Choix du système électoral et Convention européenne des droits de l'homme : quelques observations à la lumière d'une affaire concernant une loi électorale italienne

Abstract

Within the space of less than two years the European Court of Human Rights and the Italian Constitutional Court have returned almost opposing judgments on the question of the observance of political rights by Italy's 2005 electoral law. The ECHR found the applications made to it by groups of electors inadmissible given the manifestly ill-founded character of the grievances they were based on. The Constitutional Court, on the contrary, concluded that the law was unconstitutional. At first sight, the differing conclusions they reached may be viewed as an expression of the complementary nature of the European system of protection of human rights which originates in the Convention rather than in the national legal orders. However, it may be wondered whther the reasoning of the Italian Constitutional Court might not have been applied in the European system too. What is at stake is not marginal. It is a question of striking the right balance in this system between the fundamental purpose of protecting political rights and the need to allow states some margin of appreciation in the politically sensitive choice of their electoral rules.