judicial rulings, without any information as to whether or not they constitute the universe of
cases decided following the Court’s judgment, among other necessary explanations.
Considerations of the Court
15.
In its Judgment in this case, the Court concluded that, at the time of the facts, Mexico
did not have an effective remedy that would enable those who were not proposed by political
parties to question the legal regulation of the political right to be elected established in the
Constitution and in the American Convention, owing to the inadmissibility of the remedy of
amparo in electoral matters, the special nature of the action on unconstitutionality, and the
inaccessibility and ineffectiveness of the protection proceedings to question the conformity of
a law with the Constitution. 7 In this regard, after analyzing the provisions of articles 79.1 8 and
80.1.d) 9 of the General Law on the System of Mechanisms for Contesting Electoral Matters
(hereinafter “Electoral Contestation Law”), the Court concluded that protection proceedings
were inaccessible because, to be admissible, they required that the individual alleging the
violation of his or her political right to be elected had to have been proposed by a political
party. 10 Also, after analyzing article 10.1.a) 11 of the same law, the Court indicated that the
protection proceedings were also ineffective because they were unable to question the
constitutionality of a law. 12 Accordingly, when concluding that the State had violated Mr.
Castañeda Gutman’s right to an effective remedy, the Court considered that the protection
proceedings were problematic as regards their “accessibility” and their “effectiveness.”
16.
Furthermore, in the said Judgment, the Court took note and assessed positively that,
“a constitutional reform of several provisions of the Federal Constitutions was published in the
official gazette of the Federation on November 13, 2007; they included article 99 which
describes the attributes of the Electoral Tribunal of the Federal Judiciary.” In this regard, the
State indicated that “following this reform, in addition to the attributes that the Electoral
Tribunal already exercised in order to guarantee political rights, […] this jurisdictional body
and its regional chambers may expressly declare the non-applicability of legal provisions that
are considered contrary to the Federal Constitution with specific effects, which also annuls the
future effects of any opinion that the Supreme Court of Justice of the Nation may have issued
7
Cf. Case of Castañeda Gutman v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of
August 6, 2008. Series C No. 184, para. 131.
8
Article 79.1 of the Electoral Contestation Law established that “[t]he proceedings for the protection of
politico-electoral rights shall only be admissible when the citizen, on his own behalf and individually, claims presumed
violations of his right to vote and to be elected in popular elections, to associate individually and freely in order to take
part peacefully in political affairs and to join political parties individually and freely.” Cf. Case of Castañeda Gutman v.
Mexico. Preliminary objections, merits, reparations and costs. Judgment of August 6, 2008. Series C No. 184, para.
108.
9
Article 80.1.d) of the Electoral Contestation Law provided that the action may be filed by the citizen when
“[h]e considers that his politico-electoral right to be elected has been violated, [when] having been proposed by a
political party, his registration as a candidate to elected office is unduly denied” (italics added). Cf. Case of Castañeda
Gutman v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of August 6, 2008. Series C No.
184, para. 109.
10
Cf. Case of Castañeda Gutman v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of
August 6, 2008. Series C No. 184, para. 114.
11
Article 10.1.a of the Electoral Contestation Law stipulates that the means of contestation, including the action
for the protection of the politico-electoral rights of the citizen, “shall be inadmissible when the intention is to contest
the unconstitutionality of local or federal laws.” Cf. Case of Castañeda Gutman v. Mexico. Preliminary objections,
merits, reparations and costs. Judgment of August 6, 2008. Series C No. 184, para. 122.
12
Cf. Case of Castañeda Gutman v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of
August 6, 2008. Series C No. 184, para. 131
6