36
133. In the instant case, the inexistence of an effective recourse constituted a violation of
the Convention by the State Party, and non-compliance with its domestic legal effects to
make effective the rights established in the Convention, in the terms of Article 25 of the
American Convention on Human Rights, in relation to Articles 1(1) and 2 thereof.
VII
ARTICLE 23 (RIGHT TO PARTICIPATION IN GOVERNMENT)47
IN RELATION TO ARTICLES 1(1) (OBLIGATION TO RESPECT RIGHTS) AND
2 (DOMESTIC LEGAL EFFECTS) OF THE AMERICAN CONVENTION
134. The Inter-American Commission did not find that there had been a violation of Article
23 of the American Convention in its report on admissibility and merits; consequently, it did
not allege the violation of the right to participate in government before the Court.
135. To the contrary, the representatives asked the Court to declare that Mexico was
responsible for the violation of the right to participate in government embodied in Article 23
of the American Convention and of Articles 1(1) and 2 of this instrument to the detriment of
Jorge Castañeda Gutman. They stated that his right to be elected was violated by the official
communication of March 11, 2004, issued by IFE in which, based on Article 175 of the
COFIPE, among other provisions, he was denied registration of his independent candidacy
for the office of President of the United Mexican States. Among other arguments, the
representatives alleged that: (i) political parties are not the only vehicles enabling citizens
to postulate themselves for elected office, as established in the respective norms and the
progressive development of the precedents of the Inter-American system for the protection
of human rights, especially the ruling of the Court in the Yatama case; (ii) there can be no
restrictions to the exercise of the political rights embodied in the Convention other than the
assumptions established in Article 23(2) thereof; in this regard, the word “only” [Note:
exclusivamente in Spanish] used in that provision reinforces the fact that there can be no
other restrictions than those indicated therein and any requirement other than those
expressly established in the said Article is contrary to the Convention; (iii) according to
Human Rights Committee General Comment 25, the right of persons to stand for election
should not be excessively limited by requiring candidates to be members of parties or of
specific parties, which applies in this case, and (iv) independent candidates are necessary
and would constitute an escape valve in view of the limited credibility of political parties and
low participation in elections.
136. The representatives also alleged that, when ratifying the American Convention,
Mexico had made a reservation to Article 23(2) of the Convention to the effect that
members of religious orders would not have the passive right to vote or the right to
47
Article 23. Right to participate in government
1.
Every citizen shall enjoy the following rights and opportunities:
a.
to take part in the conduct of public affairs, directly or through freely chosen representatives;
b.
to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and
by secret ballot that guarantees the free expression of the will of the voters; and
c.
to have access, under general conditions of equality, to the public service of his country.
2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph
only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing
by a competent court in criminal proceedings.
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