AS TO THE ADMISSIBILITY OF
Application No. 25035/94
by Silvius MAGNAGO and SÜDTIROLER VOLKSPARTEI
against Italy
The European Commission of Human Rights sitting in private on
15 April 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 March 1994 by
Silvius MAGNAGO and SÜDTIROLER VOLKSPARTEI against Italy and registered
on 30 August 1994 under file No. 25035/94 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is an Italian citizen, born in 1914 and
residing in Bozen/Bolzano (Italy). He is a lawyer and stood for the
parliamentary elections of March 1994 as a candidate of the South Tyrol
People's Party (Südtiroler Volkspartei - SVP). In the proceedings
before the Commission he is represented by Mr. Hartmann Gallmetzer,
Secretary General of the SVP.
The second applicant is the SVP acting through its legal
representative Mr. Siegfried Brugger and represented before the
Commission by Mr. Karl Zeller, a lawyer in Meran/Merano.
A. The particular circumstances of the case
The facts of the case as submitted by the applicants may be
summarised as follows.
The autonomous region of Bozen/Bolzano has 420.000 inhabitants
of which 72,35 % belong to the German-speaking and Ladin-speaking
population.
The SVP has generally gained more than 80 % of the votes of the
German-speaking and Ladin-speaking minority in all the elections to the
Chamber of Deputies in Rome and was represented by three or four
Deputies in the Parliament. Members of the Chamber of Deputies were
elected by a party-list system of proportional representation.
In accordance with the provisions of the new electoral law, No.
277 of 4 August 1993, 75 % of the seats are distributed by a majority
system and solely 25 % by a system of proportional representation.
Under the system of proportional representation, the threshold set for
the allocation of a seat in the Chamber of Deputies is 4 % of the votes
cast on the national level.
In the region of Trentino-Alto Adige eight seats of the Chamber
of Deputies are allocated by a majority vote and two seats by
proportional representation.
As a minority party being unable to obtain at least 4 % of the
votes in the country as a whole, the SVP contested the new electoral
law, but without success.
A constitutional appeal was declared inadmissible by the
Constitutional Court on 14 December 1993. The Constitutional Court
pointed out that the Parliament had rejected the proposal not to apply
the 4 % threshold in the region of Trentino-Alto Adige as well as other
proposals made in that context. It found that where, as in the present
case, the legislature had chosen one of several possibilities in
respect of the electoral system, the Constitutional Court was prevented
from substituting itself for the legislature.
In the parliamentary elections of March 1994 the SVP gained three
seats under the system of simple majority in the electoral district of
Trentino-Alto Adige and no seat in respect of the system of
proportional representation.
B. Relevant domestic law
By virtue of Article 1 para. 1 of the Law No. 277 of 4 August
1993, the Chamber of Deputies is elected by universal suffrage, a
direct and equal, free and secret vote expressed in one electoral
ballot (la Camera dei Deputati è eletta a suffragio universale, con
voto diretto ed uguale, libero e segreto, espresso in un unico turno
elettorale).
In accordance with paragraph 2 of Article 1, the distribution of
seats allocated under the system of proportionality takes place in the
National Central Office (la ripartizione dei seggi attribuiti secondo
il metodo proporzionale ... si effettua in sede di Ufficio centrale
nazionale).
In accordance with paragraph 3 of Article 1, in each constituency
75 % of the total of the seats are allocated on the basis of the same
number of single member constituencies, in which the candidate is
elected who has obtained the largest number of votes (in ogni
circoscrizione, il 75 per cento del totale dei seggi è attribuito
nell'ambito di altrettanti collegi uninominali, nei quali risulta
eletto il candidato che ha riportato il maggior numero di voti).
Paragraph 4 of Article 1 provides in particular that in each
constituency 25 % of the total of the seats are allocated according to
a system of proportionality (in ogni circoscrizione, il 25 per cento
del totale dei seggi è attribuito in ragione proporzionale ...).
According to Article 5 para. 2 of the Law, the National Central
Office then singles out the lists which have gained on the national
level at least 4 % of the votes validly expressed (individua quindi le
liste che abbiano conseguito sul piano nazionale almeno il 4 per cento
dei voti validi espressi).
According to Article 5 para. 3 of the Law, the National Central
Office proceeds from the above-mentioned lists to the allocation of the
seats on the basis of the national electoral number of each of the
lists (tra le liste di cui al n. 2) procede al riparto dei seggi in
base alla cifra elettorale nazionale di ciascuna lista). For this
purpose, it divides the total of the national electoral number of the
above- mentioned lists by the number of seats to be attributed on a
proportional basis with a view to obtaining the national electoral
quotient (A tal fine divide il totale delle cifre elettorali nazionali
delle liste di cui al n. 2) per i numeri dei seggi da attribuire in
ragione proporzionale, ottenendo cosi il quoziente elettorale
nazionale).
COMPLAINTS
The applicants complain that under the new electoral law No. 277
of 4 August 1993 they are practically excluded from having a seat in
the Chamber of Deputies under the system of proportional
representation, having regard to the fact that in order to obtain the
required 4 % of the votes cast, a party must poll approximately
1.600.000 votes nationwide. They also complain that the SVP as such,
its candidate and the electors, belonging to the German-language and
Ladin-language groups, are the victims of a difference of treatment
amounting to discrimination on grounds of language and membership of
a national minority. They allege a violation of Article 3 of Protocol
No. 1 taken alone and in conjunction with Article 14 of the Convention.
THE LAW
The applicants complain under Article 3 of Protocol No. 1
(P1-3) and Article 14 (Art. 14) of the Convention that, as the
representatives of a national minority, i.e. the German-speaking and
Ladin-speaking majority in the region of Trentino-Alto Adige, they are
prevented under the Italian electoral law No. 277 of 4 August 1993,
from having a seat in the Chamber of Deputies in Rome, insofar as these
seats are allocated by a system of proportional representation. They
complain in particular of the 4 % threshold of the votes cast on the
national level to qualify for the allocation of a seat.
Article 3 of Protocol No. 1 (P1-3) provides:
"The High Contracting Parties undertake to hold free
elections at reasonable intervals by secret ballots, under
conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature."
Article 14 (Art. 14) of the Convention reads as follows :
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission recalls that Article 3 of Protocol No. 1 (P1-3)
does not create any obligation to introduce a specific electoral system
such as proportional representation or majority voting. Given that the
legislation of the Contracting States on the matter varies from place
to place and from time to time, they are allowed a wide margin of
appreciation. Electoral systems seek to fulfil objectives which are
sometimes scarcely compatible with each other: to reflect fairly
faithfully the opinions of the people and to channel currents of
thought so as to promote the emergence of sufficiently clear and
coherent political will. What must be guaranteed is the principle of
equality of treatment of all citizens. It does not follow, however,
that all votes must necessarily have equal weight as regards the
outcome of the election or that all candidates must have equal chances
of victory (Eur. Court H.R., Mathieu-Mohin and Clerfayt judgment of
2 March 1987, Series A no. 113, p. 24, para. 54; No. 11406/85,
Dec. 10.3.88, D.R. 55 pp. 130, 140).
As to the present case, the Commission notes that in the
elections of March 1994 75 % of the seats of the Chamber of Deputies
were distributed by simple majority in the electoral districts. Under
this system the SVP gained three seats in the Chamber of Deputies. The
Commission further notes that the remaining 25 % of the seats were
allocated under the system of proportional representation with the
requirement to obtain on the national level at least 4 % of the votes
cast. Not having obtained the required 4 % of the votes, the SVP did
not obtain any seat under the system of proportional representation.
The Commisssion considers that the 4 % threshold required for the
election of the remaining 25 % of the members of the Chamber of
Deputies to be elected under the system of proportional representation
is intended to promote the emergence of sufficiently representative
currents of thought and that this is a legitimate aim under the terms
of Article 3 of Protocol No. 1 (P1-3).
Even a system which fixes a relatively high threshold, e.g. as
regards the number of signatures required in order to stand for
election or, as in the present case, a minimum percentage of votes on
the national level, may be regarded as not exceeding the margin of
appreciation permitted to States in the matter (see No. 23151/94, Dec.
9.5.94, D.R. 77-B p. 122).
Moreover, similar provisions concerning the minimum threshold for
the allocation of seats exist in other European legal systems (see No.
11123/84, Dec. 9.12.87, D.R. 54 pp. 52, 68, 69).
The Commission notes that the electoral law in issue applies to
all candidates and the Convention does not compel the Contracting
Parties to provide for positive discrimination in favour of minorities
(see No. 25758/94, Dec. 7.3.96, to be published in D.R.).
The Commission concludes that the present application does not
disclose a violation of Article 3 of Protocol No. 1 (P1-3) taken alone
or in conjunction with Article 14 (P1-3+14) of the Convention.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy