tenge and $8,040 in her bank accounts at the time when the statement was issued. The court agreed that the author’s original declaration had been submitted based on information received from her bank. However, the court held that since the author had submitted another declaration on 19 February 2016, the two declarations must be added together, as a result of which the discrepancies in her new income declaration became 14,925.78 tenge and $8,058.73, respectively. Based on that conclusion, the court rejected the author’s complaint on 26 February 2016.

5. 100 tyin = 1 tenge. ↩

On an unspecified date, the author submitted an appeal to the Almaty City Court, which was rejected on 14 March 2016. The author also submitted requests for a supervisory review to the Almaty City Prosecutor and the Office of the Prosecutor General of Kazakhstan, however her requests were dismissed on 18 and 20 March 2016, respectively.

On 23 February 2016, the author, who is a well-known human rights defender and civil society activist in Atyrau, submitted her documents to the regional election commission to be registered as a candidate for the elections to the Atyrau regional Maslikhat. On the same day, she received an identification paper certifying her status as a candidate and immediately started her election campaign. On 12 March 2016, she was summoned to the local election commission and informed that she would be disqualified from running because she had submitted false information on her income declaration form. According to the calculations made by the tax authority and provided to the election commission, the author had incorrectly indicated her pension savings by an amount of 21,933 tenge and had not disclosed the existence of three other bank accounts (in one of those accounts she had 40 tenge and no money in the other two).

On an unspecified date, the author contested her disqualification as a candidate before the Atyrau City Court. She argued that (a) the information on her income declaration form concerning her pension savings was based on statements provided by the pension fund and (b) she had forgotten to formally close three bank accounts, which she had stopped using a long time before and the discrepancy in the amount of 40 tenge identified by the tax authority in one of those accounts was so minimal that her disqualification would constitute an unreasonable and disproportionate restriction of her right to run for public office. The author also argued that the discrepancy in her pension could have been explained by the fact that the tax authority had obtained its information on the day that she registered her candidacy for the elections, while she had obtained her statement from the pension fund 15 days before the registration date.

On 16 March 2016, the Atyrau City Court rejected her complaint because “the court was able to establish the discrepancy in the author’s income declaration and the election commission acted within its powers”. On 17 March 2016, the author submitted an appeal to the Atyrau Regional Court, which was rejected on the same day. The author also submitted requests for a supervisory review to the Atyrau Regional Prosecutor and the Office of the Prosecutor General of Kazakhstan, however her requests were dismissed on 18 March and 14 April 2016, respectively.

The authors claim that the State party has violated their right to take part in the conduct of public affairs and to elect and be elected, in violation of article 25 of the Covenant. They argue that such small discrepancies in their income declarations cannot be considered objective and substantiated grounds for disqualifying them from running for election. Even if their declarations contained mistakes, those mistakes were based on official bank and pension fund statements and the election commissions should have allowed them an opportunity to correct them. According to the authors, the Central Election Commission has stated that more than 300 candidates running for public office were disqualified because of similar small mistakes during the election period, but it refused to provide the names of those who were disqualified.⁶ The authors suggest that the actual number of those who were disqualified was about 40 and that all of them were independent candidates or candidates from opposition parties.

6. The authors refer to the news website tengrinews.kz, which in turn quotes a member of the Central Election Commission. See https://tengrinews.kz/kazakhstan_news/okolo-300-kandidatov-deputatyi-maslihatov-rk-snyatyi-290595/ (in Russian only). ↩

The authors further claim a violation of their rights under article 26 of the Covenant. They were disqualified from running because of their independent political views, which were different from those of the Government. They are known civil society activists in their respective regions who have often criticized the policies of the ruling party, Nur Otan (now known as Amanat), and were considered to be strong candidates to win seats in their local legislatures.

In a note verbale dated 15 March 2017, the State party submitted its observations on the admissibility and merits of communication No. 2914/2016. The State party notes that, in accordance with article 104 (1) of the Act on Elections, before registering their candidacies, all candidates must submit income declarations to their local tax authorities. Based on the documents submitted by the author, the Astana Department of State Income (the tax authority) audited the author’s income declaration and determined that she had underdeclared the money she had in two of her bank accounts by 4,779.79 tenge and $41.9, and overdeclared the balance on other accounts by 4,926 tenge and $0.96. The State party notes that in accordance with article 104 (6) (3) of the same law, election commissions must revoke a candidate’s registration if they determine that a candidate’s income declaration contains false information. Therefore, when the tax authority informed the election commission about the discrepancy in the author’s income declaration, the commission revoked her registration as a candidate for election to the Astana city Maslikhat. The State party submits that the domestic courts have determined that the author did indeed fail to show the correct information in her income declaration and that the decision of the election commission to revoke her registration was in compliance with domestic legislation.

