86
205. According to the provisions of Article 29(b) of the American Convention, the
Court considers that, in order to guarantee the effectiveness of the political rights of
the members of the indigenous and ethnic communities of the Atlantic Coast, who
include the alleged victims in this case, Nicaragua should take into account the specific
protection established in Articles 5,167 49,168 89169 and 180170 of the Constitution and
Article 11(7)171of the Statute of Autonomy of the Atlantic Coast Regions.
206. Instituting and applying requirements for exercising political rights is not, per
se, an undue restriction of political rights. These rights are not absolute and may be
subject to limitations.172 Their regulation should respect the principles of legality,
necessity and proportionality in a democratic society. Observance of the principle of
legality requires the State to define precisely, by law, the requirements for voters to be
able to take part in the elections, and to stipulate clearly the electoral procedures prior
to the elections. According to Article 23(2) of the Convention, the law may regulate the
exercise of the rights and opportunities referred to in the first paragraph of this Article,
only for the reasons established in this second paragraph. The restriction should be
established by law, non-discriminatory, based on reasonable criteria, respond to a
useful and opportune purpose that makes it necessary to satisfy an urgent public
interest, and be proportionate to this purpose. When there are several options to
achieve this end, the one that is less restrictive of the protected right and more
proportionate to the purpose sought should be chosen.173
167
“The State acknowledges the existence of the indigenous people, who enjoy the rights, obligations
and guarantees embodied in the Constitution and, particularly those related to maintaining and developing
their own identity and culture, and having their own forms of social organization and administering their local
affairs[.]”
168
“In Nicaragua, the communities of the Atlantic Coast and the population in general have the right to
establish organizations […], without any discrimination, in order to achieve their aspirations according to
their own interests and to participate in the construction of a new society.
These organizations shall be established in accordance with the participatory and elective will of the
population, they shall have a social function and may be of a partisan nature or not, according to their
purpose and object.”
169
“The communities of the Atlantic Coast have the right to preserve and develop their cultural identity
within national unity; establish their own forms of social organization and administer local affairs according
to their traditions.”
170
“The communities of the Atlantic Coast have the right to live and develop under the forms of social
organization that correspond to their historical and cultural traditions.”
171
“The inhabitants of the communities of the Atlantic Coast have the right to “[e]lect and be elected
authorities of the Autonomous Regions.”
172
Cf. Case of Hirst v. the United Kingdom (no. 2), no. 74025/01, § 36, ECHR-2004.
173
Cf. Case of Ricardo Canese, supra note 5, paras. 96 and 133; Case of Herrera Ulloa. Judgment of
July 2, 2004. Series C No. 107, paras. 121 and 123; and Compulsory Membership in an Association
prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights).
Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 46. Also cf. Eur. Court H.R., Case of
Barthold v. Germany, Judgment of 25 March 1985, Series A no. 90, para. 58; Eur. Court H.R., Case of
Sunday Times v. United Kingdom, Judgment of 26 April 1979, Series A no. 30, para. 59; U.N., Human Rights
Committee, General comment No. 27, Freedom of movement (art. 12) of November 2, 1999, paras. 14 and
15; and U.N., Human Rights Committee, General comment No. 25, Right to participate in public affairs,
voting rights and the right of equal access to public service (art. 25) of July 12, 1996, paras. 11, 14, 15 and
16.
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