Types of formal requirements

When one codes inductively the requirements relating to the formulation of the initiators’ request that exist across Europe, the following emerge as the key standards: the requirements of clarity, unity of substance, unity of form, and submission of a draft legal text (Figure 2). Except for the last one, they all appear in the Venice Commission Code.

Figure 2.

Types of formal requirements

For direct-democratic requests that lead to a referendum, the Venice Commission Code defines the clarity requirement as follows:

This requirement is very common, especially for the proactive initiative. Article 115(6) of the Portuguese Constitution, for example, provides that initiative proposals must be formulated in an objective, clear, and precise manner and must solicit ‘yes’ or ‘no’ answers.Footnote ³³ As the Supreme Court of Latvia has held, it must be unambiguously clear to any person signing – or voting on – a proactive initiative what it says, what is meant by it, and what its purpose is. Importantly, as is also made explicit by the Venice Commission Code, this implies that voters must be able to foresee the consequences of supporting a given proposal.Footnote ³⁴ Even an initiative that is textually clear may fall short of this requirement if it defines a goal but fails to specify a mechanism for achieving it.Footnote ³⁵

The clarity requirement is especially difficult to meet in Hungary where the Referendum Act states that clarity needs to be ensured not only for the voters but also for the legislator.Footnote ³⁶ Thus, parliament must be able to tell from the wording of the proposal how it is expected to implement it.Footnote ³⁷ These two aspects of clarity may often be in tension, as a very precisely formulated proposal may be easier for parliament to implement but more difficult for voters to understand.Footnote ³⁸ The result of these demanding standards is that, from 2014 to 2017, 68% of proactive initiatives in Hungary were declared inadmissible due to a lack of clarity.Footnote ³⁹ For example, the Curia (the Hungarian Supreme Court) held that an initiative demanding that all shops should be closed on Sundays was not sufficiently clear. It argued that, given how the initiative would have to be implemented by parliament, voters would not be able to foresee all the consequences its approval would bring about to everyday life.Footnote ⁴⁰ In several countries, the clarity requirement also applies to the rejective initiative. It has acquired especially great importance for the Italian version of this instrument, the referendum abrogativo. Despite the lack of a respective explicit basis in Italian legislation, the Italian Constitutional Court has consistently held that, to be admissible, abrogative requests must be simple, unambiguous, and complete.Footnote ⁴¹ For instance, it ruled that a rejective initiative aimed at abolishing the electoral legislation in force at the time failed to meet this requirement as it did not allow voters to foresee what kind of electoral regime would replace the existing one.Footnote ⁴²

According to the unity of substance requirement, which is normally regarded as following from the clarity requirement,Footnote ⁴³ a citizens’ initiative must not combine two or more issues or subject matters that lack an inherent connection.Footnote ⁴⁴ If the requirement is not respected, signatories and voters cannot freely express their will since they may be in favour of one aspect of the initiative but opposed to another. The requirement does not apply to the total revision of a constitution or law. Unity of substance is an explicit requirement for roughly half of the proactive initiatives and rejective initiatives existing in Europe. For the Ukrainian proactive initiative, for example, the relevant law provides that, if a referendum proposal consists of several parts, there must be an inseparable internal connection between them.Footnote ⁴⁵ In Switzerland, unity of substance is required by Article 139(3) of the Federal Constitution. It is on this basis that the Federal Assembly declared inadmissible an initiative that demanded that the military budget be reduced by half while at the same time requiring that this money be used for purposes of peacekeeping and the provision of social security.Footnote ⁴⁶ Unity of substance equally plays an important role for the Italian rejective initiative, as this instrument also allows initiators to ask for a repeal of several legal provisions, which need not even form part of the same law. In a case concerning a request aimed at the – total or partial – repeal of 97 articles of the penal code, the Italian Constitutional Court held that a rejective initiative may not include a plurality of heterogeneous questions that lack a rationally uniform aim. If there is a lack of unity of substance, the Court argued, the people cannot express their will genuinely, which violates their freedom to vote and runs counter to the very concept of the referendum.Footnote ⁴⁷ Since then, the Court has consistently subjected abrogative requests to a strict review of their compliance with the unity of substance requirement.Footnote ⁴⁸

The unity of form requirement means, in the words of the Venice Commission Code, that an initiative ‘must not combine a specifically worded draft amendment with a generally worded proposal or a question of principle’.Footnote ⁴⁹ Whereas a specifically worded amendment can be enacted as it is, approval of a generally worded proposal or a question of principle is simply a first step in the law-making process that must be followed by other steps. Therefore, if the requirement is not complied with, voters cannot foresee the exact consequences of a ‘yes’ vote. In that sense, unity of form can also be regarded as a specific aspect of clarity. The unity of form requirement only applies to five proactive initiatives, three rejective initiatives, and one agenda initiative. Where it does exist, it is of little practical relevance.Footnote ⁵⁰