The State party submits that the author was not able to substantiate her claim of a violation of articles 25 and 26 of the Covenant. It notes that the author was able to register her candidacy; however, due to her own disregard for the provisions of the election law, her registration was later revoked. The State party notes that to stand for election, candidates must meet the requirements set out in articles 33 and 86 of the Constitution. It also notes that, in accordance with article 14 of the Constitution, everyone is equal before the law and the courts, and no one is to be subject to any discrimination for reasons of origin, social or property status, occupation, sex, race, nationality, language, attitude towards religion, convictions, place of residence or any other circumstances.

The State party rejects the author’s argument that because the discrepancy in her income declaration was for such a small amount, it could not be used as the grounds for disqualifying her as a candidate. It also rejects the author’s assertion that she was disqualified for her political views and that more than 300 candidates were disqualified from running for election because of their political views. The State party notes that the author has not challenged the constitutionality of article 104 (6) (3) of the Act on Elections and has not substantiated her claim of discrimination based on her political views. It also notes that the author did not raise the issue of discrimination based on her political views in her domestic legal proceedings, which makes that claim inadmissible for lack of exhaustion of domestic remedies.

Finally, the State party refers to the author’s submission that she was not given an opportunity to contest or rectify her income declaration and notes that the Act on Elections does not provide for income declarations to be corrected once they have been submitted.

In a note verbale dated 11 January 2018, the State party submitted its observations on the admissibility and merits of communication No. 3051/2017. The State party notes that the submission of income declaration is a measure for countering corruption and for financial checks on those who aspire to enter public service. It further notes that the domestic courts have determined that the author declared her pension savings to be in the amount of 1,030,471 tenge, while her actual savings amounted to 1,008,538 tenge. The author also failed to declare 40 tenge that were in one of her bank accounts or to declare the existence of two other bank accounts without any money in them.

Similar to its observations on communication No. 2914/2016, the State party rejects the author’s argument that because the discrepancy in her income declaration was for such a small amount, it could not be used as the grounds for disqualifying her as a candidate and rejects the author’s assertion that she was disqualified for her political views. The State party also notes that the author did not raise the issue of discrimination during the domestic proceedings, which makes her claim inadmissible for lack of exhaustion of domestic remedies.

In a note verbale dated 14 August 2018, the State party submitted its observations on the merits of communication No. 3040/2017. The State party notes that the Almaty Department of State Income identified a discrepancy in the amount of 0.78 tenge and $18.73 in the author’s original income declaration. According to the State party, the Medeu District Court accepted the author’s argument that her declaration was based on the statement received from her bank showing that she had 14,925 tenge and $8,040 in her bank accounts at the time when the statement was issued. However, since the author later submitted another income declaration, the court held that the amounts in both declarations needed to be added to one another, which increased the discrepancy to 14,925.78 tenge and $8,058.73, respectively. Based on that, the court held that the election commission had correctly revoked its registration of the author’s candidacy for submitting false information about her income.

On 18 April 2017, the author of communication No. 2914/2016 submitted her comments on the State party’s observations. She notes that the State party regularly uses article 104 (6) (3) of the Act on Elections to prevent independent candidates and those from opposition parties from running for elections. The author notes that the State party has not denied that the courts did not call any witnesses, including representatives of banks and the local tax authority, thus showing that the trial was conducted in a biased and superficial manner. She also refers to the State party’s submission that the domestic legislation does not provide for income declarations to be corrected once they have been submitted and argues that this also violates her rights under the Covenant. The author reiterates her assertion that she was disqualified from running in the elections due to her political views.

On 11 January 2018, the author of communication No. 3051/2017 submitted her comments on the State party’s observations. She reiterates her claim that she was subjected to a disproportionate restriction of her right to be elected. She refers to the report of the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR) on the elections to the Majilis (the lower chamber of the parliament), held in Kazakhstan in January 2012, and argues that this practice is used by the State party to prevent independent candidates and those from opposition parties from running for election.⁷

7. See https://www.osce.org/files/f/documents/7/3/89401.pdf. ↩

On 10 October 2018, the author of communication No. 3040/2017 submitted her comments on the State party’s observations. The author notes that, in accordance with article 274 of the Code on Administrative Offences in force at the time, submitting false information in income declarations is considered a violation, unless this information is later rectified by way of submitting an additional declaration. The author notes that this provision of the Code was disregarded by the domestic courts in her case.

The author reiterates that the discrepancy between her income declaration and the actual amount of money in her bank accounts was so insignificant that it could not serve as objective and reasonable grounds for restricting her right to run for election. She argues that the authorities of the State party should have allowed her to clarify and rectify her declaration but instead she was immediately disqualified. She notes that she understands that the right to be elected is not absolute, however she argues that the restrictions foreseen by the Act on Elections, as applied in her case, can be qualified as disproportionate and unreasonable.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

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

The Committee notes the authors’ claim that they have exhausted all effective domestic remedies available to them. It also notes the State party’s submissions in relation to communications No. 2914/2016 and No. 3051/2017 that in their complaints before the domestic authorities, the authors did not raise the issue of discrimination based on their political views. The Committee observes that in order to exhaust domestic remedies, the authors must have raised, through all effective and available domestic mechanisms for redress, the substance of the claims that are the subject of the communication before the Committee.⁸ The Committee notes that none of the authors provided any information on whether they had raised their claims of discrimination before the domestic authorities. The Committee further notes, based on the information on file, that their claims before the domestic authorities were that they should not have been disqualified from running for election because of the disproportionate measures taken by the local election commissions. The authors, however, did not raise claims of discrimination based on their political views before the domestic courts. The Committee therefore finds the claims under article 26 of the Covenant inadmissible pursuant to article 5 (2) (b) of the Optional Protocol for all communications.

8. Corral v. Spain (CCPR/C/83/D/1356/2005), para. 4.2, in which the Committee stated that authors must “raise the substance of the issues submitted to the Committee before domestic courts”. ↩

The Committee considers that the authors have sufficiently substantiated their claims under article 25 of the Covenant, for the purposes of admissibility and proceeds with its consideration of the merits.

The Committee has considered the communications in the light of all the information made available to it by the parties, as provided under article 5 (1) of the Optional Protocol.

The issue before the Committee is whether the authors’ rights under article 25 of the Covenant, including the right to take part in the conduct of public affairs, to vote and to be elected to public office, were violated by the disqualification of their candidacies for the 2016 elections to local and regional legislatures. The Committee observes that, in the present cases, the registration of the authors was revoked by their respective election commissions on the grounds that they had misstated their financial assets in the income declarations they had submitted earlier to their local tax authorities. The Committee notes that the author of communication No. 2914/2016 misstated her assets in several bank accounts, with the largest discrepancy being in the amount of $41.9. Similarly, the mistake in the income declaration of the author of communication No. 3051/2017 amounted to the equivalent of approximately $55 in pension savings. Finally, the local tax authorities were able to identify a discrepancy of approximately $19 in the income declaration of the author of communication No. 3040/2017, which was later increased by the Medeu District Court.

The Committee notes the State party’s submission that, as determined by the domestic courts, the authors submitted false information in their income declarations and that the decisions taken by the election commissions to revoke their registrations were in compliance with the domestic legislation. It observes that the authors were not allowed to contest or rectify their income declarations because the Act on Elections does not provide for a correction of income declarations. The Committee also notes the authors’ argument that the discrepancies in their income declarations were caused by official bank and pension fund statements and that once they had been identified, the election commissions should have allowed them an opportunity to correct those declarations.

The Committee recalls that article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected, and the right to have access to public service. Whatever form of constitution or government is in force, the exercise of those rights by citizens may not be suspended or excluded, except on grounds that are established by laws that are objective and reasonable, and that incorporate fair procedures.⁹

9. General comment No. 25 (1996), paras. 3, 4 and 16. ↩

The Committee notes the State party’s submission that article 104 (6) (3) of the Act on Elections prescribes that election commissions must revoke candidate registrations if they determine that the income declarations of candidates contain false information. Since the Act on Elections does not allow candidates to contest or rectify their income declarations, the registrations are revoked based solely on notifications obtained from the tax authorities. In that respect, the Committee notes that the State party has failed to address the authors’ argument that, in accordance with article 274 of the Code on Administrative Offences in force at the time, submitting false information in income declarations is considered a violation, unless that information is later rectified by way of submitting an additional declaration. The Committee observes that, despite the fact that the authors were able to show that the discrepancies were caused by incorrect statements from banks and pension funds, the domestic courts held that the existence of the discrepancies in the authors’ income declarations was sufficient for the election commissions to disqualify them. The Committee notes that in communication No. 3040/2017, the Medeu District Court accepted the author’s argument that her declaration was based on the statement received from her bank, however it did not prevent the court from finding that the author was at fault for submitting false information in her income declaration. In such circumstances, once the tax authorities identify a discrepancy in a candidate’s income declaration, it becomes impossible for that candidate to contest disqualification, which according to the State party’s interpretation of article 104 (6) (3) of the Act on Elections, is the only possible outcome. In that respect, the Committee notes that the State party did not provide information about any incidents in which candidates were successful in challenging their disqualification due to the submission of incorrect information in income declarations. Therefore, in the circumstances of the authors’ cases, the Committee concludes that the decisions of the respective elections commissions to disqualify the authors from running in local elections without allowing them to contest or clarify their income declarations, even if they were based on the provisions of the domestic law, coupled with the subsequent lack of access to an effective judicial review, incorporated unfair procedures and led to an unreasonable restriction of the authors’ rights under article 25 of the Covenant. In the light of the foregoing, and in view of the material brought before it, the Committee concludes that the State party is responsible for breaching the authors’ rights under article 25 (b) and (c) of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the authors’ rights under article 25 (b) and (c) of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to provide the authors with adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future, including by ensuring that election regulations and their application are consistent with article 25 of the Covenant.

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 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 and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, 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 and to have them widely disseminated in the official languages of the State party.