CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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