I. Introduction

On 5 February 2015, the Presidency of the Italian Council of Ministers transmitted to the Venice Commission a request by the Provincial Council of the Trento Province for an Opinion on a Citizens' Bill on Public Participation, Citizens' Bills, Referendums and Popular Initiatives and Amendments to the Provincial Electoral Law (CDL-REF(2010)017).
This Bill under examination (Bill of 19 July 2012, n. 1-328/XIV/XV P, hereafter “the Bill”) is intended to repeal and replace the Provincial “Referendum Law” of 5 May 2003 CDL-REF(2015)016) (hereafter “the Referendum Law” or “RL”).^[1]  It aims at strengthening considerably the pre-existing instruments of participation and direct democracy, and at introducing a whole range of new ones, as stated in the Explanatory Memorandum.
The opinion deals with the conformity of the Bill with international standards, in particular with the Code of Good Practice on Referendums, drafted by the Venice Commission and supported by the statutory bodies of the Council of Europe (CDL-AD(2007)008rev). It is not intended at assessing its conformity with superior national legislation (national or regional); it will however refer to it when useful.

Conclusions

The Bill extends the institutions both of direct democracy and of participatory democracy in the province of Trento.

There is no international (or European) standard on the extent which should be given (or not) to instruments of direct democracy at national, regional or under-regional level. Nor is there a standard imposing their mere existence. What can be said is that there is a trend to extend them, especially at the infra-national level, which has always been a laboratory for innovations in the field of democracy. The same is true for the instruments of participatory democracy. For example, Article 11 of the Treaty on European Union provides i.a. for the European citizens’ initiative, enabling one million citizens to invite the European Commission, within the framework of its powers, to make a proposal of legislative revision. These instruments of direct and participatory democracy should be seen as complementing representative democracy. “Parliamentary democracy, supported by free and fair elections ensuring representativeness, (political) pluralism, and the equality of citizens”, is the core, but not the only aspect, of the democratic process.[2]
It is interesting to note that the Additional Protocol to the European Charter on Local Self Government on the right to participate in local public affairs provides the principle and measures on direct participation, notably in its Articles 1 and 2. Italy, which has ratified the European Charter on Local Self Government, has not signed this additional protocol yet. However, subject to the content of the present opinion, this bill on popular initiatives proposed in the province of Trento constitutes a positive example of the - de facto - implementation of the above mentioned provisions of the Additional Protocol, which could encourage Italy to consider further the signature of the Protocol to the Charter.
In order to maximise the beneficial effects expected of the Bill, and to reduce any problems that might derive therefrom, the Venice Commission underscores the following points:

-         The obligation for the authorities to assist drafters of citizens’ bills and referendums (Article 4) is not well-delimited and might give rise to unintended negative consequences.

-         Petitions and the obligation for the Provincial Council to address them are too extensively defined.

-         The institution of “prytanies” is unusual. It is problematic to provide them with supervisory powers with respect to the provincial authorities, including with the right to introduce a motion of no confidence against the President of the Province and the members of the government.

-         The possibility for the citizens’ bill to be transformed into a popular initiative without observing the requisites for the latter may denature the instruments and lead to confusion.

-         The conformity of all citizens’ bills, requests for referendums and popular initiatives with all superior law must be ensured and should be examined before they are submitted to the vote.

-         The extension of initiatives and referendums to administrative acts in the competence of the executive is quite unusual and could give raise to several problems, including the trivialisation of direct democracy procedures. Further risks arise also from the possibility to submit specific provisions of a provincial law, a provincial regulation or an administrative act to a confirmative referendum.

More generally, it would appear advisable to carefully consider the impact that the Bill could have on the smooth functioning and on the form of government of the Province. It extends the cases in which the political responsibility of the elected bodies can be put at stake and, at the same time, greatly develops the instruments of direct democracy, which exist in entities where the government is not responsible to Parliament like Swiss cantons or states of the United States. This should be considered in order to avoid any negative impact on the coherence and the functioning of the political system.
The Venice Commission stays at the disposal of the authorities of the Province of Trento to assist them when elaborating further legislation in the field.