6
complementing the existence of the political parties and strengthening them, since
they are a necessary means of representation and participation in a democratic
society. In this perspective, it is perfectly legitimate and concordant with the letter
and spirit of the Convention that, within the national system of laws, there are
homogeneous norms that emphasize the participation of political parties in the
electoral processes as well as regulations designed to strengthen their
representative and democratic nature, without detriment to their independence
from the State. In addition, it is legitimate that domestic laws should include legal
provisions concerning “other political organizations,” aimed at facilitating the
participation of specific sectors of society, as could be the case of the indigenous
peoples.
28.
The third component of political rights protected by Article 23 of the
Convention stipulates that every citizen should “… have access, under general
conditions of equality, to the public service of his country” (underlining added). This
aspect of political rights has to be understood systematically in relation to both the
other explicit components of the political rights contained in Article 23(1), and the
rest of the Convention and the inter-American legal system, in particular Article 24
of the Convention which refers to the right to equality and non-discrimination.
29.
In this regard, when considering the provision of Article 23 on the “general
conditions of equality,” this should be referred to two aspects that can and should
be understood concurrently and simultaneously. First, the norm establishes that it
is necessary to guarantee access to public office to everyone “under general
conditions of equality.” This means that specific measures should be promulgated
to facilitate the access to public office of the sectors of the population that may face
special disadvantages and, thus, inequality – as could be the case of the indigenous
peoples. In this case, it has been proved that Nicaragua did not adopt such
measures; to the contrary, the 2000 Electoral Act created obstacles to this access.
30.
Second, this general provision on access to public service, consistent with
Article 29 of the Convention should be interpreted not only in relation to
appointments or designations by the authority but also with reference to the public
service that is exercised by popular election. In other words, the Court does not
accept a restrictive interpretation referring only to public office or positions derived
from appointments and designations. This is, without doubt, the meaning of this
provision that seeks, precisely, to stress the principle of equality in the specific
sphere of public service.
31.
The above should be read and interpreted in close connection with the
provisions of Article 24 of the Convention as regards equality and nondiscrimination. As the judgment states, Article 24 of the Convention prohibits
discrimination de facto and de jure with the obligation that this entails for the State
to respect the said principle of equality and non-discrimination for all the rights
embodied in the Convention and in all domestic laws that it adopts. In this regard,
the provisions of Article 23(1)(c) are designed to emphasize the significance that
the Convention accords to the principle of equality and non-discrimination in the
right to take part in the conduct of public affairs.
32.
Consequently, given the proven facts in this case in light of the reasoning
derived from the provisions of Article 23(1)(c) concerning the general conditions of
equality and of Article 24 concerning equality and non-discrimination, the State’s
obligation not to tolerate practices or norms that could have a discriminatory effect
is clear. This should not be understood as contrary to homogeneous rules and
conditions for all of society and all citizens with regard to the full exercise of
political rights.