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SECOND
SECTION
CASE OF
PY v. FRANCE
(Application
no. 66289/01)
JUDGMENT
(Extracts)
FINAL
06/06/2005
STRASBOURG
11
January 2005
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Py v. France,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr A.B. Baka, President,
Mr L.
Loucaides,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni, judges,
Mr R. de
Gouttes, ad hoc judge,
and Mrs S. Dollé, Section
Registrar,
Having
deliberated in private on 13 November 2003 and on 7 December 2004,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 66289/99) against the French
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a French national, Mr Bruno Py (“the
applicant”), on 15 December 2000.
- The
French Government (“the Government”) were represented by
their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry
of Foreign Affairs.
- The
applicant complained that the restrictions on the right to take part
in elections to Congress and the provincial assemblies in New
Caledonia infringed the right to free elections guaranteed by Article
3 of Protocol No. 1 and gave rise to discrimination on the
ground of national origin, in breach of Article 14 of the Convention.
- The
application was allocated to the Third Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1. Mr J.-P. Costa, the
judge elected in respect of France, withdrew from sitting in the case
(Rule 28). The Government accordingly appointed Mr R. de Gouttes to
sit as an ad hoc judge (Article 27 § 2 of the Convention
and Rule 29 § 1).
- On
1 November 2001 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1).
- In
a decision of 13 November 2003 the Chamber declared the application
admissible.
- The
applicant and the Government each filed written submissions and
additional observations on the merits of the case (Rule 59 § 1).
In addition, third-party comments were received from Mr Pichon and Ms
Gillot, residents of New Caledonia, who had been given leave by the
President to intervene in the written procedure (Article 36 § 2
of the Convention and Rule 44 § 2). The respondent Government
replied to those comments (Rule 44 § 5).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Nancy. He is a university
lecturer and researcher in private law and is a member of the French
civil service.
- On
1 September 1995 he was appointed to a post at the French University
of the Pacific in Nouméa, New Caledonia, which at the material
time was a French overseas territory. The holder of the post was
required to live in the territory.
- The
applicant applied to be registered on the electoral rolls for his
place of residence. He was entered on the general electoral roll for
the municipality of Nouméa but was refused registration on the
special electoral roll for the 1998 ballot on self-determination. On
7 April 1997 the mayor of Nouméa notified him that he had been
deemed not to satisfy the residence requirements laid down in section
2 of the Act of 9 November 1988 in that he could not show that he had
been permanently resident in New Caledonia since 6 November 1988. The
applicant did not appeal against that decision.
- On
5 May 1998 the Nouméa Accord was signed. It laid down
transitional arrangements for the political organisation of New
Caledonia and for its move to self-determination. It altered New
Caledonia's constitutional status, making it a sui generis
territory with its own specially designed institutions. Article 77 of
the Constitution was consequently amended to provide that the
measures required for the implementation of the Accord were to be
laid down in an institutional Act.
- Institutional
Act no. 99-209 of 19 March 1999 brought about the twelfth
institutional reform in New Caledonia since 1853, giving it its ninth
different status since 1976. It strengthened Congress's powers and
introduced a ten-year residence requirement for taking part in the
election of members of Congress and the provincial assemblies.
- On
9 April 1999 the applicant applied to be registered on the special
electoral roll for the elections to Congress and the provincial
assemblies on 9 May 1999 in the municipality of Nouméa. He was
refused registration on the ground that he could not show that he had
been permanently resident in New Caledonia in the ten years prior to
9 May 1999.
- The
applicant applied to the Nouméa Court of First Instance for a
review of the conformity of the Act with the Convention, and for
registration on the special electoral roll for the municipality of
Nouméa. On 3 May 1999 the court dismissed his applications.
