Project: Practice of Minority Protection in Central Europe
Legal-theoretical part
Legal Country Study: Italy
I. Who are the Minorities
Italy is a country of currently more than 59 million inhabitants. Out of these, the overall
minority population makes around 4,5%, which is a population of around 2,5 million.
This population is subdivided in at least 12 different linguistic minorities1 that mainly
live territorially concentrated.
In the province of Bolzano (South Tyrol) in the north, bordering Austria, there lives a
sizeable German speaking population of 296.461 persons, making up 69,15% of the local
population (compared to 26,47% Italian-speakers).2 Outside this province, distributed
over several northern provinces, another 7.500 people speak a German dialect. The Ladin
population is statistically recorded only in South Tyrol, where they make up 4,37% of the
provincial population, which corresponds to 18.736 persons. Ladin-speaking minorities
also live in the neighbouring provinces of Trento and Belluno, but no precise data exist
about their strength in the population. Estimations vary between 16.000 and 30.000. As
will be explained in more detail below, South Tyrol belonged to the Austro-Hungarian
Empire up until WW I. As a result of the last census before South Tyrol became part of
Italy, the German-speaking population represented around 90% of the population,
whereas the Ladin speakers held around 4% and the Italian speakers only 3% of the
population. Through massive immigration of Italians from more southern provinces and
the attempted Italianization of the German-speaking population, the share of Italianspeakers in the province rose up until 34,3% in the year 1961, when the German
population had shrunk to 62,2%. With the more solid protection of the German-speaking
1
Francesco Palermo and Jens Woelk, Diritto costituzionale comparato dei gruppi e delle minoranze
(Cedam, Padova, 2008), 242.
2
According to the declaration of linguistic affiliation of the year 2001. For the data see Statistical Office
South Tyrol, Statistical Yearbook 2007, 117, at http://www.provincia.bz.it/astat/download/JB07_K3pdf.pdf.
1
minority through the “Second Autonomy Statute” of 1971 this tendency reversed to
slowly approach the above mentioned figures. In the last 120 years, the share of the Ladin
population remained quite stable and varied between about 3,5% and 4,5%.3
In the north-east, in the region Friuli-Venezia Giulia which is bordering Austria and
Slovenia, the Slovene minority lives. The exact number of Slovene-speaking persons in
Italy is very disputed. While the Republic of Slovenia estimates there are around 100.000
persons, sources from the Italian state speak of about 61.000 persons only.4 They mainly
live in the province of Trieste, but also in the eastern parts of the provinces of Gorizia and
Udine. In the same region there is a very sizeable minority that speaks Friulan, which is
related to the Ladin language. This language is spoken by more than 700.000 persons.
In the Aosta valley lives a franco-provencal minority consisting of about 70.000 to
75.000 persons. This language is spoken also by around 20.000 people living in the
province of Torino and 1.650 persons of the southern Province of Foggia.5
In addition to these, a Catalan-speaking minority of about 20.000 people lives on the
island Sardinia. There seems to be no agreement amongst linguists, whether one can
speak of an own Sardinian language. Depending on the criteria used to count the
members of this group, the numbers vary between 158.000 and 1.269.000.6
In Puglia and Calabria there lives a community of Greek-speakers comprising around
20.000 people. In Liguria and Piemonte there is an Occitan-speaking minority that
comprises between 50.000 and 128.000 people. Albanian is spoken by around 100.000
persons in the southern Italian regions. And last but not least, between 2.600 and 4.000
people in the province Campobasso speak Croatian.7 Both the Albanian and the Croatian
linguistic minorities have considerably increased in the past 15-20 years, first due to
economic migration and secondly, due to the wars following the dissolution of
Yugoslavia.
3
Ibid., 116.
See Enrica Rigo and Federico Rahola, “Regions, Minorities and European Integration: A Case Study on
the Italo-Slovene Border”, 7(1) Romanian Journal of Political Science (2007), 72-99, at 75; Peter Hilpold,
Minderheitenschutz in Italien: völkerreichtliche und verfassungsrechtliche Grundlagen 65(1-2) Europa
Ethnica (2008), 3-18, at 4.
5
Hilpold, “Minderheitenschutz in Italien …”, 4.
6
Ibid.
7
Ibid.
4
2
This diversity within the Italian population has been recognized in the Italian Constitution
of 1948. Art. 6 provides: “The republic protects linguistic minorities by special laws.”
This wording makes already clear, that the Italian state only accepts language as a
distinctive criterion for minorities, in order to avoid any reference to ethnic, political or
national elements. This can be reconnected to the basic decision to link the belonging to
the Italian nation to the objective criterion of citizenship. The Italian state can therefore
be described as a civic nation which recognizes linguistic pluralism.8
The “special laws”, however, were enacted only sporadically. Whereas the German- and
Ladin-speaking population in South Tyrol, the Slovenes in Friuli-Venezia Giulia (in
particular in the provinces of Trieste and Gorizia) as well as the francophone minority in
the Aosta valley enjoyed a status of recognized minorities, mainly based on international
agreements and subsequent internal legislation, all other minority groups where not
recognized and didn’t enjoy any specific protection. This led to the paradox situation that
Italy for many years was amongst those states with the most advanced level of protection
for certain minorities whereas for other minorities it didn’t provide for any protection at
all.
This situation has changed only with the adoption of the Law on the Protection of
Linguistic-Historical Minorities No. 482/1999. Article 2 states that the law is to be
considered the implementation of Art. 6 of the Constitution and follows the general
principles laid down by European and international organizations. It further enlists the
languages and cultures that shall be protected by the law. These are the languages and
cultures of the Albanian, Catalan, German, Greek, Slovene and Croat population. It
further protects the populations speaking French, Franco-provencal, Friulan, Ladin,
Occitan and Sardinian.
However, as will be seen below, the level of protection between the minorities already
protected before the law 482/1999 and the ones that finally got recognition through the
law is quite different. Even within these two groups of minorities the degree of protection
varies. The protection of linguistic minorities in Italy can therefore be described as
asymmetric.
8
Palermo and Woelk, Diritto costituzionale comparato …, 242-243.
3
Finally it needs to be mentioned that there are further groups that, although they
subjectively consider themselves as a distinct minority group, do not possess the
objective prerequisite of official recognition by the state and are therefore not covered by
any legal protection. To these groups belong e.g. the Roma and Sinti but also the
immigrant minorities.
II. Historical Retrospection
Italy has been a heterogeneous country since its unification in the middle of the 19th
century. However, this diversity has become apparent only after the First World War,
when the territories of Alto Adige/South Tyrol with its German- and Ladin-speaking
population and Istria with its predominantly Slovene- and Croatian-speaking population
became part of Italy. In the interwar period the fascist regime attempted to assimilate all
kinds of minorities living on the territory of the Italian state.
Concerning South Tyrol, the main goal of the fascist leaders was the Italianization of the
whole territory by means of repression of the German language and culture, mass
migration of Italian speakers into the province, encouraged mainly through
industrialization, and, finally, the resettlement of the German-speaking population by
means of an option, agreed upon between Hitler and Mussolini: German-speakers could
either chose to leave their homeland for the German Reich or to stay, whereby they
accepted to be assimilated. These various attempts marked different phases between 1922
and 1943.9 After a period of two years of Nazi occupation, Italy resumed power after the
end of the Second World War.
Slovenes in the province of Udine belong to the Italian state since the annexation of the
former Venetian Republic in 1866. The provinces of Gorizia and Trieste (together with
the today Slovene and Croatian parts of Istria) became part of Italy only after the First
World War. The repression and de-nationalization policy of the fascists vis-à-vis the
Emma Lantschner, “History of the South Tyrol Conflict and its Settlement”, in Jens Woelk, Francesco
Palermo and Joseph Marko, Tolerance through Law: Self Governance and Group Rights in South Tyrol
(Martinus Nijhoff Publishers, Leiden, Boston, 2008), 3-15, at 6-9.
9
4
Slovenes, in particular the ones living in the province of Udine, took even more inhuman
traits than the one in South Tyrol vis-à-vis the German-speaking population. As a
reaction, a big number of Italian-speakers from Istria were deported, executed or fled
from Istria after its occupation by Yugoslav forces at the end of World War II.
During the peace negotiations, the Allied powers had an interest in keeping Italy on their
side, which had of course a decisive impact on the delimitation of borders after the war.
The fear that Austria might end up under the total control of Russia was one of the
reasons why there was a general tendency towards not allowing South Tyrol to become
part of Austria again. Russia, in turn, wanted to satisfy Yugoslavia’s claim upon Istria
and Dalmatia. As Italy therefore lost already these territories and couldn’t be truncated
too much, it was considered to be impossible to reintegrate South Tyrol into Austria.10
For both minorities, the German-speakers in South Tyrol and the Slovenes in FriuliVenezia Giulia (but only those living in the provinces of Trieste and Gorizia), the peace
negotiations between Italy on the one hand and Austria and Yugoslavia on the other,
brought their recognition as minorities and provided a frame for their further protection.
Developments were however quite different.
Concerning South Tyrol,11 direct negotiations between Austria and Italy resulted in the
Gruber-Degasperi Agreement, which was annexed to the Paris Peace Treaty. 12 Its main
points were:
 equality of rights with Italian-speaking inhabitants for the German-speaking
population;
 special provisions to safeguard the ethnic character of “the German-speaking
element”;
 autonomous legislative and executive powers;
 an appropriate ethnic employment proportion in public services;
 education in the mother tongue;
See Rolf Steininger, “Back to Austria? The Problem of the South Tyrol in 1945/46”, 7 The European
Studies Journal (1990), 51-83; and id., South Tyrol. A Minority Conflict of the Twentieth Century
(Transaction Publishers, New Brunswick, London, 2003), 77-96.
11
The following part is based on Lantschner, “History of the South Tyrol Conflict …”, 10-15.
12
For the authentic English text of the Gruber-Degasperi Agreement see Autonome Provinz Bozen
Südtirol,
Das
neue
Autonomiestatut
(Bozen,
2005),
12-13,
at
<http://www.provinz.bz.it/service/publ/publ_getreso.asp?PRES_ID=48500>.
10
5
 the equal status of the German and Italian languages.
This Agreement constitutes the international basis for the South Tyrolean autonomy.
Austria, as a party to that treaty, was given the role of protecting power, which it was able
to exercise properly only after the Austrian State Treaty of 1955, with which it regained
its total sovereignty.
The first problem with the implementation of the international obligation was the
delimitation of the territory to which the autonomy had to be applied. The Italian
Constitution of 1948 cut short further discussion, as it created the Autonomous Region of
Trentino-Alto Adige. On 26 February 1948, the first Autonomy Statute was adopted.
That the autonomy was not granted to the province of Bolzano only, where the majority
of the German-speaking minority lived, was justified by the fact that, according to the
Constitution, autonomy was granted to regions and not to provinces.
Herein lay the basic problem of the First Autonomy Statute. Most of the competences
were given to the region, in which the Italians made up 71.5% of the population. The
German-speakers were again in a minority situation and could easily be outvoted in
regional decisions. With this Statute, Italy considered the Gruber-Degasperi Agreement
as being fulfilled. However, not only were the provisions foreseen in the Statute quite
limited but also implementation was totally lacking.13 In particular, in schooling and
social housing, the situation resembled more a continuation of the fascist denationalization policy. Internal communication in public administration continued to be
in Italian. Since its inception, the South Tyrolese had disliked the union with Trentino.
The peak of the protest was reached in 1957, when 35,000 South Tyrolese called for “Los
von Trient” (Away from Trento) during a rally at castle Siegmundskron. Their standpoint
was that as long as autonomy was not granted to South Tyrol alone, the GruberDegasperi Agreement would not be fully implemented.14
The South Tyrolese were supported in their endeavours by Austria, who, as a state party
to the Gruber-Degasperi Agreement, had an interest in seeing the complete
implementation of the Agreement. In 1960, Austria’s Minister of Foreign Affairs Bruno
See Antony Alcock, “The South Tyrol Autonomy: A Short Introduction”, Bolzano 2001, at
http://www.provincia.bz.it/downloads/South-Tyrol%20Autonomy.pdf, 6-8.
14
According to Hannum, the granting of the autonomy to the region including Trentino violated “at least
the spirit of the agreement”. See Hurst Hannum, Autonomy, Sovereignty, and Self-Determination. The
Accommodation of Conflicting Rights (University of Pennsylvania Press, Philadelphia, 1996), 433.
13
6
Kreisky brought the South Tyrol question for the first time onto the agenda of the UN
General Assembly. In two resolutions,15 the General Assembly urged the two parties
concerned “to resume negotiations with a view to finding a solution for all differences
relating to the implementation of the Paris [Gruber-Degasperi] agreement” and to settle
the conflict.16
However, the conflict was fought out not only on the diplomatic parquet. Beginning in
the mid-1950s and continuing until the end of the 1960s, bomb attacks were directed
against symbols of Italian state authority. The nexus between these attacks and the socalled ‘Commission of 19’, established in 1961 on the initiative of the Italian Minister of
the Interior Scelba, remains a topic of considerable debate. Scelba himself said that he
established the Commission not because of but despite the bomb attacks. The
Commission was given a mandate to investigate the South Tyrol question and make
proposals to the Italian government as to its solution. It delivered a final report in 1964,
which served as the basis of the so-called ‘Package’.17 The Package is a catalogue of 137
measures, the majority of which aimed at a reform of the First Autonomy Statute. The
core of the changes was that the regional autonomy should be substituted by an extensive
autonomy for the two provinces. Under Constitutional Law No. 1 of 10 November 1971,
the so called “Second Autonomy Statute” was adopted and entered into force on 20
January 1972.
The most important amendment contained in the Second Autonomy Statute was the fact
that the majority of the competences were no longer given to the region but to the two
provinces, which both separately received autonomous status. The provinces of Bolzano
and Trento are therefore the only two provinces in the Italian constitutional system with
UN General Assembly Resolutions 1497 (XV) of 31 October 1960, “The Status of the German-Speaking
Element in the Province of Bolzano, Implementation of Paris Agreement of 5 September 1946”; and No.
1661 (XVI) of 28 November 1961, “The Status of the German-Speaking Element in the Province of
Bolzano (Bozen), at <http://www.un.org/documents/resga.htm>.
16
Steininger, South Tyrol. A Minority Conflict …, 117-122.
17
The Package was presented for vote to the delegates of the SVP in the memorable meeting of 23
November 1969 in Meran/Merano. After heated discussions between supporters and opponents, the
Package was accepted with a relatively slim majority of 52.8%. The main argument of the opponents was
the assumption that accepting the Package meant ultimately giving up on the possibility of rejoining
Austria. The supporters, on the other hand, were of the opinion that this claim was unrealistic and that it
was therefore most important to get away as much as possible from the province of Trento. Excerpts of the
18 hour debate can be found in Rolf Steininger, “Südtirolfrage”, in id. and Michael Gehler (eds.),
Österreich im 20. Jahrhundert. Band 2 (Böhlau, Wien, Köln, Weimar, 1997), 498-510.
15
7
autonomous legislative and administrative powers. Although the Autonomy Statute stated
that implementation should be concluded within two years of the coming into effect of
the Statute, it took 20 years before the Statute was considered to be fully implemented. A
very important body, the so called “Commission of Six”, consisting of an equal number
of Italian and German speakers and of representatives from the state and from the
province, elaborated over two decades the enactment decrees required for the
implementation of the Package and the Statute.18 It was therefore only in June 1992, that
the ambassadors of Austria and Italy handed over to the UN Secretary General the
documents officially closing the conflict that had been open between the two states since
the adoption of the two General Assembly resolutions back in the early 1960s.19
Whereas the historic development of the protection of the German- and Ladin-speaking
population in South Tyrol was a long but successful one, the same cannot be said to the
same extent about the protection of the Slovenes in Friuli-Venezia Giulia. The immediate
after-war period was marked by the deep mistrust between the two states, due to the
atrocities committed by the Italian fascist to the Slovene population on the one hand and
the by Yugoslav partisans to the Italian population in Istria on the other. Also, bilateral
relations were hampered by the Iron Curtain and the Cold War. Slovenes in Italy were
generally depicted as a pro-communist and pro-Slav population.20 The border issue
between the two states was not settled up until 1954, because the city of Trieste and the
region surrounding it were established as a “Free Territory of Trieste” under international
administration in 1947. As it became clear that this solution is not operable, the London
Memorandum of Understanding of 1954 drew a final demarcation line between Italy and
Yugoslavia, attributing the former zone A, which included also the city of Trieste, to
Italian administration and the former zone B to Yugoslav administration.21
The Memorandum further provided for extensive, reciprocal obligations to the protection
of minorities, which targeted, however, only the Slovenes of the provinces of Trieste and
For more details on the Commission of Six see Francesco Palermo, “Implementation and Amendment of
the Autonomy”, in Jens Woelk, Francesco Palermo and Joseph Marko, Tolerance through Law …, 143159, at 144-152.
19
On the conflict settlement, see Siglinde Clementi and Jens Woelk (eds.), 1992: Ende eines Streits. Zehn
Jahre Streitbeilegung im Südtirolkonflikt zwischen Italien und Österreich (Nomos, Baden-Baden, 2003).
20
Rigo and Rahola, “Regions, Minorities and European Integration …”, 78.
21
Hilpold, “Minderheitenschutz in Italien …”, 11.
18
8
Gorizia22 and even in their respect were not properly implemented. Friuli-Venezia Giulia
is one of the five Italian regions that has a special statute. The respective act has,
however, been enacted only in 1963 and is considered to be the poorest in terms of its
minority protective scope.23 In Article 3 it defines the protection of the ethnic and cultural
characteristics of the citizens as element of the principle of equality, but the main
justification for the specialty of the regional status has not been seen in the presence of
the Slovene minority on its territory but in its particular economic situation due to its
(then) disadvantageous peripheral geographical position.24
Finally, the Treaty of Osimo of 1975 reconnected the obligations under the London
Memorandum more to the national level, weakening thereby the international element.
However, neither Yugoslavia nor Italy had a that time a very developed system for the
protection of minorities and as a consequence there was hardly any development up until
the breakup of Yugoslavia.25 In 1992, Italy concluded a Memorandum of Understanding
with Slovenia (and Croatia) on the protection of the Italian minority in Slovenia (and
Croatia). The governments promised to conclude, “after the recognition of independence
of Croatia and Slovenia by Italy, bilateral treaties … for the protection of the Italian
minority” in Croatia and Slovenia. Slovenia, however, unlike Croatia, never signed the
memorandum, due to Italy’s resistance to accept a similar obligation to protect the
Slovene minority in Italy.26
The protection of the Slovene minority was marked for a long time by the absence of
legal instruments and was based more on administrative practice than on legal
provisions.27 A first important step in the development of legal instruments for the
protection of the Slovene minority was the general Law on the Protection of LinguisticHistorical Minorities No. 482/1999. It provided the ground for the adoption of the Law
on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia
No. 38/2001. For the first time, no distinction was made between the Slovenes living in
the province of Udine and the ones living in the provinces of Trieste and Gorizia, as the
Rigo and Rahola, “Regions, Minorities and European Integration …”, 78-79.
Elisabetta Palici di Suni Prat, “Minoranze”, 9 Digesto delle Discipline Pubblicistiche (1994), 546-559.
24
Hilpold, “Minderheitenschutz in Italien …”, 11.
25
Hilpold, “Minderheitenschutz in Italien …”, 11.
26
Natalino Ronzitti, “Il trattato tra Italia e Croazia sulle minoranze”, 80(3) Rivista di diritto inernazionale
(1997), 684-704.
27
Palermo and Woelk, Diritto costituzionale ..., 262.
22
23
9
law explicitly “recognizes and protects the rights of Italian citizens belonging to the
Slovene linguistic minority present in the provinces of Trieste, Gorizia and Udine.”28
Interestingly, the measures for the protection of the Slovene minority provided for in the
law, are inspired, amongst others, by the European Charter for Regional or Minority
Languages (Art. 2 of the law), which has not yet been ratified by Italy. Similar as in the
general framework law 482/1999, law 38/2001 provides that it applies to the territory on
which the Slovene minority is traditionally present. To determine this territory a list of
municipalities or fractions of municipalities has to be established. In this list will be
included those municipalities or fractions of municipalities in which at least 15% of the
population or one third of the municipal councilors have made a respective request.29
Only with the adoption and gradual implementation of this law, a more consistent and
stable system of protection of the Slovene minority has been established. However, in
general most of the rights granted to this minority can be considered analogous to the
rights granted also to other linguistic minorities under the above mentioned Law
482/1999.30 In 2007, the region enacted further legislation dedicated to the protection of
the Slovene minority (LR 26/2007) and to their representation in the regional assembly
(LR 17/2007 and 28/2007).
The region of the Aosta Valley enjoyed as part of the Kingdom of Sardinia a long history
of autonomy and self-government. Together with the Kingdom of Sardinia it became part
of the Italian Kingdom in 1861. The border with neighbouring France was drawn in such
a way that part of the population of one linguistic nation remained on the territory of the
other state. However, this border was never really disputed, not even after fascist Italy
attacked France in 1940. In the years before, the fascist regime tried, like in other regions,
to Italianize the local population, amongst other things by incentivizing Italian-speaking
workers to transfer to the region. After the end of the World War, Aosta was among those
regions that were granted special autonomous status. Already in 1948, the Autonomy
Statute of the Region was passed by a constitutional law which contained provisions for
the protection of the French language. Unlike the autonomous system in South Tyrol, the
28
Law on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia No.
38/2001, Art. 1.
29
Art. 4 of the Law on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia
Giulia.
30
Palermo and Woelk, Diritto costituzionale ..., 262.
10
special Statute of Aosta did, however, not foresee a special mechanism for the
implementation. As any development had to be passed by an organic law at state level,
implementation was lacking to a large extent. Only in 1993, a similar commission to the
South Tyrolean Commission of Six has been introduced also in the context of the Aosta
Valley and ever since intensively used.31
Although for all other linguistic minority groups, which could be categorized as “weak”
minorities,32 the possibilities for protection were much more limited, they benefited from
the establishment of the regions with ordinary statute in 1970. As a matter of fact, many
regions included in their statutes provisions recognizing the linguistic diversity within
their territory and have enacted in the following years laws in favour of those
minorities.33 Quite often, however, those laws were ineffective.34 A second wave of
regional legislation concerning the support and promotion of local cultures and dialects
took place in the 1990ies. As most of this legislation is still in place it will be discussed
under the chapter concerning the current legal framework. The reason for this increasing
regional attention has partly been seen in the progressive opening of the Constitutional
Court with regard to the possibility of intervention for the regional legislator in the field
of minority protection, something it initially excluded as it considered this field to be
intimately linked with the equality principle which had to be guaranteed by the state
level.35
A major step forward was taken by the adoption of the Framework Law on the Protection
of Linguistic-Historical Minorities No. 482/1999. According to the law, the provincial
councils determine the territorial delimitation in which the provisions of the law are to be
applied. They take this decisions after consulting the municipalities concerned and upon
request by at least 15% of the citizens enrolled in the electoral lists and resident and the
respective municipality or one third of the municipal counselors of the respective
municipality (Art. 3). This means that not only persons that consider themselves as
belonging to a linguistic minority have the right to request that their municipality be
Hilpold, “Minderheitenschutz in Italien …”, 13.
Hilpold, “Minderheitenschutz in Italien …”, 3-4.
33
E.g. Piemonte for the Franco-provencal, Occitan and Walser minority; Veneto for the German- and
Ladin-speakers; Molise for the Albanian and Croatian groups; Basilicata for the Albanians; Calabria for the
Occitans.
34
Palermo and Woelk, Diritto costituzionale comparato ..., 252.
35
Palermo and Woelk, Diritto costituzionale comparato ..., 254.
31
32
11
included among those to which the framework law applies but also citizens with no
minority background, who simply wish to make re-flourish the minority culture can
participate in such a request.36
The asymmetric system of minority protection in Italy can, in conclusion, be divided into
three main groups: 1) the super-protected minorities (the German- and Ladin-speakers in
South Tyrol, the Slovene-speakers in Friuli-Venezia Giulia and the French-speakers in
the Aosta Valley); 2) the recognized minorities that are offered potential protection (those
enlisted in the law no. 482/1999, for which the protection depends on the activation of the
various instruments put at disposal by the law);37 and 3) the non recognized (and non
protected) minorities (such as the Sinti and Roma as well as the immigrant minorities).38
In the subchapters of the following presentation of the current legal framework, the
respective regulations for each of the super-protected minorities will be discussed – to the
extent possible – separately. For the linguistic minorities protected under the framework
law, the general provisions of the law will be presented.
III.
1.
Current Legal Framework
European Context
On 3 November 1997, Italy ratified the Framework Convention for the Protection of
National Minorities. The responsible parliamentary commission approved the draft law
concerning the ratification with unanimity. When the draft law was discussed in the
Italian Chamber of Representatives, one deputy critically commented that topics related
to minorities were always dealt with too swiftly without getting into the contents of the
matter. He also criticized, like some other deputies, that until that moment, Italy had still
36
Palermo and Woelk, Diritto costituzionale comparato ..., 248.
Laws that have been enacted at provincial or regional level implementing the provisions of the
framework law are for instance: Provincial Law of the Province of Trento on the Protection and Promotion
of Local Linguistic Minorities (Provincial Law No 6 of 19 June 2008); Regional Law of the Region FriuliVenezia Giulia on the protection, valorization and promotion of the Friulan language (Regional Law No.
174-249-257-260 of 23 November 2007).
38
Palermo and Woelk, Diritto costituzionale comparato ..., 243, quoting Elisabetta Palici di Suni Prat,
Intorno alle Minoranze (Torino, 1999).
37
12
not adopted a framework law on the protection of linguistic minorities, as it was obliged
to pursuing to Art. 6 of the Constitution. Some speakers also expressed dissatisfaction
because of the lack of definition of the term minority in the Framework Convention and
because it did not provide for collective rights.39 The FCNM entered into force on 1
March 1998 and Italy submitted its first state report in May 1999, which was integrated
by two supplementary reports as the AC found that the initial report provided little
information about the practical implementation of the FCNM. The AC welcomed “the
consultation carried out by the Government with the representatives of the minorities
during preparation of the initial State Report and the two … supplementary reports.”40
Before the AC adopted its first opinion in September 2001, Italy finally passed the long
awaited law on the protection of historical linguistic minorities (Law No. 482/1999). This
effort to provide a clear legislative framework was acknowledged by the AC and it
agreed “with the Italian Government that the Framework Convention must be applied to
the historical linguistic minorities protected by [that] Law.” The AC, however, criticized
that the Roma minority, who was included in the law in a draft stage, “was later excluded
at the parliamentary deliberation stage chiefly on the ground of this group’s having no
association with a given territory.[41] The Advisory Committee is of the opinion that,
especially in view of their attested historical presence in Italy, the Roma should also be
entitled to the protection afforded by the Framework Convention.”42 The Italian
government assured the AC during its visit to Italy that although the Roma do not come
under law no. 482/1999, they where nonetheless protected under the FCNM. The AC
criticized, nevertheless, that there was “no legal instrument at national level granting the
Roma comprehensive protection.”43
Although in 2001 a number of laws regarding the recognition of the “Gypsy” populations
as linguistic minority and their protection were submitted to the Italian parliament, there
39
Protocol of session 199 and 200 of 26 and 27 May 1997, available at
http://leg13.camera.it/chiosco.asp?cp=2&content=/_dati/leg13/lavori/stenografici/jvhomefr.htm.
40
Advisory Committee, First Opinion on Italy, ACFC/INF/OP/I(2002)007, adopted on 14 September 2001,
paras. 6-7.
41
Deputy Corleone admitted in an interview that to take out the Roma from the list of protected minorities
was a concession to the opposition, in order not to further hamper a positive voting in the parliament. See
Associazione per i popoli minacciati, “Legge quadro sulla protezione delle minoranze linguistiche.
Intervista con l’On. Franco Corleone (Verdi)”, 1999, at http://www.gfbv.it/3dossier/corleone.html.
42
AC, first opinion on Italy, para. 16.
43
Ibid.
13
is still no national legislation protecting the Roma, Sinti and Traveller community in
Italy. Laws adopted by the regions are inadequate as they are not coherent, disparate and
“focus too much on social questions and immigration issues at the detriment of the
promotion of their identity, including their language and culture.”44 Therefore, the
situation of the Roma has been given much attention also in the second opinion of the AC
on Italy, adopted in February 2005.
The European Charter for Regional or Minority Languages has been signed by Italy on
27 June 2000, but has still not been ratified. In its second state report on the
implementation of the FCNM, submitted in 2004, the Italian government declared that it
was in the process of ratifying the Charter, “after a lengthy procedure in which the
Ministry of the Interior has constantly and directly participated.” According to that
source, the ministry had organized “a number of intradepartmental meetings resulting in
the choice of the options to be selected and in the drawing up of the technical-legal
Note”. Although Italy praised itself already back then for being “at the forefront as
regards legislation in the area of minority protection”, also “[t]hanks to the accurately
formulated ratification of this international instrument”,45 it has still not ratified the
Language Charter. Among the reasons why this ratification takes so long is the fact that
there is resistance as to some languages that would be protected, such as Friulan and
Sardinian, and the fear of too many costs for the implementation of certain provisions.
Italy’s immigration policy and its repercussions on the Roma and Sinti living in Italy has
been the subject of a report of the CoE Commissioner for Human Rights, based on a
special visit to Rome in June 2008.46 The so-called “security-package”, adopted earlier in
2008 appears, in the view of the Commissioner, to target Roma immigrant and introduces
further controls of the freedom of movement of Roma and Sinti. “[T]he vast majority of
Roma and Sinti are in urgent need of effective protection of their human rights, especially
their social rights, such as the right to adequate housing and to education … . Adopting
the state of emergency and providing greater powers to the ‘Special Commissioners’ and
44
Advisory Committee, Second Opinion on Italy, ACFC/INF/OP/II(2005)003, adopted on 24 February
2005, para. 11.
45
Italian Ministry of the Interior, Second Implementation Report, received by the Council of Europe on 14
May 2004, 14-15.
46
CoE Commissioner for Human Rights, “Memorandum by Thomas Hammarberg, Commissioner for
Human Rights of the Council of Europe, following his visit to Italy on 19-20 June 2008. Issues reviewed:
Roma and Sinti; Immigration“, Strasbourg, 28 July 2008, CommDH(2008)18.
14
the Police may not be the best available option to deal with the needs of Roma and Sinti
populations.” The Commissioner therefore urged the authorities “to adopt and implement
promptly a coherent, comprehensive and adequately resourced national and regional
strategy with short- and long-term action plans, targets and indicators for implementing
policies that address legal and/or social discrimination against Roma and Sinti.”47
2.
Culture
i.
The German and Ladin speakers in South Tyrol
Art. 15(2) of the ASt provides that “[t]he Province of Bolzano shall use its own funding
allocated for … cultural purposes in direct proportion to the extent of each linguistic
group and with reference to the needs of this group”. This means that the linguistic
proportionality principle applies also to the distribution of funds in the cultural field. For
the administration of these funds, three different offices have been established. The total
amount foreseen for the year 2008 in the field of culture was of 79,1 million EUR which
represents around 1,5% of the total budget.48 In the Provincial Government, one member
is responsible for the German culture one for the Italian and one for the Ladin culture.
ii. The Slovene speakers in Friuli-Venezia Giulia
Art. 16 of the Law on the Protection of the Slovene Linguistic Minority in the Region
Friuli-Venezia Giulia No. 38/2001 stipulates that the Region Friuli-Venezia Giulia
provides for the support of cultural, artistic, scientific, educational and publishing
activities and initiatives that are promoted and carried out by institutions and associations
of the Slovene minority. Priority is given to the functioning of a press in Slovene
language. For the implementation of this article, the state provides for funds that are
determined within the state budget on a yearly basis. In Art. 18, the law further provides
that the “Teatro stabile Sloveno di Trieste – Slovensko stalno gledalisce” is recognized as
47
Ibid., paras. 44 and 48.
See the budget of South Tyrol for 2008 on the webpage of the Autonomous Province, at
http://www.provinz.bz.it/finanzen-haushalt/download/bilancio2008DE.pdf.
48
15
a publicly managed institution for the production of theater and is treated as such also
when it comes to public funds. Art. 19 stipulates the restitution of buildings from the state
to the region that shall be used for the activities of Slovene cultural and scientific
institutions. The law (Art. 20) further obliges the region, the provinces and the
municipalities that come under the scope of the law, to adopt measures for the protection
of the Slovene historical and artistic heritage and projects of intercultural nature.49 For the
implementation of this task, the respective institutions have to engage in consultation
with organizations and associations representing the Slovene minority.
iii. Other linguistic minorities covered by the Law 482/1999
Art. 16 of the law no. 482/1999 provides that regions and provinces, within the
possibilities of their budgets, can support the creation of institutions for the protection of
the linguistic and cultural traditions of the respective linguistic minority.
3.
Media
Art. 3(2ter) of Law No. 250 of 7 August 1990 as amended by law No. 62 of 7 March
2001 lays down detailed provisions concerning the subsidies granted by the state to daily
newspapers published in French, Slovenian, Ladin and German Languages in the
autonomous regions of Valle d’Aosta, Friuli-Venezia Giulia and Trentino-Alto Adige. In
order to get this funding, newspapers need to be published already for at least three years,
in the year before getting the subsidy their advertising revenues can’t be higher than 30%
of the total costs resulting from the budget, and they have to sell at least 25% of the total
circulation in case of national papers, and at least 40% in case of local papers.
In South Tyrol there are two German daily newspapers and one German weekly.
Slovenes have one daily newspaper, whereas all other minorities, if at all, have only a
weekly or monthly paper.
In Trentino-Alto Adige, the Italian public broadcast company (RAI) has a local station
that broadcasts radio and television programmes in German and Ladin. The public
49
Similarly also Art. 15 of the Regional Law on the protection of the Slovene minority No. 26/2007.
16
foundation RAS produces programmes in German. The private station TV3 Südtirol
broadcasts in German, Italian and Ladin. Further, broadcasts from Germany, Austria and
Switzerland can be received.50
Art. 17 of the Regional Law on the protection of the Slovene minority No. 26/2007
authorizes the regional administration, with the aim to guarantee the reception of radio
and TV broadcasts in Slovene throughout the territory inhabited by the Slovene minority,
to finance the establishment and improvement of transmitters of the public broadcast
company. The regional administration can further stipulate conventions with the public
broadcast company or private broadcasters concerning the production of programmes in
Slovene language.
The statute of the Aosta Valley’s prescribes that TV and radio public broadcasting in the
province should be financed by the government. The regional RAI broadcasts also French
programmes, whereas bilingual French-Italian radio stations also broadcast in German
language for the Walser group. RAI Trieste broadcasts radio and TV programmes in
Slovenian.51
Indirect press support is given by reduction of the added value tax for publishers, reduced
postal tariffs, state grants depending on paper consumption and support for journalistic
trainings.52
Law No. 482/1999 provides in Art. 12 that in the convention between the Ministry of
Communication and the public broadcasting company, conditions for the protection of
linguistic minorities are ensured. Regions on which territories a linguistic minority
resides, can also conclude conventions with the public broadcasting company concerning
broadcasts in minority language in the regional programmes. Art. 14 stipulates, that
regions, provinces or municipalities with minority population can support, within the
possibilities of their budgets editorial, press and private broadcasting activities operating
in a minority language.
Minority Dailies Association MIDAS, “European Association of Daily Newspapers in Minority and
Regional Languages. 2001–2005”, 53, at http://www.midas-press.org.
51
Ibid.
52
Ibid.
50
17
4.
Education
i.
The German and Ladin speakers in South Tyrol53
The educational system in South Tyrol was amongst those fields that were severely
affected by the fascist Italianization attempts. German was forbidden at schools, so that
the teaching of the German language was officially only possible through the religious
education. Unofficially, a system of so-called “catacomb schools” developed, where
pupils where taught in lofts, basements and stables, teaching material was smuggled from
across the border, and teachers were poorly trained in simulated sewing courses. 54 The
feeling of endangerment and the fear of assimilation is ever since deeply embedded in the
collective memory of the German-speaking population. To establish the mother-tongue as
language of instruction was therefore of great importance in the negotiations to the first
and the second Autonomy Statute. The basis for it was given by the Gruber-Degasperi
Agreement, which granted in Art. 1(a) the German-speaking population “elementary and
secondary teaching in the mother-tongue”.
Art. 19(1) of the Second ASt translated this provision in the following way into
constitutional domestic legislation:
In the Province of Bolzano nursery, primary and secondary school teaching
shall be provided in the Italian or German mother-tongue of the pupils by
teachers of the same mother-tongue. In primary schools, beginning with the
second or third year classes, to be established by provincial law according to
the binding proposal of the linguistic group concerned, and in secondary
schools, the teaching of the second language by teachers for whom it is their
mother-tongue shall be compulsory.
This provision established the principle of a largely separated education policy: a German
schooling system with compulsory teaching of Italian, and an Italian schooling system
with compulsory teaching of German. When to start with the teaching of the other
language, was the subject of dispute in 2003, when the provincial government adopted a
This part is based on Siegfried Baur and Roberta Medda-Windischer, “The Educational System in South
Tyrol”, in Jens Woelk, Francesco Palermo and Joseph Marko, Tolerance through Law: Self Governance
and Group Rights in South Tyrol (Martinus Nijhoff Publishers, Leiden, Boston, 2008), 235-258.
54
Emma Lantschner, “History of the South Tyrol Conflict …”, 7.
53
18
package of measures for the promotion of language learning in German-language
schools. Among these measures was also the decision to start the teaching of the second
language already in the first class of primary schools instead of in the second class
(something which was already common practice in Italian-language schools with regard
to the teaching of German). This “anticipated” start of teaching the other language has by
some been considered to be a violation of Art. 19 ASt, as it foresees a start only in the
second or third class. However, the Constitutional Court ruled that the Statute foresaw the
start in the second or third class as compulsory but did not forbid an earlier start. In the
view of the court, the purpose of the provision foreseeing the learning of the other
language was to favour as much as possible the integration among the different linguistic
groups living in South Tyrol, which is a precondition for their peaceful living together.55
It is the parents’ choice whether they send their child to a school with Italian or to a
school with German as medium of instruction. Against a rejection of the application of
enrolment in a specific school, the parents can appeal to the autonomous section of the
Regional Court of Administrative Justice in Bolzano (Art. 19(2)). If a pupil is accepted in
a school but after a while it is found to have insufficient knowledge of the teaching
language of the school, “the matter could be submitted to a joint commission with equal
representation of the main linguistic groups. Decisions would be taken by majority.
Should no such majority be forthcoming, the Chairman of the Commission (a German for
entry into a German school, an Italian for entry into an Italian school) would have the
casting vote.”56
The schools in the Ladin valleys are organized differently. Art. 19(2) provides in their
respect:
The Ladin language shall be used in nursery schools and shall be taught in
primary schools in Ladin areas. Ladin shall also be used as a teaching
language in schools of every type and grade in those areas. In such schools
teaching shall be given on the basis of the same number of hours and final
results as Italian and German.
55
56
Decision (ordinanza) of the Constitutional Court of 6 December 2006 No. 430/2006.
Alcock, “The South Tyrol Autonomy…, 17-18.
19
This means that the two main languages are used as medium of instruction in equal parts
and Ladin is used as such, in particular in the primary schools for the teaching of Ladin
culture, history and tradition.
Institutionally, the three linguistic groups are also organized separately: there exists a
German, an Italian and a Ladin Pedagogical Institute,57 three different evaluation
boards.58 In the provincial administration there are three different School Offices
responsible for the respective linguistic group. The Provincial School Council59 is
established as consultative organ for the three School Offices and the provincial
government and consists of a plenary and three departments, one for each of the three
linguistic groups.
The University of Bolzano was founded on the 31st of October 1997 as a trilingual
institution, in which lectures and seminars are held in German, Italian and English. The
only exception is the Faculty of Education, which offers German, Italian and Ladin
speaking students separate training sections.60
ii. The Slovene speakers in Friuli-Venezia Giulia
The main legal texts with regard to the use of the Slovene language in education are the
law concerning the regulation of school institutions in the Province of Gorizia and in the
territory of Trieste (No. 1012 of 19 July 1961), and the law concerning amendments and
integrations of the law of 19 July 1961, No. 1012, regarding the institution of schools
with Slovene language of instruction in the Provinces of Trieste and Gorizia (No. 932 of
22 December 1973). Art. 1 of law no. 1012/1961 provides that in kindergartens,
elementary and secondary schools, teaching is done in the mother tongue of the pupils.
Therefore, in the province of Gorizia and on the territory of Trieste, in addition to schools
using Italian as language of instruction, schools using Slovene as medium of instruction
can be established. Such establishment happens through decree of the president of the
Republic, on the proposal of the minister for public instruction and the minister of the
57
Provincial Law No. 13 of 30 June 1987.
Provincial Law No. 12 of 29 June 2000, Art. 17.
59
Regulated by Provincial Law No. 24 of 12 December 1996.
60
See website of the Free University of Bolzano http://www.unibz.it.
58
20
treasury. According to Art. 2 of the same law, these schools are reserved to pupils
belonging to the Slovene linguistic group. In schools using Slovene as the medium of
instruction, the teaching of Italian is compulsory and has to be provided by teachers who
have a full command of Slovene.61 Only persons belonging to the Slovene minority,
possessing the necessary formal requirements for pursuing a teachers career, are allowed
to participate in the competition for a teachers post (Arts. 6 and 7).
Separate school districts, one in each of the two provinces, are established for the
administration and supervision of elementary schools using Slovene as medium of
instruction (Art. 1 of law no. 932/1973). School inspectors and directors have to be of
Slovene mother tongue or have full command of the Slovene language62 (Art. 2(1-2)).
The law further provides for funds for the drafting or translation and the printing of text
books in Slovene language (Art. 8).
In addition to that, law no. 38/2001 allows for the use of the Slovene language in
relations with the school administration of those schools that use Slovene as medium of
instruction. In these schools, Slovene can also be used for acts, communications, the
official paper and for public signs (Art. 11(4)). It also provides in Art. 13 for the
establishment of a special office for questions related to the instruction of the Slovene
language within the regional school office. The personnel working within this special
office has to have full command of the Slovene language. Furthermore, a Regional
School Commission for the teaching in Slovene Language is established.
As the above mentioned laws of 1961 and 1973 only cover schools situated in the
provinces of Gorizia and Trieste, law no. 38/2001 contains a special provision (Art. 12)
regarding the province of Udine. In kindergartens located in municipalities of that
province that come under the scope of the law, the educational programme comprises
also arguments related to the local traditions, language and culture and shall be offered
also in Slovene language. However, this shall not produce an additional financial burden
to the state. In compulsory schooling, teaching of the Slovene language, of the history
and the cultural and linguistic local traditions shall be included in the regular curriculum
to be determined by the schools within their organizational and didactical autonomy.
61
62
Palermo and Woelk, Diritto costituzionale ..., 262.
This latter possibility has been introduced by Art. 11 of law 38/2001.
21
They will decide on the modalities by determining the number of hours and the
methodology of teaching such subjects as well as the evaluation criteria. At the moment
of enrolment of their children, parents have to communicate whether they would like
their children to learn the minority language. In municipalities of the province of Udine
that come under the scope of the law, there exists also the possibility to establish
bilingual Italian and Slovene schools.
iii. The French speakers in the Aosta Valley
Unlike in South Tyrol, the Aosta Valley has a bilingual schooling system. According to
Art. 39 of the Autonomy Statute some subjects can be taught in the French language. The
article further provides that the same number of hours per week is dedicated to the
teaching of the French language as is dedicated to the teaching of the Italian language.
The curriculum is determined by national norms but can be adapted to local needs. These
adaptations, as well as the subjects to be taught in French language, are approved and
implemented after having consulted mixed commissions composed by representatives of
the Ministry of Education, of the assembly of the valley and of the teachers.63
Criticism has been raised with regard to the fact that this special protection is granted to
the French language and not to the patois franco-provencal, which is spoken by much
more people than French.64
iv. Other linguistic minorities covered by the Law 482/1999
Art. 4 of the law provides that the minority languages can be used in kindergarten and in
primary and secondary schools for educational activities and as language of instruction
respectively. In the second paragraph, the article places on the schools within their
autonomy the responsibility to decide – also based on the requests by the parents – upon
the modalities for the instruction of the language and culture of a local community. This
includes decision on the duration and methodology of teaching, on the criteria for
63
64
Art. 40 of the Autonomy Statute of the Aosta Valley.
Palermo and Woelk, Diritto costituzionale ..., 260.
22
evaluation of the pupils and on the modalities for the employment of qualified teachers.
The overall goal is the learning of the minority language and getting acquainted with the
customs and traditions of that community. To the same end, schools can also offer adult
education and adopt initiatives dedicated to the research of languages and cultures of
minority communities. Furthermore, they provide training and further education to
teachers of the disciplines concerned.
Schools have to finance these activities through their available human and financial
resources, and have to list the promotion of minorities’ languages and cultures amongst
their priorities. In addition, Art. 5 of the law provides that the state will support national
or local projects in this field with a yearly amount of about 1 million EUR.
Universities located in the regions were linguistic minorities live take initiatives, such as
offering courses on language and culture of the linguistic minorities protected by the law,
with the aim of fostering the scientific research and the cultural and educational activities
that support the achievement of the objective of the law (Art. 6).
A special provision for the Ladins, the Mocheni and the Cimbrians is foreseen in Art.
102(2) of the Autonomy Statute of Trentino-South Tyrol: In the schools of the
municipalities in the Province of Trento where these languages are spoken, the teaching
of the Ladin or German language and culture shall be guaranteed.
5.
Use of Language
i.
The Use of German and Ladin in South Tyrol65
Also in the field of language use, the Gruber-Degasperi Agreement laid the basis for
further legal development. It provided for a parification of the German and Italian
languages in public offices and official documents, bilingual topography, and the right to
re-establish German family names which were Italianized in the fascist period. Essential
for the implementation of the parification of the two languages in public offices was
further the guarantee to “equality of rights as regards the entering upon public offices,
This part is based on Cristina Fraenkel-Haeberle, “Linguistic Rights and the Use of Language”, in Wolk,
Palermo and Marko (eds.), Tolerance through Law …, 259-278.
65
23
with a view to reaching a more appropriate proportion of employment between the two
ethnical groups.” This last part will be dealt with below under the chapter of economic
participation.
The main provisions of the ASt. in this respect are Art. 99 and 100. Art. 99 provides that
“[i]n the Region the German language is made equal to the Italian language, which is the
official language of the State”. For acts of legislative nature and for cases where the
Statute provides for a bilingual text, the Italian version shall be the authoritative text. The
German-speaking population of the Province of Bolzano has the right to use their
language “in relations with judicial offices and with the organs and offices of the public
administration situated in the Province or which have regional power, as well as with
concessionaires who provide public services in the Province” (Art. 100(1)). According to
Art. 100(3) ASt and Art. 7 of the Decree No. 574/1988, the public authorities have to use
the language employed by the applicant or, in case of documents issued on the initiative
of the public authority, the assumed language of the recipient. This goes also for police
authorities. This is the so-called “separate use of the Italian or the German language” and
constitutes the rule. The “joint use” of both languages requires instead a specific
provision. This is the case for documents intended for the general public, documents
issued to an individual but intended for public use and documents intended for more than
one office (Art. 100(4) ASt.). Also all provincial and regional laws and regulations have
to be published in both languages (Art. 57 ASt.).
The Ladins were granted the right to use their language before public authorities already
under the Autonomy Statute of 1948. In practice, proceedings took mainly place in Italian
with the support of an interpreter. Implementing legislation of the Second Autonomy
Statute provides that Ladins can use their language in oral and written communications
with public authorities in the Ladin municipalities. Local and provincial authorities have
to reply in Ladin even if they are located outside the Ladin valleys but work in the
interest of the Ladin minority. Written replies may be in German or Italian but a Ladin
translation has to be attached.66
See DPR No. 574/1988 and Legislative Decree No. 446/1996. Günther Rautz, “A ‘Minority within a
Minority’: The Special Status of the Ladin Valleys”, in Woelk, Palermo and Marko (eds.), Tolerance
through Law …, 279-290, at 283-284.
66
24
The use of German is also possible in the contact with judicial authorities. In the moment
of the first contact with the judicial authorities, a person has to be asked to state his/her
mother-tongue. All deeds drafted thereafter must use the stated language.67 A criminal
proceeding is conducted in the language chosen by the defendant, meaning that it could
also be a monolingual German proceeding. It is only bilingual, if co-defendants choose a
different language or if the party joining prosecution as plaintiff chooses the other
language. A defense lawyer can always use a language different from that of the trial and
there is a right to change language at all stages of jurisdiction.68 Rules contained in
Decree 574/188 concerning the translation of acts have been simplified by an amendment
decree No. 124 of 13 June 2005. The goal of the amendments was to shorten the duration
of a proceeding by avoiding translations, if the interested party renounces them. With
regard to the territorial scope of application, the Constitutional Court ruled,69 that the
specific norms regarding the use of language in criminal proceedings was restricted to the
territory of the region. With regard to the personal scope of application, the European
Court of Justice extended the provisions from the “citizens of the Province of Bolzano” to
every EU citizen that preferred to chose the German language.70
Also in civil proceeding there is a freedom of choice of language. Articles 20 and 21 of
Decree 574/1988 have also been amended with Decree No. 283/2001 and Decree No.
124/2005 in order to prevent the legal system from being excessively burdened by
unnecessary translations. In bilingual processes the judgment is drafted in both
languages, unless the party in question waives this right. Acts and documents of the
parties are drafted in one of the languages without obligation to translation. Conclusions
of both sides, hearings of witnesses and experts’ reports are now recorded in the language
used, unless there is explicit request for recording in both languages.
The Ladin-speaking population has the right to a proceeding in their language only in
front of the Justice of the Peace that is responsible for the Ladin valleys.71
The issue of topographical indications still remains unresolved, although already the
Gruber-Degasperi Agreement provided for “bilingual topographic naming”. Until the
67
Art. 14 of Decree 574/1988.
Art. 15 of Decree 574/1988.
69
Judgment No. 213 of 1-9 June 1998.
70
Case C-274/96
71
Art. 32(4) of the Decree No. 574/1988 as amended by Decree No. 267 of 16 March 1992.
68
25
very day, only the Italian place names are official, although there is a widespread,
unofficial use of the German place names. Art. 8 of the Autonomous Statute attributed to
the province exclusive legislative power on “place names, without prejudice to the
requirement for bilingualism in the territory of the Province of Bolzano”. Article 101
further provides that “the public administrations must use German place names in
relations with German-speaking citizens if provincial law has confirmed their existence
and approved their designation.” In the Ladin valleys, topography needs to be trilingual.
However, such a law has never been passed due to antithetic positions of German and
Italian parties.
ii. The Use of Slovene in Friuli-Venezia Giulia
In those municipalities (or fractions of municipalities) that come under the scope of the
Law on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia
Giulia No. 38/2001, persons belonging to the Slovene minority have the right to use their
language in relations with the administrative authorities and the local judicial institutions.
They have the right to get the reply to their requests in Slovenian, either through a
translator or a translation of texts. (Personal) acts for public use have to be drafted, upon
request by an interested person, both in Slovene and Italian.72 Also within elected bodies
having their seat in the municipalities (or fractions of municipalities) that come under the
scope of the Law No. 38/2001, Slovene can be used for oral or written interventions. A
translation into Italian has to be provided.73
The use of the Slovene language is also foreseen at the regional level. Art. 11 of the
Regional Law on the protection of the Slovene minority (16 November 2007, No. 26)
stipulates that citizens belonging to the Slovene minority can address the regional
administration in their mother tongue, orally and in writing, and have the right to receive
a reply in the same language or at least a translation of the reply into Slovene, if it is
drafted in Italian. For that purpose, the region has to ensure the presence of personnel that
has good command of the Slovene language and promotes the organization of language
72
Law on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia No.
38/2001, Art. 8.
73
Ibid., Art. 9.
26
courses to that end. Information for the public has to be communicated by the regional
assembly and the regional administration also in Slovene and its publication in Slovene
press has to be ensured. Forms for the access to benefits have to be provided bilingually.
Public signs and indications in the buildings of the region have to provide also a Slovene
translation.
The Regional Administrative Court rejected in 2002 the complaint submitted by a deputy
of the province of Trieste in conjunction with other persons belonging to the Slovene
minority. They objected that the new statute of the Province of Trieste did not contain
anymore some provisions for the protection of the Slovene minority that were laid down
in the previous versions of the statute. These regarded the obligation to recruit bilingual
personnel in civil service, the translation of the statute, the right to use Slovene in contact
with provincial authorities and the right to be provided with a translator. The court rules,
however, that the complainants did not have standing, as they could not demonstrate that
an individual right had been violated. According to the court, the collective interest that
the complainants had in the protection of their language was not protected by Italian
administrative law. This judgment has been criticized for overly concentrating on
individual rights, completely ignoring the collective dimension of minority rights.74
According to Art. 7 of the Law on the Protection of the Slovene Linguistic Minority in
the Region Friuli-Venezia Giulia No. 38/2001,75 persons belonging to national minorities
have the right to give their children Slovene names and have them registered according to
the Slovene ortography. It also gives the right to revert to the original names in case they
have been forcefully changed. Art. 10 provides that those municipalities (or fractions of
municipalities) to which the law applies are eligible for getting bilingual topographical
inscriptions. In those selected municipalities, also the signs of public offices and other
public signs have to be bilingual.
In the lack of specific provisions regulating the use of Slovene in judicial proceedings,
the Constitutional Court had to clarify some basic issues in the field only based on Art. 6,
of the Constitution, Art. 3 of the Autonomy Statute and some specific rules contained in
the civil and criminal procedures. It came to the conclusion, that Slovene cannot be used
74
75
Hilpold, „Minderheitenschutz in Italien ..., 12.
See also Art. 12 of the Regional Law on the protection of the Slovene minority No. 26/2007.
27
as a language for judicial proceedings. Persons belonging to the Slovene minority have,
however, the right to speak their language in contacts with judicial authorities supported
by a translator to be provided by the court and the right to translation of the judgment into
Slovene. This is, however, only the case in those areas specified in the London
Memorandum of Understanding. These judgments influenced also the reform of the
criminal procedure76 as described below.
iii. The Use of French in the Aosta Valley
Art. 38 of the Autonomy Statute of the Aosta Valley provides, that French and the Italian
languages are parified. However, as the Italian language is not expressively foreseen as
official language, it is possible that public documents are drafted only in one or the other
language. Only documents of the judicial authority must use the Italian language.77
Although there is no right of receiving an administrative act in the language of request78
(meaning that a written request in French could eventually be answered in Italian), civil
servants of the state administration in the Aosta Valley shall “possibly” originate from
the region or have command of the French language. Similarly, when state civil servants
are transferred to the Aosta Valley, they should preferably originate form the region or
speak French.79 The same applies to tenders issued by non economic public entities.80 In
order to be nominated for the position of municipal secretary (the highest administrative
position in the municipality), full command of the French language is compulsory. 81 The
proof of knowledge of the French language has to be provided through a specific exam.
The law provides for case in which a person can be exempted from the obligation to sit
this exam.82
76
Judgments of the Constitutional Court No. 62/1992 and No. 15/1996. See on this issue also Palermo and
Woelk, Diritto costituzionale ..., 262; and Hilpold, “Minderheitenschutz in Italien ...”, 12.
77
Palermo and Woelk, Diritto costituzionale ..., 260.
78
Hilpold, “Minderheitenschutz in Italien ...”, 14.
79
Art. 52 of Law No. 196 of 16 May 1978, Implementation Norms of the Special Statute of the Aosta
Valley. See also Art. 53, regarding state civil servants in the executive career and for auxiliary personnel.
80
Ibid., Art. 54.
81
Ibid., Art. 55.
82
Ibid., Art. 51.
28
According to Art. 2 lit. v. of the Autonomy Statute, the Region has primary competency
in the field of toponyms. On the basis of a study of a specifically established commission,
regional law no. 61 of 9 December 1976 has reverted a big number of toponyms to their
original form, after they had been Italianized during fascism. Apart from the capital
(Aosta – Aoste), all other names of municipalities in the Aosta Valley are now
monolingually French.83
No special provision is foreseen for the use of French in relations with judicial
authorities. Therefore only the relevant provisions of the codes of civil (Art. 122) and
criminal (Art. 109) procedure apply.
iv. Other linguistic minorities covered by the Law 482/1999
The law provides for the possibility to use the minority language in the municipal council
and other organs of local public bodies. The members of a linguistic minority can also
use their language as members of provincial and regional councils in those provinces or
regions, where the said minority makes up at least 15% of the population. Upon request,
translation into Italian has to be guaranteed and bilingually drafted acts intended for the
general public deploy effect only in their Italian version (Art. 7).
Persons belonging to linguistic minorities can use their mother tongue in their oral and
written communication with public administration in those municipalities to which the
law applies. The army and the state police are excluded from this provision. In order to
make this possible, public authorities make sure to employ persons that are able to
respond to requests in the minority language in the same language. For that purpose, the
state establishes a National Fund for the Protection of Minorities with an annual
endowment of 5 million EUR. The law further allows the use of the protected minority
languages in front of the Justice of the Peace (Art. 9). The municipal councils can decide
to use, next the topographical indications in Italian, also the names that correspond to the
local tradition and custom (Art. 10). In the field of use of language, the law finally
ensures the right to revert to the original first names and surnames that have been
83
Hilpold, “Minderheitenschutz in Italien ...”, 15.
29
changed before the entry into force of the law or for which the registration of the first
name in the minority language has been prevented (Art. 11).
Important to be mentioned is also Art. 109 of the Italian Code of Criminal Procedure.
After providing in para. 1 that the acts of the criminal procedure have to be completed in
Italian language in provides in para. 2 for a number of special provisions for the use of
minority languages. In front of a court of first instance or a court of appeal having
competence over a territory where a recognized linguistic minority lives, the Italian
citizen belonging to such a minority can request to be interrogated in his mother tongue.
The respective protocol will be drafted also in that language. Also all other acts of the
procedure addressed to that person will be translated into that language. According to
para. 3, if the provisions of that article are not respected, the respective acts are null and
void.
6.
Economic Participation
i.
The German and Ladin speaking population in South Tyrol
In order to make the use of the German and Ladin languages in relations with the offices
of the public administration possible as described above, Art. 89 of the Statute foresees
that “[t]he posts [in state offices in the Province of Bolzano] shall be reserved for citizens
belonging to each of the three linguistic groups in proportion to the numerical strength of
those groups”. The purpose was to create and maintain an ethno-linguistic pluralism
inside the South Tyrolean administration, which after the Second World War was
completely dominated by the Italian population.
A condition for accession to a post in the public administration is, therefore, not only to
pass the selection process but also to belong to the linguistic group for which a certain
post is earmarked.84 This means that candidates compete for the posts reserved for their
respective group only and not for the overall number of open positions. In order to
Art. 89 para. 1 ASt foresees that “[f ]or the Province of Bolzano/Bozen there shall be established lists of
civil service personnel, with separate career structures for employees of administrative departments of the
State having offices in the Province”. Those lists are very detailed and foresee different career levels (socalled ‘functional levels’), depending on the qualification required from a candidate for such a post. For
each of these levels the quota has to be fulfilled.
84
30
‘prove’ one’s affiliation/aggregation to one of the three groups, every candidate has to
deposit in an envelope his/her declaration of affiliation/aggregation to a certain group.
Since a reform in 2005, only the envelopes of the successful candidates are opened,
whereas the others are destroyed.
The declaration of affiliation/aggregation to a linguistic group used to be linked to the
general census of the population, which in Italy takes place every ten years, but with the
last normative developments it starts to take on a life on its own. Before the changes to
the Decree No. 752 of 26 July 1976 in 2005,85 a person could cross on a declaration
containing the name of the person the language group to which s/he considered
her/himself to belong to. This form was put in an enveloped and deposited the Court of
Bolzano and its detached offices. An anonymous copy of this declaration was used for
statistical purposes and another copy was kept by the declaring person. This procedure
was repeated at every census. After the reform in 2005, the declarations made in occasion
of the 2001 census remained valid and can be changed only with delayed effect.86
ii. The Slovene speaking population in Friuli-Venezia Giulia
Art. 21 of the Law on the Protection of the Slovene Linguistic Minority in the Region
Friuli-Venezia Giulia No. 38/200187 foresees that the economic and urban planning in
those territories that come under the scope of the law has to take into consideration the
protection of historical-cultural characteristics. In the respective consultative bodies, an
appropriate representation of the Slovene minority has to be guaranteed. For the local
development of those municipalities in which the Slovene minority lives, the state grants
the region a yearly contribution of about 516.000,00 EUR. Trade unions, operating in
Slovene language and being representative of the Slovene community, are in terms of
rights equated with those associations and organizations that adhere to the nationally
most representative confederated trade unions (Art. 22).
85
Decree No. 99 of 23 May 2005.
For details see Emma Lantschner and Giovanni Poggeschi, “Quota System, Census and Declaration of
Affiliation to a Linguistic Group”, in Woelk, Palermo and Marko, Tolerance through Law …, 219-233.
87
On more specific provisions related to that article, see Art. 14 of the Regional Law on the protection of
the Slovene minority No. 26/2007.
86
31
7.
Political Participation
i.
Participation of German and Ladin speakers in South Tyrol
The German- and Ladin-speaking population has its strongest representation in the South
Tyrolean Peoples Party (SVP), a party that has been established in 1945 and claims to be
the party representing the German- and Ladin-speakers of South Tyrol. The party played
an important role in the negotiations with the Italian state about the Second Autonomy
Statute and in its implementation as it had been recognized by state authorities as
legitimate counterpart. Since its creation, the party has never lost the absolute majority of
mandates in any provincial election. Even in the last provincial elections that took place
in October 2008 in which they reached only 48,1% of votes, they managed to keep the
absolute majority of mandates. This defeat was already “announced” by the results in the
elections to the national parliament in April 2008, where the party fell for the first time in
national elections below the 50%.
In 1989, a fraction of SVP split from the party and formed the Union für Südtirol (Union
for South Tyrol) which, based on the right to self-determination, still claims the right of
the South Tyrolean German- and Ladin-speakers to decide about their future within the
Italian state or as an independent entity. The Freiheitlichen (Liberals) were another
breakaway of the SVP, consisting of persons that did not agree with the settlement of the
conflict between Italy and Austria in front of the UN in the year 1992. In 2007, the SüdTiroler Freiheit (South-Tyrolean Freedom) split from the Union for South Tyrol. Until
the last elections, these three “ethnic” parties held between one and two seats each in the
provincial assembly, consisting of 35 members. Now they hold together eight seats: one
for the Union für Südtirol, two for the Süd-Tiroler Freiheit and five for the
Freiheitlichen. They won a lot also due to their anti-immigration campaign.
The fact that the proportion of Italian-speakers dropped from more than 33% to 28.7%
between the years 1971 and 1981 as well as that “Italians had to realize that former
privileges no longer applied to them”88 were very likely some of the reasons why the neofascist party Italian Social Movement (Movimento Sociale Italiano, MSI) has been so
Thomas Kager, “South Tyrol: Mitigated but not Resolved”, 1(3) Online Journal of Peace and Conflict
Resolution (1998), 4.
88
32
successful in elections since 1985, when it won 22.6% of the votes in the municipal
elections in Bolzano. Since its first participation in provincial elections in 1988, it has
become the strongest Italian political party, having been renamed the National Alliance in
1992 (Alleanza Nazionale, AN). In the previous provincial assembly, the party held three
seats. Besides, other two leftist and two rightist Italian parties held one seat each in the
assembly. In the October 2008 elections, Alleanza Nazionale ran together with Forza
Italia in the party Popolo della Libertà. Together the parties lost votes and managed to
reach only three seats. The centre-left Democratic Party won two seats, where as the right
and far right Lega Nord and Unitalia won one seat each.
This shows that the political parties in South Tyrol are mainly organized along
linguistic/“ethnic” lines. The only “interethnic” party is the Greens that has lost one seat
in the last elections and holds two seats in the current provincial assembly.
When discussing the political participation of a the German- and Ladin-speaking
population in South Tyrol, the autonomous status is per se of course the most powerful
means. By providing the province of South Tyrol (alongside with the province of Trento)
with a territorial autonomy, the population that is in a minority on the state level is put in
a majority position at the provincial level. As a result of the autonomous status, the
province has primary legislative89 and administrative competence in such important fields
such as town planning; protection of the countryside; artisanry; housing; prevention and
emergency measures in the event of public disasters; roads, aqueducts and public works
in the province; communications and transport; tourism and the hotel industry;
agriculture, forests and forestry personnel; public assistance and welfare – to just name a
few. To be able to fulfill its tasks, the province has a yearly budget of about five billion
Euro with total autonomy of expenditure.
In order to guarantee that the German-speaking minority, who at the provincial level is a
majority, in the exercise of its legislative and administrative competences does not
marginalize the other linguistic groups living on the territory, the Autonomy Statute
foresees a number of mechanisms that provide for checks and balances.
Primary legislative competence means that laws adopted the provincial assembly have to be “[i]n
conformity with the Constitution and the principles of the legal system of the Republic“, and respect
“international obligations and national interests - among which is included the protection of local linguistic
minorities - as well as the fundamental principles of the socio-economic reforms of the Republic”. Art. 8,
referring to Art. 4 ASt.
89
33
Due to the demographic strength of the German-speakers in South Tyrol (they hold
69,15% of the population) it was not necessary to provide for any mechanism that would
facilitate or guarantee their representation in the provincial assembly. This assembly is in
fact elected by universal, direct and secret suffrage (Art. 48(1) ASt.). For the Ladin
population the Statute foresees, however, an affirmative measure, as it provides in Art.
48(2) that the law on the election of the South Tyrolean assembly has to guarantee the
representation of the Ladin language group. A guaranteed representation of Ladinspeakers is also foreseen in the provincial assembly of the province of Trento, but the seat
is not guaranteed to the language group but to the territory in which the Ladin-Dolomitic
linguistic group of Fassa is settled.
For the presidency in the Provincial Assembly of Bolzano, the Statute foresees a rotation
between a German speaker in the first half of the five years term and an Italian speaker in
the second half (Art. 48(c)). A member of the Ladin linguistic group can become
president of the Provincial Assembly, subject to the approval for the respective periods of
the majority of the German or Italian linguistic groups.90
The composition of the Provincial Government of Bolzano must reflect, according to Art.
50(2) of the Statute, the numerical strength of the linguistic groups as represented in the
Provincial Assembly.91 “The Ladin linguistic group may be given representation in the
Provincial Government of Bolzano, even derogating from proportional representation.”
(Art. 50(3)).
Art. 56 ASt. provides for the possibility to vote a bill by linguistic groups, if it “is
considered prejudicial to the equality of rights between citizens of the different linguistic
groups or to the ethnic and cultural characteristics of the groups themselves”. The request
for such a vote by linguistic groups may be made by the majority of the members of a
linguistic group in the Regional Parliament or the Provincial Assembly of Bolzano.
At the municipal level “each linguistic group has the right to be represented in the
municipal government if there are at least two members belonging to that group in the
90
Art. 30(3) ASt., regulating the regional parliament, provides for the same rotation of the president, with
the difference that in the first half a member of the Italian group is president and a member of the German
group in the second half. The rule regarding the possibility for a member of the Ladin linguistic group to
become president of the regional parliament is exactly the same as for the provincial assembly.
91
The same is true for the for the regional government, see Art. 36(3) ASt.
34
Municipal Council.”92 A special provision for the Ladin group in the Province of Bolzano
requires their presence in the local public bodies (Art. 62 ASt.)
In order to be able to establish the numerical strength of a linguistic group in the elected
bodies, every person running for elections must submit, at the moment of acceptance of
the nomination, his/her declaration of affiliation/aggregation to a linguistic group. A
special rule exists also for the active right to vote: In order to be allowed to exercise this
right in the Province of Bolzano, “an uninterrupted period of four years residence in the
territory of the Region shall be required” (Art. 25(4) ASt.).
In the context of political participation, it is important to mention the Commission of Six,
that played a decisive role in the successful implementation of the Autonomy Statute and
of the Package. The Commission consists of three members that are nominated by the
state – two Italian- and one German-speaker – and three members nominated by the
Provincial Assembly – two German- and one Italian-speaker. The thereby reached double
parity is considered to be the secret of the success of this commission, as it placed both
parties at an equal level in negotiations. However, no representation of Ladins is
foreseen. The commission was initially established as a consultative body to the Italian
government with regard to the implementation of the Statute and the Package. But as
time passed by, it developed more and more into the decision-making body. As a matter
of fact, the Government has never overruled a position of the Commission.93
ii. Participation of Slovene speakers in Friuli-Venezia Giulia
Since 2007, the law on regional elections of the region Friuli-Venezia Giulia provides
under certain circumstances for the a guaranteed seat for a representative of the Slovene
minority,94 which was welcomed by the AC to the FCNM already in its draft stage.95
According to the new system, a party representing the Slovene minority needs only half
92
Art. 61(2) ASt.
Palermo, “Implementation and Amendment …”.
94
Regional Law No. 17 of 18 June 2007, Definition of the form of government of the region Friuli Venezia
Giulia and of the regional electoral system, in accordance with Art. 12 of the Autonomy Statute; also
Regional Law No. 28 of 18 December 2007, Rules of procedure for the election of the president of the
region and the regional assembly.
95
Para. 133 of the second opinion on Italy.
93
35
of the normally required signatures for the registration of its list (Art. 23(6), RL 17/2007).
Further, such a party who declares at the moment of registration to represent the Slovene
minority, can enter an alliance with another party, that runs in all the electoral disctricts
of the region and belongs to the same coalition. This latter party must also declare to
enter such alliance with the party representing the Slovene minority (Art. 23(4) RL
17/2007). In case the party representing the Slovene minority does not manage to win a
least one seat, the votes cast for the two parties will be added up and considered as those
of one party. The party that has entered an alliance with the party representing the
Slovene minority has to cede its last seat to that latter party, under the condition that it
(the party representing the Slovene minority) has achieved at least 1% region-wide (Art.
28, RL 17/2007 und Art. 56 RL 28/2007).
This means that the party representing the Slovene minority does not need to get over the
threshold set for other parties. Normally, a party is admitted to the distribution of seats
only if it gets at least 4% region-wide or 20% in one of the electoral districts. A third
possibility for being admitted to the distribution of seats is to get at least 1,5% of the
votes at the regional level under the condition that the coalition, to which this party
belongs, reaches at regional level at least 15% (Art. 26(3), RL 17/2007).
For the national level, the Law on the Protection of the Slovene Linguistic Minority in the
Region Friuli-Venezia Giulia No. 38/2001 states in Art. 26 that the law for the election of
the parliament provides for norms that facilitate the representation of members of the
Slovene minority.
Similar to the Commission of Six, existing in South Tyrol, a paritetic institutional
committee for the problems of the Slovene minority has been established by the Law on
the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia No.
38/2001 (Art. 3). The Committee is composed by 20 members, 10 of which have to
belong to the Slovene minority.
iii. The Participation of French speakers in the Aosta Valley
No special provisions are foreseen for the representation of minorities in institutions or in
public administration. There is however a preference in the recruitment for a position in
36
civil service for persons that have a command of French or originate from the region (Art.
51, 52 and 54 of L 196/1978).96
Similarly as in the case of South Tyrol (but only in 1993), a Commission has been
established with the purpose of elaborating enactment decrees to the statute which allows
for a dynamic implementation of the Autonomy Statute. The Commission consists of six
members, three of whom are nominated by the state and three by the regional assembly.
Unlike the Commission of Six in South Tyrol, there is however no provision for one or
more minority representatives in the commission. Another difference lays in the fact that
the enactment decrees elaborated by the commission are submitted to the opinion of the
regional assembly.97
iv. Other linguistic minorities covered by the Law 482/1999
The Framework Law No. 482/1999 does not contain a specific provision concerning the
political participation of linguistic minorities. However, the implementation act98 foresees
that the Ministry for regional affairs, responsible for the distribution of funds for the
implementation of the law, consults at least twice a year a technical advisory committee
that has been established already on 17 March 2000. This committee, which functions as
a general advisory body on issues related to the implementation of legislation concerning
the protection of linguistic minorities, is composed by representatives of the state
administration dealing with minority issues, one representative each of the authority on
communication, of the association of municipalities, of the union of Italian provinces, of
the conference of regions and autonomous provinces, of the Committee of linguistic
minorities and of five experts nominated by the ministry.
In addition to this technical advisory committee a Permanent Conference of the
Linguistic Minorities of Italy was supposed to be established at the ministry for regional
affairs. This Conference would have more or less the same composition as the technical
advisory committee but would include also one representative each of the twelve
96
Palermo and Woelk, Diritto costituzionale ..., 260.
Art. 48bis of the Autonomy Statute of the Aosta Valley.
98
Art. 12, DPR 2 May 2001 no. 345.
97
37
linguistic minorities recognized under the law 482/1999. However, this Conference has
so far not been established.
38