57
will of the voters; and (c) to have access, under general conditions of equality, to the public
service of his country.203
222. Paragraph 2 of article 23 of the Convention states that the law may regulate the exercise
and opportunities of these rights “only on the basis of age, nationality, residence, language,
education, civil and mental capacity, or sentencing by a competent court in criminal
proceedings.” The provision that limits the reasons for which it is possible to restrict the use
of the rights of paragraph 1 has only one purpose – in light of the Convention as a whole and
of its essential principles – to prevent the possibility of discrimination against individuals in
the exercise of their political rights. It is evident that the inclusion of these causal factors
refers to the conditions that the law can impose on the exercise of political rights. Restrictions
based on these criteria are common in national electoral laws, which provide for the
establishment of the minimum age to vote and to be elected, and some connection to the
electoral district where the right is exercised, among other regulations. Provided that they are
not disproportionate or unreasonable, these are limits that the States may legitimately
establish to regulate the exercise and enjoyment of political rights and that refer to certain
requirements that the holders of political rights must meet to be able to exercise them. 204
223. Considering all this, the Court holds, first, that the “disqualification from conducting
business,” or “civic death,” clearly does not fit into the situations protected under article 23
of the American Convention, and accordingly, the Court dismisses this argument by the
representatives. The Court will therefore examine only whether the sanction of permanent
disqualification ordered in the criminal conviction constituted an undue restriction of the
political rights of Mr. Candurra, Mr. Arancibia, Mr. Di Rosa, Mr. Pontecorvo and Mr. Machin,
alleged victims represented by Mr. De Vita and Mr. Cueto.
224. The Court has defined the conditions and requirements that must be in place when
regulating or restricting the rights and freedoms embodied in the Convention 205 and will
proceed to analyze the legal measure being examined here in light of them.
225. The question of whether the restriction meets the requirement of lawfulness means that
the general circumstances and conditions that authorize a restriction on the exercise of a
specific human right must be clearly established by law. 206 The instrument setting the
restriction must be a law in both the formal and material sense. 207 In the case at hand, the
law on full disqualification was defined in article 19 of the Argentina Criminal Code 208 and
regulated under article 20-ter, such that it did meet this first requirement.
203
Cfr. Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of June
23, 2005. Series C No. 127, par. 195 to 200, and Case of López Mendoza v. Venezuela. Merits, Reparations and
Costs. Judgment of September 1, 2011 Series C No. 233, par. 106.
204
Cfr. Case of Castañeda Gutman v. Mexico, par. 155.
205
Cfr. 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, par.
39; and Case of Castañeda Gutman v. Mexico, par. 175.
206
Article 30 of the American Convention reads:
The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or
freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest
and in accordance with the purpose for which such restrictions have been established.
207
Cfr. The Word “Laws” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86
of May 9, 1986. Series A No. 6, par. 27 and 32, and Case of Castañeda Gutman v. Mexico, par. 176.
208
Criminal Code (Law 11.179, December 21, 1984): Article 19.- Full disqualification constitutes:
1. disbarment from the employment or public position the accused had held, regardless of whether it derived from
popular election; 2. removal of electoral rights; 3. disqualification from obtaining positions, appointments and public