Information Note on the Court’s case-law No. 168

November 2013

Occhetto v. Italy ( dec. ) - 14507/07

Decision 12.11.2013 [Section II]

Article 3 of Protocol No. 1

Free expression of opinion of people

Irrevocable nature of decision to renounce seat in parliament: inadmissible

Facts – The applicant stood for election to the European Parliament in June 2004 in two constituencies where he came first among the unelected candidates. On 6 July 2004 he signed a document renouncing his parliamentary seat, as a result of an agreement with the co-founder of the political movement to which he belonged, Mr Di Pietro. On 7 July 2004 the latter deposited one of the four counterparts of the signed renouncement with the Italian electoral board. On 27 April 2006 the applicant declared that he wished to withdraw his renouncement, expressing his wish to sit in the European Parliament. On 28 April 2006 Mr Di Pietro renounced his entitlement to take his seat as a member of the European Parliament. On 8 May 2006 the electoral board declared the applicant elected to the European Parliament for the “Southern Italy” constituency. Mr Donnici , who had come second in that constituency, just after the applicant, lodged an application with the Regional Administrative Court for the annulment of the electoral board’s decision. On 21 July 2006 the Regional Administrative Court dismissed the application. Mr Donnici appealed. On 6 December 2006 the Consiglio di Stato annulled the decision appealed against. On 29 March 2007 the electoral board took note of the judgment of the Consiglio di Stato and proclaimed Mr Donnici elected to the European Parliament, thus revoking the applicant’s election. The applicant lodged an objection. On 24 May 2007 the European Parliament declared Mr Donnici’s election invalid and confirmed the validity of the applicant’s election. The Government appealed against the European Parliament’s decision on the verification of Mr Donnici’s powers before the Court of Justice of the European Communities (CJEC), whilst Mr Donnici himself challenged the same decision before the Court of First Instance (CFI). On 15 November 2007 the urgent proceedings judge of the CFI ordered a stay of execution of that decision. Consequently, the applicant stopped sitting in the European Parliament. Later, on 13 December 2007, the CFI relinquished the case to the CJEC. On 30 April 2009 the latter annulled the European Parliament’s decision in question.

Law – Article 3 of Protocol No. 1: The applicant, who had stood for election to the European Parliament, had voluntarily signed a document renouncing his entitlement to a seat. This was the result of an agreement with the co-founder of the political movement to which he belonged and, de facto , it deprived the votes he had received of any useful effect. It followed that the applicant could be considered, to a great extent, to have contributed to creating the situation of which he complained before the European Court of Human Rights, namely the annulment of the proclamation of his election to the European Parliament. Moreover, he had stated that the Italian authorities should have declared his agreement with Mr Di Pietro unlawful and that in substance he relied on the right to annul his own acts. The Court took the view, however, that it did not need to address the question whether the applicant could claim to be a “victim”, within the meaning of Article 34 of the Convention, of the events that he denounced; nor the question whether there had been a “significant disadvantage” for the applicant, within the meaning of Article 35 § 3 (b) of the Convention.

The European Parliament was sufficiently associated with the legislative process, and with the supervision of the general democratic supervision of the European Union’s activities for it to be considered part of the “legislature” of its member States for the purposes of Article 3 of Protocol No. 1, which provision was therefore applicable.

The applicant had criticised the Consiglio di Stato mainly for its finding that his renouncement of his parliamentary seat was irrevocable. The Court did not, however, find any appearance of arbitrariness. There were many acts by which an individual could freely exercise his rights that might involve permanent consequences, without impairing the principles guaranteed by the Convention. The refusal to accept the withdrawal of the applicant’s renouncement had pursued the legitimate aims of guaranteeing legal certainty in the electoral process and the protection of the rights of others, in particular those of the person who had been proclaimed elected to the seat that could have been taken by the applicant. If a candidate were able to renounce a parliamentary seat and then to withdraw that decision at any time, there would be uncertainty as to the composition of the legislature. Moreover, the applicant had not sustained any arbitrary consequences. Having signed the renouncement of his own free will, he knew or must have known that this decision would mean that he could not sit in the European Parliament, even if Mr Di Pietro were to renounce his seat. As to the question whether there had been a breach of the free expression of the opinion of the people, the possible disappointment felt by voters who had voted for the applicant could not be directly attributed to the Italian authorities, but rather to the applicant and to Mr Di Pietro on account of the agreement between them for the purpose of depriving those votes of any useful effect. Moreover, as a result of elections being held, a candidate might obtain the right to sit in a legislature but would be under no obligation to do so. Any candidate was entitled to renounce, for political or personal reasons, the seat to which he was elected, and the decision to act upon such a renouncement could not be considered incompatible with the principle of universal suffrage. In the present case, the applicant’s wish had been expressed in writing and in unequivocal terms, and, in a communication of 12 November 2004 to the European Parliament, the applicant had stated that his renouncement was final. Lastly, in its judgment of 30 April 2009 the CJEC had found that it was for the domestic legal system of each member State to designate the competent courts and to regulate the procedural arrangements for appeals seeking to guarantee rights that were available under Community law. In the present case, the competent courts were the Regional Administrative Court and the Consiglio di Stato , according to the Italian legal system. The proceedings concerning the effects and nature of the applicant’s renouncement had taken place before those judicial organs, which had power to deal with all aspects of the case, and the applicant had been able to submit the arguments that he deemed useful for his defence in the context of those proceedings.

Having regard to the foregoing, and in particular to the broad margin of appreciation afforded to States in respect of the “passive” aspect of the rights guaranteed by Article 3 of Protocol No. 1, there was no appearance of a violation of that provision.

Conclusion : inadmissible (manifestly ill-founded).

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

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