Lists of candidates for elections and digital signature in Italy - Legal Dossier

In the context of the initiative led by EUMANS for Digital Democracy, Lawyer Francesca Re (Associazione Luca Coscioni) prepared a dossier to present some of the legal basis for the recognition of digital signatures for electoral lists. 

Legal Information 
The Italian Constitution, together with international treaties and conventions, is clear about “equal access to effective participation in the political, economic and social organization of the country" (Article 3). Therefore, there is no need to resort to laws or ministerial regulations to ascertain the unreasonableness and discrimination of the current system for submitting electoral lists in view of the next political elections. Apparently, regardless of existing laws and precedents, digital signatures will not be allowed to submit electoral lists. The obstacles to be removed to effectively access democracy, in this case, would not be many. It would be enough to apply the law of the State.

Electoral Law 165/2017
Law No. 165/2017 ("Rosatellum"), which regulates the way in which the next political elections will be held, already allows voters to sign digitally in support of a list of candidates. Indeed, article 3, paragraph 7 of Law No. 165/2017, delegates specific legislative powers to the Government in this respect by laying down that "within six months from the date of entry into force of this law, [...] the procedures for the digital collection of the signatures required to support candidates and lists of candidates for elections shall be set out on an experimental basis; these procedures will include digital signatures and qualified electronic signatures. The appropriate parliamentary committees will express their opinion on the draft [implementing] decree within forty-five days".

The UN Human Rights Commitee finds against Italy 
 In 2015, Mario Staderini and Michele De Lucia filed a complaint with the UN Human Rights Committee against the violation of the right of Italian citizens to access direct democracy instruments such as referendums and citizens' initiatives. In 2019, the Committee found against Italy because the procedure for collecting signatures was excessively complex. 1 by Francesca Re, lawyer and Public Law PhD, University of Rome Tor Vergata. Member of the Secretariat of the Luca Coscioni Association for freedom of scientific research. 1 Italy's responses to the Committee's decision were essentially two.

1) DECREE-LAW 76/2020
Decree-Law 76/2020 amended Article 14 of Law 53/1990, also by including lawyers "who have informed the Bar association to which they belong of their availability [to authenticate signatures]", regional councillors and parliamentarians among those who are allowed to authenticate signatures officially. That reform doubtlessly allowed for easier collection of signatures, as shown in particular by the high number of lawyers in our country who devoted their time to the authentication of signatures for the referendum to legalise euthanasia.

2) BUDGET LAW 178/2020
Article 1, paragraph 341 of Budget Law 178/2020 provided that "In order to contribute to removing the obstacles that prevent the full social inclusion of persons with disabilities, and to guarantee their right to democratic participation [...] a special fund [...] is established for the creation of a platform for the collection of digital signatures to be used pursuant to Article 8 of Law No. 352 of 25 May 1970".

Thus, with this Budget Law, the Prime Minister undertook to ensure the entry into operation, by 31 December 2021, of the "digital platform" for the collection of signatures and data of signatories in digital form or "by means of electronic tools in compliance with Article 20, paragraph 1(a), of the Digital Administration Code (Legislative Decree No. 82 of 7 March 2005)". With this additional provision: "digital signatures are not subject to the authentication procedure described in the third paragraph of Article 8 of Law No. 352 of 25 May 1970".

Initially, therefore, the creation of a platform for the collection of digital signatures was intended to allow persons with disabilities non-discriminatory access to democratic participation.

LAW 108/2021
In the summer of 2021, while signatures for the referendum to legalise euthanasia were being collected, Parliament (through an amendment by MP Riccardo Magi) approved art. 38 (a) of Law no. 108 of 2021, which introduced measures to simplify the collection of digital signatures through a platform, providing that "for the collection of the signatures of voters required for referendums pursuant to articles 75, 132 and 138 of the Constitution as well as for legislative proposals pursuant to article 71, paragraph 2, of the Constitution" signatures of voters may be collected "also pursuant to the procedure laid down in article 65, 2 paragraph 1, letter b), of the Digital Administration Code (Legislative Decree No. 82 of 7 March 2005)".

The regulatory framework on digital signatures and access to direct democracy shows that, already today, simply applying existing laws would be enough to break down barriers to democratic participation and allow non-discriminatory access to our country's political life.