2
authorities who exercise their functions in territories inhabited by different races,
such as the municipalities of the Autonomous Regions.
6.
In relation to Article 25, it should be noted that, in its Advisory Opinion OC9/87 (“Judicial Guarantees in States of Emergency,” para. 27), the Court stated that:
“in the Spanish text of the Convention, the title of this provision (Article 8(1) of the
Convention), whose interpretation has been specifically requested, is "Judicial
Guarantees."1 This title may lead to confusion because, strictly speaking, the
provision does not recognize any judicial guarantees. Article 8 does not contain a
specific judicial remedy, but rather the procedural requirements that should be
observed in order to be able to speak of effective and appropriate judicial guarantees
under the Convention.”
Article 25 of the Convention is entitled “Judicial Protection” and establishes
the right to a simple and prompt recourse before a competent court or tribunal and,
later describes the State’s undertaking “to develop the possibility of judicial remedy.”
These two provisions have been interpreted as if they established the remedy
of amparo as obligatory in all cases, but this is not so.
7.
Nicaraguan electoral legislation establishes a series of remedies against lesser
electoral officials, which, in some cases, can reach the Supreme Electoral Council,
but it expressly excludes the remedy of amparo in relation to electoral issues, as do
the laws of many other countries. Also, many other countries, like Nicaragua,
exclude judicial decisions from the remedy of amparo because they consider that
ordinary recourses are sufficient to guarantee human rights. In the instant case,
when the Supreme Electoral Council ruled on YATAMA’s request for the registration
of its candidates, it was not exercising a simple administrative function, but was
acting as a judicial tribunal on electoral matters and, consequently, the remedy of
amparo which YATAMA applied for before officials of the Judiciary was inadmissible
against this decision. As the grounds for this legal provision, it should be recalled
that the high level of partisan politicization that exists in many countries makes it
preferable not to politicize the Judiciary; and this would inevitably happen if it was
entrusted with electoral matters. Thus, both because this was a jurisdictional
decision and because it dealt with an electoral issue, the remedy of amparo was
inadmissible.
8.
Since this case refers to permitted regulations, it is outside the Court’s
competence to examine the Supreme Electoral Council’s resolution to determine
whether it was issued in correct application of the Nicaraguan electoral laws. This
would be equivalent to converting the Court into a higher court of appeal than all the
national courts, distancing it from its functions of interpretation and application of
the provisions of the Convention. Moreover, the Court cannot consider Nicaraguan
laws in the absence of any evidence that they are contrary to human rights and
bearing in mind that, under the same laws, YATAMA took part in the 2004 local
elections without any problem.
9.
To conclude I would like to put on record the reasons for my dissent on
points relating to the publication of this judgment, the reform of the law, and
adoption of other measures, because, as I said in paragraph 14 of my opinion in
Serrano Cruz Sisters v. El Salvador, judgment of March 1, 2005, Article 63 of
1
“Right to a Fair Trial" in the English text
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