Human Rights Committee
Views adopted by the Committee under article 5 (4) of the Optional Protocol concerning communication No. 2656/2015 * , **
C ommunication submitted by:Mario Staderini and Michele De Lucia (represented by counsels, Cesare Romano and Verónica Aragón)
Alleged victim s :The authors
Date of communication:17 July 2015 (initial submission)
Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 22 October 2015 (not issued in document form)
Date of adoption of Views:6 November 2019
Subject matter:Unreasonable restrictions on the right to call for a popular referendum initiative
Procedural issue s : Non-exhaustion of domestic remedies
Substantive issues: Taking part in the conduct of public affairs
Articles of the Covenant: 25 (a) and (b) read alone and in conjunction with 2
Article s of the Optional Protocol:1 and 2
1.The authors of the communication are Mario Staderini and Michele De Lucia, nationals of Italy born on 20 April 1973 and 16 October 1972 respectively. They claim that the State party has violated their rights under article 25 (a) and (b) read alone and in conjunction with article 2 of the Covenant. The communication was submitted by the International Human Rights Clinic of Loyola Law School on behalf of the authors, who are acting in their personal capacity and as representatives of their political party, the Italian Radicals. The Optional Protocol entered into force for the State party on 15 December 1978. The author is represented by counsels.
The facts as submitted by the authors
2.1The authors are members of the Italian political non-violent movement, the Italian Radicals. On 10 April and 9 May 2013, pursuant to article 75 of the Constitution, the authors, together with 20 other citizens, filed initial requests with the registry of the Court of Cassation’s Central Bureau for Referendums to hold six national referendums aimed at repealing legislative provisions relating to immigration, narcotic drugs, divorce, and public funding for political parties and for the Church. The authors consider that referendums have an important role in Italian politics in correcting and completing representative democracy, promoting political education and fighting the omnipotence of political parties.
2.2Pursuant to Constitutional Law No. 352 of 1970, the authors were required to collect and file with the competent authorities at least 500,000 signatures of Italian citizens to have a referendum put to the ballot. Each signature must be collected in person on specific forms of a specific size that must be dated, signed and stamped by specific public officials. All signatures, or pages of signatures, must be authenticated by a public official, namely a notary, justice of the peace, court registrar, or municipal secretary, when the signature is added to the form. Alternatively, members of the city or provincial council may perform this task. The public officials must be compensated by the promoters of the referendum for their time in certifying the signatures, with the exception of municipal secretaries, provided that this task is performed as part of their functions and within their workplace. The promoters must also collect a certificate for each signatory, issued by the municipality in which the voter is registered, verifying that the person in question is indeed a registered voter. The forms with the signatures must be submitted to the registry of the Court of Cassation within three months of the date on which the form was certified. Signatures may be submitted between 1 January and 30 September only. No initiative may be started the year before elections to either of the Houses of Parliament, or during the six months following the call for elections to either House. If the Central Bureau for Referendums declares that at least 500,000 signatures have been duly collected, it refers the request to the Constitutional Court, which rules on the constitutionality of the initiative, ensuring that the requested referendums do not concern any of the prohibited topics listed in the Constitution. If the Constitutional Court determines that the initiative is valid, the President of the Republic schedules the referendum for a Sunday between 15 April and 15 June. Should elections to either House of Parliament be called while the referendum is pending, the process leading to the referendum vote is suspended and then restarted 365 days after the elections have been held. For an abrogative referendum to pass, a double majority is needed: first, a majority of eligible voters must have voted, and, second, a majority of the votes cast must be in favour. A majority “yes” vote means that the law is abrogated, either fully or partially, depending on the referendum.
2.3The authors submit that they encountered a number of arbitrary and unreasonable obstacles in the collection of signatures, caused by deficiencies in the system and by the actions and omissions of public authorities. First, the authors struggled to find officials available to authenticate the forms and signatures. Although, by Law No. 352 of 1970 (art. 7), the municipal secretary and/or court registrar must certify the forms within two business days, delays were common. Since the authors bore the costs of printing enough forms to accommodate three million signatures (at least 500,000 signatures for six referendums), they had to print the forms throughout the three-month collection period and repeatedly take new batches to the municipal secretary for certification. Furthermore, public officials with the authority to authenticate were available on certain weekdays only, and on the premises of municipal buildings only. The city of Ferrara, for example, first banned signature collection tables set up in the streets of the city for several days, and then provided only a little-known office in which voters could sign the forms. In Naples, citizens could sign at the city’s central office only, and not in any of the 10 municipal offices located throughout the metropolitan area, which is home to approximately 2 million people. Many other cities allowed citizens to sign the forms at municipal public relations offices only. This made it nearly impossible to collect the necessary number of signatures, as collection efforts are only effective in public spaces, such as central town squares, and at the weekend, when people are actually present. Furthermore, in some major cities, public officials were unavailable for weeks to authenticate signatures. In Caserta, officials were hardly available during the entire collection period, even at the tables organized in front of municipal buildings. In Gorizia, in north-east Italy, city councillors made themselves available for only a few days between 7 June and 30 September to authenticate signatures. In Naples, the registrar for the Court of Appeal was only available for a few hours, and at a cost of 20 euros per hour. In Rieti, the necessary officials went on vacation in July and August and did not authorize anyone else to authenticate signatures. In Bari and Udine, the municipal secretaries refused to authenticate signatures outside the city hall. Citizens in Rimini and Taranto visited municipal offices hoping to sign the forms but were sent home because the officials who were needed to authenticate their signatures were on vacation.
2.4The second obstacle that the authors faced was the lack of publicly available information on when and how to sign. Neither the public television broadcasting company (Radiotelevisione Italiana, or Rai) nor the city authorities provided information to the public on how to endorse the referendums. In June 2013, the founder of the Italian Radicals movement, Marco Pannella, requested a hearing before the Rai oversight committee to address the public broadcaster’s failure to inform viewers of the referendums. Furthermore, municipal authorities failed to publicize on their municipal websites when and where citizens could sign the referendums requests. In the province of Naples and the region of Calabria, numerous municipal websites failed to make any mention of the referendum drives. In other areas, such as Ferrara, information was not published until the end of August, with only a month remaining in the collection period. In many instances, citizens arrived at the municipal offices wishing to sign the forms, but were told by the secretariats that the forms were unavailable, even though they had been sent by the promoters. In other cases, citizens seeking information as to how to sign the referendum requests were unable to obtain the details from their municipal officials. In the province of Caserta, for example, the Italian Radicals sent the forms on 20 June 2013 to the municipality of Santa Maria a Vico to be signed. As late as 26 August, voters were told that no referendum forms were available for signature. Voters in the provinces of Catania, Benevento and Verona were similarly denied the opportunity to support the referendums because officials claimed not to have received the forms.
2.5On 5 July 2013, the authors sent a letter to the Ministry of the Interior and the Ministry of Justice, copying the President of the Republic, detailing the obstacles that they were facing, including their inability to authenticate, and therefore collect, signatures and the lack of information provided to citizens. The authors argued that the State party had created an obligation to collect signatures but had not provided the instruments to fulfil it. On 25 July 2013, the Italian Radicals notified the Minister of the Interior that they would be holding a peaceful demonstration outside the Ministry while they waited for a response. On 26 July 2013, that Ministry issued a circular note to prefects – the regional representatives of the national Government – advising them that the Italian Radicals were collecting signatures in relation to a referendum initiative and instructing them to ensure that “as many officials as possible” were available to authenticate the signatures within or outside the municipal seat, even during the summer holidays. It also instructed the municipalities to post information about the initiative signature drive on their websites. Subsequently, a second circular note was issued on 2 August 2013 restating an opinion of 2003 by the State Council that members of city and provincial councils could also authenticate signatures. On 9 August 2013, 11 members of the Chamber of Deputies asked the Ministry of the Interior what steps were being taken to take to ensure that signatures could be collected and that citizens were informed of the campaign that was under way. The Ministry did not answer that question until 25 February 2014, long after the campaign had ended, merely restating that the Ministry had already issued the two circular notes.
2.6The Ministry of the Interior did not take any steps to ensure that the instructions in the two circular notes were implemented. In fact, in many major municipalities – including Bari, Brescia, Brindisi, Caserta, Grosseto, Naples and Udine – not a single municipal officer was made available for the authentication service, despite several requests from the promoters. In addition, in many municipalities, the authentication service was interrupted further during summer holidays, when the qualified officials left on vacation and failed to designate a substitute to authenticate signatures. Information on institutional websites was scarce. Only a few minor municipalities published information.
2.7The authors submit that, as a result of these obstacles, they collected and authenticated only approximately 200,000 signatures by 30 September 2013, which was the deadline to have the referendum initiatives approved by the authorities.
2.8On 30 September 2013, the authors nonetheless submitted the signatures to the Court of Cassation’s Central Bureau for Referendums, together with a brief containing written observations contending that the unreasonable obstacles created by public officials and the inadequacy of the procedure provided by Law No. 352 of 1970 had, de facto, deprived the citizens of their constitutional right to request a referendum and had discriminated against them on the basis of political affiliation and economic status. They therefore requested the Central Bureau to admit the initiatives.
2.9By an order of 2 October 2013, communicated to the authors on 26 October 2013, the Central Bureau for Referendums observed that the required number of signatures had not been collected. The decision did not acknowledge the brief that had been submitted explaining why the authors had not achieved at least 500,000 signatures.
2.10The authors submit that the decisions of the Central Bureau for Referendums are final, since they cannot be challenged before any higher authority.
3.1The authors claim that the laws and procedures to hold referendums in Italy are unduly restrictive, arbitrary and unreasonable and merely pay lip service to the constitutionally sanctioned right to initiate referendums, resulting in a violation of article 25 (a) and (b) read alone and in conjunction with article 2 of the Covenant. The authors stress that article 25 should be interpreted in the light of the Committee’s general comment No. 25 (1996) on participation in public affairs and the right to vote, and the 2007 code of good practice on referendums of the Council of Europe’s European Commission for Democracy through Law (Venice Commission), since the State party is a founding member of the Council of Europe and, as such, party to the Convention for the Protection of Human Rights and Fundamental Freedoms.
3.2The authors claim that many of the restrictions imposed by the Italian legal system on the exercise of the right to take part in the conduct of public affairs directly, through referendums, are arbitrary and unreasonable. They are arbitrary because they are not justified by necessity, reason or principle. They are unreasonable because the way in which the State party regulates the exercise of this right goes against the stated purpose of article 75 of the Constitution, namely to allow its citizens to initiate and vote on referendums. The authors note that, according to general comment No. 25 (para. 5), the allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25 should be established by the constitution and other laws. Moreover (para. 6), where a mode of direct participation by citizens is established, no distinction should be made between citizens as regards their participation on the grounds mentioned in article 2 (1) and no unreasonable restrictions should be imposed. Lastly (para. 4), any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria.The State party included a provision on referendums in its Constitution and adopted laws to implement it. When States do provide for ways in which citizens can directly participate in the conduct of public affairs, they then arguably have an obligation to ensure that citizens can effectively do so. The authors contend that, if one considers the purpose of article 75 of the Constitution to allow citizens to initiate and vote on referendums, it is difficult to see how the State party achieves that goal given how referendums are regulated in law and held in practice.
3.3The authors contend that the requirement to collect at least 500,000 signatures in the short period of time provided by Law No. 352 of 1970 (see para 2.2 above) is arbitrary and unreasonable. Of the 197 referendums initiatives that have been started in the history of the Republic, only 67, or just one in three, were brought before the citizens for a vote. While some time limits are surely a reasonable restriction, the purpose and justification of the current stringent time limits are not clear. These restrictions do not allow citizens to initiate and vote on referendums. Other States with better regulated systems of democracy either have lower thresholds (such as 100,000 signatures in Switzerland), or have thresholds that are directly linked to the total number of votes cast in the previous election (such as the regulation in the State of California). In view thereof, the authors consider that the arbitrary and unreasonable requirement currently in force in the State party constitutes a violation of article 25.
3.4The authors also submit that requirements in the process of certifying forms and signatures is unreasonable and arbitrary. Under the applicable law, the signatures can be authenticated only by designated officials or by members of the city or provincial council (see para. 2.2 above). While the list of officials might seem, prima facie, extensive, in reality their numbers are rather small, and most of them are neither available nor have a duty to authenticate signatures. The number of notaries in the State party is relatively low and they charge hefty fees for their time, and the number of justices of the peace is even lower.Although registrars of the magistrates’ courts, appeals tribunals or appeals courts are more numerous, neither justices of the peace nor registrars have any spare time, given that the Italian judicial system is notoriously overwhelmed. While there is a municipal secretary in every municipality, they authenticate signatures at the city hall only, which means that voters who want to endorse the referendum must go and provide their signature at the city hall, open during office hours only. When authenticating signatures at the city hall, during office hours, municipal secretaries do not charge a fee, but very few signatures are collected this way. Though referendum promoters are required to authenticate every signature, the law does not require any of the aforementioned public officials to be available to authenticate the signatures. The largest group of potential authenticators is composed of members of the city or provincial council. However, these are politicians who, arguably, will authenticate signatures only if the referendum in question is endorsed by their party. The Italian Radicals do not run for political office, locally or nationally, and thus are not represented in the city or provincial council. The availability of members of the city or provincial council is crucial. At the time of the collection of signatures, signatures were being collected for another six initiatives, which were supported by the Italian Radicals but also by a large party. In the places in which all the initiatives were available for signature, the signatures collected for each initiative was virtually identical. However, in the places in which the members of the city or provincial council were available to authenticate the signatures for the six referendums supported by their party only, the number of signatures collected was significantly higher for those six initiatives than for the authors ’ initiatives. By failing to implement a scheme for collecting signatures outside of office hours, the city and provincial councils deprived the authors of a proper authentication service. These arbitrary and unreasonable requirements therefore constitute a violation of article 25 of the Covenant.
3.5The authors submit that the turnout quorum requirement (see para. 2.2 above) is arbitrary and unreasonable, also constituting a violation of article 25 of the Covenant. In the history of the Republic, only 24 of 197 referendums initiatives have been voted on and approved by the citizens.According to the authors, participation quorums are controversial. Many constitutional scholars have recognized that higher turnout quorum requirements have a significant possibility of blocking most initiatives.Additionally, data suggests that the use of turnout quorums in general may discourage people from participating in elections because opponents of the referendum can control the results by encouraging abstention from voting when they believe that the majority of voters are in favour of the proposal.Even if the Committee finds that a turnout quorum is objectively justified and reasonable, the authors contend that the requirement of 50 per cent of registered voters is arbitrary and unreasonable, particularly when coupled with patchy updating of voter rosters. The authors quote other systems, such as that in Germany, where a turnout quorum is used at the local level only and varies to take account of the number of the inhabitants in each community (the threshold is lower for those communities with a higher population). The Venice Commission advises States to dispense with quorum requirements. While low quorums may sometimes be used successfully to safeguard the interests of the people overall, quorums in general can also be used to undermine the democratic process.
3.6The authors submit that the State party failed to inform voters about where and when to provide their signatures in support of the initiative, in violation of article 25 of the Covenant. They note that the drives to collect signatures were not covered by the public media. Media coverage has a significant impact: the six other initiatives collecting signatures at the time were submitted by Silvio Berlusconi, who owns the second largest television network in the State party, and those initiatives collected twice as many signatures as the authors’. Officials failed to publicize on their municipal websites the times and locations at which citizens could provide their signatures. The authors mention that in Slovenia, before the signature collection period begins, the National Assembly must by law publicize the initiative in the media.
3.7The authors submit that the State party has not taken the necessary steps to adopt laws or measures to give effect to the right to participate in the conduct of public affairs through referendums, as required by article 25 read in conjunction with article 2 (2) of the Covenant. States do not have a duty to provide direct democracy mechanisms, but when they do, as the State party does under its Constitution, they then have a duty under article 2 (2) of the Covenant to take the necessary steps, in accordance with their constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the Covenant. The State party regulates direct democracy and representative democracy differently, for no apparent reason other than to protect the monopoly that the established parties have on the political life of the nation. In the case of national and regional elections, Law No. 53 of 1990 and Law No. 43 of 1995 contain a specific duty for city officials, including members of city councils, to authenticate signatures on lists of candidates, in their offices and for free, including during weekends, and a duty to publicize when and where the lists can be signed. There are no such duties in the case of referendums. Television channels (public and private) must broadcast information on where, when and how citizens can sign the lists of candidates for national and regional elections. During the campaigns leading up to elections, there are detailed regulations on access to the media by the various parties. During elections, both the Ministry of the Interior and the municipalities have a duty to announce on their websites where, when and how citizens can sign electoral lists. In the case of referendums, as detailed above, there are no similar obligations. During elections, by law, municipalities must make city-owned facilities available to parties to carry out their campaigns. Promoters of referendums do not receive these benefits.Parties participating in elections are funded, generously, by the State, whereas in the case of referendums, promoters are reimbursed only a fraction of the costs and only if the referendum is actually held, which is rare. Furthermore, donations of up to 30,000 euros to political parties participating in elections benefit from a 26-per-cent tax break, while donations to promoters of referendum initiatives have no tax break. Italy plainly disfavours direct democracy.
3.8The authors further submit that they have been discriminated against on the basis of their political affiliation and economic status, in violation of article 25 read in conjunction with article 2 (1) of the Covenant. They note that the promoters must pay to have the signatures authenticated and, owing to flaws in the regulation, it is entirely left up to the persons who certify the signatures to decide how much to charge. When authentication is done by the municipal secretary at the city hall, it is usually free. However, when it is done at the point of collection, usually during weekends in the main squares of cities, the officials charge for their time.Of the six named officials who may authenticate signatures, those most frequently available are registrars of magistrates’ courts, who volunteer to authenticate signatures at the point of collection during weekends. On average, they charge 20 euros per hour. The authors allege that obtaining at least 500,000 signatures as requested by the Constitution is very expensive, costing approximately 200,000 euros. According to the authors, in this particular case, in which collect signatures were being collected for six initiatives at once, the cost would be at least 1,200,000 euros. The authors submit that the 2013 campaign for the six referendums in question almost bankrupted the Italian Radicals, costing 155,000 euros. Large political parties, on the other hand, can rely on numerous members of the city or provincial councils who can authenticate the signatures at no cost. Consequently, this requirement unduly disadvantages small political parties, and discriminates against them on the basis of political affiliation and economic status because such exorbitant sums of money for authentication alone must be paid for each referendum campaign.
3.9The authors also argue that the lack of response to their grievances by the authorities amounts to a violation of article 25 read in conjunction with article 2 (3) of the Covenant. First, the authors notified the Ministry of the Interior and the Ministry of Justice on 5 July 2013 of the obstacles that they were facing and how these obstacles affected their political rights. The circular note by the Minister of the Interior shows an acknowledgement of the unreasonable difficulties that the authors encountered. However, after the Ministry of the Interior had issued its circular note, its agents failed to take any corrective action to curb those violations. The State party’s subsequent failure to take action and provide the authors with sufficient measures to authenticate and collect signatures amounts to a denial of an effective remedy, in violation of article 25 read in conjunction with article 2 (3) (a) and (c) of the Covenant. In addition, the lack of response by the Court of Cassation’s Central Bureau for Referendums to the authors’ brief and the allegations made therein also amounts to a violation of article 25 read in conjunction with article 2 (3) of the Covenant. The authors note that they provided written observations contending that unreasonable obstacles created by public officials and agencies had hindered the collection of signatures. However, the Central Bureau responded with an unjustified decision consisting of three sentences. Furthermore, no investigation was carried out into the authors’ allegations. This response does not comply with the requirements provided for in general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant (para. 15).
3.10The authors request that the Committee recommend that the State party strengthen the legal framework to ensure the orderly, non-discriminatory and effective exercise of the right to participate in the conduct of public affairs through referendums, and implement more effective practices and policies that are conducive to achieving this goal, including by urging it to conform to the Venice Commission’s code of good practice on referendums. The authors consider that elections and referendums should be regulated in like manner. In particular, the authors request the Committee to recommend that the State party take the following measures:
(a)Reduce the current obstacles preventing citizens from providing their signatures during referendum initiatives by allowing electronic signatures and providing more avenues for citizens residing abroad to sign;
(b)Simplify the process of collection of signatures by eliminating the double certification system and finding less restrictive alternatives;
(c)Expand the number of those who can certify signatures and forms;
(d)Extend the three-month time limit for submitting the signatures;
(e)Establish a specific duty for city officials, including members of city councils, to authenticate signatures, in their offices and for free, including during weekends, and a duty to publicize when and where signatures can be provided;
(f)Make facilities owned by the city available to promoters of referendums to carry out their campaigns, as they already do in the case of elections;
(g)Regulate access to the media during referendum campaigns, during both the collection of signatures and the months leading up to the vote, with the aim of ensuring fair and balanced information, equality of opportunity for supporters and opponents of the campaigns to collect signatures, and publicization of the votes themselves, thereby providing all citizens with equality of opportunity to participate;
(h)Lower or abolish the turnout quorum;
(i)Regulate the funding and accounting of referendum campaigns in a manner similar to those of election campaigns;
(j)Enable promoters of referendums to have similar access to public funding and to a similar extent as political parties have during elections;
(k)Protect the right to an effective remedy by providing timely answers when promoters of the initiatives raise concerns about the process and by allowing for appeal against the decisions of the Court of Cassation’s Central Bureau for Referendums.
State party’s observations on admissibility
4.1On 11 January and 7 July 2016, the State party submitted that the communication should be declared inadmissible on the grounds that the authors had failed to exhaust domestic remedies.
4.2The State party notes that referendums are regulated by the Constitution and Law No. 352 of 1970. The request to hold a referendum is subject to double verification: first by the Court of Cassation’s Central Bureau for Referendums, which performs a mere technical check of the amount of signatures and their compliance with the formal requirements; and then, if the Central Bureau has ascertained that the legal requirements have been met, by the Constitutional Court, which verifies whether the referendum is admissible.
4.3The State party also describes the role of the administrative courts in reviewing administrative acts and their legality. Administrative courts can consider the responsibility of civil servants or public officials when there exists an offence of incompetence, abuse of power or violation of the law. Individuals who consider that their legitimate interests have been harmed by an administrative measure may open proceedings before the administrative courts. Decisions of administrative courts can be appealed before the State Council. They are immediately enforceable and are effective remedies in that they can potentially annul the impugned measure. Furthermore, if the execution of an administrative act is likely to cause serious and irreparable damage, the administrative court may decide to suspend it.
4.4In relation to the obstacles in the collection of signatures caused by the actions and omissions by the public authorities as described in the communication, the State party notes that, according to the Criminal Code (art. 323), the offence of abuse of office is committed when a public official, in the exercise of his or her functions, causes damage or a financial advantage contrary to the norms of law or regulations.
4.5As regards the authors’ allegations of discrimination, the State party refers to the National Office against Racial Discrimination, which covers all grounds of discrimination, the Senate commission on the promotion and protection of human rights, and the human rights committee of the Chamber of Deputies.
4.6In terms of public broadcasting, the State party submits that there is a normative framework aimed at ensuring the correctness of institutional communication messages to be broadcast through the public broadcasting service. The Department for Information and Publishing, of the Office of the President of the Council of Ministers, determines messages of social utility or public interest to be broadcast free of charge by the public broadcasting service.
Authors’ comments on the State party’s observations on admissibility
5.1On 19 February and 2 October 2016, the authors submitted that they had exhausted all available domestic remedies. They contend that the burden of proof is on the State party to demonstrate what remedies that they have failed to exhaust would have been effective in their case (see A/61/40, vol. I, para. 130).
5.2The Central Bureau for Referendums is a chamber of the Court of Cassation. It is a judicial body and is the last instance of jurisdiction of all decisions concerning the admissibility of referendum initiatives: its decisions are final and cannot be appealed. On 2 October 2013, the Central Bureau made a determination in the authors’ case. The decision is therefore final and no other remedy was available.
5.3According to the authors, the State party’s description of the existing legal avenues is misleading. The Constitutional Court does not review decisions of the Court of Cassation. It reviews a proposed referendum only after it has been approved by the Court of Cassation. The sole function of the Constitutional Court in the process of a referendum initiative is to ensure that the proposed referendum does not concern one of the subjects prohibited under the Constitution; it cannot overturn decisions of the Court of Cassation and its Central Bureau. Outside of its role in that process, the Constitutional Court has jurisdiction only over disputes on the constitutional legitimacy of laws issued by the State and regions; disputes arising from the allocation of powers of the State and those powers allocated to regions, and between regions; and charges brought against the President of the Republic. The question of the compatibility of a given law with the Constitution is raised by the judge, and at the sole discretion of the judge, if she or he believes there is a need for the Constitutional Court to weigh in on the question. In the present case, the lower judge is the Court of Cassation. The Court of Cassation has repeatedly stated that on referendum matters, it is the last instance of jurisdiction. It has repeatedly declined to refer questions about the unconstitutionality of Law No. 352 of 1970 to the Constitutional Court. The last time it did so was in a decision of 30 July 2016, in which it refused a request submitted by one of the authors in regard to the 2016 campaign to collect signatures for a referendum on the reform of the Constitution. Furthermore, the time limit for collecting signatures is so short that even if the possibility to appeal to the Constitutional Court existed, it would be impossible to do so within that period. In sum, appeal to the Constitutional Court is not a remedy that was available in the present case.
5.4According to the authors, the State party’s depiction of the administrative courts also seems to suggest that administrative relief was available for the authors, which is not the case. Administrative courts have consistently declined jurisdiction over requests for judicial review of decisions of the Central Bureau, and lack jurisdiction over the substantive claims made by the authors, which include the rights covered by the Covenant.
5.5If the State party considers that the authors should have filed a criminal complaint under the Criminal Code against the various officials who omitted to carry out the actions necessary to enable them to exercise their rights under the Covenant, the authors argue that, even though they suffered prejudice because of the repeated denial of remedy and the Court of Cassation’s refusal to accept the signatures collected, a criminal procedure would not have enabled them to vindicate the rights enshrined in the Covenant because of the strict time limits imposed by Law No. 352 of 1970 to collect, authenticate and deposit the signatures. Seeking remedy against each individual action by each public official, from the President of the Republic to city hall clerks, for actions and omissions while operating within a defective and arbitrary legal framework would not have been realistic. The authors notified the Ministry of the Interior, the Ministry of Justice and the President of the Republic of the problems that they were facing and made specific requests to remedy them. Most importantly, the public authorities do not have a duty to authenticate signatures outside the city hall. A criminal complaint for “abuse of office” under the Criminal Code would have thus been patently groundless.
5.6As for the anti-discrimination bodies, the authors stress that none of them constitutes an effective remedy as they cannot provide recourse against unfavourable judicial decisions, and their decisions are not binding.
5.7In relation to the Department for Information and Publishing of the Office of the President of the Council of Ministers, the State party has not explained how the authors could challenge decisions by this oversight body or what recourse it could provide. It could in no way address the substantive claims made by the authors.
5.8The authors conclude that the State party has not demonstrated the existence of any accessible and effective remedy that they could have exhausted. Even if they were capable of granting favourable relief to the authors, the specialized bodies referred to by the State party could address only marginal aspects of the question, and not remedy the overall issue of the authors’ fundamental right to take part in the conduct of public affairs.
State party’s observations on the merits
6.1In a note verbale dated 11 July 2019, the State party provided its observations on the merits of the communication. The State party explains the role of the Constitutional Court, which can decide on the validity of legislation, on its interpretation, or on whether its implementation, in form and substance, is in line with the Constitution. The State party recalls that, in accordance with article 1 of its Constitution, Italy is a parliamentary representative democracy, but three instruments of direct democracy exist: referendums, laws of popular initiative, and petitions. Further instruments of direct democracy can be introduced at the local level.
6.2The State party submits that, since June 1946, 71 referendums have been requested, of which 25 have been approved, 17 rejected and 28 invalidated. Most recently, one was held on 17 April 2016, but did not achieve a quorum. Furthermore, a constitutional referendum was held in October 2016. At the time of the State party’s submission, another referendum initiative, relating to labour law, had just obtained the signatures of 3 million voters. During the most recent general election, held in February 2013, there were over 50 million citizens with the right to vote. In the case of the author’s initiative, the Central Bureau for Referendums found that the promoters had not reached the threshold of 500,001 valid signatures.
6.3The State party submits that specific information on the modalities for collecting signatures was publicly available. It concludes that none of the provisions of the Covenant has been violated.
Authors’ comments on the State party’s observations on the merits
7.1On 10 October 2016, the authors provided additional information on the most recent events related to the right to direct participation in public affairs in the State party. The authors also refer to the referendum of 17 April 2016, in which it was proposed to repeal a law allowing gas and oil-drilling companies to extract hydrocarbons within 12 nautical miles off the coast. The Government opposed this referendum and campaigned for abstention. Some of the supporters of the referendum requested that it be delayed so that it would coincide with local elections, which would have resulted in considerable savings and a longer campaign to inform citizens. This request was rejected by the Government, who scheduled the referendum for 17 April 2016. The referendum failed to meet the quorum requirement, as only 31 per cent of those eligible voted, of whom 86 per cent voted in favour of repealing the law.
7.2The authors state that a constitutional reform is being processed that will negatively affect the right to directly participate in public affairs. The project lowers the quorum required for referendums, from 50 per cent of all registered voters to 50 per cent of those who voted in the most recent elections, but only in the case of initiatives for which 800,000 signatures have been collected. At the same time, the reimbursement for those who manage to collect enough signatures will increase from 50,000 euros to 150,000 euros. According to the authors, this will only contribute to the capacity of large political parties to propose referendums, to the detriment of citizens belonging to groups of a different nature.
7.3The authors point out that the constitutional reform was to be voted on 4 December 2016. One of the authors, Mr. Staderini, together with 10 other citizens, formed the Committee for the Right to Vote, and requested that the referendum be unbundled, so that the reform could be voted in separate parts. Two committees were created, supported by the Democratic Party, the party in Government: one against and one in favour. Eventually, only the committee in favour managed to collect more than 500,000 signatures. The Committee for the Right to Vote requested the Court of Cassation to raise a constitutionality question and ask the Constitutional Court to rule on the constitutionality of Law No. 352 of 1970. On 20 July 2016, the Court of Cassation rejected the request, stating that the Committee for the Right to Vote must gather at least 500,000 signatures, even if not authenticated, for it to consider the case and request a ruling by the Constitutional Court; and that, in any event, it would not refer the matter to the Constitutional Court because it was a prerogative of the legislator to determine the requirements to collect signatures. In fact, on 15 June 2016, as the authors did in the case of the referendum of 2013, the Committee for the Right to Vote had written to the Prime Minister, the Minister of Justice and the Minister for Constitutional Reforms denouncing the difficulties in authenticating signatures. It had not even received a reply from the Government. The fact that only the committee endorsed by the party in Government managed to reach the threshold of authenticated signatures is indicative of the overall issues raised by this communication. That committee had a clear advantage as it could count on tens of thousands of members of the city or provincial council (members of the Democratic Party) to authenticate signatures without cost; the Democratic Party had offices located all over the country in which signatures could be gathered; it had public funding, as major parties receive State funding; and the Prime Minister campaigned heavily in its favour. Although the present communication is limited to the failed referendum campaign of 2013, the foregoing facts clearly indicate that what happened in 2013 is not an isolated event, but an ongoing problem caused by a flawed law regulating the constitutionally sanctioned right to referendums, and by a deliberate campaign of actions and omissions by the authorities, at all levels, to sabotage the exercise of these rights and frustrate the rights protected by the Covenant.
7.4The authors note that the information publicly available on the modalities for acquiring signatures for the referendum, to which the State party refers, was provided not by the public authorities, but by the proponents of the referendum, including the authors, at their own expense, and was published on their website.
Issues and proceedings before the Committee
Consideration of admissibility
8.1Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether it is admissible under the Optional Protocol.
8.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
8.3The Committee notes the State party’s claim that the authors did not exhaust domestic remedies. The State party refers to available remedies such as the Constitutional Court, the administrative courts, criminal proceedings against the public officials that hindered the process of acquiring signatures, the National Office against Racial Discrimination, the Senate commission on the promotion and protection of human rights, the human rights committee of the Chamber of Deputies, and the Department for Information and Publishing. The Committee also notes the authors’ arguments that the Court of Cassation has repeatedly declined to refer questions about the constitutionality of Law No. 352 of 1970 to the Constitutional Court, that the administrative courts have no jurisdiction over their substantive claims, that criminal proceedings against State agents would not address all of their grievances and would not have been feasible within the short time period before the Court of Cassation adopted a decision, and that the anti-discrimination bodies and the Department for Information and Publishing are not bodies that could provide them with the remedy sought. The authors stress that decisions by the Court of Cassation’s Central Bureau for Referendums are final and cannot be appealed. The Committee recalls that article 5 (2) (b) of the Optional Protocol, by referring to “all available domestic remedies”, refers in the first place to judicial remedies. It also recalls that under article 5 (2) (b) of the Optional Protocol, the authors must make use of all judicial or administrative avenues that offer them a reasonable prospect of redress. The Committee notes that, on 5 July 2013, the authors notified the Ministry of the Interior and the Ministry of Justice about the obstacles that they were facing and the possible impact that these obstacles could have on their political rights, and that, on 30 September 2013, they submitted a brief to the Central Bureau for Referendums including all the grievances now submitted to the Committee. It also notes that the Central Bureau issued a decision on the matter, which is final as it cannot be appealed. Lastly, the Committee notes that, in June 2013, the founder of the Italian Radicals requested a hearing before the Rai oversight committee to address the lack of media coverage of the initiative. The Committee concludes that the authors have exhausted those domestic remedies that were effective and available to them and that it is not precluded from considering the communication under article 5 (2) (b) of the Optional Protocol.
8.4The Committee notes the authors’ claim that the obstacles that they faced when collecting signatures for six referendum initiatives have affected their rights under article 25 (a) and (b) of the Covenant. The Committee notes that article 25 (b) sets out specific provisions dealing with the right of citizens to take part in the conduct of public affairs either as voters or as candidates in the conduct of elections. Article 25 (a), on the other hand, covers the exercise of legislative, executive and administrative powers, including direct participation in the conduct of public affairs when citizens decide on public issues through a referendum. Accordingly, the Committee considers the authors’ claim concerning article 25 (b) of the Covenant inadmissible ratione materiae.
8.5In view of the foregoing, the Committee declares the claim under article 25 (a) read alone and in conjunction with article 2 (3) of the Covenant admissible and proceeds with its consideration of the merits.
Consideration of the merits
9.1The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5(1) of the Optional Protocol.
9.2The Committee notes the authors’ claims that the laws and procedures to hold referendums in Italy are unduly restrictive, arbitrary and unreasonable and merely pay lipservice to the constitutionally sanctioned right to initiatereferendums, resulting in a violation of article 25 of the Covenant. The authors submit that, even though States parties do not have the obligation to organize referendums, when they do provide for ways in which citizens can directly participate in the conduct of public affairs, they then have an obligation to ensure that citizens can effectively do so. The Committee notes that the State party submits that while Italy is a parliamentary representative democracy, three instruments of direct democracy exist: referendums, laws of popular initiative and petitions. The Committee also notes the information provided by the State party that, since June 1946, 71 referendumshave been requested.
9.3The Committee recognizes that the Covenant does not impose any particular political system and that member States may chose different forms of constitution or government, as long as they adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights that the Covenant protects. Referendums are one of the ways in which citizens may participate directly in the conduct of public affairs as provided for in article 25 (a). Other forms of direct participation may be choosing or amending the constitution or deciding on public issues through electoral processes conducted in accordance with article 25 (b). States parties do not, therefore, have the obligation under article 25 (a) to adopt specific modalities of direct democracy, such as referendums. However, the Committee recalls that, according to its general comment No. 25 (para. 6), where a mode of direct participation by citizens is established, no distinction should be made between citizens as regards their participation on the grounds mentioned in article 2 (1) and no unreasonable restrictions should be imposed. States parties’ obligation to refrain from imposing unreasonable restrictions on the right to directly participate in the conduct of public affairs applies both to the right to directly take part in referendums by voting, and to other forms of participation that are open to citizens in the process, such as popular referendum initiatives. Under article 75 of the Constitution, the State party has given citizens the right to directly participate in public affairs by promoting the organization of referendums through a popular referendum system. It therefore has the obligation to refrain from imposing unreasonable restrictions on such participation.
9.4The Committee recognizes that States parties have the obligation to ensure the integrity of their democratic processes, such as the process of collection of signatures, and their compliance with the national legislation. To do so, States may design processes for independent scrutiny of the collection and counting of signatures, which may inevitably put restrictions on citizens promoting referendum initiatives. The State party should nevertheless ensure that these requirements are reasonable and do not constitute a barrier to the initiative. In the current case, the State party has designated a number of public officials or State agents and elected representatives to witness the collection of signatures and certify them to ensure the integrity of this process and its compliance with the applicable legislation. The Committee notes that, according to the authors, this requirement hindered the collection of signatures, as they encountered many obstacles to ensuring the participation of the authorized persons, in particular in public places, where more citizens were likely to contribute. In view thereof, the Committee considers that the process of authentication of signatures as determined by Law No. 352 of 1970 has resulted in a restriction, with the legitimate aim of ensuring the integrity of the process. The Committee will therefore proceed to examine whether that restriction is reasonable under the requirements of article 25 of the Covenant.
9.5The Committee notes that promoters of the initiatives have the burden of ensuring the presence of any of the State agents and elected representatives qualified to certify the signatures during their collection, but that, in turn, those State agents and elected representatives do not have a duty to be available to witness the collection of signatures. Moreover, promoters must gather at least 500,000 signatures; State agents may charge for witnessing the collection of the signatures; and the signatures have to be submitted within a limited period of time. The authors refer to other obstacles, such as the lack of information for the public and quorum requirements. As presented by the authors, this systemgave rise to obstacles to the collection of signatures in their case,while other initiatives that did have the participation of authorized elected representatives obtained a significantly higher number of signatures.While recognizing that States parties need to manage the use of public funding and resources, the Committee considers that, in the circumstances of the present case, an imbalance exists between the requirement imposed on the authors, as promoters of six referendums, to find available State agents or elected representatives qualified to certify the signatures, and the absence of any avenue to enable them to ensure the presence of State agents or elected representatives. The Committee therefore finds that, in the context of the present case, the requirement to collect signatures in the presence of qualified State agents or elected representatives without an adequate procedure to ensure their presence constitutes an unreasonable restriction on the authors’ rights under article 25 (a) of the Covenant.
9.6The Committee notes the authors’ argument that the lack of response to their grievances by the authorities amounts to a violation of article 25read in conjunction with article 2 (3) of the Covenant. In that connection, it notes that, according to the authors, the response by the Ministry of the Interior was insufficient.It notes that the authors informed the authorities in a letter to the Ministry of the Interior and the Ministry of Justice about the obstacles that they were facing to the collection of signatures, and that the obstacles persisted even after the Ministry of the Interior had issued a circular note.The Committee also notes the authors’ arguments that no other remedy was available to them because the administrative courts have no jurisdiction over their substantive claims, andbecause criminal proceedings against State agents would not address all of their grievances and could not have been undertaken within the short period of time that they had before the Court of Cassation adopted a decision.Having found a violation of article 25 (a)of the Covenant, the Committee considers that the allegations submitted by the author amount to a violation of article 25 (a) read in conjunction with article 2 (3) of the Covenant.
9.7The Committee notes the authors’ submission that the current procedures for referendum initiatives discriminate against them on the basis of their political affiliation, because large parties have access to numerous members of the city or provincial council to authenticate signatures, whereas,as members of the Italian Radicals,they had serious difficulties in finding authorized persons to do so. Additionally, the authors argue that the participation of members of the city or provincial council is crucial:in the places in which all the initiatives were available for signature, the signatures collected for each initiative was virtually identical, whereas in the places in whichthe elected representatives were willing to authenticate the signatures for the six referendums supported by their party only, the number of signatures collected was significantly higher for those six initiatives than for the authors’ initiatives.The Committee recalls its general comment No. 18 (1989) on non-discrimination, according to which (para. 7) “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.The Committee notes that the authors argue that the requirements for the collection of signatures, although apparently neutral, have a discriminatory effect on them as members of the Italian Radicals on the basis of their political affiliation. Nevertheless, it notes that other members of the Italian Radicals were promoters of the other six initiatives for which signatures were being collected during the same period. As the authors submit, these initiatives were supported by a major political party and collected comparably many more signatures than their number of members in the city or provincial council. These examples demonstrate that the variation of the support met by any referendum initiative is not necessarily linked to the political membership of its promoters. It is rather a direct and necessary reflection of political diversity and democracy.The information available does not enable the Committee to conclude that specific measures or decisions would have prevented other political parties and members of the city or provincial council from supporting the authors’ initiatives on the basis of their political affiliation. In view thereof, the Committee cannot therefore conclude that the distinction in the availability of members of the city or provincial council isbased on the authors’ political affiliation.
9.8The authors also argue that the current system discriminates against them on the basis of their economic status because of the high cost of compensating State agents for their time authenticating signatures. The Committee notes that, according to the authors, there is a system for reimbursement, but that it coversonly a fraction of the costs, and only in the case of referendums that are actually held. The Committee agrees that the cost of the authentication procedure may result in a restriction on the authors’ capacity to collect signatures based on their economic situation. However, not every differentiation based on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, financial status, birth or other status, as listed in the Covenant, amounts to discrimination, as long as it is based on reasonable and objective criteria in pursuit of an aim that is legitimate under the Covenant.The Committee has found that the requirement regarding the authentication of signatures, as applied to this case, was unreasonable. Nevertheless, the differentiation of treatment based on the author’s economic status is specifically linked to the system for compensating State actors and the reimbursement of costs. The Committee considers that the restriction may have the legitimate aim of preserving and managing public resources and avoiding excessive use of those resources for the authentication of signatures in the context of referendum initiatives to the detriment of other functions of the public administration. It therefore concludes that the requirement that public officials be compensated and that reimbursements be granted only when referendums are supported by the population and are admissible is a reasonable measure in pursuit of a legitimate aim, and that this differentiation does not amount to a violation of article 25 (a).
10.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of article 25 (a) read alone and in conjunction with article 2 (3) of the Covenant.
11.Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. The State party is under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In this connection, the Committee reiterates that, in accordance with its obligation under article 2 (2) of the Covenant, the State party should 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. In particular, the State party should provide for avenues for promoters of referendum initiatives to have signatures authenticated, to collect signatures in spaces where citizens can be reached, and to ensure that the population is sufficiently informed about those processes and the possibility of taking part.
12.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.