Many states set higher standards than those established by the Venice Commission Code and require initiators to submit their proposal in the form of a draft legal text, meaning that generally worded proposals are not allowed. In Romania, for example, agenda initiatives need to be submitted in the form that is required for draft legislation, accompanied by an explanatory memorandum.Footnote ⁵¹ This requirement may also serve to protect the freedom to vote: it will generally be easier for signatories and voters to understand a direct-democratic request if it is formulated as a detailed legal text rather than a general proposal. At the same time, however, the requirement also facilitates the work of parliament as it will not itself have to come up with the legal provisions that, in the case of the proactive initiative and the rejective initiative, will be submitted to the referendum or, in the case of the agenda initiative, will form the basis of parliamentary debates. At least in the case of most agenda initiatives, this appears to be the main objective of the draft text requirement. If the point was to ensure signatories’ freedom to form an opinion, compliance with the requirement would have to be checked prior to the signature collection, which only seven of the 17 states that have this requirement for their agenda initiatives do.Footnote ⁵² Like other formal requirements, the draft text requirement may amount to a high hurdle for initiators, especially less politically active ones. The Latvian Central Election Commission, for instance, tends to apply restrictively the requirement that initiators must ‘submit a fully elaborated draft of an amendment to the Constitution or of a law’Footnote ⁵³ and has declared several proactive initiatives inadmissible on this basis.Footnote ⁵⁴

Other formal requirements include, for example, that with a proactive initiative not more than oneFootnote ⁵⁵ or threeFootnote ⁵⁶ questions may be submitted to a referendum; that the question proposed by a proactive initiative may not be expressed in such a way as to give priority to, or suggest, one of the possible answers;Footnote ⁵⁷ or that the wording of a rejective initiative must follow a set format determined by law.Footnote ⁵⁸

Diffusion

Since most requirements regarding the formulation of direct-democratic requests follow from the freedom to vote, they are very common across Europe. They normally apply not only to bottom-up but also to top-down instruments.Footnote ⁵⁹ They are more common than substantive requirements. Only eight out of the 57 bottom-up instruments existing in Europe are not subject to any formal requirements (Figure 3).

Figure 3.

Instruments with formal requirements

All 20 states that have the proactive initiative impose at least one formal requirement on its use, with the clarity requirement (16 states) and the unity of substance requirement (9 states) being the most common ones. This makes sense, as the proactive initiative allows the initiators to formulate their own proposal. This proposal not only forms the basis for the collection of signatures, it is – if the required number of signatures is collected – then also put to a popular vote. It is crucial that at both these stages – the signature collection and the referendum – voters have a clear understanding of what exactly is requested.

In the case of the agenda initiative, the initiators’ proposal equally forms the starting point for the signature collection. However, if sufficient signatures are collected, the initiative is then submitted to parliament rather than the people. In most states, parliament enjoys wide discretion in how it deals with the proposal and may thus also adapt its text at will. This explains why only a small minority of states have requirements of clarity (six out of 28 states) or unity of substance (four out of 28 states) for the agenda initiative. In contrast, in 17 out of 28 states an agenda initiative needs to be submitted as a draft legal text.

The situation is somewhat different for the rejective initiative. Like the proactive initiative, it leads to a referendum. It is therefore of crucial importance that both signatories and voters can freely form an opinion on the text at issue. However, since the initiators do not draft their own proposal but oppose norms that are proposed (or have already been adopted) by parliament, they have less influence on the text voted on. In Slovenia and Malta, for example, the initiators’ request must follow a set format along the lines of ‘Should the following Act/provisions enter into/stay in force?’.Footnote ⁶⁰ Nevertheless, especially where, as in Italy and San Marino, the rejective initiative may be used to abrogate single provisions (or even only parts of provisions) of existing laws – and thereby also to change their meaning – there is a risk that such requests may be unclear or even misleading. Therefore, six out of nine states have either the clarity or the unity of substance requirement (or both) for their rejective initiative.

Assessment

For an issue to come within voters’ reach, it must meet certain standards regarding its formulation. Formal admissibility requirements such as clarity and unity of substance can thus be said to follow from the very idea of direct democracy: the people can only genuinely express their will regarding a direct-democratic proposal if it is clear and homogeneous. This fundamental connection has been highlighted, for example, by the Italian Constitutional Court and the Latvian Supreme Court.Footnote ⁶¹

Given their fundamental importance, it is problematic that for one rejective initiative and seven agenda initiatives the relevant national laws do not provide for any formal admissibility requirements at all. For agenda initiatives, formal requirements may seem less vital than for the other instruments, considering that they do not lead to a popular vote. Yet not only voters but also potential signatories should have a clear understanding of initiative proposals.

While true direct-democratic participation depends on formal admissibility requirements, these may also be used to undermine it. As the Hungarian example demonstrates, the clarity requirement can turn into a serious hurdle for citizens’ initiatives, especially if it is assessed primarily from the perspective of the authorities rather than that of voters. Similarly, the requirement of submission of a draft legal text may serve to protect the freedom of vote but, depending on how it is applied, it may also become an obstacle for direct-democratic participation as voters may struggle to meet demanding editorial standards.

Types of substantive requirements

The degree of content-related restrictions that are imposed on bottom-up instruments of direct democracy varies considerably from state to state. Whereas the Portuguese Constitution precludes more than 30 subject matters from the scope of the proactive initiative,Footnote ⁶³ the only substantive admissibility requirement that exists in Switzerland for the same instrument is conformity with peremptory norms of international law.Footnote ⁶⁴ Nevertheless, an analysis of all 57 bottom-up instruments existing in Europe reveals a set of characteristic substantive requirements. Figure 4 lists the most common ones.

Figure 4.

Prohibited subject matters

There is no obvious way of categorising these substantive requirements, as a given requirement – such as compliance with international law – may serve several objectives at the same time and touch upon various subject areas.

One obvious rationale behind some of the substantive requirements – in particular those of compliance with international law, the constitution, fundamental rights, and minority rights as well as respect for the very structure of the state – is the attempt to balance popular sovereignty with the demands of the rule of law. Norms that are regarded as fundamental for a democracy based on the rule of law are removed from the reach of the people. However, as pointed out in the Introduction above, compliance of citizens’ initiatives with such norms could also be ensured at a later stage. Why, instead, is it made a requirement for their admissibility? Apparently, the intention is to prevent a dilemma from arising: if a proactive initiative or a rejective initiative that clashes with fundamental legal norms is allowed to go ahead and is approved in a popular vote, then there is only the choice to either respect the voters’ will and thus disregard these legal obligations or to respect these obligations and thus disregard, or at least not fully implement, the voters’ will. The first solution creates legal uncertainty, the second is bound to lead to political controversy. A similar dilemma may arise in the case of an agenda initiative that is supported by a large number of signatories. As the Slovenian Constitutional Court has pointed out, allowing signatures to be collected for an initiative that clashes with the fundamentals of a constitutional democracy might lead to political polarisation.Footnote ⁶⁵

Therefore, numerous states preclude citizens’ initiatives that touch upon international law altogether. In Hungary, for example, proactive initiatives may not affect ‘any obligation arising from international treaties’.Footnote ⁶⁶ The Curia declared an initiative demanding that foreign nationals be prohibited from acquiring agricultural land inadmissible on this basis as it was incompatible with Hungary’s Treaty of Accession to the European Union.Footnote ⁶⁷ In several states, the requirement of compliance with international law equally applies to the rejective initiative. According to Article 75(2) of the Italian Constitution, for example, abrogative referendums may not be directed against ‘laws authorizing the ratification of international treaties’. The Constitutional Court has interpreted this subject matter prohibition widely to also cover laws that are necessary to implement obligations arising from international agreements.Footnote ⁶⁸ Finally, to give an example of an agenda initiative, under Estonian law such initiatives are only admissible if they are not ‘manifestly incompatible … with the international obligations of the Republic of Estonia under international agreements’.Footnote ⁶⁹ The problem with such requirements, which simply refer to ‘compliance with international law’, is that the hurdle may be set higher than is needed, given that proposals may be filtered out despite there not being a real dilemma. Should it really be the case that, say, an important constitutional amendment is barred because it may be incompatible with a bilateral agreement on a minor technical issue that is of hardly any importance for either of the states?

