CEDH · CASELAW;CLIN;ENG — 9 mars 2021

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Italy (dec.) - 42081/10 Decision 9.3.2021 [Section I] Article 3 of Protocol No. 1 Choice of the legislature Free expression of the opinion of the people Removal by the courts of an elected representative from her functions on a provincial council with legislative powers, in application of a regional law: inadmissible Facts – The applicant was dismissed from her duties as councillor of an autonomous province, in a statement disqualifying her standing from office issued after judicial proceedings challenging her election on the ground, foreseen by regional legislation, that when her candidacy was accepted she sat on the management board of a public limited company in which the province was the majority shareholder. The applicant alleged a violation of her passive electoral rights and complained that the Court of Cassation had construed the regional law “in an unlawfully extensive and creative manner”. Law – Article 3 of Protocol No. 1: The word “legislature” in Article 3 of Protocol No. 1 did not necessarily mean the national parliament: the word had to be interpreted in the light of the constitutional structure of the State in question. The legislative powers of the given region and its two autonomous provinces were based on and clarified by the Constitution and the Regional Statute, which granted them considerable discretion, to the extent that the provincial councils could be considered to be constituent parts of the “legislature”. It followed that Article   3 of Protocol No. 1 was applicable in the present case. The applicant criticised the extensive interpretation given by the Court of Cassation to section 11   (c) of Regional Law no. 7 of 8   August 1983 (Law no. 7/1983), which stated that the legal representatives, directors or senior managers of limited companies in which the region or the autonomous provinces were majority shareholders were not eligible to stand for election. In her view, the Court of   Cassation had failed to take proper account, firstly, of the interpretation followed by the first-instance and appeal courts, or of the Constitutional Court’s leading case-law with regard to disqualification from office, and, secondly, of the fact that since the limited company had not yet been operational, it would have been impossible for her to use her position as a member of the management board to influence the vote in her favour. In addition, the applicant had, on her own initiative, taken leave from her functions, then, once elected, she had resigned from the board. The Convention institutions had had few occasions to examine an alleged violation of the “passive” aspect of an individual’s rights under Article 3 of Protocol No. 1. In this context, the Contracting States enjoyed considerable latitude in establishing constitutional rules, including criteria governing eligibility to stand for election. Although they had a common origin in the need to ensure both the independence of elected representatives and the freedom of electors, these requirements varied in accordance with the historical and political factors specific to each State. The number of situations provided for in the constitutions and electoral legislations of many member States of the Council of Europe showed the diversity of possible choice on the subject. For the purposes of applying Article 3 of Protocol No. 1, any electoral legislation had therefore always to be assessed in the light of the political evolution of the country concerned. In the context of the test to be applied when examining compliance with Article 3 of Protocol No. 1, the Court had held that stricter requirements could be imposed on eligibility to stand in legislative elections than was the case for eligibility to vote (see Melnitchenko v.   Ukraine ). While the test relating to the “active” aspect of Article 3 of Protocol No. 1 had usually included a wider assessment of the proportionality of the statutory provisions disqualifying a person or a certain group of persons from the right to vote, the Court’s test in relation to the “passive” aspect of this provision had been limited largely to a check on the absence of arbitrariness in the domestic procedures leading to the disqualification of an individual from standing as a candidate (see Ždanoka v.   Latvia [GC]). The applicant had undoubtedly sustained an interference with the exercise of her electoral rights. The grounds for her ineligibility, set out in section 11   (c) of Law no. 7/1983, was intended to govern access to public life by preventing, in so far as possible, undue influence of candidates on the voters. This aim had been compatible with the principle of the rule of law and the general objectives of the Convention. In view of possible future decisions and the prestige potentially conferred by such a position in the eyes of citizens, the fact of sitting on the management board of a company in which the autonomous province was the majority shareholder was an element capable of affecting their choice of electoral candidate. The Court of Cassation, having carefully analysed the parties’ arguments and the wording of section   11   (c) of Law no. 7/1983, had considered that, even where he or she had no powers of legal representation, any person holding the office of a director in a company owned primarily by the province became ineligible to stand for election. The Court could not reach any other conclusion; there was nothing in the Court of Cassation’s judgment to suggest that the applicant’s removal from office had been contrary to national law, arbitrary or disproportionate, or that it thwarted the free expression of the opinion of the people in the choice of the legislature. Conclusion : inadmissible (manifestly ill-founded). (See also Melnichenko v. Ukraine , 17707/02, 19 October 2004, Legal summary ; Ždanoka v. Latvia [GC], 58278/00, 16   March 2006, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes