37
associate for political purposes, which “clearly reveals Mexico’s intention regarding the
scope of Article 23(2), because, in this reservation, it merely introduced one additional
restriction to the limitations indicated in the provision” and that “it is beyond doubt that if
Mexico had wished to introduce another limitation […], for example, that in order to be
elected it was necessary to be postulated by a political party […,] the Convention only
allowed [Mexico] to incorporate the limitations established in Article 23(2) into its electoral
laws, and perhaps the one formulated in the reservation, but no other limitation”; the InterAmerican Commission did not apply its own criteria of making the interpretation most
favorable to the individual and decided, regressively, to conclude that a monopoly political
party system is not, in itself, contrary to the American Convention, based on a former
decision and omitting the more recent precedents that offer more protection to the right to
be elected. They underscored that the Commission’s 1998 Report on Mexico referred to the
issue of independent candidacies and that Mexico had not complied with its recommendation
to adopt the necessary measures to regulate the right to vote and to be elected, and to
include the broadest and most participative access of candidates to the electoral process, as
an element to consolidate democracy.
137. The State argued that the alleged violation of Article 23 is not part of the dispute in
this case, because the Commission’s application refers “only to the alleged violation of
Article 25 of the Convention” and that the Court “is not competent to hear abstract
allegations of violation of the American Convention owing to supposed laws in force that
have not been applied in specific cases.” It also argued that, in the instant case, Mr.
Castañeda Gutman’s political rights had not been violated for the following reasons: (i)
political rights are not absolute and can be restricted, provided the principles of lawfulness,
necessity and proportionality in a democratic society are respected; (ii) the monopoly of the
political parties to nominate candidates is based on the right of the States to provide
themselves with their own specific political system and is not contrary to international law;
therefore, it was not necessary to introduce a reservation concerning the postulation of
candidacies by political parties either when ratifying the Convention or subsequently; (iii) a
distinction should be made between direct limitations to political rights (such as exclusions
based on gender or race) and the mechanisms that the States put in place for the exercise
of political rights; (iv) the Yatama case is not applicable in this case, and (v) Human Rights
Committee General Comment 25 does not refer to the monopoly of political parties to
nominate candidates, but to the requirement that citizens should join specific parties in
order to be elected; Article 175 of the Electoral Code does not establish the necessary
membership of a citizen in a political party in order to postulate for elected public office,
because the possibility and the right exists for a political party to postulate for elected office
citizens who do not belong to it, a right that is frequently exercised; and (vi) the exclusivity
of postulation by political parties is based on historical and practical factors for the
organization of the electoral system within the Mexican social and economic context.
*
*
*
138. The Court has established that the alleged victim, his next of kin or his
representatives may allege different rights from those included in the Commission’s
application, based on the facts presented by the Commission.48
139.
Furthermore, the Court has established that the disputed law was applied in the
48
Cf. Case of the “Five Pensioners” v. Peru. Merits, reparations, and costs. Judgment of February 28, 2003.
Series C No. 98, para. 155; Case of Escué Zapata v. Colombia. Merits, reparations, and costs. Judgment of July 4,
2007. Series C No. 165, para. 92; and Case of the Saramaka People, supra note 6, para. 27.
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