Great partial victory from AIJA member in significant human rights case involving the right to vote
18 February 2021
Rodrigo Da Silva, an AIJA member native from Uruguay and an American citizen, shares his story on his partial victory related to violations concerning the right to vote by Uruguayan citizens living abroad.
In 2011, I filed a petition against my native country of Uruguay with the Inter-American Commission of Human Rights (IACHR) where I am acting in dual capacity as petitioner and counsel. The petition deals with violations concerning the right to vote by Uruguayan citizens living abroad which are estimated to be about 15-20% of the total Uruguay citizenry (there are 3.4 million citizens residing in Uruguay and about 800,000 residing abroad). Uruguayans living abroad can only participate in all national elections if they travel to Uruguay on the date of the election. In other words, there is no mechanism to cast absentee ballots from abroad and it is now the last country in South America that is disenfranchising its citizens in this regard. The lack of implementation of a system for casting ballots from abroad is not only a violation of the Uruguayan Constitution which provides that “every citizen is a member of the sovereignty of the Nation, and as such is both an elector and eligible”, but also violates the American Convention of Human Rights. More importantly, there is no legal proceeding in Uruguay that a citizen like me can bring to compel government officials to implement a system to exercise a right that is being violated by omission or for lack of procedures which is also a separate violation of the judicial protection section of the American Convention.
Proceedings at the IACHR have 2 stages, a jurisdictional one call admissibility where the IACHR decides if the petition meets the jurisdictional basis of exhausting local remedies, if it has been brought within the applicable time, and if it does involve the violation of substantive provisions of the American Convention. Then, if cases are “admissible”, a formal case is opened and the case proceeds to the merits stage. On 25 April 2020, the IACHR issued the attached 3-2 decision in Spanish which found my petition to be admissible and hinted that I should prevail on the merits. The IACHR found that I had exhausted local remedies, that the petition was filed timely as this is an ongoing violation, and that the petition asserts potential violations of Articles 23, 24 and 25 of the American Convention as set forth in Articles 1.1 and 2 of the same.
If I were to prevail on the merits, the Uruguayan government would be directed by the IACHR to implement a system for Uruguayans living abroad to cast votes in national elections, failing which, the IACHR may file an action with the Inter-American Court of Human Rights wherein the IACHR would be the actual plaintiff/petitioner and I would be entitled to participate as a victim. In December 2020, I filed my supplemental memorandum dealing with the merits phase of the case and I am hoping to get a hearing in Washington, DC where the IACHR is headquartered or to present through videoconference oral arguments to further bolster the legal arguments made in the written submissions. Unlike many other countries, the vote of the citizens living abroad can change the outcome of elections in Uruguay.
The Oriental Republic of Uruguay is divided in 19 states (they are called “Departments”), Uruguayans living abroad are commonly in local parlance as “Departamento 20” (“D20” or in English “Department 20”). As you can see from the chart, D20 is the second state by population in a symbolic country that would count all of its citizens living abroad. This shows in a very graphic way the significance in the case, especially considering our current and sitting President won the last election by only 37,000 votes, see here.
Read the IACHR document issued on 25 April 2020, available in Spanish
Read Rodrigo’ supplemental memorandum, available in Spanish
Chart source: INE – Censo 2011 y Ministerio de Relaciones Exteriores