October 7, 1993
FILING AND PROCESSING WITH THE COMMISSION
On May 6, 1991, the Inter-American Commission on Human Rights
received a communication wherein Mr. Luis Felipe Bravo Mena of the
Partido Acción Nacional (National Action Party - PAN) denounced
numerous irregularities in the elections held in the State of Mexico
between March and November 1990, which violated the political rights
of the citizens of the State in general and of the Municipality of
Naucalpan de Juárez in particular.
This petition was forwarded to the Government of Mexico on
October 17, 1991.
On February 14, 1992, the Government of Mexico replied to the
Commission stating, in brief, that the IACHR did not have competence
to take cognizance of the complaint, requesting that the Commission
find it inadmissible on the grounds that internal remedies had not
been exhausted and pointing out that the facts in the case did not
constitute violations of the Inter-American Convention on Human
Rights. The pertinent
part of this reply were forwarded to the petitioner on March 2, 1992.
On April 27, 1992, after having been given an extension for
purposes of presenting observations, the petitioner sent an analysis
of the Government's reply and his assessment of its content; he
basically reiterated the arguments put forward when the petition was
The petitioner's observations were forwarded to the Government
on June 5, 1992, and the latter's reply was received on August 4,
1992. There, it presented its final observations and confirmed the
position that it had taken in its original note.
On March 12, 1993, during its 83rd session, the Inter-American
Commission on Human Rights carefully examined this case and decided to
adopt Report No. 7/93 on a provisional basis.
Said report was sent to the Government of Mexico, which was
given 90 days in which to respond.
In that report, in application of the provisions of Article 41.b
of the American Convention and in consideration of the provisions of
Articles 1.1 and 2 thereof, the Commission stated that:
The Inter-American Commission on Human Rights reminds the
Government of Mexico of its duty to adopt the internal measures, in
accordance with its Constitution and laws, to ensure full exercise of
political rights, particularly in relation to the effectiveness and
suitability of the remedies established under domestic law, so that the
citizens of that country may have simple, prompt and effective recourse,
free of needless formalities that weaken their efficacy, to protect all
the rights recognized in the American Convention on Human Rights,
Concerning the configuration of the electoral bodies, the
Commission must underscore how important it is for representative
democracies that the general conditions under which elections are held
guarantee that all groups that participate in the election process do so
on equal terms".
The Commission also asked the Government of Mexico to "adopt
the necessary measures" and offered to cooperate with the
Government in any measures necessary to accomplish the objectives of
full observance of political rights in that country.
On June 3, 1993, the Government of Mexico sent its observations
on the Report adopted by the Commission and asked that the IACHR:
Order that the case be closed, since the grounds for the petition
no longer obtain.
Declare the petition inadmissible based on the evidence cited and
the information subsequently reported; or
Consider the matter settled, in light of the measures taken
within the framework of domestic law and referred to at (...) of this
In its reply, the Government of Mexico commented on the contents
of the Commission's report, stating that "the Commission has a
number of observations that can be easily acted upon; in fact, Mexico
had introduced them into its laws even before the confidential report in
question was approved (...). Other suggestions will require gradual
measures that will be viable to the extent that the legal system is
applied (...). But other observations go further than the petition and
overstep the legal framework of the system agreed upon in San José
The Commission will begin by addressing the analysis of the case
itself and, before making its final observations, will consider the
arguments brought by the Government of Mexico in its brief.
THE ISSUES RAISED
to the communications:
In the State of Mexico, a State Party constituted as a Federal
State of the United Mexican States, elections were held in 1990 to elect
new members to the local congress and officials of the 121 local
governments in the state.
The election process began in March and ended the first week in
December, when the State Election Commission declared the results of the
elections held on November 11, 1990, final.
of the arguments of the petitioner (communications of May 6, 1991, and
April 27, 1992):
The petitioner describes a variety of irregularities that
occurred during the election days and that, in his judgment, create a
reasonable doubt as to the validity, authenticity and legality of the
voting; his chief arguments are that there was no clear distinction
between election officials, government officials and members of the
Partido Revolucionario Institucional (Institutional Revolutionary Party
- PRI); official election-related documents, such as ballots and the
records of poll openings, ballot counting, and poll closings were
distributed and delivered in vehicles bearing PRI campaign advertising;
public funds were used for electioneering purposes, building public
works and providing services with political strings attached.
The petitioner stated, in particular, that there were serious
anomalies in the elections held on November 11, 1990:
80% of the individuals selected to serve as poll officials were
deliberately replaced; at the last minute, over 20% of the polls were
relocated away from their officially designated sites; the guarantees
that enable voters to cast their votes freely and in private were
lacking; the proper furnishings for voting were lacking; the political
parties' poll watchers were prevented from overseeing and monitoring
activities there by being required to stand five or six meters away; in
"Operation Carousel", hundreds of repeat voters were mobilized
and transported from one polling place to another, via collective means
of transportation, to vote as many times as possible, and were supplied
with the voter credentials needed to do so; finally, ballot boxes were
stolen once the polls closed.
made by the Government of Mexico (notes of February 14, and August 4,
For its part, the Government of Mexico replied at length to each
point alleged by the petitioner, using three main arguments: the Commission's alleged lack of competence; the failure to
exhaust internal remedies, and the assertion that the facts denounced
were not violations of the American Convention on Human Rights.
The Government of Mexico described the structure of the electoral
bodies, how their members are appointed and what their functions are; it
also cited from all existing laws on the subject.
The submissions by the Government of Mexico and the petitioner's
allegations will be examined in the Commission's observations on the
FORMAL REQUIREMENTS AS TO ADMISSIBILITY
The petition satisfies the formal requirements for admissibility
under the American Convention and the Commission's Regulations because
as the case is not pending in another international proceeding for
settlement and is not a duplication of any other case the Commission has
already considered. Moreover, that phase of the proceedings wherein the positions
of the government and the petitioner are presented has now been
COMPETENCE OF THE COMMISSION
The analysis must be founded upon the relevant articles of the
American Convention on Human Rights, as they are the legal framework by
which the Commission examines the cases submitted to it.
Therefore, it must begin by determining what issues the case
raises, then the scope of political rights according to the Convention
and the Commission's practice; it must also examine the issue of the
based on the authority that the Convention invests in it.
election process: preliminaries
leading up to the elections and the actual elections in the instant case
In the instant case, 10,956, the following issues were raised by
the petitioner and refuted by the Government of Mexico:
The petitioner claimed that official election-related documents,
such as ballots and records of poll openings, ballot counts and poll
closings were transported and delivered in vehicles bearing PRI campaign
The Government replied by stating that these were unsubstantiated
claims, as no reliable evidence was offered to show, firstly, that the
facts described actually occurred, and secondly, where and when the
alleged violations occurred, the identity of the individuals involved,
and other relevant circumstances. It
said that the election materials were distributed in a fleet of vehicles
that the Municipal Election Commission had assigned for that purpose.
The petitioner also stated that public funds were used to buy
votes, building works and providing services with political strings
attached. He added that the
Federal Government has a program called the National Solidarity Program
(PRONASOL) whose purpose was to deal with extreme poverty in rural and
urban areas. Attempts were made to use that program for the PRI's
As for this complaint, the Mexican Government denied that there
were any political strings being attached to the Government's public
works projects. It pointed
out that the public works projects were part of pre-established plans
and described, specifically, the nature and functions of PRONASOL.
The Government concluded by stating that "political parties,
therefore, have nothing to do with the program; the direct participants
are indigenous peoples, peasant communities and urban low-income
neighborhoods (...)". The
Government's final observation on this point was that since PRONASOL's
establishment, investments have been made in every municipality in the
Mexican Republic governed by the opposition, and they have received
their fair share of the program's resources.
In a communication dated April 27, 1992, the petitioner sent
press clippings as proof of his allegations in this connection.
The Government rejected them as purely circumstantial evidence.
The petitioner also alleged the deliberate replacement of 80% of
those designated by the Naucalpan Election Commission to serve as
polling place officials after their names had been drawn in a procedure
in which the Commission's members, including the political parties'
representatives, took part; these designees, however, were not notified
of the civic duty they were called upon to discharge and therefore did
not appear on election day; thus, the ballots were received by persons
other than those officially authorized to do so.
The Government points out that the petitioner provides no
evidence to substantiate his claim, and does not provide any information
or clues as to the identity of the individuals replaced or of the polls
where those changes were made. It
added that had any such substitution been made, it should have been
recorded in the corresponding poll report, and there was no such record.
The Government cited the laws that applied to this situation and
gave an account of the meetings that the Municipal Election Commission
held on the subject of polling places and the officials designated to
monitor them. Finally, it stated that if the individuals designated failed
to appear, the law provided that they were to be replaced immediately,
though any such substitution was to appear in the record and there was
no record of any substitution.
The petitioner also reported that at the last minute, over 20% of
the polling places were relocated, away from their officially designated
sites, which caused confusion among the voters.
The Government stated that this claim was unsubstantiated,
"since it is untrue that polling places were relocated, much less
the percentage of polling places that the petitioner incorrectly
In response to the petitioner's complaints as presented thus far,
in general the Government of Mexico stated that "the petitioner did
not provide sufficient evidence to substantiate his claim." It added that in the report prepared by the Municipal
Election Commission on the occasion of the permanent session of November
11, 1990, the Commission member representing the National Action Party
said "absolutely nothing concerning these alleged
concluded by stating that it found it strange that the PAN
representative "should expressly concur by signing the report
attesting to the fact that the polling places were installed and their
officials appointed routinely and in accordance with the law."
In response to the Government's assertion that the PAN delegate's
signing of the report indicate concurrence, the petitioner pointed out
that "the signature did not signify concurrence, but rather his
presence at the session. The
disagreement was such that within the legal time periods the appropriate
challenges were filed."
The petitioner alleged that the right to cast one's vote freely
and in private was not guaranteed, that the proper furnishings to enable
voters to vote in private were lacking, which made it easy for
PRI-Government agents to exert pressure on citizens, especially in poor
areas, where voters were told that they would get PRONASOL support for
public works and services and food stamps for milk and tortillas if they
voted the PRI ticket.
The Government's reply recounted the laws in effect concerning
the State Registry of Voters and its responsibilities in that regard. It
asserted that it acted in accordance with those laws.
As for the polling places' furnishings and ballot boxes, the
Government pointed out that they had been approved by the State Election
Commission and emphasized the fact that the National Action Party
participated in that process. From
there it deduced that the petitioner's claims were false.
According to the petition, the oversight and monitoring
activities of the political parties' poll watchers were obstructed
because they were required to stand five or six meters away, which
prevented them from performing their functions.
They were held back by individuals claiming to be Commission
In its notes to the Commission, the Government stated that these
were "subjective opinions that, being utterly unsubstantiated and
unfounded, offered nothing to refute, because no evidence is offered as
to the identity of the persons, election aides, polling places, etc.;
the unsubstantiated charges per se, therefore, cannot be said to
involve a violation of human rights."
It added that the representatives of the political parties were
always free to file an objection with the poll officials, who were
obliged to document any such objections.
The petitioner complained that there were brigades of repeat
voters in something called "Operation Carousel", where
hundreds of people were transported from one polling place to another,
via collective means of transportation, so that they could vote as many
times as possible; they were supplied with the voter credentials needed
to cast their vote.
To this point, the Government stated that "this is not
possible" because indelible ink is put on the right thumb of
citizens when they cast their vote.
Finally, the petitioner complained that ballot boxes were stolen
when the polls closed; at 6:00 p.m. at countless polling places,
officials were not allowed to count the ballots or to discharge their
duty of delivering the voting packets to the Municipal Election
Commission of Naucalpan.
The Government stated that this assertion was completely refuted
by the minutes of the meeting held by the Municipal Election Commission
on November 15, 1990, which showed that all election packets were
delivered on time, to the place previously designated by the election
officials. It further stated that the Public Prosecutor's Office had
received no reports of stolen ballot boxes.
FAR DOES THE IACHR'S JURISDICTION GO; WHAT ARE POLITICAL RIGHTS?
the American Convention, the political rights are those recognized in
articles 1, 23 and 28 thereof.
The Commission's practice.
Article 23 of the American Convention on Human Rights recognizes
the following political rights:
Every citizen shall enjoy the following rights and opportunities:
to take part in the conduct of public affairs, directly or
through freely chosen representatives;
to vote and to be elected in genuine periodic elections, which
shall be by universal and equal suffrage and by secret ballot that
guarantees the free expression of the will of the voters; and
to have access, under general conditions of equality, to the
public service of his country.
The law may regulate the exercise of the rights and opportunities
referred to in the preceding paragraph only on the basis of age,
nationality, residence, language, education, civil and mental capacity,
or sentencing by a competent court in criminal proceedings.
The Government of Mexico contends that the facts denounced do not
constitute violations of the American Convention on Human Rights, and
cites Article 23 of the Convention, which it believes the petitioner has
misinterpreted. It states
that "while this article enumerates the three basic prerogatives
that citizens enjoy where participation in government is concerned
-namely, the right to take part in the conduct of public affairs, the
right to vote and be elected in free and periodic elections, and the
right to have access to public service-, it does not prescribe a
prototype or model for either the election process, how the election is
to be set up or who the election authorities are to be.
This is the sovereign right of each country to decide."
The Government added that "neither the Constitution nor the
Election Law of the State of Mexico infringes those rights, as it will
now be shown that the creation and structure of the election authorities
and tribunals are neither subject to any political party's authority nor
biased in its favor." The
Government's analysis of the facts alleged by the petitioner begins with
this statement and ends by stating that "a careful review of
everything this Government has reported above is unmistakable proof that
the election process and the elections themselves were conducted in
accordance with the law."
In light of the provisions of Articles 1 and 2 of the American
Convention on Human Rights
which concern the obligations to investigate, safeguard and take
domestic measures to ensure full exercise of human rights and in order
to avoid any narrow interpretations of the Commission's competence, it
will cite the finding of the Inter-American Court of Human Rights when
examining these articles:
The obligation to ensure the free and full exercise of human
rights is not fulfilled by the existence of a legal system designed to
make it possible to comply with this obligation -- it also requires the
government to conduct itself so as to effectively ensure the free and
full exercise of human rights.
When the scope of Article 23 was examined in the past,
the Commission explained, in detail, that if Article 23 was to be fully
respected elections had to be authentic, universal, periodic, and by
secret ballot or some other means that enabled voters to express their
will freely. Laws alone
will not suffice; the
attitude must be one there encourages proper implementation, and must be
consistent with generally recognized principles that govern a
representative democracy. The
IACHR is being asked to examine whether citizens who participated in a
political process did so as equals, whether those political processes
guaranteed the free and authentic will of the electorate and, therefore,
whether the facts alleged constitute violations of political rights.
The Commission is competent to examine the instant case because
it concerns the right to participate in government (Article 23) and the
right to judicial protection (Article 25) protected under the American
Convention on Human Rights, and the generic obligations contained in
articles 1 and 2. Mexico is
a State Party to the Convention, having ratified it on April 3, 1982.
The Government of Mexico argues that while the Commission is
competent to defend the political rights protected under Article 23 of
the Convention, no article of the Convention gives it the competence to
rule on the States Parties' internal political processes, as the latter
are conducted in the exercise of the people's right to
self-determination and their sovereign right to decide for the political
system that best suits them; declaring elections valid or invalid is the
exclusive competence of the internal organs lawfully established under a
given State's constitutional system.
In its arguments alleging that the Commission does not have
jurisdiction, the Government acknowledges that the Commission may
receive petitions or communications on alleged human rights violations
which concern that Government; at the same time, however, it contends
that the American Convention does not give the Commission the authority
to decide whether elections are valid or to rule on the conduct of the
authorities where elections are concerned.
As for the Government's allegations concerning sovereignty and
nonintervention in a State's internal affairs as arguments for denying
or limiting the Commission's competence, it might be well to recall what
the Commission has said in this regard on previous occasions.
Indeed, the premise must be that the principle of nonintervention
is a rule of conduct governing the actions of States or groups of
States, as stipulated in the Charter of the Organization (Article 18);
this principle has been linked to the peoples' right to
self-determination and independence, "with absolute respect for
human rights and fundamental freedoms."
The most fundamental level at which these basic principles have
taken on the force of law is Article 16 of the Charter of the
Organization, where the counterpart of a State's right to develop itself
freely is its obligation to respect the rights of the individual.
In the Inter-American system, it is the American Convention on
Human Rights that recognizes these rights and contains provisions on the
mechanisms and organs that are their means of protection.
The Commission -one of those organs of protection-
is, according to its governing instruments:
... empowered to examine and evaluate the degree to which the
internal legislation of the State party guarantees or protects the
rights stipulated in the Convention and their adequate exercise and,
obviously, among these, political rights.
The IACHR is also empowered to verify, with respect to these
rights, if the holding of periodic, authentic elections, with universal,
equal, and secret suffrage takes place, within the framework of the
necessary guarantees so that the results represent the popular will,
including the possibility that the voters could, if necessary,
effectively appeal against an electoral process that they consider
fraudulent, defective, and irregular or that ignores the `right to have
access, under general conditions of equality, to the public service of
As noted earlier, in Article 23 the American Convention speaks of
"genuine periodic elections, which shall be by universal and equal
suffrage and by secret ballot that guarantees the free expression of the
will of the voters." The
exercise of these rights is so essential if societies are to function
normally that Article 27 of the Convention prohibits their suspension,
regardless of the circumstance.
The close relationship between representative democracy as a form
of government and the exercise of the political rights so defined, also
presupposes the exercise of other fundamental rights:
"... the concept of representative democracy is based on the
principle that it is the people who are the nominal holders of political
sovereignty and that, in the exercise of that sovereignty, elects its
representatives--in indirect democracies--so that they may exercise
political power. These
representatives, moreover, are elected by the citizens to apply certain
political measures, which at the same time implies the prior existence
of an ample political debate on the nature of policies to be
applied--freedom of expression--between organized political
groups--freedom of association--that have had the opportunity to express
themselves and meet publicly--freedom of assembly. At the same time, if these rights and freedoms are to be
exercised, there must be a juridical and institutional systems in which
laws outweigh the will of leaders and in which some institutions
exercise control over others for the sake of guaranteeing the integrity
of the expression of the people's will--the rule of law.
In the Commission's view, ratification of the American Convention
creates more than an obligation to respect the exercise of the rights
recognized therein; it also creates an obligation to guarantee the
existence and exercise of all those rights, without distinction, because
they constitute a whole and are mutually interdependent.
It would therefore be senseless and even a breach of Article 29
of the Convention
to draw some distinctions or establish categories where there are none,
or to give them the kind of literal interpretation that narrows their
scope. As the Commission
stated in Report 01/90, "Indeed, any mention of the right to vote
and to be elected would be mere rhetoric if unaccompanied by a precisely
described set of characteristics that the elections are required to
meet." (Report 01/90, paragraph 88).
From the foregoing it
follows that States are, as Article 2 of the Convention states, to adopt
the legislative and other measures necessary to give effect to the
rights and freedoms recognized in the Convention.
Finally, the Government contends that the electoral process being
challenged was conducted in the exercise of the sovereign powers of the
local executive and legislative branches of the State of Mexico.
Under Mexico's federal system, these powers are reserved to the
federated units of the United Mexican States and they alone have
exclusive power to legislate, organize and regulate the exercise of the
political rights of their citizenry.
The Government ends by stating that the authorities charged with
organizing, conducting and monitoring the election process being
challenged, enjoy sovereign and exclusive governmental powers, because
as their function is to see to it that the political rights, privileges
and opportunities to which Article 41 of the Constitution refers
materialize and are exercised.
The Commission must point out that under the 1969 Vienna
Convention on the Law of Treaties, the American Convention is
self-executing throughout the territory of the United Mexican States,
because "Unless a different intention appears from the treaty or is
otherwise established, a treaty is binding upon each party in respect of
its entire territory." At the time it ratified the Convention, Mexico stipulated no
reservations or amendments, which means that the provisions of Article
28, subparagraphs 1 and 2, are fully self-executing:
Article 28. Federal
Where a State Party is constituted as a federal state, the
national government of such State Party shall implement all the
provisions of the Convention over whose subject matter it exercises
legislative and judicial jurisdiction.
With respect to the provisions over whose subject matter the
constituent units of the federal state have jurisdiction, the national
government shall immediately take suitable measures, in accordance with
its constitution and its laws, to the end that the competent authorities
of the constituent units may adopt appropriate provisions for the
fulfillment of this Convention.
Summing up the points made by the Commission thus far, one can
conclude that Mexico, upon ratifying the American Convention on Human
Rights, not only recognized the competence of the Inter-American
Commission on Human Rights to state its opinion and conclusions, but
also undertook to respect and guarantee the exercise of the political
rights contemplated in Article 23 of the Convention.
The latter includes the right to vote in elections, which shall
have the minimum requirements needed to ensure that these rights are
exercised fully. Under
Article 2 of the Convention, Mexico also undertook to adopt the
legislative measures needed to give effect to those rights.
DOMESTIC REMEDIES AGAINST ELECTION DECISIONS:
DOMESTIC REMEDIES IN THE INSTANT CASE
Remedies filed with election officials:
The petitioner's position
In accordance with the Law on Political Organizations and
Elections of the State of Mexico (LOPPEEM), the National Action Party
filed a protest with the Municipal Election Commission of Naucalpan de
Juárez, involving 163 polls of the 358 set up in the municipality.
That protest was heard and denied, because as the Election
Commission found it to be "frivolous and incitive." Under the law, the Municipal Election Commission was not
empowered to examine the merits of the case. It was obliged by law to
refrain from qualifying the case, since it is, in fact, the basis of the
remedy of complaint.
Under the provisions of that election law, the PAN filed a
complaint with the Naucalpan Election Commission, attaching the evidence
that it was able to compile in the short period of time that the law
allowed. It was the duty of
the Municipal Election Commission to convey the complaint and all its
attachments to the State Tribunal for Election Disputes for a ruling.
The complaint sought nullification of the elections on the
grounds that more than 40% of the municipal polling places were invalid
because of the way in which the election had been conducted.
The Tribunal dismissed the case for lack of evidence.
The complaint filed with the Election Commission was accompanied
by various pieces of evidence. However,
the Commission did not forward that evidence to the State Tribunal for
Election Disputes. The
Tribunal should have refrained from hearing the case until the case file
was complete, with all the appendices that had accompanied it.
However, the Tribunal handed down a decision based on that
incomplete case file, leaving the petitioner with no means of defense.
Once the complaint was found to be inadmissible and since there
was no higher court of review, the State Election Commission declared
the Naucalpan election valid. There
was lo lawful means to challenge that decision.
The Government's Position:
The Government described the procedure established in the Law on
Political Organizations and Elections of the State of Mexico (LOPPEEM),
Title Six, articles 195 to 228, for challenging the proceedings and
resolutions of electoral bodies. Under
the law in question, these remedies are as follows:
protest; objection; complaint; review, and appeal.
As to the petitioner's allegations to the effect that the file
sent to the Tribunal was incomplete, the Government stated that
"pursuant to the second paragraph of Article 201 of the LOPPEEM,
within 24 hours of receiving the complaint the Naucalpan Municipal
Election Commission sent said complaint to the State Tribunal for
Election Disputes (...) along with the case file."
To substantiate this, the Government said that the complaint
would not have been admitted by the Tribunal had it not met the
requirements stipulated under articles 201 and 204 of the law in
question; that operative paragraph 1 of the ruling that the Tribunal
handed down on November 23, 1990, reads as follows:
"On November 19 of this year, Mr. Antonio Vélez Torres,
Technical Secretary of the Election Commission, sent to this Tribunal
the complaint (...), and attached the following documents:
three lists of aides in the various districts, signed and sealed
by the Municipal Commission of Naucalpan de Juárez, Mexico; three press
As to the fact that the Tribunal should have refrained from
taking up the case until the file was complete, the Government cited
excerpts from a decision of the Tribunal wherein it requests the
Naucalpan Municipal Commission to forward certain documents.
The Government concludes that the case file was obviously
It added one remedy not mentioned by the petitioner:
from the date on which the location and number of polling places
were published the petitioner had five days in which to file an
objection with the corresponding Municipal or District Election
Commission. The Government
argued that the petitioner had allowed that time period to expire and
could not, therefore, avail himself of a remedy in respect of acts that
predated election day.
It pointed out that had there been irregularities in setting up
of polling places, the National Action Party, through its member on the
National Election Commission, "should have so stated for the record
and promptly exercised its right to report any irregularity and have it
entered in the corresponding minutes."
The Government argued that the petitioner was wrong when he
asserted that the Municipal Commission was not authorized to rule on the
merits of the protest: "Article 201 of the aforementioned Election
Law states exactly the opposite:
"Municipal or district election commissions shall forward to
the State Tribunal for Election Disputes, within 24 hours of their
presentation, any complaint filed with them in the corresponding brief,
as well as the protest and the ruling; a report on the matter; the
evidence provided; and all other documents deemed necessary to settle
It stated that there was no reliable evidence to show that the
petitioner had filed 163 protests concerning 163 polling places since,
according to the Government, the State Tribunal received only 19
National Human Rights Commission (CNDH):
The petitioner's position
On November 22 and 23, 1990, before the State Tribunal issued its
decision and before the State Election Commission declared the results
of the election final, the leaders of the National Action Party in the
State of Mexico turned to the National Human Rights Commission (CNDH)
asking that it intercede with the State Election Commission.
The CNDH decided that it did not have the competence to use its
good offices since it was only empowered to intervene in
election-related matters when, in the course of elections, there had
been a violation of the individual rights recognized in the
Constitution; it had to do so before the competent bodies declared the
The Government's position:
The Government stated that by law, the National Human Rights
Commission does not have competence to take cognizance of
election-related matters, except in cases where the individual rights
recognized in the Federal Constitution have been violated.
It transcribed the provisions of the law and of the Constitution
that are the basis for the Commission.
Constitution of the United Mexican States
The courts of the Federation shall settle any dispute that may
By virtue of laws or the actions of any authority that violate
By virtue of laws or the actions of the federal authority that
breach or abridge the sovereignty of the states, and
By virtue of laws or actions of state authorities that trespass
All disputes that fall under Article 103 shall be subject to the
legal procedures and forms prescribed by law, based on the following:
The action for amparo must always be instituted by the
The ruling shall always concern private individuals and confine
itself to aiding and protecting said individuals in respect of the
specific case that the complaint concerns, and shall make no general
statements as to the law or action that prompted the action for amparo.
the action for amparo any defect in the complaint shall be
remedied in accordance with the provisions of the Statute governing
articles 103 and 107 of this Constitution.(...)
In the United Mexican States every individual shall enjoy the
rights and freedoms that this Constitution accords, which may be neither
restricted nor suspended except in those cases and under the
circumstances established herein.
Chapter VII: Inadmissibility
An action for amparo is inadmissible:
Against acts that do not adversely affect the complainant's legal
laws, treaties and regulations whose mere existence is not prejudicial
to the complainant, but some subsequent execution thereof instead.
decisions or declarations of electoral bodies and election authorities.
decisions or declarations of the Federal Congress or its chambers, the
State Legislatures or their respective permanent commissions or
deputations, to elect, suspend or remove officials, in those cases that
the Federal or State Constitution, as the case may be, gives them the
sovereign or discretionary power to settle (...)
The jurisprudence of the Supreme Court -either the full Court or
its chambers- is binding; the jurisprudence of the full Court is binding
upon its chambers and upon circuit courts -those composed of one judge
and those composed of several judges-, district courts, military
tribunals, ordinary criminal courts in the state and federal districts,
and administrative and labor courts, be they local or federal.
rulings shall become jurisprudence once the principles contained therein
have served as the basis of five consecutive rulings, uninterrupted by
any contrary ruling; in the case of jurisprudence of the full court, the
rulings must be supported by at least fourteen justices; jurisprudence
of the chambers must involve rulings supported by at least four
Rulings that reconcile opposing arguments of collegiate chambers
and courts shall also constitute jurisprudence.
Jurisprudence on the Action for Amparo for Political
"Violation of political rights shall not constitute grounds
for an action for amparo since individual rights are not
"No action for amparo can be instituted for a
violation of these rights since actions for amparo are instituted
strictly to guarantee the exercise of the individual rights and freedoms
recognized in the first 29 articles of the Constitution; actions for amparo
may not be used to protect the political rights accorded only to Mexican
"Ïn accordance with paragraph 1 of Article 103 of the
Constitution, the courts of the Federation shall settle any dispute that
arises by virtue of laws or actions of the authorities that violate
individual rights; an action for amparo is inadmissible except in
cases that concern those individual rights; this would be the case, for
example, when the action is filed to challenge an order to suspend the
complainant as a member of some local government, since it is the
complainant's right to serve in public office that has been affected,
which is a political right."
"Under paragraph 1 of Article 103 of the Constitution, the
action for amparo is admissible only in cases of violations of
individual rights, which shall be understood as those that concern the
individual and not those that concern the citizen; it follows that any
violation of a political right may not be remedied by an action for amparo
since no individual right has been violated.
"Even when political rights are involved, if the act against
which the action is brought might also involve a violation of individual
rights, a fact that cannot be established a priori, then the
action for amparo must be admitted and processed to establish the
propositions upon which the final ruling rests."
"While the jurisprudence of the Court is that an action for amparo
is inadmissible in the case of violations of political rights because
individual rights are not involved, it is also true that court rulings
have been handed down in cases that involve the actions of an authority
performing political functions and that relate directly and exclusively
to the exercise of political rights; even so, when the complaint
concerns not just violations of a political right, but violations of
individual rights as well, the Court's jurisprudence in the point in
question does not apply (thesis 87, cited earlier)."
"While it has been established that amparo is
inadmissible for violations
of political rights, if individual political rights are also
transgressed .... then amparo should be granted."
"Although the jurisprudence is that amparo is
inadmissible when the case concerns a violation of political rights, if
there is any possibility that constitutional rights and freedoms may
also be involved or if the terms of the suit do not provide grounds for
inadmissibility, then the action [for amparo] should be
Observations made by the Government of Mexico in respect of the
action for amparo for political rights
In the instant case, as in all those where the issue of amparo
is in dispute, the position repeatedly taken has been that the action
for amparo is inadmissible in the case of political rights,
except when there has also been a violation of individual rights.
The Government reasons, therefore, that the petitioner should
have filed for amparo, "since only the competent court
authority will determine whether or not amparo is
The argument that the inadmissibility of amparo for
political rights engenders a violation of Article 25 of the American
Convention is, according to the Government, both incomplete and
incorrect. It cites court
rulings (transcribed above), some of which state that filing for amparo
is a condition sine qua non for determining whether amparo
is admissible in a given case or situation.
Elaborating upon the distinction that Mexican law makes between
individual rights and political rights -as recognized in Article 23 of
the Convention-, the Government again argued that freedom of association
and expression are political rights and, under the Mexican Constitution,
are protected by amparo. It stated that "under our General
Constitution (Articles 6 and 9) these two are individual rights; hence,
it would be unfair to say, without qualification, that in Mexico
political rights do not enjoy the same rank as individual rights and
therefore have no means of constitutional protection."
The Government states that amparo is admissible insofar as
it concerns the formal rights to a hearing and due process of law. While it is true that there is a substantial difference
between subjective political rights and other subjective rights as the
former are materially distinct from the latter, it is also true that
they are all protected by the guarantees of legal certainty, which are
not material but formal guarantees; in other words, they can be
exercised to protect any subjective right.
OF THE REMEDIES: THE
IMPORTANCE OF A SIMPLE, PROMPT AND EFFECTIVE RECOURSE
The system for taking and weighing evidence
According to the petitioner, under Mexico's legal system, in
civil matters the maxim is that the judge shall rule on the basis of
legal truth. Legal truth
may not be the same as real truth, which is the maxim in criminal law.
Under the maxim of legal truth, the judge rules on the basis of
what the parties tell him, prove and state under oath; should the judge
have any doubts to be resolved before settling the issue, he may ask the
parties to provide additional elements and may even indicate something
specific. In the case of
election-related matters, the execution of electoral laws takes on a
social quality and virtually becomes a social right, (...) so that the
State Tribunal for Election Disputes ought not to have dismissed the
petition on the explicitly stated grounds that no proof was offered;
instead, it should have compiled that evidence.
The Government, for its part, asserted that the Tribunal
dismissed the action filed by the PAN as unfounded because none of the
facts or irregularities that the complainant was challenging were proven
since the evidence offered in support of the complaint did not have the
force in law to prove the facts. It
concluded that since the evidence offered did not constitute proof, the
Tribunal did not have the means to issue a finding based on the
As for the issues raised in respect of the evidentiary system,
the Government stated that "they have no bearing upon the subject
of the alleged violation in this dispute."
It insisted that the maxim of the law was that "the burden
of proof rests with the accuser" and ended by stating "the
party to which the petitioner belongs is solely to blame because it did
not submit the proof at the time the complaint was filed with the State
Tribunal for Election Disputes."
The Commission's comments
According to the petition, the impartiality needed to guarantee
due process in election-related actions is lacking, thereby creating the
situation provided for in Article 46.2.a of the Convention, which states
that exhaustion of the remedies under domestic law shall not be required
if the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have
allegedly been violated.
Essentially, the argument on the use of the remedies under
domestic law hinges on two points: first (both in general and vis-a-vis
election authorities in particular), the issue of whether all the
evidence has been compiled and weighed, the issue of the content of the
case file sent to the State Tribunal and all the implications this has
for the issue of proof, which in turn ties in with the issue of whether
or not a simple, prompt and effective recourse is available; and second,
the configuration of the bodies charged with monitoring to make certain
that elections are conducted properly.
The Commission will address these issues now, based on the
provisions of articles 2, 8 and 25 of the American Convention on Human
Firstly, concerning the system of proof and the very efficacy of
remedies given the concept of proof and how evidence is weighed, the
Commission considers that the system for processing challenges, under
the election laws currently in effect and applicable in the instant
case, and the line of argument used by the Government of Mexico in
regard thereto, are formalistic in the extreme.
Where procedure counts for more than merit, the system may fail
to produce results and the facts as alleged may never be investigated.
Indeed, while laws stipulating the procedural rules are important
and necessary, it is no less important that these rules produce results,
so that remedies may be adequate and effective.
Otherwise, they would be vitiated and the objective they were
created to achieve would not be accomplished.
It is important to recall -particular in light of what this
Commission said concerning amparo for political rights-
what the Inter-American Court's findings were concerning what
constitutes adequate domestic remedies:
Adequate domestic remedies are those which are suitable to
address an infringement of a legal right.
A number of remedies exist in the legal system of every country,
but not all are applicable in every circumstance.
If a remedy is not adequate in a specific case, it obviously need
not be exhausted. A norm is
meant to have an effect and should not be interpreted
in such a way as to negate its effects or lead to a result that
is manifestly absurd or unreasonable. (...)
A remedy must also be effective that is, capable of producing the
result for which it was designed.
It is the Commission's belief, therefore, that the State's duty
to investigate amounts to more than any symbolic formalities that the
case entails; instead, it implies active behavior in ordering and
conducting the inquiries to ascertain the facts denounced.
In effect, inasmuch as election laws are part of public law, the
State has autonomous investigatory authorities.
By virtue of those authorities it is empowered not only to
require that the parties submit evidence, but also to take the
initiative in obtaining it. The
Inter-American Court had the following to say in this regard:
The State is obligated to investigate every situation involving a
violation of the rights protected by the Convention (...)
In certain circumstances, it may be difficult to investigate acts
that violate an individual'_ rights.
The duty to investigate, like the duty to prevent, is not
breached merely because the investigation does not produce a
satisfactory result. Nevertheless, it must be undertaken in a serious manner and
not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the
State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon
their offer of proof, with an effective search for the truth by the
Article 25 of the American Convention, which establishes the
right to a simple, prompt and effective recourse against acts that
violate one's fundamental rights, also makes it incumbent upon States to
guarantee the effectiveness and exercise of the existing remedies.
The article reads as follows:
Article 25. Right to
Everyone has the right to simple and prompt recourse, or any
other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized
by the constitution or laws of the state concerned or by this
Convention, even though such violation may have been committed by
persons acting in the course of their official duties.
The States Parties undertake:
to ensure that any person claiming such remedy shall have his
rights determined by the competent authority provided for by the legal
system of the state;
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such
remedies when granted.
It is important that both the proper remedies in the electoral
jurisdiction and the action for amparo constitute genuine
guarantees for the individuals, since this is what the Convention
requires. By ratifying it,
Mexico "committed itself to provide an effective remedy for those
who believe that right has been affected, under Article 25 of the
Convention, and to guarantee the right of every person to be heard by a
competent, independent, and impartial judge or tribunal for the
determination of rights and obligations."
The Commission observes that the action for amparo may
well be a suitable instrument to protect political rights, but its
admissibility would have to be spelled out clearly and unequivocally; it
would also have to be made clear that a ruling handed down in an action
for amparo could have effects erga omnes, and not just in
favor of the party that instituted the action.
Nevertheless, this may not be the simple, prompt and effective
recourse required, so that in furtherance of the obligations that Mexico
undertook when it ratified the Convention and in keeping with its
domestic laws, the decision to adapt its rules to the exigencies imposed
by the country's binding international commitments is the responsibility
of the Mexican authorities.
THE CONFIGURATION OF THE ELECTORAL BODIES
of the electoral bodies in case 10,956:
The petitioner asserted that there was no clear separation
between election officials, government officials (regardless of their
level) and members of the Institutional Revolutionary Party; even the
most elementary dividing line between the various levels of the
government and parties collapsed, which automatically converted them
into judge of and party to the case;
the petitioner cited the case of Mr. Humberto Lira Mora who is
Secretary General of Government of the State of Mexico, Chairman of the
State Election Commission and Chief of the "Naucalpan
Headquarters" in a work program implemented by the State Government
to focus new government-funded public works in areas that the PRI lost
in the 1988 federal elections and thereby win votes.
He is also a prominent member of the PRI.
The petitioner further asserted that the Constitution of the
State of Mexico and the LOPPEEM made it possible to establish a system
of election officials and tribunals that was totally accountable to and
biased in favor of the PRI. The
"L" Legislature of the Congress that voted in the amendments
to the local state constitution and to the LOPPEEM was almost entirely
composed of PRI deputies, who voted as a block and without giving even
the most perfunctory consideration to the recommendations from the
opposition deputies. All
the appointments of election officials, from the Chairman of the State
Electoral Commission to the last poll chairman and secretary and the
magistrates on the Tribunal for Election Disputes, went to persons
selected according to a one-sided standard.
The system wiped out any semblance of impartiality on the part of
the election authorities and bodies and their independence from the
government and its party, while ensuring that the PRI's interests would
be served, making the PRI both judge of and party to the entire election
On this point, the Government of Mexico replied that "it is
strange that the petitioner is unaware that in any democracy it is the
practice for members of the political parties that win the elections to
hold the highest positions in government."
This principle would apply in the case of Mr. Humberto Lira Mora,
according to the Government. The
fact that the majority in the Congress of the State of Mexico should be
members of the PRI, it added, was decided by the will of the Mexican
people exercising their right to vote, and was not something for which
the Government could be held accountable.
It concluded its comments on this point by stating that the
petitioner's other value judgments about this issue prove nothing and
are meaningless precisely because they are value judgments.
It cited local constitutional provisions to show that legislative
and election officials are elected and appointed democratically.
The Government's final observation on this point was that it was
obvious that the election authorities of the State of Mexico gave the
various social groups in the State and its political parties the
opportunity to participate. It
added that "there is no way that the method used to put together
the electoral bodies and tribunal -which the petitioner alleges, without
any basis or logical argument, is biased-
could be construed as being in violation of the Convention."
When the petitioner made observations on the Government's reply
to this point, the petitioner noted that "while it is indeed true
that the Government has the authority and the responsibility to take
charge of election matters and while it is also true that every
government is represented in the membership of the electoral bodies, its
representation must not upset the balance within those bodies and
thereby make them biased, as is happening with the mechanisms that the
law of the State of Mexico establishes.
For example, under Article 58 of the LOPPEEM nine of the members
of the State Election Commission are part of the formal structure of
government (except for the notary public, who is appointed by the
Commission, which is chaired by the Government Secretary who, inter
alia, is empowered to give the "fiat" to serve as notary
public); the others are representatives of the political parties.
In the 1990 elections, there were eight that had the right to
vote, which shows that even if all eight political parties (among them
the Institutional Revolutionary Party) voted in favor of a given course
of action, the Government could not be forced to act on that decision,
since it has nine of the 17 votes on the State Commission."
As for the State Tribunal for Election Disputes, its members are
also nominated by the State's Chief Executive and approved by the State
Legislature. The petitioner
stated that while it is the Government's authority and duty to take
charge of election-related matters and that every government is
represented in the electoral bodies, that representation must not upset
the balance that such bodies must have and thereby make them biased,
which is what is happening with the mechanisms established by the laws
of the State of Mexico.
In its reply, the Government reiterated that all the political
parties have the same rights to voice and vote in the various electoral
bodies; that all are represented equally, and that the respective state
powers coordinate their participation.
It reasserted the legitimacy of the electoral bodies, duly
constituted in accordance with the laws in effect in the State of
Mexico, thanks to which its members are impartial.
The Commission must reassert that the State's authority to decide
what the electoral bodies will be and how they will be structured
implies that the genuine independence and impartiality that these
electoral bodies exercise both within themselves and in relation to the
system in which they discharge their functions, will guarantee the
exercise of political rights. This
will only be possible if all sectors of Mexican political life are
guaranteed fair participation, which means they must enjoy real,
balanced representation on an equal footing with the government
representatives serving on those bodies.
The Commission must point out that obviously the method used to
select the members of the electoral bodies is not in itself a violation
of the American Convention. Nevertheless,
if the representation on such bodies is not balanced in a way that
ensures their independence and impartiality, one can hardly say that the
laws are being properly enforced or that the various situations put to
them for consideration are being examined objectively.
This is the kind of adjustments that have to be made to electoral
bodies; while each State's preferences as to form or the models that it
wants to use are its prerogative, certain guidelines of fairness -based
on principles of representative democracy- have to be observed to enable
all sectors involved in the political life of nations to participate.
ADDITIONAL OBSERVATIONS FROM THE GOVERNMENT OF MEXICO IN REPLY TO
REPORT 7/93. THE
In its observations on Report 7/93, the Government of Mexico
states that the petition specifically concerns the elections held in
1990 in the State of Mexico, whose electoral system, it adds, was
changed "to make it more effective and transparent."
It is evident to both the Commission and the Government that the
case can be traced to those elections, though this does not prevent the
Commission from performing its functions and exercising its authority to
make recommendations "to the governments of the member states, when
it considers such action advisable, for the adoption of progressive
measures in favor of human rights within the framework of their domestic
law and constitutional provisions as well as appropriate measures to
further the observance of those rights" (Article 41.b of the
American Convention on Human Rights).
The Government seems to have misconstrued this aspect of the
concept of political rights, perhaps because of the way Mexico's legal
system classifies them. But
in its most recent advisory opinion, the Inter-American Court of Human
Rights clarified this point once and for all when it stated that
"The Court finds no reason (...) to make any distinction between
the rights in question (Article 23 -the right to participate in
government-, Article 24 -the right to equal protection-, and 25 -the
right to judicial protection-) and the other rights recognized in the
Convention. The Convention
does not organize the rights it protects into some kind of
The Government devotes much of its reply to detailed discussions
of the additions and amendments made to the electoral system of the
State of Mexico, published on February 4, 1993.
The Government reasons that because of those additions and
amendments, "the grounds for the petition no longer obtain"
since they were designed "precisely to make elections more
authentic, equal and transparent".
The reforms to which the Government of Mexico alludes concern the
bodies, election financing and voter registers, ballot boxes, voting
districts and poll hours, and examining challenges.
The Inter-American Commission on Human Rights hopes that the
amendment of the Electoral Law of the State of Mexico will, as the
Mexican authorities assert, make present and future elections "more
authentic, equal and transparent" and that the recommendations the
Commission has been making to the Mexican Government for some time will
be embodied, in both letter and spirit, in these reforms.
However, none of this prevents the Commission's continuing to
examine the instant case, since the violation of the rights upheld in
the Convention predates the law now on the books and is not necessarily
solely attributable to the previous law.
Hence, although the Inter-American Commission is pleased that the
law has been amended, it will still issue its final conclusions.
The Inter-American Court explained the Commission's competence to
rule on domestic laws
as follows: "For
individual communications to be processed, some violation of the
Convention by a State must be alleged.
This is a prerequisite for admissibility (Article 47.b) and the
Commission has the authority to determine that said violation exists.
Accordingly, it has the authority to determine whether or not
laws are in violation of the Convention.
In effect, international bodies that apply the Convention must
treat a domestic law as they would a mere fact.
The responsibility of the State when one of its domestic laws is
in violation of the Convention is the same as when, under general
international law, its domestic laws violate other international
As for the question of admissibility, in its observations the
Government of Mexico states that it does not agree with the Commission's
practice, present in this case, of merging ipso facto its
examination of the petition's admissibility and its merits without first
notifying both interested parties.
The Commission is not certain what the Government means by the
expression "merge ipso facto", but the text seems to
suggest that its concern stems from the fact that the interested parties
were not notified in advance. If
that is the case, then the Commission feels compelled to remind the
Government that Government and petitioner alike know of the processing
of this case, which began on October 17, 1991; there is a large case
file on record containing both parties' assessments of the merits of the
case and of its admissibility from the strictly formal standpoint.
One need only look at the extensive documentation and arguments
that contend that the Commission does not have competence in this
matter, that the facts alleged do not constitute violations of the
Convention, etc., documents and arguments that are discussed through the
present report and upon which it is based.
There is nothing new in this report that could violate either
party's right to self-defense or to due process.
Indeed, the Government itself made observations on the
confidential version of this report.
The Inter-American Court cited its own jurisprudence to clarify
when a formal expression of admissibility is required, as follows:
"The Convention determines what requirements a petition or
communication must meet in order to be admitted by the Commission
(Article 46); it also states the conditions under which the Commission
is to declare a petition or communication inadmissible (Article 47) and
that the Commission may find a petition or communication to be
inadmissible after processing has already commenced (Article 48.1.c).
As to how the Commission must declare the inadmissibility, the
Court has already found that a formal act is required, though no formal
act is required for purposes of admissibility (Velásquez Rodríguez
case, Preliminary Objections, Judgment of June 26, 1987, Series C No. 1,
paragraph 40; Fairén Garbi and Solis Corrales, Preliminary Objections,
Judgment of June 26, 1987, Series C No. 2, paragraph 45, and the Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987, Series C
No. 3, paragraph 43).
In its observations on Report 7/93, the Government of Mexico
contends that the report "is more like an unsolicited advisory
opinion than a report on an individual case."
In reference to the Commission's competence, the Government adds
that the former's "authority is circumscribed within a very precise
legal framework and is neither omnimodal nor absolute, and does not
extend to the collective right of the peoples to free
political-electoral choice." In response, the Commission would like to cite some of the
more relevant excerpts from Advisory Opinion OC 13/93, issued by the
Inter-American Court of Human Rights in July of 1993:
"There are many ways a State can violate an international
treaty. In the specific
case of the Convention, for example, the State can violate it by failing
to enact the laws that it is obliged to enact under Article 2.
Of course, it can also violate the Convention by enacting
provisions that are contrary to what its obligations under the
Convention require of it, which would make the question of whether such
provisions were enacted in accordance with or contrary to domestic law
irrelevant." The Court
further states that "There must be no doubt that under such
circumstances the Commission has the same authorities as it would have
vis-a-vis any other type of violation, and may avail itself of the same
opportunities to state its findings that it has in the other cases.
In other words, the fact that these are `domestic laws' adopted
`in accordance with the provisions of the Constitution' means nothing if
they are the means through which protected rights and freedoms are
violated. The authority of
the Commission is in no way constrained by the manner in which the
Convention is violated."
The Commission, therefore, feels it is unnecessary to dwell on
these points further, as they have already been examined here and on
previous occasions and do not warrant reconsideration.
The position of the Inter-American Commission on Human Rights on
this point is clear, and the Convention is the legal framework in which
it has been operating and will continue to operate.
Its functions go beyond the particular interests of any one
State. Because of the
nature, purpose and characteristics of international human rights law,
it will continue to discharge its function of protecting, promoting and
defending the fundamental guarantees of persons, inspired by the
principles that govern it.
The Government of Mexico, which argues for the inadmissibility of
the petition that was the source of this case, draws a number of
conclusions concerning the exhaustion of internal remedies, to the
According to the Government, the following are "generally
recognized principles of international law relative to the exhaustion of
As a general rule, the domestic courts are presumed to be
independent and impartial;
If the domestic law is open to interpretation, all possible
remedies must be exhausted;
Justice has not been denied when the petitioner is to blame for
the lack of any immediate results;
The petitioner must use all the arguments and evidence essential
to his/her case;
The effectiveness and efficacy of an internal remedy concern its
ability to redress the rights of the petitioner, but not its affects
vis-a-vis third parties; and
The decision as to whether a remedy is admissible is the
exclusive purview of the competent national courts under the domestic
The assertions put forward by the Government of Mexico, which it
labels "principles", are perfectly valid, although not
necessarily applicable or causally linked to the present case or to the
observations made by the Commission when ruling on it.
The Commission has analyzed the nature of political rights and
the remedies provided under Mexican law.
Its conclusions will not be changed by arguments that treat
political rights as individual rights when they are not, or that resort
to interesting discourses in comparative law to demonstrate the
similarities between the Mexican system and those of other countries in
this hemisphere. In fact
some of the points raised by the Government are not even at issue,
precisely because they have no direct bearing on the purpose of this
The Government contends that the duty to investigate violations
of political rights "has been fully set in motion, both in the
criminal as well as electoral jurisdictions" in Mexico.
It adds that "the conduct of the competent electoral
agencies in this regard is above reproach, having been given full and
autonomous probative authority." The Commission is pleased to acknowledge this very positive
development and is confident that in the light of recommendations made
by the Commission both now and in the past, the evolution of Mexico's
election laws will continue on course.
The Government reiterates that the petitioner failed to comply
fully with his obligation "to file the remedies available in the
electoral jurisdiction, with the competent organs and within the
statutory time periods". The
Government cites (1) the ombudsmen in the federal and local
jurisdictions, impeachment proceedings in the Federal Legislature and
other instruments that it claims "the petitioner either failed to
use or used improperly". The
Government goes on to note that while the ombudsmen are not empowered to
determine whether elections are valid, they have heard cases
involving violations of the constitutional guarantees, including
violations of the guarantees of legal certainty committed during
elections". It argues
that (2) "impeachment proceedings are in order, inter alia,
in cases of attacks on democratic institutions; on the republican,
representative and federal form of government; on freedom of suffrage
and for grave and systematic violations of constitutional
"Protection of political rights" -states the Government-
"through the so-called petition to challenge legality" (...)
and the various legal questions that such proceedings involve, including
that of the Convention's federal supremacy in actual cases, have not
been definitively settled by the Mexican courts; the petitioner also
failed to use other domestic remedies available to him such as (4) the
concurrent civil or criminal avenue to monitor treaties or the (5)
"sovereignty protection" designed to ensure that the state and
federal jurisdictions are respected."
Finally, the Government contends that (6) "a petition to
challenge legality in the area of political rights need not be just a
symbolic proceeding; instead, it has a very reasonable chance of success
since the Supreme Court has ruled that the `petition should be granted'
under such circumstances."
As to these "instruments" and the need to exhaust them
as remedies under domestic law, the Commission would again cite the
Inter-American Court of Human Rights for its definition of what should
be regarded as "adequate" remedies.
The Government states that the IACHR report "overlooks the
fact that Mexico's amparo is the simple, brief and effective
remedy expressly provided for in the respective provisions of the
American Declaration and the American Convention on human rights, as can
be established from the travaux preparatoires, from inter-American
jurisprudence and from the legal doctrine and constitutional philosophy
of the hemisphere." It
refutes the Commission's assertions by stating that in Mexico, the amparo
petition is "simple and brief because the allegedly aggrieved party
may immediately seek the suspension of the act in question, or the
courts may order said suspension as a precautionary measure (...); any
authority who disregards the suspension while the proceedings are
underway shall be subject to the severest penalties."
The Government argues that amparo proceedings are
"effective by the standards of generally accepted principles of
international law concerning the efficacy and suitability of domestic
remedies and reparations for damages, since the ruling that grants the
petition of amparo is intended to restore to the aggrieved party
his full rights."
No one is questioning either the validity or the value of the
assertions that the Government of Mexico has made in this respect.
However, the Government seems to forget that what is at issue
here is not the nature of amparo or of any other remedy in
respect of individual claims seeking restitution, suspension of acts and
so on. The issue here is
the need for Mexico's legal system to provide some effective remedy in
the face of a violation of political rights, which are collective in
nature. These are a people's rights and are recognized in both the
American Declaration and the Convention.
Continuing with the subject of amparo, the Government
states that "the question of granting amparo -or any other
remedy- the kind of far-reaching scope that the Commission suggests is a
matter of optional preferences and not within the scope of the
Convention." It goes
on to say that "this issue is unrelated to either the effectiveness
or appropriateness of domestic remedies; instead, it concerns the
constitutional separation of powers."
The "optional preferences" of which the Government
speaks and the "constitutional separation of powers" are
indeed aspects of the political reality of a country that have little to
do with the central issue raised by the Commission when it states that
the competent domestic authorities need to establish the existence of a
simple, brief and effective remedy to protect the political rights of
To avoid needless repetition, one need only cite the opinion of
the Inter-American Court, which found that "In the international
sphere what needs to be established is whether a law violates a State's
international obligations under some treaty.
The Commission can and must do this when examining the
communications and petitions presented to it in which violations of
human rights and freedoms protected by the Convention are alleged".
On the basis of the foregoing considerations, the Inter-American
Commission on Human Rights issues its final conclusions, bearing in mind
preliminary report 7/93 and the reply provided by the Government of
Mexico with respect to its recommendations.
In adopting its Report 7/93, the Commission examined in detail
and drew up recommendations on the suitability of domestic remedies in
terms of elections; the need for an evidentiary system that will allow
citizens to enjoy simple, expeditious, and effective remedies in
connection with political rights; and the composition of electoral
According to the Government of Mexico's statement to the
Inter-American Commission on Human Rights, progress has been made at the
legislative level, a fact which is important to note, and which is
reflected in the amendments made to the Ley de Organizaciones Políticas
y Procesos Electorales del Estado de México
(law on political organizations and electoral processes of the Mexican
state); some of the new provisions are in response to the
recommendations issued by the Commission, and some others, independently
of those recommendations, further the aim of ensuring free and genuine
The amendments mentioned by the Government of Mexico have to do
with the following topics: electoral
organizations, financing of elections, voter rolls, ballot boxes, stages
of the electoral process, election days, and remedy proceedings. Specifically, the legislative changes which the IACHR feels
it is important to emphasize, because they represent progress, refer,
where appropriate, to establishment of the concept of "citizen
commissioners" as members of the State Electoral Commission and of
the District and Municipal Electoral Commissions; to publicity
concerning the actions of electoral authorities in the mass media; and
to the adoption of measures to improve logistics on election days, such
as the placement of ballot boxes, mainly.
Additionally, the Government states, in response to the IACHR
recommendations, that the responsibility to officially investigate
situations that violate human rights "has been fully established,
in terms of both criminal process and the electoral area".
In this connection, it cites important jurisprudence of the
Federal Electoral Tribunal
according to which "a local council has the authority to obtain all
the admissible evidence it needs in order to issue its decisions
objectively and impartially in strict adherence to law (...)". The Commission understands that this legal opinion shall be
applied uniformly in electoral matters in the cases submitted to the
pertinent bodies for consideration, to further the effectiveness of the
challenge procedures themselves.
The Committee recognizes this progress with satisfaction and
trusts that all of its recommendations to the authorities in that
country shall be implemented through continuation of this legislative
development process aimed at fully and effectively guaranteeing the
political rights of Mexican citizens as recognized in the American
The Inter-American Commission on Human Rights hopes that, as it
was told by the authorities of that country, these amendments will
effectively allow greater "authenticity, equality, and
transparency" in current and future electoral processes, and trusts
that the recommendations this Commission has been making for some time
to the Mexican authorities will be carried out in legislatively and
operationally by the competent authorities.
The Inter-American Commission on Human Rights has decided to
transmit this report to the Government of Mexico and to the complainant,
and to publish it as part of its Annual Report to the General Assembly
of the Organization.
These same political rights are contained in Article XX of the
American Declaration of the Rights and Duties of Man; Article 21 of
the Universal Declaration of Human Rights, and Article 25 of the
International Covenant on Civil and Political Rights.
Article 1. Obligation
to Respect Rights 1.
The States Parties to this Convention undertake to respect
the rights and freedoms recognized herein and to ensure to all
persons subject to their jurisdiction the free and full exercise of
those rights and freedoms, without any discrimination for reasons of
race, color, sex, language, religion, political or other opinion,
national or social origin, economic status, birth, or any other
Where the exercise of any of the rights or freedoms referred
to in Article 1 is not already ensured by legislative or other
provisions, the States Parties undertake to adopt, in accordance
with their constitutional processes and the provisions of this
Convention, such legislative or other measures as may be necessary
to give effect to those rights or freedoms.
Report 01/90 on cases 9768, 9780 and 9828 (Mexico); Annual Report of
the IACHR 1990-1991, Chapter V, Section III, "Human rights,
political rights, and representative democracy in the Inter-American
Resolution adopted by the General Assembly at its second regular
session, titled "Strengthening of the principles of
nonintervention and the self-determination of peoples and measures
to guarantee their observance."
Restrictions Regarding Interpretation.
No provision of this Convention shall be interpreted as:
any State Party, group, or person to suppress the enjoyment or
exercise of the rights and freedoms recognized in this Convention or
to restrict them to a greater extent than is provided for herein; b.restricting
the enjoyment or exercise of any right or freedom recognized by
virtue of the laws of any State Party or by virtue of another
convention to which one of the said states is a party; c.
precluding other rights or guarantees that are inherent in
the human personality or derived from representative democracy as a
form of government; or d.
excluding or limiting the effect that the American
Declaration of the Rights and Duties of Man and other international
acts of the same nature may have.
Thesis 87 - Quinta Epoca: Tomo
III, p. 1311, Villa García. N.N. vecinos de; Tomo IV, p. 862,
Heredia Marcelino; Tomo IV, p. 1135, Guerra Alvarado José y Coags.;
Tomo IV, p. 463, Orihuela Manuel y Coags; Tomo VII, p. 941,
Ayuntamiento de Acayucan.
Thesis 88; Quinta Epoca: Tomo XIV, p. 1109 - Aragón Raymundo y
Coags.; Tomo XIV, p. 1802 - Alcocer Antonio y Coags.; Tomo XVI, p.
92.- Aguirre Esquivel José y Coags.; Tomo XVII, p. 148. - Peniche
Morales Diego y Coags.; Tomo XVII, p. 1509.- Guerra Alvarado José.
Inter-American Court of Human Rights, Advisory Opinion OC-13/93,
July 16, 1993. "Certain
authorities of the Inter-American Commission on Human Rights
(Articles 41, 42, 46, 47, 50 and 51 of the American Convention on
Human Rights)", requested by the Governments of
Argentina and Uruguay, paragraph 22. (unofficial translation)
Inter-American Court of Human Rights, Advisory Opinion OC 13/93,
paragraph 30; see also paragraph 34.