58
226. The second limit on any restriction is related to the purpose of the restrictive measure;
in other words, that the cause invoked to justify the restriction should be among those
permitted by the American Convention and established in specific provisions included in
certain rights (for example, to protect public order or public health, in Articles 12(3), 13(2)(b),
and 15, among others), or in the norms that establish the legitimate general purposes (for
example, “the rights and freedoms of others,” or “the just demands of the general welfare in
a democratic society,” both in Article 32).209 The secondary legal effect of permanent
disqualification in this case specifically points to one of the assumptions by which the State
may “regulate the exercise of the rights and opportunities” protected by article 23(1), to wit,
“sentencing by a competent court in criminal proceedings.”
227. The next question is whether a measure, even if it is lawful and serves a purpose
allowable under the Convention, is necessary and proportional.210 The Court will examine the
restrictive measure under consideration in light of this requirement and must determine
whether it: (a) serves a pressing social need, that is, whether it is intended to respond to an
overriding public interest; (b) is the option that least restricts the protected right, and (c)
narrowly serves to achieve the legitimate objective.
228. The sentence of permanent disqualification was ordered by the Supreme Council of the
Armed Forces (supra par. 81) and later upheld by the National Chamber of Criminal Cassation
(supra par. 94), whose judgment will be taken as final and unappealable for the purposes of
this analysis.
229. An examination of the nature and length of the sentence of disqualification under articles
19 and 20-ter of the Argentine Criminal Code, as well as the arguments presented by the
State in the instant case, shows that the sanction is a block on labor rights (disbarment from
public jobs and positions), electoral rights (removal of the right to vote and be elected) and
pension rights (suspension of the enjoyment of retirement or pension benefits). The duration
of the measure is not eternal or perpetual, but rather is conditional upon the restitution of
damages “to the extent possible” and a 10-year term.
230. The Court sustains, based on these considerations, that the measure was invoked to
settle a criminal conviction associated with the commission of financial crimes against the
Argentine Air Force and served the purpose of protecting the public treasury by preventing a
person convicted of crimes of fraud and forgery from gaining access to public position and
taking part in elections for a specific period of time. Another tenet is to place the least possible
restriction on the protected right – in this case, the political rights of the accused – and in the
view of the Court, the measure was not permanent, but limited to the term set by law. Finally,
the Court sustains that, given the particular features of the instant case, the record does not
contain sufficient evidence to hold that the measure, including the time it had already been
effect, was unfit to serve the legitimate purpose of safeguarding the public interest when it
limited electoral participation by the accused for a predetermined period.
231. The Court therefore judges that the application of the 10-year secondary legal effects,
known as “full and permanent disqualification” ordered for Mr. Candurra, Mr. Pontecorvo, Mr.
Di Rosa, Mr. Arancibia and Mr. Machin, conform to the provisions of article 23(2) of the
Convention, which allows the State to regulate the exercise of political rights based on a
commissions; 4. suspension of access to all retirement, pensions or benefits, whether civilian or military, the amount
of which shall be credited to family members holding pension rights.
209
Cfr. Case of Castañeda Gutman v. Mexico, par. 180.
210
Cfr. Case of Castañeda Gutman v. Mexico, par. 184.