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Convenzione europea dei diritti umani e problemi di costituzionalità della legge elettorale italiana


By an order of 21 March 2013, the Court of Cassation referred to the Constitutional Court the question of constitutionality of the current Italian electoral law on the grounds that it runs counter to the constitutional principles of free and equal suffrage. The Constitutional Court has been called by the referring judge to focus on three main aspects of law: the closed list system; the majority bonus in the Chamber of Deputies, by which the coalition that wins the highest number of votes receives at least 55% of the seats; and the majority bonus in the Senate, which is assigned on a regional level. While the Court of Cassation affirmed that the constitutional principles on the right to vote have to be interpreted in the light of Article 3 of Protocol No. 1 to the ECHR, it did not make any reference to the ECtHR Case-Law on political rights. However, in this article it will be argued that, while this Case-Law cannot give strong arguments in favour of the constitutional illegitimacy of the different aspects of the electoral law, if they are considered separately, it becomes very interesting instead, if these aspects are considered as a whole. The article defends the position that the combined effects of those multiple aspects on the composition of the Italian Parliament produce a problem of respect of the “will of the people”, in breach of Article 3 of Protocol No. 1 to the ECHR.