3619 Results
Quotes
Quotes based on international documents, law, and treaties- "The Court observes that, in order to prove the alleged violation of Article 25 of the Convention, both the Commission and the representatives indicated the lack of a simple, prompt and effective remedy for the alleged victim to claim the protection of his constitutional rights. In this regard, the Court considers, as do the Commission and the State, that the application for amparo filed by the alleged victim was not the appropriate remedy in this case, since it was inadmissible in relation to electoral matters. "
- "The Court finds that it is not inherently incompatible with the Convention that a State limits the application for amparo to specific matters, provided that it offers another remedy of a similar nature and equal scope for those rights that cannot be heard by the courts using the amparo proceeding. This is particularly relevant as regards political rights, which are human rights of such importance that the American Convention prohibits their suspension, and also of the judicial rights that are essential to protect them (infra para. 140). "
- "Despite the above, the Court considers it pertinent to refer to the Inter-American Commission’s argument that, over and above the fact that the application for amparo was not the appropriate remedy, because electoral matters fell outside its sphere of competence, “effectiveness implies that the judicial body has assessed the merits of the complaint.” In this regard, the Court has established that “the competent authority’s examination of a judicial remedy […] cannot be limited to a mere formality, but must examine the reasons invoked by the complainant and specifically express an opinion on them, according to the parameters established by the American Convention. In other words, it is a minimum guarantee for anyone who files a remedy that the grounds for the ruling deciding it are stated; otherwise the ruling will violate the guarantee of due process. "
- "For the Court, the requirement that the decision should be founded is not the same as an analysis of the merits of the matter, since this examination is not essential to determine the effectiveness of the remedy. The existence and application of conditions for the admissibility of a remedy is compatible with the American Convention, and the effectiveness of the remedy implies that, when these conditions are complied with, the judicial organ may assess its merits. "
- "The Court considers that the meaning of the protection granted by Article 25 of the Convention is the real possibility of access to a judicial remedy so that the competent authority, with jurisdiction to issue a binding decision, determines whether there has been a violation of a right claimed by the person filing the action, and that the remedy is useful to restitute to the interested party the enjoyment of his right and to repair it, if it finds there has been a violation. Indeed, it would be unreasonable to establish this judicial guarantee if the plaintiffs were obliged to know beforehand whether the judicial organ would consider that their situation was protected by a specific right. "
- "Based on the above, and irrespective of whether the judicial authority declares the claim of the persons who files a remedy to be unfounded, because it is not covered by the norm invoked or should it find that there has not been a violation of the right alleged to have been violated, the State is obliged to provide effective remedies that allow individuals to challenge those acts of authority which they consider violate their human rights established in the Convention, the Constitution and the law. Indeed, Article 25 of the American Convention establishes the right to the judicial protection of the rights embodied in the Convention, the Constitution or the law, and it can be violated irrespective of whether or not there has been a violation of the right claimed or that the situation on which it was based fell within the sphere of application of the right invoked. This is because, like Article 8, “Article 25 of the Convention also embodies the right of access to justice. "
- "The Convention establishes that a person subject to the jurisdiction of the State must have access “to a simple and prompt recourse, or any other effective recourse to a competent court or tribunal for protection against acts that violate his fundamental rights.” The Court considers that, in the instant case, the dispute between the parties is limited to two of the said characteristics related to the effectiveness of the recourse: (a) whether the alleged victim had access to a recourse, and (b) whether the competent court had the necessary powers to restore the enjoyment of his rights to the alleged victim, if it found that those rights had been violated. The Court will refer to the first of these characteristics as the “accessibility of the recourse” and to the second as the “effectiveness of the recourse. "
- "To comply with its Convention-based obligation to establish within their domestic laws an effective recourse in the terms of the Convention, the States must provide accessible recourses to all persons to protect their rights. If a specific judicial action is the recourse destined by the law to obtain the restitution of the right that is considered violated, any person who holds title to that right must be genuinely able to file it. "
- "An effective judicial remedy is one, which can produce the result for which it was conceived; in other words, the remedy must be capable of leading to an analysis by the competent court to establish whether there has been a human rights violation and of providing reparation. "
- "The Court has stated on many occasions that each State Party to the Convention “must adopt all necessary measures to ensure that the provisions of the Convention are effectively complied with in its domestic legal order, as required by Article 2 of the Convention.” It has also indicated that the States “must adopt positive measures, avoid taking initiatives that limit or infringe a fundamental right and eliminate the measures and practices that restrict or violate a fundamental right.” The obligation contained in Article 2 of the Convention acknowledges a customary norm which provides that, when a State has ratified an international convention, it must introduce into its domestic law the necessary modifications to ensure the execution of the international obligations it has assumed. "
- "Political rights are human rights of fundamental importance within the inter-American system and they are closely related to other rights embodied in the American Convention, such as freedom of expression, and freedom of association and assembly; together, they make democracy possible. The Court underscores the importance of political rights and recalls that Article 27 of the American Convention prohibits their suspension and establishes the judicial guarantees essential for their protection. "
- "The Court considers that the effective exercise of political rights constitutes an end in itself and also a fundamental means that democratic societies possess to guarantee the other human rights established in the Convention. "
- "Article 23 contains various norms that refer to the rights of the individual as a citizen; that is, as titleholder of the decision-making process in public matters, in his capacity as a voter by means of his vote, or as a public servant; in other words, to be elected by the people or by appointment or designation to occupy a public office. In addition to possessing the particularity of dealing with rights recognized to the citizen, as distinct from almost all the other rights established in the Convention that are recognized to every person, Article 23 of the Convention not only establishes that its titleholders must enjoy rights, but adds the word “opportunities.” The latter implies the obligation to guarantee with positive measures that every person who is formally the titleholder of political rights has the real opportunity to exercise them. As the Court has previously indicated, it is essential that the State create optimum conditions and mechanisms to ensure that political rights can be exercised effectively, respecting the principle of equality and non-discrimination. "
- "Citizens have the right to play an active role in the conduct of public affairs directly through referenda, plebiscites or consultations or through freely elected representatives. The right to vote is an essential element for the existence of a democracy and a way in which citizens freely express their wishes and exercise the right to participate in government. This right implies that citizens can decide directly and elect freely, in conditions of equality, those who will represent them in decision-making in public affairs. "
- "Political participation by exercising the right to be elected supposes that citizens can postulate themselves as candidates in conditions of equality and that they can occupy public office subject to election if they are able to achieve the necessary number of votes. "
- "The right and opportunity to vote and to be elected embodied in Article 23(1)(b) of the American Convention is exercised regularly in genuine periodic elections by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters. Over and above these characteristics of the electoral process (genuine periodic elections) and of the principles of the suffrage (universal, equal, secret, that reflect the free expression of the will of the people), the American Convention does not establish a specific mechanism or a particular electoral system by which the right to vote and to be elected must be exercised (infra para. 197). The Convention merely establishes certain standards within which the States legitimately may and must regulate political rights, provided that these regulations comply with the requirements of legality, are designed to fulfill a legitimate purpose, and are necessary and proportionate; that is, they are reasonable according to the principles of representative democracy. "
- "Article 23(2) of the American Convention establishes that the law may regulate the exercise and opportunities of such 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 avoid the possibility of discrimination against individuals in the exercise of their political rights. It is evident that the inclusion of these reasons refers to the enabling conditions that the law can impose to exercise 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, it should be repeated, they refer to certain requirements that the titleholders of political rights must comply with so as to be able to exercise them. "
- "This positive obligation consists in designing a system that allows representatives to be elected to conduct public affairs. Indeed, for political rights to be exercised, the law must establish regulations that go beyond those related to certain State limitations to restrict those rights, established in Article 23(2). The States must organize their electoral systems and establish a complex number of conditions and formalities to make it possible to exercise the right to vote and to be elected. "
- "Consequently, the State not only has the general obligation established in Article 1 to ensure the enjoyment of the rights, but has specific guidelines to comply with its obligation. The electoral system that the States establish in accordance with the American Convention should make it possible to hold genuine periodic elections, by universal and equal suffrage, and by secret ballot that guarantee the free expression of the will of the voters. Hence, this gives the State a specific mandate in relation to the mechanisms that it should choose to comply with its general obligation “to ensure” the enjoyment of the rights established in Article 1 of the Convention, compliance that, as Article 1(1) states in general, should not be discriminatory. "
- "The Court finds it necessary to indicate that, in general, international law does not impose a specific electoral system or a specific means of exercising the rights to vote and to be elected. This is clear from the norms that regulate political rights in both the universal and the regional sphere, and from the authorized interpretations made by their organs of application. "
- "In the sphere of political rights the guarantee obligation is especially relevant and is implemented, among other mechanisms, by the establishment of the organizational and institutional aspects of the electoral processes, and by the enactment of norms and the adoption of different types of measures to implement the rights and opportunities recognized in Article 23 of the Convention. In the absence of this action by the State, the right to vote and to be elected could simply not be exercised. The political and other rights established in the Convention, such as the right to judicial protection, are rights that “cannot be merely by virtue of the provisions that embody them, because they are, by their very nature, ineffectual without a detailed normative regulation, and even without a complex institutional, economic and human apparatus that endows them with the effectiveness they claim, as rights under the Convention[…]; if there were no electoral codes or law, electors’ lists, political parties, propaganda media and mobilization, polling stations, electoral boards, dates and times for exercising the vote, the right could simply not be exercised, due to its very nature; similarly, the right to judicial protection cannot be exercised unless there are courts that grant this right, and procedural norms that discipline it and make it possible. "
- "The Court observes that this aspect of General Comment No. 25 refers to the obligation not to limit the exercise of these rights unreasonably by requiring candidates to be members of parties or to belong to specific parties. This is a factual assumption that is distinct from exclusive registration by the candidates’ parties. In the instant case, neither the norm that is alleged to be contrary to the Convention, nor other COFIPE norms establish as a legal requirement the need to be a member of a political party in order to register a candidacy and allows political parties to request the registration of candidacies of individuals who are not their members; that is, external candidacies. "
- "In the regional sphere, the European Court of Human Rights, as of the very first case in which it was asked to rule on the right to vote and to be elected that can be inferred from Article 3 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms indicated that this provision does not create any obligation to introduce a specific system. It has also indicated that, “there are numerous ways of organizing and running electoral systems and a wealth of differences, inter alia, historical development, cultural diversity and political thought within [the States].” The European Court has emphasized the need to assess any electoral system “in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another […]. "
- "The Inter-American system also does not impose a specific electoral system or a specific means of exercising the rights to vote and to be elected. The American Convention establishes general guidelines that determine a minimum content of political rights and allows the States to regulate those rights, within the parameters established in the Convention, according to their historical, political, social and cultural needs, which may vary from one country to another and even within one country, at different historical moments. "
- "With the exception of some rights that cannot be restricted in any circumstance, such as the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, human rights are not absolute. As the Court has established previously, the establishment and application of requirements to exercise political rights is not, per se, an undue restriction of political rights. However, the power of the States to regulate or restrict rights is not discretional, but is limited by international law, which requires compliance with certain obligations that, if they are not respected, make the restriction unlawful and contrary to the American Convention. As established in Article 29(a) in fine of this instrument, no provision of the Convention shall be interpreted as restricting them to a greater extent than is provided for therein. "
- "The Court observes that, in comparative electoral law, the regulation of the right to be elected, as regards the registration of the candidacies, may be executed in two ways: by the system of registration of candidates exclusively by the political parties, or by the system of registration of candidacies by the political parties, together with the possibility of registering independent candidacies. In the region, there is a certain balance between the States that have establishes the system of registration exclusively by parties and those that also allow independent candidacies. "
- "Neither of the two systems: exclusive nomination by political parties or the one that allows independent candidacies is, in itself, more or less restrictive than the other in terms of regulating the right to be elected embodied in Article 23 of the Convention. The Court considers that it is not possible to make an abstract assessment of whether the system that allows independent candidacies is a less restrictive alternative for regulating the right to be elected than the other that does not allow them. This will depend on diverse circumstances, especially on how the abovementioned aspects of the independent candidacies are regulated or on the regulation of the candidacies presented by parties. "
- "Independent candidacies can be regulated to facilitate and expand access to the right to be elected, but at times the requirements for registering independent candidacies can be greater than those established for the nomination of a candidate by a political party. The mere fact that independent candidacies are allowed does not mean that this is the least restrictive way to regulate the right to be elected. The essential point is that whichever of the two systems is chosen, it should make accessible and guarantee the right and the opportunity to be elected established in the Convention, under equal conditions. "
- "Regarding whether the measure was adapted to achieving the legitimate objective sought, based on the above the Court finds that, in the instant case, the exclusivity of nomination by political parties to elected office at the federal level is an appropriate measure to produce the legitimate result sought of organizing the electoral processes efficiently in order to hold genuine periodic elections, by universal and equal suffrage and by secret vote that guarantee the free expression of the will of the voters, as established by the American Convention. "
- "Lastly, the Court considers that both systems, one built on the exclusive basis of political parties, and the other that also allows independent candidacies can be compatible with the Convention and, therefore, the decision on which system to choose is subject to the political decision made by the State, in accordance with its constitutional norms. The Court is aware that there is a profound crisis as regards the political parties, the legislatures and those who conduct public affairs in the region, which calls for a thorough and thoughtful debate on political participation and representation, transparency, and the rapprochement of the institutions to the people, in brief, on strengthening and improving democracy. Civil society and the State have the fundamental responsibility, which cannot be waived, to carry out this discussion and make proposals to reverse the situation. In this regard, the States must assess the measures that will strengthen political rights and democracy according to their particular historical and political evolution, and independent candidacies may be one among many of these mechanisms. "
- "The Court has stated that it cannot be considered that every difference in treatment, in itself, violates human dignity. The Court has also distinguished between distinctions and discriminations, so that the former are differences that are compatible with the American Convention because they are reasonable, proportionate and objective, while the latter are arbitrary differences that lead to the detriment of human rights. "
- "The Court finds that local and federal elections cannot be compared, so that it is not possible to conclude that the differences in the way they are organized are discriminatory and violate the right to equality before the law, established in Article 24 of the American Convention. "
- "The Code of good practice in electoral matters (CDL-AD(2002)023rev, item II.2.B) states : “The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.” II. The Venice Commission interprets this text as follows: 1. The principle according to which the fundamental elements of electoral law should not be open to amendment less than one year prior to an election does not take precedence over the other principles of the Code of Good Practice in Electoral Matters. "
- "The Code of good practice in electoral matters (CDL-AD(2002)023rev, item II.2.B) states : “The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.” II. The Venice Commission interprets this text as follow 2. It should not be invoked to maintain a situation contrary to the standards of the European electoral heritage, or to prevent the implementation of recommendations by international organisations. "
- "The Code of good practice in electoral matters (CDL-AD(2002)023rev, item II.2.B) states: “The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.” II. The Venice Commission interprets this text as follows: 3. This principle only concerns the fundamental rules of electoral law, when they appear in ordinary law. "
- "The Code of good practice in electoral matters (CDL-AD(2002)023rev, item II.2.B) states : “The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.” II. The Venice Commission interprets this text as follows: 4. In particular, the following are considered fundamental rules : - the electoral system proper, i.e. rules relating to the transformation of votes into seats; - rules relating to the membership of electoral commissions or another body which organizes the ballot; - the drawing of constituency boundaries and rules relating to the distribution of seats between the constituencies. "
- "The Code of good practice in electoral matters (CDL-AD(2002)023rev, item II.2.B) states : “The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.” II. The Venice Commission interprets this text as follows: 5. In general any reform of electoral legislation to be applied during an election should occur early enough for it to be really applicable to the election. "
- "The “Code of Good Practice in Electoral Matters” highlights that the stability of the law is crucial to the credibility of the electoral process (see CDL-AD(2002)023rev, part II.2.d and paras 63-65). Therefore it should be avoided that rules on politically delicate issues – like the composition of election commissions, the electoral system or the drawing of constituency boundaries –, which are regarded as decisive factors in the election results, are changed frequently or just before elections. “In general any reform of electoral legislation to be applied during an election should occur early enough for it to be really applicable to the election” (CDL-AD(2005)043, para. 5). "
- "In order to make electoral laws and election materials accessible for all citizens it is important that these public documents [electoral laws] are published in all officially recognised and protected minority languages. "
- "In states with little experience of organizing democratic elections, the impartiality of the electoral administration vis-à-vis the executive government can not be taken for granted. This is why the Code of Good Practice in Electoral Matters makes a strong demand for independent electoral commissions in those countries. In fact autonomous electoral commissions which are independent from other government institutions are increasingly viewed as the basis of impartial electoral management in developing or new democracies throughout the world. "
- "A permanent election administration does not itself guarantee that the elections are professionally administered. As far as professionalism is concerned, there appears to still be room for improvement in a number of countries. "
- "It is very important that the duties and responsibilities of each body are clearly determined by the electoral law. Sometimes, however, provisions regarding responsibilities of election commissions are vague, and the relationship between the different level of electoral commissions is not sufficiently specified. "
- "To avoid the risk of governmental interference in the commission’s work, as a rule the number of commission members nominated and appointed by the executive government should, if at all, be very low. "
- "It is important that not all commission members are appointed by the same institution. "
- "It is regarded as helpful if at least some of the commission members are appointed by non-political institutions that are perceived as being neutral. "
- "If some or all commission members are appointed by the parliament or by political parties, an adequate balance between pro-government and opposition parties has to be achieved. "
- "The provision for regular or expanded membership of electoral commissions to include party representatives is often regarded as an effective system to guarantee checks and balances of the electoral process. The underlying idea is that one party watches the other. Progovernment and opposition parties are represented in the electoral commission and can control each other. Closely related to the nomination of party representatives to electoral commissions, however, is the risk of the over-politicisation of the commission’s work. In such cases, the commission’s members act in the interest of their parties rather than in the interest of the electorate. "
- "Legislation ensuring women’s participation in election commissions should be considered, since women are heavily underrepresented in election management bodies in many countries. "
- "In order to guarantee the independence of the election commission it is usually preferable to respect common incompatibilities in the commission members. Persons who could be involved in an inherent conflict of interests with the requirement for impartiality should not be allowed to be appointed to electoral commissions. "
- "The commission’s independence can be strengthened by appointing commission members for a fixed (and sufficiently long) time period and by prohibiting their dismissal without reasonable grounds. "