11
(c)
With regard to the alleged violation of Article (2)(h) of the Convention:
“in this case we have a ruling of the Supreme Electoral Council of the Republic
of Nicaragua[,] which is the highest electoral tribunal in Nicaragua.” “[T]he
persons in whose name the Commission is making a claim […] used the
recourses established in the Electoral Law; […]the fact that these recourses
were unsuccessful in no way signifies that the State of Nicaragua has failed to
adopt the legislative provisions necessary to give effect to the rights embodied
in the Convention”;
(d)
“With regard to the alleged violation of Article 23 of the Convention,
[...t]he Electoral Act [...] regulates the exercise of the rights and opportunities
referred to in Article 23(1) of the Convention, respecting the parameters
contained in the second paragraph of this Article.” “The fact that the persons in
whose name the Commission has filed the application, and the organizations
cited in its expansion, have not complied with the regulations of the Electoral
Act and, consequently, have not participated in the election process for mayors,
deputy mayors and councilors, in no way signifies a violation of their political
rights”; and
(e)
“In relation to the alleged violation of Article 25 of the Convention, […]
the Constitution of the Republic of Nicaragua, the Amparo Act and the Electoral
Act establish the recourses to contest acts that are considered to have violated
fundamental rights […. T]herefore[,] the Commission […] has no grounds for
affirming that the State of Nicaragua has violated Article 25 of the American
Convention on Human Rights.” If the recourses are considered inadmissible, the
State is unable to take action against this decision.
58.
With regard to the fourth objection:
(a)
“[This] objection […] is based on the fact that the State of Nicaragua has
not violated the rights established in Articles 8, 25, 2 and 1, and 23, 24 and 2
of the Convention.” “[T]he YATAMA political party use[d] all the recourses of
domestic law that regulate electoral processes”;
(b)
The Inter-American Commission recognizes the existence of numerous
constitutional and legal provisions in favor of the communities of the Atlantic
Coast so that they may live and evolve under their own form of social
organization. The State “guarantees the concept of the absolute equality before
the law of all Nicaraguan citizens”; and
(c)
“The Constitution and the laws in force have been applied strictly.”
Article 173(14) in fine of the Constitution grants judicial powers to the Supreme
Electoral Council, when it establishes that there is no ordinary or extraordinary
recourse against its resolutions. Since “the laws in force have been applied[, ...]
the Commission has no right of action against the State of Nicaragua and [the
State] requests the Court to declare this.” “A system of jurisdictional powers
similar to those granted by the Constitution to the Supreme Electoral Council
may be appreciated in comparative law.”
Arguments of the Commission
59.
The Inter-American Commission requested the Court to “reject summarily” the
first preliminary objection and indicated that: