Information Note on the Court’s case-law 252
June 2021
Galan v. Italy (dec.) - 63772/16
Decision 18.5.2021 [Section I]
Article 7
Article 7-1
Heavier penalty
Disqualification from standing for election and removal from elected office on account of criminal convictions for corruption and abuse of power, not equivalent to criminal penalties: inapplicable; inadmissible
Article 3 of Protocol No. 1
Stand for election
Disqualification from standing for election, and removal from elected office, on account of criminal convictions for corruption and abuse of power: inadmissible
[This summary also covers the judgment in Miniscalco v. Italy, no. 55093/13, 17 June 2021]
Facts – In the Galan case, the applicant forfeited his seat as a member of Parliament, with immediate effect, on account of the finding that a ground of ineligibility had emerged following his conviction for corruption. Legislative decree no. 235/2012 (“the decree”), providing for this type of sanction, had entered into force shortly before the elections, but the applicant had been convicted after his election.
In the Miniscalco case, the disqualification from standing as a candidate (incandidabilità) in the regional elections had affected the applicant on account of his final conviction for abuse of authority. He had been convicted prior to the entry into force of the impugned decree.
Law
Article 7: The applicants claimed, in substance, that the application of the decree had amounted to the imposition of a new punishment, over and above the main sentence imposed in respect of their final convictions for corruption and abuse of authority.
The issue therefore was whether the contested disqualification from standing as an electoral candidate and removal from office came within the scope of Article 7.
In principle, the area of political and electoral rights, such as ineligibility or the forfeiture of electoral office, did not fall within the scope of Articles 6 § 1 (under its criminal aspect) and 7.
In order to ascertain the nature of the measures complained of by the applicants, the Court would seek to apply the criteria laid down in the Del Río Prada [GC] judgment and the case-law cited therein. After having determined whether the disqualification and the forfeiture of electoral office had been imposed following criminal convictions, the Court would analyse their nature, purpose, characterisation under national law, the procedures involved in making and implementing them, and their severity.
(a) Measures imposed following a criminal conviction – The necessary prelude to the measures imposed on the applicants had been their final criminal convictions. Disqualification had then deprived them, as a result of these convictions, of the right to stand for election, as stipulated in the decree.
As to the forfeiture of office, imposed following a parliamentary procedure which was governed by specific procedures and concerned to the invalidation of applicant Galan’s election, ordered by the Chamber of Deputies on the basis of the Constitution, this had led to his exclusion from that Chamber.
(b) Nature and purpose of the measures – The decision that a final conviction for certain predetermined offences could serve as a basis justifying a prohibition on holding elected office, with disqualification as the preamble, had been based on the legislature’s wish to base the matter on abstract criteria. Such convictions corresponded to a finding that the persons concerned were irrevocably unfit to discharge office, the aim being to preserve the proper functioning and transparency of the public authorities and the free decision-making process of elected bodies. In addition, the establishment of a national anti-corruption plan had become essential, firstly in view of the conclusions of the evaluation conducted in 2008 and 2009 by the Group of States against Corruption (GRECO), and secondly because of the finding that most European States already had such a plan.
Disqualification from standing for election and removal from office had been intended to strengthen the fight against the problem of infiltration of the public authorities by organised crime.
(c) Characterisation of the measures under domestic law – The Constitutional Court’s case-law had established that the contested measures were neither penalties nor effects of the criminal convictions. They arose from loss of the subjective condition permitting access to elective office and its exercise. Candidates who were excluded from the elected body to which they belonged or whose name was removed from the list of candidates following the loss of their passive electoral rights were not punished on the basis of the seriousness of the offences for which they had been charged and convicted by the criminal courts; they were removed from the list because they had lost their moral capacity, an essential condition in order to be able to hold representative electoral office.
While this case-law did not concern members of parliament or the removal of a candidate’s name from a list of candidates, the Constitutional Court specified that, just as a final conviction could justify the forfeiture of an ongoing period of office, a conviction that had not yet become final could require that the elected representative be suspended from office. This approach did not exceed the limits of a reasonable assessment of the constitutional interests at stake. The Constitutional Court had also ruled out any punitive purpose to the measures laid down in the relevant legislative decree.
As to the elements of substantive and procedural criminal law which, according to applicant Galan, were contained in the Anti-Corruption Law (no. 190/2012) and the decree, the secondary penalty of a prohibition on discharging public office and disqualification from standing for election admittedly had common features, but they were essentially different in term of their respective legal bases, their duration and their impact on individuals’ rights.
Under Article 28 of the Criminal Code the prohibition on holding public office entailed the loss of electoral rights, the right to exercise public office, the right to act as a guardian, and the loss of academic titles and of salaries, pensions and allowances payable by the State. As to the active and passive aspects of the right to vote, their loss entailed a ban on casting one’s vote (active aspect) and on standing for election (passive aspect).
The disqualification from standing for election provided for in the decree entailed the loss only of “passive” electoral rights, in that a candidacy which was lodged in spite of disqualification would be removed from the list of candidates by the relevant electoral commission. However, the active aspect of the right to vote was in no way infringed. This disqualification corresponded to an absolute ban on holding elected office, since it had an impact on an objective requirement (moral capacity), the absence of which meant that an individual was deprived of his or her passive electoral rights.
The inapplicability of a disqualification measure to the simplified so-called patteggiamento procedure (prior to the entry into force of the decree) was justified by the fact that the latter was not totally comparable to an ordinary criminal procedure; for instance, in the first procedure there was no full finding of guilt, secondary penalties or order to pay costs. Lastly, lifting of the disqualification measure through the rehabilitation process was explained by the need to eliminate this restriction on passive electoral rights, in so far as, while necessarily based on a final conviction, the measure itself was not applied by the judicial authorities in the context of criminal proceedings and was not criminal-law consequences of such proceedings.
(d) Procedures which resulted in the applicant’s name being removed from the list of candidates – The procedure involved in removing the applicant Galan from office had been conducted entirely before the body to which he belonged, and had occurred in three stages: the first before the Standing Committee on incompatibilities, disqualifications and removals, the second before the Elections Board and the third before the Chamber of Deputies. They were all characterised by deliberations on the challenge to the applicant’s election and had been held in accordance with specific regulations laid down by the Constitution and the Rules of the Chamber of Deputies.
The contested withdrawal of applicant Miniscalco’s candidacy had occurred following the relevant Regional Electoral Commission’s examination of the lists of candidates, on the basis of the documents in its possession. The applicant had been able to challenge his exclusion before the electoral commission, then the administrative courts, the regional administrative court and the Consiglio di Stato, before which adversarial proceedings were held.
(e) Severity of the measure – The bar on holding parliamentary office and loss of the right to stand as an electoral candidate had had political consequences for the applicants. However, this did not suffice for these measures to be classified as criminal sanctions, especially since the applicants’ active electoral rights had not been affected. In 2017 applicant Miniscalco had been able to stand as a candidate in subsequent regional elections in 2017 after securing his rehabilitation.
In the light of the foregoing, the disqualification from standing as an electoral candidate in the regional elections and the forfeiture of a parliamentary seat could not be considered equivalent to a criminal punishment within the meaning of Article 7.
Conclusion: inadmissible (incompatible ratione materiae).
Article 3 of Protocol No. 1: The complaints raised new questions as to the purpose of the measure.
(a) Whether there was an interference with the applicant’s rights – The impugned measures had amounted to interference with the applicants’ electoral rights as guaranteed by Article 3 of Protocol No. 1.
(b) The purpose of the impugned measure – In the Galan case, disqualification from standing as an electoral candidate and removal of members of parliament from office had been introduced by the Italian legislature through Enabling Act no. 190/2012 and by the then Government, as part of its delegated powers, through Legislative Decree no. 235/2012. In the Miniscalco case, the disqualification from standing as a candidate was introduced by the Law and the decree, which entered into force in November 2012 and January 2013 respectively. In both cases, the purpose had been to extend the range of restrictions on electoral rights which had already existed at local level since Law no. 50/1990. Disqualification, like forfeiture of office, corresponded to the urgent need to ensure, in a general manner, the proper functioning of the public authorities, responsible for managing the res publica. It regulated access to public life and the free decision-making process of elected bodies. This purpose was compatible with the principle of the rule of law and the general objectives of the Convention.
(c) The proportionality of the measure – In examining issues related to the passive aspect of the rights guaranteed by Article 3 of Protocol No. 1, the Court followed an approach characterised by supervision that was limited largely to a check on the absence of arbitrariness in the domestic procedures leading to an individual’s disqualification from standing in elections. In so doing, with regard to disqualification, it would consider the legal framework, particularly the foreseeability and immediate application of the measure, and its duration.
(d) The legal framework
(i) Disqualification – The disqualification from standing as a candidate in regional elections had been surrounded by guarantees. First of all, the disqualification had as a precondition the existence of a final criminal conviction, such as that foreseen for a number of serious offences - which were strictly defined by law. The choice of this specific prerequisite had been made on the basis of an abstract assessment. Disqualification from standing for election was an automatic consequence, and no provision had been made for weighing up individual situations or using discretion. In the context of the criteria laid down by the law, the decree mentioned, inter alia, the offence of abuse of authority. The measure complained of was not applicable to all convicted persons without distinction simply on account of their conviction, but to a predefined category of persons, and depended on the nature of the offences. The measure in question had been applied to the applicants on account of their final convictions for an offence against the authorities.
As to the alleged breach of the principle of foreseeability, given that disqualification was imposed following the applicants’ convictions for offences committed before the entry into force of the decree, having regard to the wide margin of appreciation enjoyed by the States in respect of limitations on individuals’ passive electoral rights, the requirements of Article 3 of Protocol No. 1 were less strict than those concerning Article 7 of the Convention. In the present case, the State’s concern had been to organise the system for combatting unlawful activity and corruption within the public authorities.
In this national context, the immediate application of the disqualification from standing as a candidate in regional elections had been consistent with the legislature’s stated aim, namely to exclude persons convicted of serious offences from electoral procedures and thus to protect the integrity of the democratic process. The Court accepted the legislature’s decision, in applying the disqualification, to base the measure on the date on which the criminal conviction became final, rather than the date on which the offences had been committed. In applying the measure to all persons convicted for the offences listed in the decree following its entry into force, the legislature had clearly intended to supplement and strengthen the legislative framework for combatting unlawful activity within the public authorities, which had been the underlying aim of the parliamentary proceedings leading to the law’s enactment.
The applicants’ argument that the measure was contrary to the principles of foreseeability could not therefore be accepted. Their final convictions had been the necessary prelude to the disqualification from standing as a candidate, a precondition provided for by the relevant decree.
Lastly, the disqualification from standing as an electoral candidate was time-limited: in the present case, the applicant Galan had been deprived of his passive electoral rights for six years. However, under the decree, he had been able to submit a request for rehabilitation to the relevant court with responsibility for the execution of sentences. In the Miniscalco case, while it was true that the disqualification from standing in the regional elections had not been subject to any time-limit, in the present case the applicant, as he had confirmed before the Consiglio di Stato, had applied for his rehabilitation, then withdrawn the request prior to the 2013 elections on the grounds that the decree had not yet entered into force. Furthermore, the applicant had subsequently submitted a new request and secured his rehabilitation and the right to stand as a candidate in new regional elections in 2017.
In conclusion, the contested measure had not been disproportionate.
(ii) Forfeiture of an electoral seat in the Galan case – The contested measure was not intended to exacerbate the consequences of conviction, but to protect the electoral body to which the candidate was elected. It was entirely reasonable that Parliament be empowered, in order to preserve the democratic order, to supervise its functioning and be entitled to exclude from its midst any member who, as in the present case, had failed through criminal conduct to satisfy the requirement of respect for the principle of lawfulness. In taking steps to recover the electorate’s trust in public institutions, a State ought to be able to enjoy fairly wide discretion.
As to whether the loss of electoral office had been foreseeable for the applicant and those who elected him, the situation in the present case was different to that in Lykourezos v. Greece: the decree entered into force before the parliamentary elections, as did Law no. 190/2012, which delegated to the government, within a strict framework and in accordance with clearly indicated principles, the power to consolidate within a single instrument the provisions on disqualification from standing for election to bodies including, specifically, the Chamber of Deputies. As the Constitutional Court had pointed out in judgment no. 236/2015, the immediate application of this kind of measure was not something that had been introduced when adopting the decree. It followed that, when the elections took place, both the applicant and the electorate had been in a position to know that an elected representative who was convicted of one of the serious offences set out in the decree would lose his or her passive electoral eligibility and would be likely to face proceedings to contest his or her election, which in turn could result in a decision by Parliament to invalidate the election and to remove him or her from electoral office. In addition, as the deadline for submitting electoral lists to the relevant electoral commissions had been fixed for 21 January 2013, the applicant had had a certain time in which to assess the possible consequences of persevering with his candidacy in the event of final conviction.
As to the procedural guarantees, the applicant alleged that the legislature had conferred discretionary power on Parliament. He emphasised the risk of political manipulation and abuse of authority to which, in the absence of judicial review, such a situation could give rise.
Almost all of the thirty-five Council of Europe member States surveyed permitted a procedure to remove an elected representative from office or for premature termination of office. With the exception of one State, all included, among other grounds for forfeiture of office, a criminal conviction (depending either on the nature of the offence or the characteristics of the sentence imposed). There thus existed a very broad European consensus in this area. This was not the case with regard to procedural safeguards. The level of safeguards granted during forfeiture proceedings varied greatly, ranging from all the guarantees of a fair hearing to none at all. In view of the diversity found with regard to the relevant body and the applicable procedure, two main scenarios could be identified: either the decision was taken by the courts, and sometimes subsequently endorsed by Parliament, or it was Parliament itself which had responsibility for taking the decision.
Lastly, according to the Venice Commission, although the States had adopted legislative provisions on the loss of electoral office which guaranteed the proportionality of the measure, there was no obligation under the Convention to provide for the safeguard of judicial proceedings. In systems where Parliament had discretionary powers with regard to forfeiture, a parliamentary decision following on from a final conviction did not amount to autonomous interference with the elected representatives’ right to retain his or her seat. In such cases, a limited number of procedural safeguards applied: in particular, the right to file observations, to be heard in person by Parliament and to be assisted by counsel, the holding of a public hearing and the condition that Parliament’s decision be made public.
However, the Court’s task was not to pass abstract judgment on forfeiture procedures. It considered that it had to be ascertained in the present case whether the proceedings to challenge the applicant’s election – resulting in the loss of his parliamentary seat – had been conducted in such a way as to afford sufficient protection against arbitrariness. What was in dispute, therefore, was only whether those proceedings had complied with the requirements of Article 3 of Protocol No. 1.
In the Italian system, Parliament, after having assessed whether the necessary conditions were met – in this instance a final conviction – could decide whether or not to exclude one of its members from the representative body. This was admittedly a largely discretionary power but, in the Court’s opinion, this could not be decisive, having regard to the wide margin of appreciation which, under its case-law, the States were entitled to enjoy in this area. The decision in the Constitution to entrust “validation” of an elected representative’s office to the electoral body to which he or she belonged acknowledged the specific nature and independence of the legislature in relation both to the executive and the judiciary, by virtue of the principle of the separation of powers, and was guided by the historical and political factors specific to the State concerned.
The applicant’s case had been thoroughly examined by the Chamber of Deputies, and he had been informed that he had the possibility to file observations and documents, to be represented by a lawyer and to speak during the proceedings. Deliberations had taken place firstly before the Standing Committee on incompatibilities, disqualifications and removals, then before the Elections Board, during which the members of that committee had analysed the applicant’s arguments and requests.
At the close of these deliberations, an exhaustive report setting out the decision-making process and proposing that the applicant’s election be invalidated had been submitted to the Chamber of Deputies for its decision. The Chamber had then met in plenary and had heard the rapporteur’s explanatory memorandum as to the proposal to remove the applicant from office, and the views of certain members of parliament. Transparency had been ensured by the fact that the hearing took place in public. At the close of the debates, and after noting that the conditions for invalidating his election were met, the Chamber of Deputies had removed the applicant from electoral office.
In the light of the above, and irrespective of the classification that the Standing Committee on incompatibilities, disqualifications and removals had given to the procedure provided for by the Rules of the Chamber of Deputies, the applicant Galan had had the benefit of sufficient and adequate procedural safeguards.
Conclusion : inadmissible (manifestly ill-founded) in the Galan case; no violation (unanimously) in the Miniscalco case.
(See also Del Río Prada v. Spain [GC], 42750/09, 21 October 2013, Legal summary; Lykourezos v. Greece, 33554/03, 15 June 2006, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy