35
Convention,” which “[…] definitively proves the existence of an adequate and effective
judicial recourse to protect human rights of a political nature […],” the Court observes that,
contrary to the cases mentioned by the State, such as those of Hank Rhon, Manuel Guillén
Monzón, María Mercedes Maciel and Eligio Valencia Roque, in Mr. Castañeda Gutman’s case
there is no evidence in the case file before the Court that TRIFE would have been able to
carry out this “Convention control” of a federal electoral law.43
130. To be able to restore the alleged victim to the enjoyment of his rights in this case,
the procedure for the protection of the political and electoral rights of the citizen should
have enabled the competent authority to assess whether the regulation established in the
Federal Electoral Code, which allegedly restricted unreasonably the political rights of the
alleged victim, was compatible or not with the right established in the Constitution; in other
words, this means reviewing the constitutionality of Article 175 of COFIPE. As mentioned
above, this was not possible; so the Electoral Tribunal, pursuant to the binding criteria of
the Supreme Court, did not have competence to examine the compatibility of legal
provisions relating to electoral matters with the Constitution.
131. Given that the application for amparo was not admissible in the case of electoral
matters, the exceptional nature of the unconstitutionality proceeding and the inaccessibility
and ineffectiveness of the judicial procedure for protection to contest the failure of a law to
conform to the Constitution, at the time of the facts of this case, there was no effective
remedy in Mexico enabling an individual to question the legal regulation of the political right
to be elected established in the Constitution and in the American Convention. Owing to this,
the Court concludes that, the State did not offer the alleged victim an appropriate remedy
to claim the alleged violation of his political right to be elected and, consequently, violated
Article 25 of the American Convention, in relation to Article 1(1) thereof, to the detriment of
Mr. Castañeda Gutman
*
*
*
132. The Court has stated on many occasions that each State Party to the Convention
“must adopt all necessary measures to ensure that the provisions of the Convention are
effectively complied with in its domestic legal order, as required by Article 2 of the
Convention.”44 It has also indicated that the States “must adopt positive measures, avoid
taking initiatives that limit or infringe a fundamental right and eliminate the measures and
practices that restrict or violate a fundamental right.”45 The obligation contained in Article 2
of the Convention acknowledges a customary norm which provides that, when a State has
ratified an international convention, it must introduce into its domestic law the necessary
modifications to ensure the execution of the international obligations it has assumed.46
43
Cf. Judgments SUP-JDC-037/2001, SUP-JDC-695/2007, SUP-JDC-710/2007 and SUP-JDC-717/2007 de la
Of the Superior Chamber of the Electoral Tribunal of the Federal Judiciary (file of appendixs to the answer to the
application, appendixs 1, 2, 3 and 4, folios 1168 to 1908).
44
Cf. Case of “The Last Temptation of Christ” (Olmedo Bustos el al.) v. Chile. Merits, reparations, and costs.
Judgment of February 5, 2001. Series C No. 73, para. 87; Case of La Cantuta v. Peru. Merits, reparations, and
costs. Judgment of November 29, 2006. Series C No. 162, para. 171, and Case of Zambrano Vélez el al., supra
note 27, para. 79.
45
Cf. supra note 27.
46
Cf. Case of Garrido and Baigorria v. Argentina. Reparations and costs. Judgment of August 27, 1998.
Series C No. 39, para. 68; Case of La Cantuta, supra note 44, para. 170; and Case of Zambrano Vélez et al., supra
note 27, para. 55.
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