The example of Switzerland, on the other hand, shows that lowering the hurdle too much may also be problematic. Article 139(3) of the Swiss Federal Constitution only allows proactive initiatives to be declared inadmissible if they violate ‘peremptory norms of international law’,Footnote ⁷⁰ such as the prohibitions of genocide, slavery, and torture. As a result, numerous initiatives that comply with peremptory norms but violate other norms of international law have been put to a popular vote. Some of them have been approved by a majority of voters and cantons. These include an initiative ‘against mass immigration’, which conflicts with the Agreement on the Free Movement of Persons concluded between Switzerland and the European Union,Footnote ⁷¹ and an initiative for the automatic expulsion of foreign nationals convicted of certain criminal offences, which violates several human rights guarantees.Footnote ⁷² The question of whether, and how, these initiatives should be implemented has led to major controversies and a veritable crisis of the political system.Footnote ⁷³

In some states, it is not permissible to use bottom-up instruments of direct democracy to amend the constitution. This is a common admissibility requirement for the agenda initiative, existing in nine states, including SpainFootnote ⁷⁴ and Denmark.Footnote ⁷⁵ In three states the rejective initiative may not be used to prevent or repeal constitutional amendments. The Italian Constitutional Court, for example, has excluded from the scope of the abrogative referendum norms that have constitutional significance or that render a constitutional norm inoperable, even though the wording of Article 75 of the Italian Constitution does not set forth such a limit.Footnote ⁷⁶ In contrast, in the case of the proactive initiative, a prohibition on amending the constitution only exists in HungaryFootnote ⁷⁷ and Portugal.Footnote ⁷⁸

Where the constitution can be amended through direct-democratic means, there may nevertheless be a requirement that citizens’ initiatives must not violate its most fundamental principles or the very structure of the state. In Estonia, for example, agenda initiatives may not be ‘manifestly incompatible with the fundamental principles of the Constitution’.Footnote ⁷⁹ In Romania they may not be aimed at amending those constitutional provisions that concern ‘the national, independent, unitary and indivisible character of the Romanian State, the republican form of government’, or ‘political pluralism’.Footnote ⁸⁰ Although there is no similar provision in Croatian law, the Croatian Constitutional Court has held that a proactive initiative may be declared inadmissible if ‘it threatens to destroy the structural characteristics of the Croatian constitutional state’.Footnote ⁸¹ Similarly, the Latvian Constitutional Court has held that proactive initiatives may not be ‘contrary to the fundamental values of a democratic state governed by the rule of law’, adding that, if such initiatives were regularly submitted to a popular vote, ‘the very idea of a citizens’ initiative would be undermined’.Footnote ⁸²

A further very common substantive requirement for all types of bottom-up instruments is respect for fundamental and minority rights. In some cases, including for example that of the proactive initiative in Slovakia, the requirement is explicitly contained in the constitution.Footnote ⁸³ In others, such as that of the Hungarian proactive initiative, it follows from the prohibition of constitutional amendments.Footnote ⁸⁴ In still others, for instance that of the Croatian proactive initiative, it may be implied in the requirement to respect the structural characteristics of the state. In Slovenia, rejective initiatives may not be directed against ‘laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality’.Footnote ⁸⁵ In Romania, agenda initiatives may not result ‘in the suppression of the citizens’ fundamental rights and freedoms, or of the safeguards thereof’.Footnote ⁸⁶

The scope of such prohibitions may be controversial, especially where they are as vaguely defined as Article 93(3) of the Slovakian Constitution, which simply refers to ‘issues of fundamental rights’. Do they preclude only citizens’ initiatives that violate fundamental rights, or also those that restrict them, or even all those that concern them? The Slovakian Constitutional Court has made it clear that the constitutional prohibition does not apply to initiatives that would extend the standard of protection offered by a given fundamental right.Footnote ⁸⁷ Yet when exactly, then, does an initiative have to be qualified as being contrary to such a substantive requirement? This question has been raised in several cases concerning direct-democratic proposals to ban same-sex marriage. In 2013, the Croatian Constitutional Court held that a proactive initiative could only be declared inadmissible if the unconstitutionality of the proposal was ‘of such severity that it threatens to destroy the structural characteristics of the Croatian constitutional state’.Footnote ⁸⁸ According to the Court, a ban on same-sex marriage as proposed by the initiative in question did not fall into this category; it was, on the contrary, ‘aligned with the European legal standards regarding the institutions of marriage and family life’.Footnote ⁸⁹ Similarly, the Slovakian Constitutional Court concluded in 2014 that prohibiting same-sex couples from marrying and adopting children would not lower the standard of protection of the right to private and family life to an extent that threatens the rule of law and hence was compatible with the prohibition of Article 93(3) of the Constitution.Footnote ⁹⁰ The Slovenian Constitutional Court ruled in 2015 that a rejective initiative directed against an act of parliament designed to introduce same-sex marriage was admissible as the act did not directly ‘eliminat[e] an unconstitutionality in the field of human rights and fundamental freedoms’ in the sense of Article 90(2) of the Slovenian Constitution.Footnote ⁹¹ Finally, in 2016 the Romanian Constitutional Court ruled that an agenda initiative that demanded the term ‘marriage’ in the Constitution to be limited to a union between a man and a woman did not amount to a suppression of fundamental rights as it merely specified the scope of the right to marry.Footnote ⁹²

Conversely, initiative proposals that have been declared inadmissible due to a lack of conformity with fundamental rights guarantees include the Spanish agenda initiative aimed at restricting access to abortion referred to in the Introduction;Footnote ⁹³ a Croatian proactive initiative proposing to restrict the use of minority languages;Footnote ⁹⁴ a Slovenian rejective initiative directed against an act that provided redress for the human rights violations caused by erasure from the Slovenian register of permanent residents;Footnote ⁹⁵ and, in Hungary, a proactive initiative intended to oblige the relatives of officeholders to publicly declare their assetsFootnote ⁹⁶ and several proactive initiatives aimed at the reintroduction of the death penalty.Footnote ⁹⁷

While all the requirements described above may be said to protect the rule of law, there are also numerous content-related restrictions that obviously serve completely different objectives.

This is true for the most common subject matter prohibition: that of financial issues, which applies to 29 instruments. In Poland, proactive initiatives may not concern ‘expenditure and revenue, especially taxes and other public duties’;Footnote ⁹⁸ in Latvia, the prohibition covers ‘[t]he budget and laws concerning loans, taxes, customs duties [and] railroad tariffs’.Footnote ⁹⁹ Rejective initiatives may not target ‘tax or budget laws’ in ItalyFootnote ¹⁰⁰ or ‘laws on taxes, customs duties, and other compulsory charges, and on the law adopted for the implementation of the state budget’ in Slovenia.Footnote ¹⁰¹ In the Netherlands, ‘taxes and budgets’ are off limits to the agenda initiative,Footnote ¹⁰² in Spain subjects that are ‘of a tax nature’.Footnote ¹⁰³ Slovenia introduced its prohibition of financial issues to ensure ‘the financial stability of the country’.Footnote ¹⁰⁴ The similarly worded prohibition in Slovakia has been described as ‘understandable in regard to the preservation of a stable and predictable state income’ and has remained uncontroversial.Footnote ¹⁰⁵ There thus appears to be a widely held assumption that voters cannot be entrusted with decisions that may affect the state’s financial stability as ‘it is regarded as unlikely that the people would place the overall state interest above their own’.Footnote ¹⁰⁶

Just like substantive requirements relating to international law or fundamental rights, those concerning financial issues raise problems of interpretation. Almost any issue that can form the subject of a citizens’ initiative will have some financial implications. The Latvian Central Election Commission, for instance, has therefore interpreted the prohibition of financial issues narrowly.Footnote ¹⁰⁷ In contrast, the Hungarian authorities have declared a large number of proactive initiatives inadmissible because they concerned fiscal legislation.Footnote ¹⁰⁸ And the Italian Constitutional Court has held that the reference to ‘tax or budget laws’ of Article 75(2) of the Constitution also covers measures that are closely connected to budget laws, including laws that are deemed necessary for the implementation of financial and budgetary goals.Footnote ¹⁰⁹

Quite a few states have put national security matters and/or emergency powers beyond the reach of bottom-up instruments of direct democracy. In Hungary, ‘the declaration of a state of war, state of national crisis or state of emergency’ and ‘any matter related to participation in military operations’ may not form part of a proactive initiative.Footnote ¹¹⁰ In a similar vein, the respective Polish prohibition covers all matters concerning ‘state defence’.Footnote ¹¹¹ These substantive admissibility requirements seem to be prompted by similar considerations as those that explain exemptions of financial issues, namely a reluctance to entrust questions that may affect the stability or even the very existence of the state to the judgment of the people. When, in 1922, the subject matter prohibitions (including financial issues, declaration of war or a state of emergency, military conscription, and mobilisation) were introduced in Latvia, the expectation was that, ‘as culture spreads and civic consciousness strengthens’, they could be gradually removed.Footnote ¹¹² In fact, however, they have been left in place until today. Another justification for putting decisions regarding national security beyond the reach of the people may be that they often require swift action. Direct-democratic procedures, which are normally time-consuming, may therefore be regarded as inappropriate means of decision-making. Accordingly, in Slovenia, only those measures to ensure the defence of the state that are urgent are removed from the reach of the rejective initiative.Footnote ¹¹³ In 2015 the Slovenian Constitutional Court ruled that, in the context of the European migrant crisis, a law allowing members of the armed forces to be deployed to control the national border constituted an urgently needed security measure, so that a rejective initiative trying to prevent its entry into force was inadmissible.Footnote ¹¹⁴

Diffusion

Whereas only about half of the top-down instruments of direct democracy include one or more substantive requirements,Footnote ¹¹⁵ they are very common for citizens’ initiatives.

