The date is November 17, 1969. In San José, Costa Rica, the states of the Americas are about to decide what degree of protection to grant citizens’ political rights under the American Convention on Human Rights. After three days of discussion, the text of Article 23.2 reads as follows, “The law may regulate the exercise of the [political rights to vote and stand for election] only on the basis of age, nationality, residence, language, education, civil and mental capacity, according to the case.” Suddenly, Dr. Carlos A. Dunshee de Abranches, the Brazilian delegate to the negotiating conference proposes all states to adhere to his country’s 1967 constitutional standard—to “erase ‘according to the case’, and add ‘or sentencing by a competent court in criminal proceedings’.” The amendment is then approved by unanimity, and incorporated to the Convention.
On March 1-2, 2011, the Inter-American Court of Human Rights, an international tribunal established also in 1969 and based in Costa Rica, sat to hear the case of Leopoldo López Mendoza v. the Bolivarian Republic of Venezuela. The case goes as follows—in 2008, through two administrative resolutions alleging corruption, the Comptroller General of Venezuela disqualified the mayor of the Chacao Municipality, in Caracas, Leopoldo López, to run for office for six years. At the time of his disqualification, López was an almost certain winner of the race for mayor of metropolitan Caracas, the country’s largest electoral district.
Acting as plaintiff in this case on behalf of López, the Inter-American Commission of Human Rights (IACHR) has argued that the administrative resolutions that disqualified him fall far below the “criminal sentence” standard set in the Convention, and requested the Court “to conclude and declare that the (Venezuelan) State violated the political rights (…) of Mr. Leopoldo López,” and, “to order the Venezuelan State” to reinstate them. On the other end, the Venezuelan State, represented by several attorneys and expert witnesses in Costa Rica, claimed that Leopoldo López’ disqualification is not only legitimate under Venezuelan domestic law, but that it is well within the margin of appreciation the Convention gives states in the regulation of human rights.
All arguments have been made and a final decision by the Court is expected in the next few months. Venezuela, which has participated fully in the proceedings, is bound to comply with it. Yet, this is no everyday case. On the one hand, López is now a potential candidate for the upcoming 2012 presidential elections, and his participation on the primaries that will define the opposition’s candidate, depends largely on this ruling. More widely, however, this particular decision could lead to the restitution of the political rights of thousands of people in the Americas who are at this time banned from holding public office, from voting, or from participating as candidates in elections.
For the first time, four decades after the Convention’s adoption, the highest court of justice in the Western Hemisphere is being called upon to ratify that a person in the Americas may only be deprived of his political rights after being sentenced as a result of a judicial process that meets all due process safeguards. A ruling of this kind would benefit people ranging from disenfranchised convicts in the U.S. to the thousands of Latin Americans imprisoned without conviction. It would also influence the case of recently-removed Colombian Senator Piedad Córdoba—accused of having links with Colombia’s FARC—who, like López, was removed from her post and disqualified to run for office for 18 years by the Comptroller General.
The wider impact of the ruling was recently brought to the attention of the Court through an amicus curiae brief filed by the Human Rights Foundation (HRF), a New York-based human rights organization. According to HRF, who was present at the hearings in Costa Rica, “this case gives the Court an excellent opportunity to determine that individuals who are incarcerated, but not yet sentenced, should never be deprived of their political rights.” HRF’s brief contends the Court should also determine that in cases where the suspension or deprivation of political rights is an ancillary penalty to a criminal conviction, the persons deprived of liberty should not also be deprived of their rights to vote as they serve their sentence.
An amicus curiae (Latin for friend of the court) is supposed to provide the Court with expert criteria to assist in resolving a particular case according to international law. HRF’s brief takes into account not just the text of the Convention, but also its travaux preparatoires, the decisions of the European Court of Human Rights, the opinions of the United Nations Human Rights Committee, and the provisions of most Latin American constitutions regarding not only political disqualifications but prisoner disenfranchisement.
Regarding political disqualification, HRF’s brief points out that the criminal conviction standard of Art. 23.2 of the Convention is followed by the constitutions of Bolivia, Brazil, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, and Venezuela. Yet, countries like Bolivia, Colombia or Venezuela have given non-jurisdictional bodies the power to trump their own constitutional guarantees. In Bolivia, for example, pursuant to a 2010 statute, any public prosecutor has the power to remove any democratically-elected official at the state and local levels, upon filing a simple indictment against them. In Colombia, in a case very similar to that of Venezuela, after simple administrative proceedings, the comptroller general may impose political disqualification penalties of up to 20 years.
HRF’s brief also points out that on January 6, 2011, the European Court of Human Rights issued a final ruling in the case of Paksas v. Lithuania, holding that the penalty of disqualification to stand for elections in Europe, pursuant to the European Convention of Human Rights, may be legitimate only if it is the result of an express decision of a court of law, reached in compliance with criminal due process rules.
Under exactly the same standard but pursuant to a different treaty, the Inter-American Court has now been called upon to examine the case of a Venezuelan politician’s disqualification to run for office. Because of the stature of Leopoldo López, the Court’s decision may strongly influence Venezuela’s political landscape for the foreseeable future. Yet, the precedent the Court sets here is bound to resonate far beyond Venezuela’s borders.
*Javier El-Hage is a guest blogger to AQ Online. He is General Counsel of the New York-based Human Rights Foundation and the author of HRF’s amicus curiae brief, along with various comparative constitutional law and international law publications. For more information about HFR, visit its website or follow it on Twitter and Facebook, and for more on Leopoldo López’ case, watch the presentation he gave at the 2010 Oslo Freedom Forum, an annual conference produced by the Human Rights Foundation.