- The
applicant appealed on points of law to the Court of Cassation,
complaining that the Court of First Instance had found against him
despite the fact that the refusal to register him contravened various
provisions of domestic and international law, in particular Articles
1 and 3 of the Constitution of 4 October 1958, Articles 2, 7,
21-1 and 21-3 of the Universal Declaration of Human Rights of
10 December 1948, Article 14 of the Convention, Articles 2-1, 25
and 26 of the New York Covenant of 19 December 1966, Article 6
of the Declaration of the Rights of Man and the Citizen of 26 August
1789, Articles 225-1 and 432-7 of the new Criminal Code, and the
Preamble to the Constitution of 27 October 1946.
- On
13 July 2000 the Court of Cassation dismissed his appeal on the
ground that the conditions for taking part in elections to Congress
and the provincial assemblies followed from an institutional Act
which ranked as constitutional law in that it reproduced the wording
of the Nouméa Accord, which itself had constitutional status
by virtue of Article 77 of the Constitution. It dismissed the
applicant's arguments concerning the provisions of the Convention,
holding in particular that the precedence accorded to international
undertakings did not apply in the domestic legal order in relation to
provisions ranking as constitutional law.
- The
applicant also produced to the Court a decision of 2 June 2000 in
which the Court of Cassation had dismissed, on the same grounds, an
appeal which was similar to his but which alleged a violation of
Article 3 of Protocol No. 1.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL CASE-LAW
...
C. New Caledonia Institutional Act (no. 99-209) of 19
March 1999
Chapter
I: Distribution of powers among the State, New Caledonia, provinces
and municipalities
...
Section
1: Powers vested in the State and New Caledonia
...
Article 62
“Congress shall be the deliberative body of New
Caledonia. It shall have fifty-four members: seven from the Loyalty
Islands provincial assembly, fifteen from the Northern provincial
assembly and thirty-two from the Southern provincial assembly.
Members of Congress shall be elected for a five-year
term in the manner prescribed in Part V. ...”
Article 73
“The power to initiate territorial laws and
regulations shall be vested conjointly in the Government and the
members of Congress.”
Section
2: Powers assigned to Congress
Article 83
“The powers assigned to New Caledonia by Chapter I
of Part II shall be exercised by Congress, with the exception of
those conferred by this Act on the Government or the President of the
Government.”
Article 84
“Congress shall adopt the budget and approve the
accounts for New Caledonia. ...”
Article 86
“In criminal matters, Congress may make offences
against territorial laws and regulations punishable by fines that are
commensurate with the classification of petty and more serious
offences [contraventions et délits] and do not exceed
the maximum amount applicable for offences of the same nature under
national legislation and regulations. It may also make such offences
subject to such additional penalties as are provided for in national
legislation and regulations for offences of the same nature.
Congress may also make provision for administrative
penalties for any offence.”
...
Chapter
II: Territorial laws
Article 99
“Instruments by which Congress enacts provisions
on the matters listed in the following paragraph shall be designated
as 'territorial laws'.
Territorial laws may be enacted in the following areas,
being those in which powers are exercised by New Caledonia, or from
the date on which they are transferred pursuant to this Act:
(1) symbols of identity and name as referred
to in Article 5;
(2) rules on the assessment and collection of
taxes, duties or charges of any kind;
(3) basic principles governing labour law,
trade-union law and social-security law;
(4) rules on aliens' access to employment;
(5) customary civil status, rules governing
customary land and customary assemblies; boundaries of customary
areas; procedure for appointing members of the Customary Senate and
the customary councils;
(6) rules governing hydrocarbons, nickel,
chromium and cobalt;
(7) rules governing publicly owned land in
New Caledonia and the provinces, subject to the provisions of Article
127, point (13);
(8) rules on access to employment, pursuant
to Article 24;
(9) rules on civil status and capacity,
systems of matrimonial property, inheritance and voluntary
dispositions;
(10) basic principles concerning ownership,
rights in rem and civil and commercial obligations;
(11) apportionment among the provinces of the
operating grant and the equipment grant referred to in paragraphs I
and II of Article 181; and
(12) powers transferred and the schedule for
their transfer, as provided in Section 1 of Chapter I of Part II.”
...
Part
V: Elections to Congress and the provincial assemblies
Chapter
II: Electorate and electoral rolls
Article 188
“I. Congress and the provincial
assemblies shall be elected by an electorate composed of persons who
(a) satisfy the conditions for registration
on New Caledonia's electoral rolls for the ballot of 8 November 1998;
or
(b) are listed in the appended table and have
been resident in New Caledonia for ten years on the date of the
election to Congress and the provincial assemblies; or
(c) have reached the age of majority after 31
October 1998 and can either show that they have been resident in New
Caledonia for ten years prior to 1998, or have a parent who was
eligible to vote in the ballot of 8 November 1998, or have a parent
who is listed in the appended table and has been resident in New
Caledonia for ten years on the date of the election. ...”
D. Views of the United Nations Human Rights Committee,
dated 15 July 2002
“Examination of the merits
11.2 The Committee has to determine whether the
restrictions imposed on the electorate for the purposes of the local
referendums of 8 November 1998 and in 2014 or thereafter constitute a
violation of articles 25 and 26 of the Covenant, as the authors
maintain.
...
13.3 In the present case, the Committee has taken note
of the fact that the local ballots were conducted in the context of a
process of self-determination of the population of New Caledonia. ...
13.5 In relation to the authors' complaints, the
Committee observes, as the State party indeed confirms, that the
criteria governing the right to vote in the referendums have the
effect of establishing a restricted electorate and hence a
differentiation between (a) persons deprived of the right to vote,
including the author(s) in the ballot in question, and (b) persons
permitted to exercise this right, owing to their sufficiently strong
links with the territory whose institutional development is at issue.
The question which the Committee must decide, therefore, is whether
this differentiation is compatible with article 25 of the Covenant.
The Committee recalls that not all differentiation constitutes
discrimination if it is based on objective and reasonable criteria
and the purpose sought is legitimate under the Covenant.
13.6 The Committee has, first of all, to consider
whether the criteria used to determine the restricted electorates are
objective.
...
13.8 The Committee considers that the above-mentioned
criteria are based on objective elements for differentiating between
residents as regards their relationship with New Caledonia, namely
the different forms of ties to the territory, whether specific or
general – in conformity with the purpose and nature of each
ballot. The question of the discriminatory or non-discriminatory
effects of these criteria nevertheless arises.
...
13.10 ... the Committee considers that the criterion
used for the 1998 referendum establishes a differentiation between
residents as regards their relationship to the territory, on the
basis of the length of 'residence' requirement (as distinct from the
question of cut-off points for length of residence), whatever their
ethnic origin or national extraction. ...
13.11 The Committee therefore considers that the
criterion used for the 1998 referendum did not have the purpose or
effect of establishing different rights for different ethnic groups
or groups distinguished by their national extraction.
...
13.13 Finally, the Committee considers that in the
present case the criteria for the determination of restricted
electorates make it possible to treat differently persons in
objectively different situations as regards their ties to New
Caledonia.
13.14 The Committee also has to examine whether the
differentiation resulting from the above-mentioned criteria is
reasonable and whether the purpose sought is lawful vis-à-vis
the Covenant.
...
13.16 The Committee recalls that, in the present case,
article 25 of the Covenant must be considered in conjunction with
article 1. It therefore considers that the criteria established are
reasonable to the extent that they are applied strictly and solely to
ballots held in the framework of a self-determination process. ...
...
13.18 Consequently, the Committee considers that the
criteria for the determination of the electorates for the referendums
of 1998 and 2014 or thereafter are not discriminatory, but are based
on objective grounds for differentiation that are reasonable and
compatible with the provisions of the Covenant.
...
14.2 The Committee considers that it is not in a
position to determine the length of residence requirements. It may,
however, express its view on whether or not these requirements are
excessive. In the present case, the Committee has to decide whether
the requirements have the purpose or effect of restricting in a
disproportionate manner, given the nature and purpose of the
referendums in question, the participation of the 'concerned'
population of New Caledonia.
...
14.5 The Committee considers, first, that the cut-off
points adopted do not have a disproportionate effect, given the
nature and purpose of the referendums in question, on the authors'
situation, particularly since their non-participation in the first
referendum manifestly has no consequences for nearly all of them as
regards the final referendum.
14.6 The Committee further considers that each cut-off
point should provide a means of evaluating the strength of the link
to the territory, in order that those residents able to prove a
sufficiently strong tie are able to participate in each referendum.
The Committee considers that, in the present case, the difference in
the cut-off points for each ballot is linked to the issue being
decided in each vote: the 20-year cut-off point – rather than
10 years as for the first ballot – is justified by the time
frame for self-determination, it being made clear that other ties are
also taken into account for the final referendum.
14.7 Noting that the length of residence criterion is
not discriminatory, the Committee considers that, in the present
case, the cut-off points set for the referendum of 1998 and
referendums from 2014 onwards are not excessive inasmuch as they are
in keeping with the nature and purpose of these ballots, namely a
self-determination process involving the participation of persons
able to prove sufficiently strong ties to the territory whose future
is being decided. This being the case, these cut-off points do not
appear to be disproportionate with respect to a decolonization
process involving the participation of residents who, over and above
their ethnic origin or political affiliation, have helped, and
continue to help, build New Caledonia through their sufficiently
strong ties to the territory.
15. The Human Rights Committee, acting under article 5,
paragraph 4, of the Optional Protocol to the International Covenant
on Civil and Political Rights, is of the view that the facts before
it do not disclose a violation of any article of the Covenant.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1
A. The parties' submissions
- The
applicant relied on Article 3 of Protocol No. 1, which provides:
“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.”
- He
submitted that as a university lecturer, he was bound by a residency
rule and that, moreover, he could not remain registered on the
electoral rolls of a municipality in mainland France. Accordingly,
although he was obliged to live in the place where he worked, he was
not able to vote in the territory. He pointed out that he had applied
to be registered on the special electoral roll for the election of
members of Congress. What that entailed, in his submission, was not a
ballot on self-determination which could be restricted to the
population concerned. Rather, it involved the election of a body
empowered to pass legislation in the form of “territorial
laws”, which could, among other things, establish criminal
offences punishable by up to ten years' imprisonment.
- The
Government relied as their main submission on Articles 21 and 99 of
the Institutional Act of 19 March 1999. They acknowledged that the
powers conferred on Congress were extensive, but considered that on
account of the significance of the areas in which the State retained
jurisdiction, Congress did not have sufficient powers to be regarded
as a “legislature” within the meaning of Article 3 of
Protocol No. 1 in the same way as the National Assembly and the
Senate.
- In
the alternative, they submitted that the residence criterion pursued
a legitimate aim and was not disproportionate.
They
observed, firstly, that the cut-off points as to length of residence
addressed the concern expressed by representatives of the local
population during the negotiation of the Nouméa Accord that
the ballots should reflect the will of the population “concerned”
and that their results should not be affected by mass voting by
recent arrivals in the territory who did not have strong ties with
it.
The
Government pointed out that the ballots were being held as part of a
self-determination process and that the system described was
incomplete and provisional, as in the case of Mathieu-Mohin and
Clerfayt v. Belgium (judgment of 2 March 1987, Series A no. 113).
- Conditions
had been attached to the right to vote since 1988 with a view to
increasing cohesion across the territory, enabling it to achieve a
better geographical and economic balance and allowing the population
to make a free and informed decision about the nature of links
between the territory and France by exercising their constitutional
right to self-determination. Voters had been eligible to take part in
the ballot if they were registered on the territory's electoral roll
on polling day and had been continuously resident since the date of
the referendum approving the bill.
- The
Government added that the restriction on the right to vote was the
direct and necessary consequence of establishing New Caledonian
citizenship and that the conditions for being registered on the
special electoral roll were identical to those for obtaining such
citizenship.
Lastly,
they stressed that the residence requirement had been instrumental in
alleviating a particularly acute and bloody conflict. They
accordingly submitted that the aim pursued by the requirement in
question was perfectly legitimate.
- They
further submitted that the residence requirement was not
disproportionate. The applicant had been registered on the ordinary
electoral rolls until his departure and there had been no restriction
on his enjoyment of the right to vote in general ballots – in
other words, those not solely concerning the territory of New
Caledonia. The Government added that only 7.5% of the electorate had
been excluded from the referendum of 8 November 1998 and the
elections of 9 May 1999, and that most of those had not intended to
remain in New Caledonia. Accordingly, the voters excluded had been
those who were less concerned by issues relating to the
administration of the territory's autonomy and had less of a lasting
interest in its problems.
- The
Government relied on the findings of the United Nations Human Rights
Committee, which, when the same problem had been referred to it, had
expressed the view on 15 July 2002 that the facts before it did not
disclose any violation of the International Covenant on Civil and
Political Rights.
- In
the further alternative, the Government submitted that the
restriction had been justified by compelling local requirements. They
referred to Article 56 § 3 of the Convention and to the drafting
history of the Convention, emphasising that the purpose of that
provision had been to “take into account the autonomy afforded
in such matters to certain overseas territories”. They added
that when France had ratified the Convention and Protocols Nos. 1 and
4, it had declared that each of those instruments would “apply
to the whole territory of the Republic, having due regard, where the
overseas territories are concerned, to local requirements, as
mentioned in Article 63 [current Article 56]”.
- The
Government submitted that in the instant case there was positive and
conclusive proof of a compelling requirement within the meaning of
the Tyrer v. the United Kingdom judgment (25 April 1978,
Series A no. 26). After a turbulent political and organisational
history, the process of institutional development set out in the
Institutional Act of 19 March 1999 struck a balance that had created
a more peaceful political climate in New Caledonia and enabled the
territory to continue its economic and social development.
- As
to the observations by the third parties, the Government observed at
the outset that they had been resident in New Caledonia for more than
ten years on the date of their intervention and that the outcome of
the application was therefore no longer relevant to them, in the
light of Article 188 of the Institutional Act of 19 March 1999.
- The
Government further pointed out that the third parties had already
referred the same facts to the United Nations Human Rights Committee,
which had expressed the view on 15 July 2002 that there had been no
violation of the International Covenant on Civil and Political
Rights.
- Having
regard to those considerations, the Government submitted that the
complaint under Article 3 of Protocol No. 1 did not disclose a
violation.
B. The third parties' submissions
- The
third parties observed, firstly, that France had not made any
reservations limiting the territorial application of the Convention
under Article 56 § 1 (former Article 63). They submitted that
local requirements, if they referred to the specific legal status of
a territory, had to be of a compelling nature. In their submission,
there was no objective indication of any such requirements, since a
system of universal suffrage was in place.
- With
regard to Article 3 of Protocol No. 1, the third parties emphasised
that the word “legislature” did not necessarily mean only
the national parliament. The New Caledonian Congress was thus a
legislature with the power to enact “territorial laws”.
They
added that, as one of them had continuously enjoyed the unrestricted
right to vote in elections to the legislative bodies in New Caledonia
since settling permanently in the territory, the very essence of his
right to vote had been impaired. Furthermore, the State's margin of
appreciation, they argued, was strictly limited by the obligation to
observe the fundamental principle underlying Article 3, namely “the
free expression of the opinion of the people in the choice of the
legislature”.
They
submitted that that obligation could not be met where New Caledonian
electoral legislation provided that each list had to obtain the votes
of at least 5% of registered voters to qualify for a share of the
seats and that registered voters not satisfying the residence
requirement were excluded from the electorate in question. They added
that, in such circumstances, the electorate could not even be
regarded as representative of the territory in which they lived.
They
further argued that this withdrawal of an acquired right breached
Article 17 of the Convention.
- The
third parties did not dispute that a State could set a minimum
length-of-residence requirement for voters. They contended, however,
that such a condition should be interpreted strictly and relied on
the freedom to choose one's residence within the meaning of Article 2
of Protocol No.4.
- The
third parties submitted that on account of their respective
professions, they would be affected by “territorial laws”
and would be denied the right to vote for their representatives in
Congress despite the fact that they had settled in New Caledonia on a
permanent and full-time basis since 1991 and were intending to stay
and even retire there.
- They
further maintained that the exclusion of French nationals or
naturalised citizens from the New Caledonian electorate as a result
of discrimination on the ground of national extraction or parentage
infringed Article 14 of the Convention.
C. The Court's assessment
- The
Court reiterates at the outset that the word “legislature”
does not necessarily mean the national parliament; it has to be
interpreted in the light of the constitutional structure of the State
in question. In the case of Mathieu-Mohin and Clerfayt, the
1980 constitutional reform in Belgium had vested in the Flemish
Council sufficient competence and powers to make it, alongside the
French Community Council and the Walloon Regional Council, a
constituent part of the Belgian “legislature”, in
addition to the House of Representatives and the Senate (see
Mathieu-Mohin and Clerfayt, cited above, p. 23, § 53, and
Matthews v. the United Kingdom [GC], no. 24833/94, §
40, ECHR 1999-I; see also the Commission's decisions on the
application of Article 3 of Protocol No. 1 to regional parliaments in
Austria (X v. Austria, no. 7008/75, decision of 12 July 1976,
Decisions and Reports (DR) 6, p. 120) and in Germany (Timke v.
Germany, no. 27311/95, decision of 11 September 1995, DR 82-A, p.
158).
- The
Court notes that in the instant case the Institutional Act of
19 March 1999 establishes the principle of New Caledonian
citizenship, which was one of the major innovations resulting from
the Nouméa Accord and the Act of 9 November 1988, and provides
for the successive transfer of powers from the State to New
Caledonia. General power is vested in the provinces, while the State
and New Caledonia are assigned powers in specified areas.
- Part
III of the 1999 Institutional Act deals with the institutions in
place in New Caledonia, in particular Congress. It is described as
the deliberative assembly of New Caledonia (Article 62) and its
members, elected for a five-year term, are members of the provincial
assemblies. It manages the ordinary affairs of New Caledonia. The
power to initiate territorial laws and regulations is vested
conjointly in the Government and the members of Congress (Article
73).
- Chapter
2 establishes a new category of “territorial laws”, which
are passed by Congress and rank as statute. Territorial laws, whose
scope is clearly delimited and extends to only some of the fields in
which New Caledonia has rule-making powers, are systematically
submitted to the Conseil d'Etat for its opinion and, once
enacted, have statutory force. They may also be reviewed by the
Constitutional Council, prior to enactment, on an application by the
High Commissioner, the Government, the speaker of Congress, the
speaker of a provincial assembly or at least eighteen members of
Congress.
- Among
its other powers, Congress adopts the budget and approves the
accounts for New Caledonia. In criminal matters, it may make offences
against territorial laws and regulations punishable by fines that are
commensurate with the classification of petty and more serious
offences (contraventions et délits) and do not exceed
the maximum amount applicable for offences of the same nature under
French national legislation and regulations. Subject to validation of
its decision by means of a law, it may also make provision, in the
case of offences against the territorial laws and regulations it
passes, for prison sentences that are commensurate with the
classification of relatively serious offences (délits)
and do not exceed the maximum sentences applicable for offences of
the same nature under French national legislation and regulations.
- The
Court must ensure that “effective political democracy” is
properly served in the territories to which the Convention applies,
and in this context, it must have regard not solely to the strictly
legislative powers which a body has, but also to that body's role in
the overall legislative process.
- Having
regard to the powers conferred on Congress in the 1999 Institutional
Act, the Court considers that it is no longer a purely consultative
body but has become an institution with a decisive role to play,
depending on the issues being dealt with, in the legislative process
in New Caledonia.
- It
therefore finds that Congress is sufficiently involved in this
specific legislative process to be regarded as part of the
“legislature” of New Caledonia for the purposes of
Article 3 of Protocol No. 1.
- The
Court must next determine whether it is compatible with that Article
to restrict the right to vote in elections to the New Caledonian
Congress to persons who have been resident for at least ten years in
the territory.
- The
Court reiterates that the rights set out in Article 3 of Protocol
No. 1 are not absolute, but may be subject to limitations. Since
Article 3 recognises them without setting them forth in express
terms, let alone defining them, there is room for “implied
limitations” (see Labita v. Italy [GC], no. 26772/95, §
201, ECHR 2000-IV).
- Contracting
States have a wide margin of appreciation, given that their
legislation on elections varies from place to place and from time to
time. The rules on granting the right to vote, reflecting the need to
ensure both citizen participation and knowledge of the particular
situation of the region in question, vary according to the historical
and political factors peculiar to each State. The number of
situations provided for in the legislation on elections in many
member States of the Council of Europe shows the diversity of
possible choice on the subject. However, none of these criteria
should in principle be considered more valid than any other provided
that it guarantees the expression of the will of the people through
free, fair and regular elections. For the purposes of applying
Article 3, any electoral legislation must be assessed in the light of
the political evolution of the country concerned, so that features
that would be unacceptable in the context of one system may be
justified in the context of another.
- The
State's margin of appreciation, however, is not unlimited. It is for
the Court to determine in the last resort whether the requirements of
Protocol No. 1 have been complied with. It has to satisfy itself that
any such 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. In particular,
such conditions must not thwart “the free expression of the
opinion of the people in the choice of the legislature” (see
Gitonas and Others v. Greece, judgment of 1 July 1997, Reports
of Judgments and Decisions 1997-IV, p. 233, § 39; Matthews
v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I;
Podkolzina v. Latvia, no. 46726/99, § 33, ECHR
2002-II; and Mathieu-Mohin and Clerfayt, cited above, p. 23, §
52).
- The
former Commission and the Court have taken the view that having to
satisfy a residence or length-of-residence requirement in order to
have or exercise the right to vote in elections is not, in principle,
an arbitrary restriction of the right to vote and is therefore not
incompatible with Article 3 of Protocol No. 1 (see Hilbe v.
Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Polacco
and Garofalo v. Italy, no. 23450/94, Commission decision of 15
September 1997, DR 90-A, p. 5).
- In
the instant case the 1999 Institutional Act provides for a restricted
electorate for elections to the provincial assemblies and Congress.
It limits the possibility of taking part in those elections to voters
satisfying certain conditions, in particular that of residence in the
territory for more than ten years. The applicant's application to be
registered on the electoral rolls for elections to the provincial
assemblies and Congress was refused on that account.
- According
to the French Government, the cut-off points as to length of
residence address the concern expressed by representatives of the
local population during the negotiation of the Nouméa Accord
that ballots should reflect the will of the population “concerned”
and that their results should not be affected by mass voting by
recent arrivals in the territory who do not have strong ties with it.
Furthermore, the restriction on the right to vote is, in their
submission, the direct and necessary consequence of establishing New
Caledonian citizenship.
- The
Court considers it possible that the applicant has established ties
with New Caledonia and may therefore have felt that some of the above
factors were not applicable to his case.
However,
the law cannot take account of every individual case but must lay
down a general rule. Furthermore, the applicant, who has since
returned to mainland France, cannot argue that he is affected by the
acts of political institutions to the same extent as resident
citizens. His position is therefore different from that of a resident
citizen, a fact capable of justifying the residence requirement (see
Hilbe, cited above).
- Having
regard to those various considerations, the Court finds that the
residence requirement pursues a legitimate aim in the instant case.
- It
remains to be determined whether the requirement of ten years'
residence in order for the applicant to take part in elections to
Congress is proportionate to the aim pursued.
- It
is not disputed in the instant case that the decision not to register
the applicant on the special electoral roll was taken in
circumstances which left no room for arbitrariness.
- The
Court reiterates, however, that the object and purpose of the
Convention requires its provisions to be interpreted and applied in
such a way as to make their stipulations not theoretical or illusory
but practical and effective (see, for example, United Communist
Party of Turkey and Others v. Turkey, judgment of 30 January
1998, Reports 1998-I, p. 18, § 33, and Matthews,
cited above, § 34).