Content-related restrictions exist for 46 of the 57 instruments (Figure 5). They are particularly common for the proactive initiative, which allows voters to come up with their own proposal that is then submitted to a referendum. Montenegro, where the proactive initiative appears to be of no practical relevance, is the only state that does not provide for any substantive requirements for this instrument.

Figure 5.

Instruments with substantive requirements

Given that the rejective initiative serves to oppose a proposal or measure that stems from parliament, it may seem surprising that seven of the states with this instrument impose content-related restrictions on it. The point of most of these restrictions is to prevent the blocking, or repeal, of provisions that are regarded as essential for the functioning of the state, such as laws on taxes,Footnote ¹¹⁶ the budget,Footnote ¹¹⁷ or urgent measures to ensure the defence of the state.Footnote ¹¹⁸

As with formal requirements, substantive requirements are least common for the agenda initiative. Nevertheless, 20 out of 28 states do preclude agenda initiatives on certain subject matters, ranging from human rights,Footnote ¹¹⁹ to taxes,Footnote ¹²⁰ to amnesties and pardons.Footnote ¹²¹ This is remarkable, considering that parliament normally has broad leeway in dealing with agenda initiatives. If it regards a given proposal as problematic in terms of its content, it could address the problem at the stage of implementation or simply reject the proposal. Thus, the point of these substantive requirements seems to be to prevent certain issues from being put on the political agenda in the first place.

To get a better sense of how high the bar is set for the various bottom-up instruments, the list of 20 prohibited subject matters (Figure 4) has been transformed into a four-point scale of degrees of substantive requirements, which takes account of the number and stringency of content-related restrictions existing for a given instrument. The result is depicted in Figure 6.

Figure 6.

Degree of substantive requirements

This scale confirms the picture we get from the simple count of instruments with substantive requirements (Figure 5): the restrictions imposed on the content of proposals are particularly stringent in the case of the proactive initiative. While the requirements for the agenda initiative are comparatively relaxed, there is still a remarkably large number of states that have a medium or even high degree of substantive requirements for this rather weak instrument.

Assessment

Some of the substantive admissibility requirements that have been imposed on citizens’ initiatives, such as those relating to finances or national security, are evidently prompted by a distrust of the judgment of the people. Yet why should, in a democracy, key decisions on issues that may affect the stability of the state be reserved for members of parliament or even unelected government officials? There is no convincing reason why the people should be trusted to elect representatives, but not to decide on policies. Parliamentarians are not in a better position than voters to make responsible decisions: a large body of empirical work demonstrates that those participating in popular votes do have the necessary competence to make policy decisions,Footnote ¹²² and parliamentarians or government officials face exactly the same conflict of interests as voters when they decide on, say, reducing taxes or increasing public spending. In fact, the available empirical evidence suggests that direct democracy leads to a reduction in government spending.Footnote ¹²³ Similarly, why should citizens not have a say on whether the armed forces should be deployed against migrants? Of course, such decisions might need to be taken urgently. Yet this is no reason to not involve the people in them at all. In Switzerland, for example, parliament may, in case of urgency, enact a law immediately.Footnote ¹²⁴ However, voters are still allowed to launch a rejective initiative against such an emergency law. If they are successful in collecting sufficient signatures, a referendum on the law is then held within one year from enactment.Footnote ¹²⁵ This shows that prohibitions of subject matters such as finances or national security are not supported by compelling reasons but mainly reflect a paternalistic attitude. Consequently, they cannot be regarded as ‘reasonable restrictions’ of direct-democratic participation in the sense of Article 25(a) ICCPR.

Content-related requirements also seem difficult to justify where they are imposed on agenda initiatives. Given the weak nature of the agenda initiative and the wide scope of discretion parliament typically has in dealing with this type of initiatives, such requirements mainly seem to serve to prevent certain subjects from being put on the political agenda.

In contrast, most lawyers will have sympathy for the Venice Commission’s recommendation that direct-democratic proposals should comply with higher-ranking law, international law, and human rights.Footnote ¹²⁶ After all, democracy without the rule of law is unthinkable. A democratic system depends on legal safeguards that prevent the concentration and perpetuation of political power; those in the minority need protection to have the chance to become the political majority.Footnote ¹²⁷ Seen from this perspective, the Latvian Constitutional Court was right to state that citizens’ initiatives that clash with fundamental legal norms may undermine the very idea of direct democracy.Footnote ¹²⁸ This explains why many states follow the Venice Commission’s recommendation and try to prevent such initiatives from the very beginning. Otherwise, the political pressure these may generate if they collect the required number of signatures, or are even approved in a popular vote, can put the authorities in a difficult situation. However, in practice, it has proven extremely challenging to filter out the right initiatives as it is not obvious which types of norms should be off limits to bottom-up instruments of direct democracy. Definitions that simply refer to ‘international law’ or ‘fundamental rights’ risk being over-inclusive, while those that refer to ‘fundamental principles’ or ‘structural characteristics of the constitution’ raise serious problems of interpretation. All these broadly defined requirements leave those applying them wide discretion.

Formal check

About a fifth of the proactive initiatives and rejective initiatives and 12 out of the 28 agenda initiatives are not subject to a formal check (Figure 7). For eight out of the 18 instruments without a check there are no formal admissibility requirements in the first place. This still leaves ten instruments for which formal requirements exist but compliance with them is not systematically reviewed.

Figure 7.

Institution in charge of the formal check

Where agenda initiatives are checked for their formal admissibility, it is typically parliament that is entrusted with this task. While parliaments also play their part in the formal admissibility review of proactive initiatives, the most common institutional choice for this instrument is election commissions. Courts assume a prominent role in checking rejective initiatives, but less so in the case of the other instruments. Only in the case of four instruments is the government tasked with the formal admissibility review.

Substantive check

Some 17 instruments, 13 of which are agenda initiatives, are not subject to a substantive admissibility check (Figure 8). For 11 out of these 17 instruments no substantive requirements exist, so that a corresponding check is conceptually impossible.

Figure 8.

Institution in charge of the substantive check

In the case of 25 instruments, the substantive admissibility check is entrusted to parliament. Courts equally assume a prominent role when it comes to substantive requirements, especially in the case of the proactive initiative and the rejective initiative. In contrast, election commissions and governmental bodies are a rare institutional choice for the substantive check.

Assessment

The main purpose of formal admissibility checks is to ensure that direct-democratic requests are in fact within the grasp of voters: that they can understand what a given request is about and what consequences it will entail so that they can freely form an opinion before deciding whether to support it. Seen in this light, it is highly problematic that for ten instruments that are subject to formal requirements there is no institutional and procedural framework for reviewing initiatives for their compliance with these requirements. This effectively means that not only for the eight instruments that are not subject to formal requirements in the first place, but also for these ten instruments there is no guarantee that voters will be free to form an opinion.

In contrast, substantive requirements do not serve to guarantee the freedom to vote but rather to remove certain issues from the reach of the people. At least from the perspective of voters, it may therefore appear more acceptable than in the case of formal requirements that compliance with substantive requirements is not reviewed systematically but only on request. Nevertheless, if substantive admissibility requirements are thought to be needed, it would only be logically consistent to also establish a procedure for ensuring compliance with them.

Insofar as procedures for reviewing the formal and/or substantive admissibility of citizens’ initiatives do exist, the question arises whether the institutions that are put in charge of them are suited for this task. Even though citizens’ initiatives are used to promote or oppose a (legislative) proposal, the point of the admissibility procedure is not to review the desirability or feasibility of that proposal but rather its conformity with the admissibility requirements as they are defined in law. Thus, whether a given initiative meets or does not meet these requirements – be they of a formal or a substantive nature – is a legal question. As such, it should be decided by a body with legal expertise. Institutions that routinely apply and interpret legal norms and decide legal disputes, such as courts or election commissions, are thus considerably better equipped to review the admissibility of citizens’ initiatives than parliaments, which primarily deal with political and policy questions.

Furthermore, institutions tasked with this review must be impartial, meaning that they should treat those involved in the procedure equally and reach a decision that is free of bias or prejudice. Impartiality implies that the respective institution is independent, allowing it to decide without any improper influence from outside. Article 25(b) ICCPR requires states to establish an independent authority to supervise popular vote processes and ensure that they are conducted fairly and impartially.Footnote ¹³⁰ The Venice Commission Code states that an impartial body must be entrusted with the organisation of referendums, including those triggered by citizens’ initiatives.Footnote ¹³¹ That impartial body must also have the power ‘to check the validity of any proposed referendum question and approve its final wording’.Footnote ¹³²

Courts are ideally placed to perform this task. In most European states, a variety of institutional features protect them from undue outside pressures. As highlighted by the Venice Commission, the admissibility check may also be entrusted to election commissions as long as their independence is guaranteed, implying that they should include at least one independent legal expertFootnote ¹³³ and that their members may not be dismissed at will.Footnote ¹³⁴

The impartiality of parliaments, in contrast, may be compromised for two basic reasons. First, members of parliament may take into account strategic considerations when reviewing citizens’ initiatives. Being dependent on electors’ support, their decision-making may be influenced by the popularity of a given initiative: They may be reluctant to declare initiatives inadmissible that appear to enjoy wide support among their voters. Conversely, they may feel urged to vote for the inadmissibility of unpopular proposals. Second, ideological considerations may also influence decision-making in parliament. Given that citizens’ initiatives are intended to remove certain issues from the policy-making authority of parliament, its members may have an interest in thwarting initiatives that do not align with their political preferences.Footnote ¹³⁵ Similar strategic and ideological considerations may also affect the decision-making of governmental bodies, although – depending on the type of body – its members will normally have to vie less for voters’ favour than parliamentarians.

