46
175. The Court has defined the conditions and requirements that must be fulfilled when
regulating or restricting the rights and freedoms embodied in the Convention,62 and will
proceed to analyze the legal requirement being examined in this case in light of them.
1) Lawfulness of the restrictive measure
176. The first step to evaluate whether a restriction of a right established in the American
Convention is permitted in light of this instrument consists in examining whether the
limitative measure complies with the requisite of lawfulness. This means that the general
circumstances and conditions that authorize a restriction to the exercise of a specific human
right must be clearly established by law.63 The norm that establishes the restriction must be
a law in the formal and substantial sense.64
177. In the instant case, the alleged victim did not allege that the restrictive measure was
not established by law; rather his arguments were designed to prove that the law regulating
this matter and its application in his specific case established an undue restriction and,
therefore, was contrary to the political rights embodied in the American Convention.
178. The State argued that the “Federal Code of Electoral Institutions and Procedures was
the result of a legislative process of drafting, discussion, approval, promulgation and
publication, carried out within the framework established in the Constitution and its
lawfulness was based on the support of the democratically-elected representatives.” It
added that “ [t]he decision of the Mexican federal legislator to establish that mechanism for
exercising political participation respected the standard of lawfulness, because it fell within
the powers that the Constitution confers on him.”
179. The Court observes that the requirement that it is the political parties that must
request the registration of the candidates for elected office at the federal level is established
in Article 175 of the COFIPE, which is a formal and substantial law.
2) Purpose of the restrictive measure
180. The second limit to any restrictions is related to the purpose of the restrictive
measure; in other words, that the cause invoked to justify the restriction should be among
those permitted by the American Convention, and established in specific provisions included
in certain rights (for example, to protect public order or public health, in Articles 12(3),
13(2)(b), and 15, among others), or in the norms that establish the legitimate general
purposes (for example, “the rights of others,” or “the just demands of the general welfare in
a democratic society,” both in Article 32).
62
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13
and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5,
para. 39; and Case of Kimel, supra note 4, para. 52.
63
Article 30 of the American Convention establishes that:
The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the
rights or freedoms recognized herein may not be applied except in accordance with laws enacted for
reasons of general interest and in accordance with the purpose for which such restrictions have been
established.
64
and 32.
Cf. The Word “Laws” in Article 30 of the American Convention on Human Rights, supra note 49, paras. 27
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