4
“...Transparency in government activities, probity, responsible public administration
on the part of governments, respect for social rights, and freedom of expression
and of the press.” In the absence of progress in clarifications such as these, which
the American community has adopted consensually, it is evident that the said right
to take part in the conduct of public affairs would be frozen in time, and not reflect
the changing requirements of the democracies in our region.
18.
The second component of political rights, as expressed in Article 23 of the
Convention, is “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” (underlining added). This provision refers us to
one of the fundamental requirements of representative democracy that has inspired
the normative and purposes of the inter-American system since its conception. It
stresses that elections should be genuine and periodic and also the characteristics
of the vote: universal, equal and secret, in order to comply with a requirement that
is also mentioned in Article 23: to guarantee the free expression of the will of the
voters. It is evident that, unless this essential ingredient is present, other forms of
participation would be weakened as they would not encounter, in elections, a way
to build strong democracies for assuming and exercising public office.
19.
In this judgment, the Court has revealed clearly the findings that lead it to
conclude that, in this case, the State of Nicaragua has violated the norm cited in
the preceding paragraph. Consequently, I refer to this reasoning and these
conclusions. In this regard, Article 23 is very clearly formulated and the proven
facts show that this violation occurred. Nevertheless, taking into account the
complexities of political processes in general, and of electoral processes in
particular, it cannot be ignored that the components established in the said
provision of Article 23 are, at this point in juridical evolution, insufficient and the
countries of the inter-American system have understood this.
20.
The wealth of the political, social and juridical processes that the region has
undergone has been expressed in a parallel process of refinement of the
fundamental characteristics of electoral processes and the vote of the citizen. The
varied and eventful course of the political processes has revealed that, in order to
guarantee “the free expression of the will of the voters,” the component of
“universal and equal suffrage by secret ballot” was essential but, also, insufficient,
given the very different threats and difficulties posed by the reality. Thus, the
difficulties – or facilities – of access to means of communication, the complexities in
the registration of candidates or the characteristics of the electoral rolls, became
serious problems in a context in which, owing to the new political context,
“universal and equal suffrage by secret ballot” no longer appeared to be an issue.
21.
Therefore, as in other components of the political rights mentioned in Article
23(1) of the Convention, the fundamental concept of the “free expression of the will
of the voters” has been enhanced by important institutional evolutions in domestic
law and in the inter-American system itself in light of which this general provision
of the Convention must be interpreted and applied, with regard to both the rights of
the citizens and the obligations of the State. As regards the right to take part in the
conduct of public affairs, the Inter-American Democratic Charter has summarized
and expressed the current consensual status in the inter-American system with
regard to the “free expression of the will of the voters.”
22.
Indeed, the Charter reiterates principles that coincide in general with the
contents of the Convention when it indicates that: “Essential elements of
representative democracy include, inter alia, respect for human rights and
fundamental freedoms, access to and the exercise of power in accordance with the
rule of law, the holding of periodic, free, and fair elections based on secret balloting