Information Note on the Court’s case-law 71

January 2005

Py v. France - 66289/01

Judgment 11.1.2005 [Section II]

Article 56

Local requirements

Restrictions on the right to vote in elections for congress in New-Caledonia: no violation

Article 3 of Protocol No. 1

Choice of the legislature

Congress of New-Caledonia

Vote

Requirement of ten years’ residence in New Caledonia in order to be registered t o vote in elections for its Congress: no violation

Facts : In 1995 the applicant was appointed to a post at the French University of the Pacific. This university was based in Nouméa, New Caledonia, which, at the material time, was an overseas territory. In 1998 the Nouméa Agreement established the political arrangements for New Caledonia during a transition phase and the procedure for moving to self-determination. The Agreement altered New Caledonia’s constitutional status, making it a sui generis community with institutions that were designed specifically for the territory. Ordinance no. 99-209 of 19 March 1999 strengthened the Congress’s powers and brought in a ten-year residence condition for participating in elections to the Congress. The Ordinance was en acted as part of a process of self-determination for the peoples of New Caledonia and provided for the transfer of State powers to the territory, where the Congress was the decision-making body: the Congress managed New Caledonia’s collective affairs and e nacted its laws. In April 1999 the applicant applied to be registered on the electoral roll in order to be able to vote in the first elections to Congress as part of the transitional process set out in the text of 19 March 1999. His application for registr ation was refused on the ground that he would not have been resident in New Caledonia for ten years on the date of those elections (9 May 1999). The applicant made unsuccessful appeals against the refusal to register him on the electoral roll.

Law : Article 3 of Protocol No. 1: According to the French Government, while the powers conferred on Congress by the Ordinance of 19 March 1999 were extensive, nonetheless, given the importance of the areas in which the French State continued to have jurisdiction Congr ess did not have enough powers to be considered as a “legislature”, within the meaning of Article 3 of Protocol No. 1, in an equivalent manner as the French National Assembly and Senate. In the Court’s view, given the powers attributed to it by the 1999 Or dinance, the Congress of New Caledonia was no longer merely a consultative body, but had become a body that was called on to play a decisive role, depending on the issues to be dealt with, in the legislative process in New Caledonia. The New Caledonia Cong ress was sufficiently associated with this specific legislative process to be regarded as part of the “legislature” of New Caledonia within the meaning of Article 3 of Protocol No. 1.

Having to satisfy a residence or length-of-residence requirement in order to have or exercise the right to vote in elections did not, in principle, constitute an arbitrary restriction on the right to vote and was therefore not in itself incompatible with t he provisions of Article 3 of Protocol No. 1. In this particular case, the 1999 Ordinance restricted the possibility of voting in the elections to Congress to those electors who meet certain conditions, in particular that of residence in the territory for more than ten years, a condition which the applicant did not meet. The residence thresholds had been imposed in response to concerns expressed by representatives of the local population during negotiation of the Nouméa Agreements, and were intended to ensu re that the consultations would reflect the will of “interested” persons and that the result would not be altered by a massive vote cast by recent arrivals on the territory who had no solid links with it. In addition, the restriction on the right to vote w as a direct and necessary consequence of establishing Caledonian citizenship. The applicant had since returned to metropolitan France, and his position was different to that of a resident citizen, which justified the residence condition. The latter pursued a legitimate aim. Although the ten-year residence requirement could appear disproportionate to the aim pursued, it was necessary to determine whether there were local requirements, within the meaning of Article 56, of a kind that meant that the restrictio n on the right to vote could be considered not to have infringed Article 3 of Protocol No. 1. When depositing the instruments of ratification of the Convention and of Protocol No. 1, France had declared that these would apply to “the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 (the present Article 56) of the Convention”. New Caledonia’s current status amounted to a transitional phase prior to the acquisit ion of full sovereignty and was part of a process of self-determination. The system was “incomplete and provisional ”. After a tormented political and institutional history this ten-year residence condition, established by the Ordinance of 19 March 1999, ha d been a key factor in appeasing the deadly conflict. The local situation was based on problems that were more deep-seated and far-reaching than the linguistic differences at the origin of the cases which the Court had previously examined ( see Polacco and Garofalo;Mathieu-Mohin and Clerfayt ). New Caledonia’s political situation was currently calm and the territory was continuing to develop politically, economically and socially. Consequently, the history and status of New Caledonia were such that they could be regarded as amounting to “local requirements” of a kind warranting the restrictions imposed on the applicant’s right to vote.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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