IACHR refers case on Nicaragua to the Inter-American Court

July 8, 2021

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Washington, D.C. - On June 2, 2021, the Inter-American Commission on Human Rights (IACHR) filed the case of Fabio Gadea Mantilla regarding Nicaragua before the Inter-American Court of Human Rights. The case concerns the international responsibility of the State for the violation of the political rights and judicial protection of Fabio Gadea Mantilla in the context of his political participation as a presidential candidate in the 2011 electoral process.

On March 9, 2011, Fabio Gadea Mantilla registered his candidacy before the Supreme Electoral Council for president. Subsequently, the Council published the final list of candidates in which both Mr. Gadea and President Ortega were included. Because the registration of President Ortega was considered illegal, the victim and other candidates filed a challenge before the Supreme Electoral Council, which was declared inadmissible on April 4, 2011. The victim was unable to file an appeal to obtain judicial review of that decision since the Constitution established that the Supreme Council's resolutions on electoral matters were not subject to appeal. On November 6, 2011, presidential elections were held in Nicaragua in which President Ortega was reelected with 62.64% of the votes and Mr. Gadea came in second place.

In its Merits Report, the Commission considered the existence of a general context in Nicaragua of concentration of power in the Executive Branch to be proven. Even though Article 147 of the Constitution prohibited presidential reelection after holding the presidency for two terms, in October 2009, in response to a writ of amparo filed by the President and other persons, the Constitutional Chamber of the Supreme Court of Justice determined the inapplicability of said article for violating the principle of equality and the plenary session of said body determined the inapplicability erga omnes of the referred constitutional norm. On the other hand, the Commission noted that different bodies that conducted electoral observation in Nicaragua in 2011 pointed out structural problems in the process. In particular, the European Union described the process as lacking neutrality and transparency, led "by an Electoral Council with very little independence and fairness that has not fulfilled its duty of transparency and collaboration with all parties". Although in the present case it is not appropriate to determine whether re-election is a human right, the Commission emphasized that indefinite re-election, or extended periods of presidential office by the same person in certain contexts where there are no adequate safeguards or guarantees, may pose some risks to the system of representative democracy, a fundamental pillar of the inter-American system.

The Commission noted that Article 23 of the American Convention recognizes political rights and protects political participation through the right to active suffrage, as well as the right to passive suffrage. The latter, understood as the right to run for elected office, as well as the right to have equal access to the public functions of a country. This article not only establishes that its holders must enjoy rights, but also adds the term opportunities. This implies the obligation to guarantee with positive measures that every person who formally holds political rights has the real opportunity to exercise them. On the other hand, the Commission established that the authenticity of elections encompasses several dimensions. On the one hand, the general conditions in which the electoral process takes place, and, on the other hand, those linked to the legal and institutional system that organizes the elections and that executes the actions of the electoral act what is directly and immediately related to the casting of the vote.

Based on these considerations, the Commission understood that, in order for elections to comply with the requirements of Article 23 of the Convention, it is essential that the States adopt measures to ensure adequate general conditions for the electoral contest. It also recognized that, by complying with the obligations that guarantee the authenticity of elections, not only are the obligations deriving from political rights being fulfilled from an active perspective, but also from a passive perspective. This, given that, through equity in the electoral contest, it contributes to the observance of the right to participate in conditions of equality.

In its Merits Report, the Commission examined whether Mr. Gadea's right to participate under equal conditions in the 2011 national elections was violated, considering the circumstances in which the electoral process took place. The Commission deemed it proved that President Ortega, who was in office during the electoral process, participated in a situation of advantage or superiority. To this end, the Commission considered the general context of concentration of power in the hands of the Executive Branch accredited by the IACHR at the time of the 2011 elections, which resulted in allegations of lack of independence and impartiality of the Supreme Court of Justice, the Supreme Electoral Council, as well as appointments of persons related to the Executive Branch in various oversight bodies. The Commission also considered the irregularities found in the electoral process that translated into advantages using additional public resources and means for President Ortega, such as increased electoral propaganda in his favor in the media and the closing of spaces in state channels for the other political parties.

The Commission concluded that these elements demonstrate the existence of an infringement of Mr. Gadea's right to participate in the electoral process under equal conditions, in view of the advantages generated by the State itself to the incumbent President, who participated in the process in a situation of advantage or superiority. The IACHR pointed out that the violation of the right to participate under equal conditions in an electoral contest may affect not only individual rights, but also the collective dimension of political rights, that is, the will of the voters expressed through universal suffrage. This, given that such violation may affect the democratic game by generating undue advantages to certain candidates over the rest of the participants who submit their candidacy to popular election.

Finally, the Commission considered that the possibility of judicially challenging the decision of the Supreme Electoral Council of April 4, 2011, was of particular importance considering the text of the Constitution, from which the prohibition of President Ortega to participate in the electoral contest would be inferred, the allegations of lack of impartiality of the Supreme Electoral Council, and the position that the victim occupied in the electoral process.

Based on these findings, the Commission concluded that the Nicaraguan State is responsible for the violation of the rights established in Articles 23(1)(c) (political rights) and 25(1) (judicial protection) of the American Convention on Human Rights, in relation to the obligations established in Articles 1(1) and 2.

In its Report on the Merits, the Commission recommended that the State:

  1. Make full reparations for the violations of rights declared in the report, including the payment of compensation for the violation of the right to have access under general conditions of equality to the country's public functions.
  2. Adopt the necessary non-repetition measures to guarantee the equality of all participants in the presidential electoral process. In particular: 1) have the necessary measures in place to ensure that the electoral regulatory framework and its implementation guarantee the equality of all candidates in an electoral contest and prevent the incumbent ruler from breaching his duty of neutrality in the process and obtaining undue advantages through public resources or the use of the media, 2) take the necessary measures to strengthen and guarantee the independence of the Supreme Electoral Council; 3) provide for the legislative, administrative and any other measures necessary to create an effective and simple recourse to challenge the resolutions of the Supreme Electoral Council, without limitations as to the subject matter appealed.
    1. The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

      No. 169/21

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