AS TO THE ADMISSIBILITY OF
Application No. 23450/94
by Nicoletta POLACCO and Alessandro GAROFALO
against Italy
The European Commission of Human Rights sitting in private on
15 September 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
Mrs M. HION
MM. R. NICOLINI
A. ARABADJIEV
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 1 December 1993
by Nicoletta POLACCO and Alessandro GAROFALO against Italy and
registered on 14 February 1994 under file No. 23450/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
21 June 1996 and the observations in reply submitted by the
applicants on 10 August 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are both Italian nationals, born in 1957 and 1955
respectively, and currently residing in Trento.
Before the Commission, they are represented by Mr Gianni Margoni,
a lawyer practising in Trento.
The facts of the case, as submitted by the parties, may be
summarised as follows.
a) Particular circumstances of the case
Mrs Polacco was born in Veneto, but moved to Trento at the age
of six months. She is married to Mr. Garofalo, who was born in Trento
and has lived there until they both moved their place of residence to
Rome on 11 July 1984.
On 19 July 1991, both applicants moved their place of residence
back to Trento and settled down there.
On 19 November 1993, the elections for the Regional Council took
place.
However, the applicants were excluded from taking part in these
elections on the ground that they lacked the prerequisite of four
years' continuous residence in the Region at the date when the
elections were announced.
b) Relevant domestic law and practice
Article 6 of the Italian Constitution provides that "The Republic
protects linguistic minorities through the adoption of special laws".
In Italy, legislative power is exercised by the Parliament
(Article 70 of the Constitution).
Trentino-Alto Adige is one of the five more autonomous Italian
Regions ("Regioni a statuto speciale": Sicily, Sardinia, Trentino-Alto
Adige, Valle d'Aosta and Friuli Venezia Giulia), whose wider
legislative powers derive from constitutional laws (for Trentino-Alto
Adige, Laws nos. 5 of 26.2.1948 and 1 of 10 November 1971) and must be
exercised "in conformity with the Constitution and the general legal
principles and according to the international obligations and the
national interests", "amongst which the protection of local linguistic
minorities". Fields of application include: organisation and provision
of regional administrative offices and personnel, organisation of
constituencies, expropriation in the public interest concerning
regional matters, land registers, prevention of fires, hospitals,
Chambers of commerce, cooperative societies, contributions to public
works.
Legislative powers of the Region of Trentino Alto-Adige are
exercised by the Regional Council.
According to the Statute of the Region of Trentino-Alto Adige
(Article 25 of the Presidential Decree No. 670 of 31 August 1972 and
Article 1 of the Presidential Decree No. 50 of 1 February 1973), only
those who, at the date when the elections are announced, have been
living continuously in the Region for at least four years can take part
in the elections for the Regional Council. These elections are held
every five years (Article 27).
This residence requirement was provided for in Article 18 of
Constitutional Law no. 1 of 10 November 1971, as a solution to the
controversy between Italy and Austria concerning the execution of the
Paris Agreement of 5 September 1946, and in particular the protection
of the German and Ladin linguistic minorities in the Province of
Bolzano (i.e. Alto Adige).
Those who do not meet such residence requirement are entitled to
vote in the elections for the Regional Council of the place where they
have resided for the longest period of time during the previous
four years or, in case of more periods of the same length, in the last
place of residence.
The question of constitutionality of Article 25 of the Statute
of the Region of Trentino-Alto Adige has been raised by another
individual excluded from local elections. In that case, the Trento
Court of Appeal and the Court of Cassation, in their judgments of
21 July 1990 and no. 2318 of 4 February 1992 respectively, have found
the complaint to be manifestly ill-founded. The Court of Cassation has
held in particular that the requirement of a period of four years'
continuous residence in the Region does not hinder the right of vote
as it only concerns the modalities of voting: in fact, those who are
excluded from voting in Trentino-Alto Adige because they have resided
elsewhere in the course of the previous four years can vote in the
region where they had temporarily moved their place of residence. It
is a "restrictive regulation" of the right to vote which is justified
under Article 6 of the Constitution in light of the existence of
linguistic minorities (German and Ladin) in the Region and of the
subsequent need of protecting these minorities from the risk of
"dilution", which might occur should potential voters from other
Regions purposely move their place of residence to Trentino-Alto Adige
shortly before the elections in order to take part in them.
Under Article 16 of the Statute of the Region Valle d'Aosta
(Constitutional Law no. 4 of 26 February 1948), the right to vote for
the Regional Council ("Consiglio della Valle") can be made subject to
the prerequisite of a minimum period of residence in the Region; such
period must be "no longer than a year".
COMPLAINTS
The applicants complain that, by virtue of the residence
requirement contained in the relevant legal provisions, they have been
excluded from voting in the elections for the Regional Council of
Trentino-Alto Adige, despite the fact that they have lived in that
Region almost all their lives and that they had only temporarily moved
their place of residence to another region.
They contend that, although according to the same legal
provisions they can exercise their right to vote in the Region where
they had temporarily lived, they have no interest whatsoever in doing
so, as they have settled in Trentino, where they have their jobs, home,
social life and interests.
They allege a violation of Article 3 of Protocol No. 1 to the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 December 1993 and registered
on 14 February 1994.
On 9 April 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 21 June
1996. The applicants replied on 10 August 1996.
THE LAW
The applicants allege a violation of Article 3 of Protocol No. 1
(P1-3) to the Convention on account of their exclusion from local
elections on 19 November 1993 on the ground that they lacked the
prerequisite of four years' continuous residence in the Region
Trentino-Alto Adige at the date when the elections were announced.
Article 3 of Protocol No. 1 (P1-3) to the Convention reads as
follows:
"The High Contracting Parties undertake to hold free elections
at reasonable intervals by secret ballot, under conditions which
will ensure the free expression of the opinion of the people in
the choice of the legislature."
The Commission refers to the Court's case-law according to which
Article 3 of Protocol No. 1 (P1-3) provides for "free" elections "at
reasonable intervals", "by secret ballot" and "under conditions which
will ensure the free expression of the opinion of the people"; subject
to that, it does not create any "obligation to introduce a specific
system". It guarantees in principle the right to vote and to stand for
election in elections to the "legislature" (see Eur Court HR, Mathieu-
Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A
No. 113, p. 23, para. 54).
The first question that the Commission must examine is whether
the Trentino-Alto Adige Regional Council can be considered as
constituting part of the legislature of Italy.
Both parties consider that it represents a legislative body
within the meaning of Article 3 of Protocol No. 1 (P1-3). In
particular, the Government underline that, in the light of the
respective competencies of the Trentino Regional Council and the
Trentino executive body ("Giunta"), it can clearly be said that the
Regional Council corresponds on a regional level to what the Parliament
is on a national level.
The Commission recalls that the term "legislature" must be
interpreted in the light of the institutions established by the
constitutions of the Contracting Parties. It notes that the Regional
Council of Trentino-Alto Adige possesses wide legislative powers in the
matters assigned to it. However, it considers that in the present case
it is not necessary to decide whether the Regional Council possesses
an inherent rule-making power and can thus be said to be a
"legislature" within the meaning of Article 3 of Protocol No. 1 (P1-3),
as, even assuming so, the application is inadmissible for the following
reasons.
The Commission notes that in the present case the applicants,
although excluded from local elections in Trentino-Alto Adige, were
entitled to vote in Lazio, where they had previously resided for
six years. However, they complain that they had already resided in
Trentino-Alto Adige for more than two years when the elections were
announced, and that they had no interest in taking part in local
elections for a region where they did not reside and did not intend to
reside any more.
The Commission recalls that the rights guaranteed by Article 3
of Protocol No. 1 (P1-3) are not absolute. Conditions concerning the
right to vote and to stand for elections made by the Contracting States
in their internal legal orders are not in principle precluded by
Article 3 of Protocol No. 1 (P1-3). The Contracting States have a wide
margin of appreciation in this sphere; however, it remains for the
Convention organs to ascertain whether the requirements of Protocol No.
1 have been complied with. In particular, they have to satisfy
themselves that the conditions do not curtail the rights in question
to such an extent as to impair their very essence and deprive them of
their effectiveness, that they are imposed in pursuit of a legitimate
aim and that the means employed are not disproportionate (see Eur.
Court HR, Gitonas and others v. Greece judgment of 1 July 1997, Reports
1997-IV,
fasc. 42).
The Commission recalls furthermore that "any electoral system
must be assessed in the light of the political evolution of the country
concerned; features that would be unacceptable in the context of one
system may accordingly be justified in the context of another, at least
so long as the chosen system provides for conditions which will ensure
the "free expression of the opinion of the people in the choice of the
legislature" (see Mathieu-Mohin and Clerfayt v. Belgium judgment,
op. cit., p. 23, para. 54).
a) Legitimate aim
The Government consider that the legislative provisions at issue
clearly pursue the legitimate aim referred to in Article 6 (Art. 6) of
the Constitution as well as in the European Charter for Regional or
Minority Languages, namely the protection of linguistic minorities.
They refer to a judgment of the Italian Court of Cassation
(no. 2318/92), in which the latter held that the legislative provisions
at issue pursue the protection of all the historical and cultural
values of the linguistic minorities residing in a given territory and
wishing to protect the integrity of their ethnic group.
The applicants accept that the States enjoy a certain margin of
appreciation as concerns the conditions of the right to vote; however,
they consider that this four years' residence requirement cannot be
justified as aiming at protecting linguistic minorities in Trentino-
Alto Adige, as it allows "non-natives" who have resided in the region
for more than four years to vote in local elections whereas it excludes
"natives" who have resided in the region for less than four years
from the same elections.
The Commission observes that the requirement at issue was adopted
by Italy through Law No. 1 of 10 November 1971 as a solution to the
controversy between Italy and Austria concerning the protection of the
German and Ladin linguistic minorities in the Province of Bolzano (i.e.
Alto Adige). The requirement also applies to the Province of Trento
(i.e. Trentino), as the Regional Council is the legislative body for
the whole Region of Trentino-Alto Adige.
The Commission recognises the importance of the protection of
linguistic minorities for stability, democratic security and peace,
which has been shown by the upheavals of European history, and as a
source of cultural wealth and traditions. It notes the growing
commitment concerning the protection of minorities on the European and
international levels, reflected in documents such as the Declaration
of the Heads of State and Government of the member States of the
Council of Europe of 9 October 1993 and the Conference on Security and
Co-operation in Europe (particularly the Copenhagen Document of 29 June
1990). It also refers to the European Charter for Regional and Minority
Languages of 5 November 1992 and to the Framework Convention for the
Protection of National Minorities of 1 September 1995.
The Commission therefore considers that the aim of protecting
linguistic minorities, which the residence requirement in question
pursues, is undoubtedly a legitimate one.
It considers that the fact that the requirement at issue allows
"non-natives" to vote does not affect the conclusion that it aims at
protecting German and Ladin minorities from a risk of "dilution",
because only the "non-natives" who have been resided in the Region for
at least four years, and are therefore reasonably aware of the social,
political and economic context of the Region, can take part in the
elections.
b) Proportionality
The applicants submit that, even assuming that the legislative
provision at issue pursues a legitimate aim, in the present case it
operates against the interests of the very persons whom it is designed
to protect: the second applicant was in fact born in Trento and the
first applicant had lived there since the age of six months. The law
at issue thus puts them in a position of inferiority as maybe resident
"natives" and "non-natives" who have resided in the region for longer
than four years.
The Government recall that the Court has previously held that
"the rights in question are not absolute. Since Article 3 (Art. 3)
recognises them without setting them forth in express terms, let alone
defining them, there is room for implied limitations. In their internal
legal orders, the Contracting States make the rights to vote and to
stand for elections subject to conditions which are not in principle
precluded under Article 3 (Art. 3)" (cf. Eur. Court HR, Mathieu-Mohin
and Clerfayt v. Belgium judgment, op. cit., para. 52). The Government
also refer to a case in which the Commission held that the exclusion
from the right to vote of Belgian citizens residing in Congo was
compatible with Article 3 of Protocol No. 1 (P1-3) to the Convention
(cf. No. 1065/61, Dec. 18.9.61, Yearbook of the Convention, vol 4, p.
269).
The applicants contest the comparison, made by the Government,
of the present case with the Belgian case, namely with the exclusion
of nationals residing abroad from local elections in the country of
origin, as in such case the reason for denying the right to vote is
precisely the fact of not being resident. In the present case, on the
contrary, the applicants had been resident in Trentino-Alto Adige for
longer than two years at the date of the elections, and were therefore
directly and continuously concerned with the local situation.
The Government underline that the legislative competence of the
Trentino-Alto Adige Regional Council is limited to very specific
matters, whereas the general legislative power remains with the
Parliament. Accordingly, the four years' residence requirement at issue
is, in the Government's opinion, fully compatible with the requirements
of Article 3 of Protocol No. 1 (P1-3) to the Convention.
The applicants instead see in the specific competence of the
Regional Council a stronger reason not to exclude from the relevant
elections a person who has resided in the region for longer than
two years and who intends to continue living there.
The Commission recalls that according to its previous case-law
a residence requirement is not per se arbitrary, and may be justified
on the grounds of (1) the assumption that a non-resident citizen is
less directly or continuously concerned with, and has less knowledge
of its day-to-day problems; (2) the impracticability for and sometimes
undesirability (in some cases impossibility) of (Parliamentary)
candidates presenting the different electoral issues to citizens abroad
so as to secure a free expression of opinion ; (3) the influence of
resident citizens on the selection of candidates and on the formulation
of their electoral programmes, and (4) the correlation between one's
right to vote in (Parliamentary) elections and being directly affected
by acts of the political bodies so elected (see. No. 7730/76,
Dec. 28.2.79, D.R. 15, p. 137; No. 7566/76, Dec. 11.12.76, D.R. 9,
p. 121).
In the present case, the relevant legislation requires a period
of four years' continuous residence. The Commission considers that four
years seem to be a somewhat lengthy period; it observes that a
requirement of continuous residence exists in the Statute of another
of the five autonomous Italian regions, Valle d'Aosta, but it is
limited to "no longer than one year".
However, the Commission considers that, given the particular
social, political and economic situation of the Region of Trentino-Alto
Adige, it cannot be regarded as unreasonable to require that an elector
reside there for a lengthy period of time before he can take part in
the local elections, as it is not unreasonable to expect that such a
long period of living in the region is necessary for the elector to
have a thorough understanding of the regional context, so that his vote
in the local elections can reflect the concern for the protection of
the linguistic minorities.
The Commission is aware that the applicants had already
continuously resided in Trento for more than two years when the
elections were announced: it agrees therefore that they might have had
an interest in voting for the Regional Council of Trentino- Alto Adige.
However, the Commission considers that the applicant's objection
that in the present case the residence requirement has excluded from
the elections those whom it was designed to protect, cannot be
sustained; it observes that this requirement aims at protecting the
German and Ladin minorities, whereas the applicants do not belong to
those minorities. On the contrary, the Commission recalls its previous
case-law according to which "particular attention must be attached to
the representation of a minority, in cases where electors generally
decide in the light of criteria such as membership of an ethnic group
or a denomination" (cf. No. 9627/81, Dec. 12.7.83, D.R. 33,
pp. 97, 131).
The Commission is accordingly satisfied, in the light of the
respondent State's wide margin of appreciation and of the important aim
that this condition for the right to vote pursues, that the restriction
on the applicants' right to vote in elections for the Trentino Alto-
Adige Regional Council is not arbitrary and cannot be said to be
contrary to Article 3 of Protocol No. 1 (P1-3) to the Convention.
It follows that the present application must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy