Arbitrary restrictions placed on referendum processes in Italy, state party requested to review legislation

Facts

The authors of the communication are two nationals of Italy, who claimed that the state party has violated their rights under article 25(a) and (b) of the Covenant. The authors are members of an Italian political non-violent movement, called the “Italian Radicals”.

In April and May 2013, the authors filed requests with the registry of the Court to hold six national referendums, aimed at repealing legislative provisions relating to immigration, narcotic drugs, divorce and public funding for political parties and for religious institutions. The authors however found procedural deficiencies in the public system meant that they struggled to find the staff needed to complete the referendum processes.

The central issue of the complaint relates to the requirement under Italian constitutional law for the initiation of a referendum to have at least 500,000 signatures of Italian citizens filed with the competent authorities, in order to have a referendum placed on the ballot. Each signature must be collected in person on specific forms, and must be dated, signed and stamped by public officials. All signatures or pages of such, must be authenticated by a public official, such as a notary, a justice of the peace, court registrar, or municipal secretary. The organisers must also collect a certificate for each signatory, issued by the municipality in which the voter is registered, verifying the signatory’s registration. Such public officials must also be compensated for their time.

In July 2013 the authors sent a letter to the Ministry of the Interior and the Ministry of Justice, detailing the obstacles they were facing and therefore their inability to authenticate the required number or signatures nor pay for the public officials required.

Complaint

The authors claimed that the laws and procedures put in place to hold referendums in Italy are unduly restrictive, arbitrary and unreasonable, on the basis that they are not justified by necessity, reason or accepted lawful principle. The authors stressed that domestic Italian laws should be interpreted in light of the Committee’s guidance in general comment No. 25 (1996) on the participation of public affairs.

The authors asserted that as they stand, they merely pay lip service to the constitutional right to initiate referendums, resulting in a violation of article 25(a) and (b) of the Covenant.

Merits

The Committee noted the authors claim that although States parties do not have the obligation to organise referendums, when they do provide for ways in which citizens can directly participate in public affairs, they have an obligation to ensure that citizens can participate effectively. On this basis, the authors argued that the laws and procedures for initiating referendums are unduly unreasonable, and further the state party’s counter-argument that Italy is a parliamentary representative democracy, and the instrument for initiating a referendum is only one of the methods through which citizens may take part in public affairs. Further, that 71 referendums have been initiated since 1946. 

The Committee noted that procedural obligations on state parties included the obligation not to impose unreasonable restrictions on the right to directly participate in public affairs by voting, as well as other forms available to citizens, however article 25(a) of the Covenant does not require State parties to adopt modalities of direct democracy, such as referendums. However, the Committee noted that due to article 75 of the state party’s Constitution, the right to organise a referendum is currently an available right – and therefore the state party must not place unreasonable restrictions on this right.

The Committee then assessed each of the procedural aspects to ascertain whether they constitute lawful restrictions for the purposes of article 25 of the Covenant, in light of guidance in general comment No. 25 (1996) providing that where a mode of direct participation by citizens is established, no distinction may be made between citizens and no unreasonable restrictions may be imposed.

With respect to the requirement to have a number of public officials witness and certify signatures to ensure the integrity of the process, the Committee noted that while there are practical challenges, the process does pursue a legitimate aim. While recognising that the state party needs to manage the integrity of the process, in this case the Committee found that an imbalance exists between the requirements imposed on the authors, and the absence of any available avenue for them to conduct a proper process without access to state officials. In this case, the Committee found that the requirement to collect signatures in the presence of state officials without adequate procedure to have them present and available, constituted an unreasonable restriction on the author’s rights under article 25(a) of the Covenant.

On the issue of public officials being compensated for their time, the Committee noted the claims by the authors that this creates inherent discrimination, as the requirement to compensate public officials results in discrimination against their particular political opinion. [1] However, the Committee also noted that other initiatives supported by the Italian Radicals, which were also endorsed by larger political parties, managed to collect multiple more signatures. On this basis, the Committee could not conclude that the distinction was on the basis of political opinion. 

In sum, the Committee concluded that the requirement that public officials be compensated and reimbursement be made where the population supports the referendum is a reasonable measure, as it preserves public resources and avoids excessive use, and therefore in pursuit of a legitimate aim which was not in violation of the Covenant.

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[1] Note: Committee recalled its general comment No. 18 (1989) on non-discrimination, according to which “discrimination” should be understood to imply any distinction, exclusion, restriction or preference which is based on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms (para. 7).

Recommendations

The Committee noted that the state party is under an obligation to provide the authors with an effective remedy, including making full reparation to individuals whose Covenant rights have been violated, including:

1. Take all necessary steps to ensure similar violations do not occur in the future;
2. Review its legislation with a view to ensuring that the legislative requirements do not impose unreasonable restrictions on any of the modes of direct participation by citizens provided for in the Constitution, including providing for avenues for promoters of referendum initiatives to have signatures authenticated.

Implementation

The Committee requested the state party provide a follow up information on measures taken within 180 days (of before 6 May 2020).

Committee’s assessment 131st session (CCPR/C/131/3):

• (a) Review the State party’s legislation: A;
• (b) Non-repetition: B.

Committee’s decision: Follow-up dialogue ongoing.