to analyze controversies in contentious cases. The European Court has also used
comparative law as a mechanism to assess a State’s subsequent practice. 11
14.
From the information at hand in the case file, it appears that in the region there are
different systems regarding the disqualification of public officials that result in restrictions on
passive suffrage: i) political system, that consists of a political trial carried out by a
legislative body, generally against high-ranking officials syndicated for faults or crimes12;ii)
and iii) administrative, system,
judicial system by way of a criminal proceeding,13 14
disciplinary or entrusted to the judicial electoral authority. From this examination, it can be
15
concluded that the use of one system does not exclude another system. By observing this
context of comparative law, it can be said that these judicial and institutional practices of
the States Parties are related to the international obligations at hand regarding the
principles and instruments of anti-corruption previously mentioned.
15.
The teleological interpretation takes into account the purpose established in the
various standards that regulate political rights. In Article 23(2) of the Convention, possible
reasons are stipulated for the restriction or regulation of political rights, and it clearly seeks
that it not be left to the will or discretion of the ruling authority, in attempts to safeguard
that the political opposition may exercise its rights without undue restrictions. That is the
clear purpose of the regulation. The restrictive mechanism of rights, thus, must offer
sufficient guarantees to comply with the purpose of protecting rights and liberties of
persons, democratic systems, and the political opposition. It must be understood, therefore,
that the judgment of must be the strictest possible, regardless of the means used to
effectuate the restriction.
16.
In what regards the working papers of the Convention, as supplemental standards
for interpretation, no debate nor basis is found in these papers on the terms “only […]
sentencing by a competent court in a criminal proceeding.” This standard was included only
in the last discussion of the Article on political rights, due to a proposal from the Brazilian
Judgment of November 24, 2010. Serie C No. 219, paras. 163 to 169, and Case of Gelman V. Uruguay. Merits and
Reparaciones. Judgment of February 24, 2011 Serie C No. 221, paras. 215 to 223.
11
For example, in the case TV Vest As & Rogoland Pensionistparti against Norway, the European Court took
into account a document of the “European Platform of Regulatory Authorities” wherein a comparison was carried
out of 31 countries of ther egion, in order to determine in which countries paid political publicity was allowed and in
which this sort of publicity was free. Cf. Case TV Vest As & Rogoland Pensionistparti v. Norway, Judgment of 11
December 2008, para. 24. Similarly, in the case of Hirst against the United Kingdom, the Court considered “the
legislation and practices of State Parties” to determine which countries restricted to right of those convicted of a
crime from voting; the legslation of 48 countries was analyzed. Cf. Hirst v. United Kingdom, Judgment of 6 October
2005, paras. 33 to 39.
12
Examples of the foregoing are Articles 59 and 60 of the National Constitution of the Republic of Argentina,
Article 110 of the Political Constitution of the United Mexican States. Cf. Brief of final arguments of the
representatives of the victim (case file on the Merits, tome III, folios 1361 and 1362).
13
For example, Article 43 of the Criminal Code of Colombia, Articles 260 and 264 of the Criminal Code of
Argentina or Article 24 of the Federal Criminal Code of Mexico, cited in the Carpizo’s expert report. Cf. Expert
report rendered by public notary (affidavit) by expert witness Jorge Carpizo McGregor on January 20, 2011 (case
file on the Merits, tome III, folios 872, 873, and 878).
14
Pursuant to that information, that is the case of Brazil, Colombia, Costa Rica, México, Perú, and the
Dominican Republic.
15
It is, for example, the case of México. A normative analysis in Mexico, allows for evidence of the
establishment of a political trial (Article 110 of the Constitution), in the criminal process (Article 24 of the Federal
Criminal Code of Mexico) and the administrative or disciplinary sanction (Article 13 of the Federal Law on
Responsibility of Public Officials).
3
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