Lexploria

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

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POLACCO AND GAROFALO v. ITALY

POLACCO AND GAROFALO v. ITALY