Lexploria

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 SÃœDTIROLER 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)

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MAGNAGO AND SÜDTIROLER VOLKSPARTEI v. ITALY

MAGNAGO AND SÜDTIROLER VOLKSPARTEI v. ITALY