- In
the Polacco and Garofalo case cited above, only those who had
been living continuously in the Trentino-Alto Adige Region for at
least four years could be registered to vote in elections for the
Regional Council, which were held every five years. The former
Commission took the view that that requirement was not
disproportionate to the aim pursued, given the region's particular
social, political and economic situation. It accordingly considered
that it could not be regarded as unreasonable to require voters to
reside there for a lengthy period of time before they could take part
in local elections, in order to acquire a thorough understanding of
the regional context so that their vote could reflect the concern for
the protection of linguistic minorities.
- In
the instant case, although the applicant did not intend to remain in
New Caledonia, he was nonetheless subject to the legislation passed
by Congress and, in particular, to criminal statutes which could
provide for sentences of up to ten years' imprisonment. The ten-year
residence requirement, moreover, corresponds to two terms of office
of a member of Congress.
Accordingly,
that requirement might appear disproportionate to the aim pursued.
- However,
it remains to be determined whether there are local requirements in
New Caledonia, within the meaning of Article 56, such that the
restriction in question on the right to vote may be deemed not to
breach Article 3 of Protocol No. 1.
- The
Court observes that, when depositing the instruments of ratification
of the Convention and of Protocol No. 1 on 3 May 1974, France
declared that these would apply to “the whole territory of the
Republic, having due regard, where the overseas territories are
concerned, to local requirements, as mentioned in Article 63 [current
Article 56] of the Convention”.
- In
Tyrer v. the United Kingdom (cited above, pp. 18-19, §
38) the Court held that before (former) Article 63 could apply, there
would have to be “positive and conclusive proof of a
requirement”. Local requirements, if they refer to the specific
legal status of a territory, must be of a compelling nature if they
are to justify the application of Article 56 of the Convention.
- The
Court notes that New Caledonia's current status reflects a
transitional phase prior to the acquisition of full sovereignty and
is part of a process of self-determination. The system in place is
“incomplete and provisional”, like that examined by the
Court in the Mathieu-Mohin and Clerfayt case cited above.
- After
a turbulent political and institutional history, the ten-year
residence requirement laid down in the Institutional Act of 19 March
1999 has been instrumental in alleviating the bloody conflict. This
local factor, resulting from problems that are more deep-seated and
have more far-reaching consequences than the linguistic disputes at
the origin of the Polacco and Garofalo and Mathieu-Mohin
and Clerfayt cases cited above, has brought about a more peaceful
political climate in New Caledonia and has enabled the territory to
continue its political, economic and social development.
- As
the United Nations Human Rights Committee noted on 15 July 2002 (see
above, paragraph 14.7 of the Views):
“... the cut-off points set for the referendum of
1998 and referendums from 2014 onwards are not excessive inasmuch as
they are in keeping with the nature and purpose of these ballots,
namely a self-determination process involving the participation of
persons able to prove sufficiently strong ties to the territory whose
future is being decided. This being the case, these cut-off points do
not appear to be disproportionate with respect to a decolonization
process involving the participation of residents who, over and above
their ethnic origin or political affiliation, have helped, and
continue to help, build New Caledonia through their sufficiently
strong ties to the territory.”
- The
Court therefore considers that the history and status of New
Caledonia are such that they may be said to constitute “local
requirements” warranting the restrictions imposed on the
applicant's right to vote.
- In
those circumstances, the very essence of the applicant's right to
vote, as guaranteed by Article 3 of Protocol No. 1, has not been
impaired.
It
follows that there has been no violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL No. 1
- The
applicant alleged in addition that, as a resident of New Caledonia,
he had been the victim of discrimination contrary to Article 14 of
the Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government did not address this complaint separately.
- In
view of its above conclusion that there has been no violation of
Article 3 of Protocol No. 1 taken alone, the Court does not consider
it necessary to consider the complaint under Article 14 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of
Article 3 of Protocol No. 1;
- Holds that it is
not necessary to examine separately the complaint under Article 14 of
the Convention;
Done in French, and notified in writing on 11 January 2005, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé A.B. Baka
Registrar President
