57
227. The Inter-American Commission asked the Court “to order the Mexican State to
prioritize the adoption of the necessary legislative, administrative and other reforms to
ensure that, in future, there is a remedy to control the constitutionality of the laws that
affect political rights.” It also observed that “[…] the State has adopted an important
constitutional reform, which the Commission genuinely appreciates […]” and that this
reform “[…] is a first and very important step, […] but does not entirely solve the problem
that affects the victim in this case […].” The Commission concluded that the effectiveness of
this reform should be evaluated based on the application of the new model to specific cases,
after the lower-ranking laws had been harmonized with the new provisions of the
Constitution.
228.
The representatives stated that they left it to the Court to determine the reparations
that it considered fair in the circumstances, including, of course, guarantees of nonrepetition,” and that “a judgment in favor of the victim in this case would be a first and
extremely important measure of reparation.” Specifically in relation to the constitutional
reform, the representatives stated that “[…] it remedies a juridical shortcoming, which had
caused the violation” of Mr. Castañeda Gutman’s right to judicial protection and it was now
up to “the ordinary legislator to regulate the new constitutional provisions and establish the
procedures under which citizens may exercise this remedy.”
229. The State indicated that “[…] this application was unjustified and without substance,
since, as it had already argued, the text of the Constitution guaranteed and guarantees in
its Article 99(3) the existence of an adequate and effective remedy that responds to the
claims such as the one made today by [Mr. Castañeda Gutman].” Furthermore, the recent
electoral reform of November 13, 2007, complements the said Article by developing the
actions that the Electoral Tribunal can take when it is exercising its attributes under Article
99(3) of the Constitution. Thus, the Mexican State, through its Constitution, guarantees the
existence of an appropriate and effective remedy […].”
230. The Court notes and appreciates the information provided by the State in its brief of
November 27, 2007, in which it indicated that: “[…] a constitutional reform of several
provisions of the Federal Constitution was published in the official gazette on November 13,
2007; they included Article 99, which describes the attributes of the Electoral Tribunal of the
Federal Judiciary.” The State added that “[…] following this reform, in addition to the
attributes that the Electoral Tribunal already exercised to guarantee political rights, [...] this
jurisdictional body and its regional chambers may expressly declare the non-applicability of
legal provisions that are considered contrary to the Federal Constitution with specific
effects, which also annuls the future effects of any opinion that the Supreme Court of
Justice may have issued on the matter.” The Court also observes that the representatives
stated that this reform “[…] remedies the juridical defect that resulted in the violation”
suffered by Mr. Castañeda Gutman and that its legal regulation remained to be enacted
(supra para. 228).
231. Based on the above, and bearing in mind the contents of Chapter VI of this
judgment, the Court finds that the State shall, within a reasonable time, complete the
adaptation of its domestic law to the Convention, in order to adapt the secondary legislation
and the norms that regulate the action for the protection of the rights of the citizen to the
provisions of the constitutional reform of November 13, 2007, so that, using this remedy,
the citizens are effectively guaranteed the possibility of contesting the constitutionality of
the legal regulation of the right to be elected.
ii)
Obligation to publish the judgment
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