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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 Italian- speakers 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 minority through the “Second Autonomy Statute” of 1971 this tendency reversed to 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_K3- pdf.pdf.

1 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. 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.”

3 Ibid., 116. 4 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.

2 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. 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

8 Palermo and Woelk, Diritto costituzionale comparato …, 242-243.

3 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 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.

9 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.

4 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 Friuli- Venezia 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;  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. 10 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 .

5 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 de- nationalization 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 Gruber- Degasperi 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 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

13 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. 15 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 .

6 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 so- called ‘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 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

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.

7 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 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

18 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 …, 143- 159, 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. 22 Rigo and Rahola, “Regions, Minorities and European Integration …”, 78-79. 23 Elisabetta Palici di Suni Prat, “Minoranze”, 9 Digesto delle Discipline Pubblicistiche (1994), 546-559.

8 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 Linguistic- Historical 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 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

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. 28 Law on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia No. 38/2001, Art. 1.

9 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 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

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. 31 Hilpold, “Minderheitenschutz in Italien …”, 13.

10 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 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

32 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. 36 Palermo and Woelk, Diritto costituzionale comparato ..., 248.

11 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. Current Legal Framework

1. 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 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

37 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 Friuli- Venezia 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). 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.

12 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 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

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. 44 Advisory Committee, Second Opinion on Italy, ACFC/INF/OP/II(2005)003, adopted on 24 February 2005, para. 11.

13 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 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

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 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 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

47 Ibid., paras. 44 and 48. 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.

15 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 foundation RAS produces programmes in German. The private station TV3 Südtirol

49 Similarly also Art. 15 of the Regional Law on the protection of the Slovene minority No. 26/2007.

16 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.

50 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.

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

53 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.

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 Decision (ordinanza) of the Constitutional Court of 6 December 2006 No. 430/2006. 56 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. 58 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.

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. They will decide on the modalities by determining the number of hours and the

61 Palermo and Woelk, Diritto costituzionale ..., 262. 62 This latter possibility has been introduced by Art. 11 of law 38/2001.

21 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 evaluation of the pupils and on the modalities for the employment of qualified teachers.

63 Art. 40 of the Autonomy Statute of the Aosta Valley. 64 Palermo and Woelk, Diritto costituzionale ..., 260.

22 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, with a view to reaching a more appropriate proportion of employment between the two

65 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.

23 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 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

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.

24 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 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

67 Art. 14 of Decree 574/1988. 68 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.

25 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 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

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 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 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

74 Hilpold, „Minderheitenschutz in Italien ..., 12. 75 See also Art. 12 of the Regional Law on the protection of the Slovene minority No. 26/2007.

27 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 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

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 (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 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

83 Hilpold, “Minderheitenschutz in Italien ...”, 15.

29 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 ‘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.

84 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 (so- called ‘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.

30 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).

7. Political Participation i. Participation of German and Ladin speakers in South Tyrol

85 Decree No. 99 of 23 May 2005. 86 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.

31 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 Süd- Tiroler 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 neo- fascist party Italian Social Movement (Movimento Sociale Italiano, MSI) has been so 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

88 Thomas Kager, “South Tyrol: Mitigated but not Resolved”, 1(3) Online Journal of Peace and Conflict Resolution (1998), 4.

32 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. 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

89 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.

33 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 Ladin- speakers 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 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

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. 92 Art. 61(2) ASt.

34 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 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

93 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.

35 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 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

96 Palermo and Woelk, Diritto costituzionale ..., 260.

36 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 linguistic minorities recognized under the law 482/1999. However, this Conference has so far not been established.

97 Art. 48bis of the Autonomy Statute of the Aosta Valley. 98 Art. 12, DPR 2 May 2001 no. 345.

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