47
181. Contrary to other rights that, in the Article embodying them, specifically establish the
legitimate purposes that could justify restrictions to a right, Article 23 of the Convention
does not explicitly establish the legitimate causes or permitted purposes by which the law
may regulate political rights. Indeed, this Article merely establishes certain aspects or
reasons (such as, civil or mental capacity and age) on the basis of which political rights may
be regulated in relation to their titleholders, but does not determine explicitly either the
purposes or the specific restrictions that will necessarily have to be imposed when designing
an electoral system, such as electoral districts and others. However, the legitimate goals
that the restrictions should pursue arise from the obligations that can be inferred from
Article 23(1) of the Convention, which the Court referred to above.
182. Mexico has invoked some reasons to maintain that the system in operation in that
State is a mechanism for the exercise of political rights that conforms to the corresponding
international standards, in terms of lawfulness, necessity and proportionality, and that this
is clear from the COFIPE. Article 175 of this Code, which establishes that “only the national
political parties have the right to request the registration of candidates to elected office,”
regulates Article 41 of the Constitution of the United Mexican States which stipulates that
“the purpose of political parties is to promote the participation of the people in democratic
life, to contribute to the integration of the national representation and, as citizen
organizations, to enable them to have access to the conduct of public affairs, in accordance
with their programs, principles and ideas, and by means of free, secret and direct suffrage
[…].”
183. The Court considers that Article 175 of the COFIPE, which is being examined, was
designed to organize the electoral process and the access of citizens to the exercise of
public office under equal conditions and effectively. This objective is essential for the
exercise of the rights to vote and to be elected in genuine periodic elections, by universal
and equal suffrage and by secret ballot that guarantees the free expression of the will of the
voters, in keeping with Article 23 of the American Convention.
184. Nevertheless, the fact that a measure is designed to achieve a purpose permitted by
the Convention does not imply that it is necessary or proportionate, and the Court will
examine this below.
3) Necessity in a democratic society and proportionality of the restrictive measure
185. Under the inter-American system there is a third requirement that must be met in
order to consider that the restriction of a right is compatible with the American Convention.
The Inter-American Court has stated that, for a restriction to be permitted in light of the
Convention, it must be necessary for a democratic society. The Court has incorporated this
requirement, which the American Convention has established explicitly in relation to certain
rights (of assembly: Article 15; of association: Article 16; of movement: Article 22), as a
criterion for interpretation and as a requirement that characterizes restrictions to the rights
established in the Convention, including political rights.65
186. To evaluate whether the restrictive measures being examined complies with this
requirement, the Court must assess whether: (a) it fulfills an urgent social need; in other
words, that it is designed to fulfill an essential public interest; (b) it is the measure that
least restricts the protected rights, and (c) it is closely adapted to achieving the legitimate
purpose.
65
Cf. Case of Yatama, supra note 49, para. 206 and ff.
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