One of the great challenges for the rule of law throughout Latin America is to put an end to the abuse of power by those who hold popularly elected positions. This struggle finds new obstacles in the judgment of the Inter-American Court of Human Rights, in the Petro v. Colombia. The controversy focuses on the exercise of powers of the Attorney General’s Office to impose sanctions such as dismissal or disqualification from holding public office to popularly elected officials, for serious violations in the exercise of their functions.
Failure and flaws in interpretation
On August 18, the Inter-American Court of Human Rights (IACHR) decided that the Office of the Attorney General of the Nation violated the political rights of the former mayor of Bogotá, Gustavo Petro, by removing him from office and disqualifying him from holding public office. For the Court, the norms that empower the Office of the Attorney General to impose sanctions that limit the exercise of rights are contrary to the American Convention on Human Rights. It also demands that Colombia restructure its internal regulations on disciplinary matters.
In the process, the Inter-American Commission on Human Rights insisted that only a final criminal sentence can restrict the exercise of a popularly elected office. The Inter-American Court followed the same line, adopting a restrictive interpretation of Article 23.2 of the ACHR. This norm provides that “… the law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph [derechos políticos], exclusively for reasons of age, nationality, residence, language, instruction, civil or mental capacity, or conviction, by a competent judge, in criminal proceedings ”.
Incoherent and dangerous interpretation
In our opinion, the expression “regulate the exercise of rights and opportunities” refers to the rules that govern the conditions of access to popularly elected positions, as observed from a systematic reading of the ACHR. From this perspective and contrary to what the Inter-American Court understands, the “conviction, by a competent judge, in criminal proceedings” refers exclusively to the norms that determine the general conditions in which any citizen can access a position of popular election, allowing States to restrict the right to stand for election of those who have committed a serious crime. The disciplinary control of officials who, having been elected, abuse their functions or mismanage the resources of the State is part of the regulation of the public service and not of the electoral system. It is one thing to deprive an ordinary citizen of her political rights due to having committed a crime and another, very different, is to punish a high dignitary of the State for the way in which she exercises the position for which she was elected.
The IACHR totally ignored this perspective and made a decision that led to a dire consequence: elected officials cannot be sanctioned by authorities other than criminal authorities. But, of course, that is not the only possible interpretation. In fact, the IACHR itself and other international courts have adopted a different interpretation in these types of cases:
• In the case of Castañeda Gutman v. Mexico, the IACHR accepted that the list in Article 23.2 was elastic and not exhaustive, when examining the case of a presidential candidate who had been excluded from the elections in that country;
• In the case of López Mendoza v. Venezuela, the then President of the Court, Diego García-Sayán, signed a concurring vote in which he explained that “the term ‘exclusively’ contained in Article 23.2 of the Convention does not refer to an exhaustive list of possible grounds for restriction or regulation of political rights (…), the concept ‘conviction, by a competent judge, in criminal proceedings’ does not necessarily mean that this is the only type of process that can be used to impose a restriction ”;
• The European Court of Human Rights has always followed a more reasonable approach in this matter, which allows political rights to be restricted through non-criminal mechanisms. That would be the case of a process of a political nature, such as impeachment, aimed at safeguarding the democratic order.
Furthermore, a narrow interpretation of Article 23.2 clashes with many of the American constitutional systems, which allow non-criminal mechanisms to restrict political rights. The practice of the States that are part of the Inter-American System is an important criterion for interpreting this international treaty.
On the other hand, an elastic interpretation of Article 23.2 is fully consistent with the purpose of the Convention, which includes the protection of the democratic order and the integrity of the legal order.
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