International Foundation for Electoral Systems
“real possibility” to receive a remedy.124 These cases illustrate this essential component of the effective
administration of justice: while it is important for remedies to be clearly set out in the legal framework,
the application of these remedies must also be guaranteed. As the court noted in Castañeda Gutman,
“winning the case is not the same as winning the remedy.”125
In some instances, the way the law has been crafted may not allow for an effective remedy in practice.
For example, deadlines may be unrealistic and impact the provision of a corrective remedy, claims may
be dismissed on procedural grounds without an opportunity to correct errors, or an adjudicatory body
may have punitive measures available in the law to punish election violations, but choose not to impose
them. The issue here is that procedural factors can render a remedy ineffective, not just impact the
fairness of the process. In the 2015 parliamentary elections in Turkey, the Rights and Liberties Party
lodged a complaint alleging that several media outlets had incorrectly reported that the party had
withdrawn from the election, and the party requested that the Supreme Board of Elections (SBE)
remedy the matter by corrective announcement.126 The SBE informed international observers from the
OSCE that it would not adopt a decision on the complaint and had no means to remedy the matter.127
OSCE observers noted that while remedies existed in the law, ultimately the SBE did not provide an
effective remedy for contestants in practice.128 In Mexico, the case management process includes
additional enforcement mechanisms. For example, in a media case in which the Tribunal has ruled that a
candidate is campaigning outside of the allowed period and mandates that such activities stop, they can
then enforce that ruling by imposing a fine. The case management process also continues beyond the
judge’s issue of a resolution by tracking compliance with mandated remedies and sanctions. These
mechanisms help ensure that for any remedy or sanction put in place, there are follow-up steps to
ensure it is enforced and effective in practice.
124
The claim evoked the constitutionality of political rights and more specifically, the right to register as an
independent candidate. Castañeda Gutman v. Mexico, Case 12.535, Rep. No. 113/06, Inter-Am. Comm’n H.R. ¶¶
92,40 (2008).
125
Ibid.
126
OSCE, EARLY PARLIAMENTARY ELECTIONS, 1 NOV. 2015: FINAL REPORT (2015),
http://www.osce.org/odihr/elections/turkey/219201.
127
Ibid.
128
34
Ibid.