4
foregoing constitutes an approach based on consensual expression, which is directly
related to the interpretation and application of a broad provision such as the one
contained in Article 23 of the American Convention.
17.
Indeed, Article 4 of the Inter-American Democratic Charter enumerates a
series of “essential components” of the exercise of democracy that express the
conceptual development of the right to take part in the conduct of public affairs, and
that are condensed in this inter-American instrument. It underscores a series of
State obligations which are merely the counterpart of the rights of citizens:
“...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
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