6
decide if a law is contrary to the American Convention if it has not adversely affected the
rights and freedoms protected by the Convention, as in the instant case.
17.
The Commission argued that, as the Court had stated in its Advisory Opinion No. 14,
the individuals subject to the jurisdiction of a norm may be affected simply because it is in
force, in the case of “self-executing norms” (“leyes de aplicación immediata”). This is the
situation in the instant case where the mere existence of Article 175 of the Federal Code for
Electoral Institutions and Procedures (hereinafter “COFIPE” or “Federal Electoral Code)5 and
the possibility of its application may violate the provisions of the Convention and, thus,
grant competence to the organs of the inter-American system to hear a contentious case
related to them. Despite the above, it indicated that, in a communication of March 11, 2004,
the Federal Electoral Institute (hereinafter “IFE”) responded to Mr. Castañeda Gutman’s
request stating that, pursuant to the legal norms, his candidacy could not be registered, so
that maintaining that Article 175 of the Federal Electoral Code was not enforced in this case
“is not based on the reality.” The Commission considered that this objection was unfounded
and asked the Court to reject it.
18.
The representatives argued that the Court has the authority to hear cases regarding
laws that are incompatible with the Convention when they are “self-executing”; moreover,
irrespective of whether Article 175 of the COFIPE has the characteristics of a “selfexecuting” norm or not, the alleged victim was seeking the non-execution of this norm. The
one and only disputed act of the authority was precisely the refusal of IFE to register Mr.
Castañeda Gutman’s candidacy by enforcing, among other norms, Article 175 of the
COFIPE. The application for amparo that was filed alleged, precisely, the incompatibility of
Article 175 of the COFIPE with the Convention and, consequently, with the Constitution,
since the ultimate intention was to contest the law itself, not in an abstract sense, but in
order to achieve the specific effect of registration of the candidacy. Lastly, they indicated
that when the Court has found that a provision of domestic law is not in keeping with the
inter-American legal system, it has decided that the State concerned should reform its laws.
*
*
*
19.
In official communication No. DEPPP/DPPF/569/04 of March 11, 2004, the Federal
Electoral Institute answered the request for registration as a candidate for the elected office
of President of the United Mexican States submitted by Jorge Castañeda Gutman on March
5, 2004. In this communication, based on case law and the pertinent legal provisions,
including Article 175 of the COFIPE, the IFE Privileges and Political Parties Directorate
concluded:
“Based on the foregoing grounds and reasons […] you are advised that the right to be
postulated for and elected to elected public office at the federal level, can only be exercised
through one of the national political parties that are registered with the Federal Electoral
Institute.
Lastly, paragraph 1(e) of Article 177 of the respective Code indicates that the time frame for
the registration of candidacies for President of the United Mexican States is from January 1 to
15 of the year of the election.
Based on the above, it is not possible to accept your request as presented […].”
5
The Federal Code for Electoral Institutions and Procedures (COFIPE) was rescinded and substituted by a
new code that was published in the Official Gazette of the Federation on January 14, 2008. Article 175 and other
Articles of COFIPE that are referred to in this judgment are those that were in force at the time of the facts. Cf. the
representatives’ final arguments brief (merits file, tome IV, folio 1140).