Considering the real risk that the impartiality of parliaments and governmental bodies may be compromised by strategic and ideological considerations, it is of great concern that a relatively large number of states entrust either type of these institutions with reviewing citizens’ initiatives for their admissibility. This concern can be alleviated by providing for the possibility to appeal parliamentary or governmental decisions before a court. However, as will be explained in the following section, such a legal remedy does not exist in all states.

Formal check

Procedures for reviewing the formal admissibility of citizens’ initiatives only rarely incorporate a right to participate. Such a right only applies to 13 out of the 39 instruments for which there is a formal check (Figure 9). The right exists, for example, in North Macedonia where the parliamentary committee tasked with dealing with a given agenda initiative must notify the initiators’ representative of any relevant sessions and allow him or her to participate in them.Footnote ¹³⁷

Figure 9.

Procedural safeguards: formal check

The right to an effective remedy is more common: 19 instruments allow for the possibility of appealing the first-instance decision declaring an initiative inadmissible on formal grounds. In 18 of these cases, it is a court that will decide the appeal. The only exception concerns the agenda initiative in Portugal where inadmissibility decisions by the president of the parliament may be appealed before parliament as a whole.Footnote ¹³⁸ In the case of rejective initiatives and agenda initiatives the right to appeal is almost exclusively granted to the initiators, whereas in the case of proactive initiatives several states allow any voter to appeal (in)admissibility decisions.

Substantive check

Procedural safeguards are similarly rare in the case of substantive checks of citizens’ initiatives. 15 out of the 40 instruments for which there is a substantive review allow for a right to participate (Figure 10). The right to appeal decisions declaring an initiative substantively inadmissible is available for 13 instruments. As with the formal check, it is, except for the Portuguese agenda initiative, courts that decide on appeal, and the right to challenge first-instance decisions is normally restricted to the initiators.

Figure 10.

Procedural safeguards: substantive check

Taking together remedies available in formal and substantive admissibility checks, decisions by election commissions can be appealed in nearly all cases, those by parliament or government in roughly half of the cases. In contrast, where a court decides on admissibility in the first instance, that decision cannot be appealed in any state.

Assessment

The Venice Commission Code lists numerous procedural guarantees that apply to the organisation of referendums, including those triggered by a proactive initiative or a rejective initiative. However, it should be noted that these guarantees have been designed generically for all parts of the referendum procedure, from regulation of the franchise to campaigning issues and the establishment of referendum results; they are not specifically tailored to admissibility checks.

The Venice Commission Code refers to the right to participate in the context of the system of appeal that states need to install in referendum matters, requiring the applicant’s right to an adversarial hearing to be protected.Footnote ¹³⁹ Considering its importance in terms of ensuring the availability of all necessary information and enhancing transparency, it is of concern that only a small minority of existing admissibility checks provide for the right to participate. Both when it comes to formal and substantive admissibility, a thorough assessment may well depend on information that the initiators – or other actors with a special interest or expertise in the subject matter at hand – are best able to provide.

Article 25 in conjunction with Article 2(3) ICCPR guarantees voters access to an effective remedy in case of disputes concerning citizens’ initiatives.Footnote ¹⁴⁰ Whether Article 14(1) ICCPR, providing a right of access to a court, also applies to such disputes, has not yet been settled. The UN Human Rights Committee has applied Article 14(1) ICCPR to electoral disputes,Footnote ¹⁴¹ which suggests that it could be equally applicable to disputes concerning the admissibility of citizens’ initiatives. If access to judicial review is not available, there must, at the very least, be access to an ‘equivalent process’.Footnote ¹⁴² In a similar vein, the Venice Commission Code requires states to establish an ‘effective system of appeal’ in referendum matters.Footnote ¹⁴³ The appeal body, which must also have the competence to address the formal and substantive admissibility of citizens’ initiatives,Footnote ¹⁴⁴ should be impartial and independent and endowed with the necessary powers to afford an effective remedy. The Code stresses that a final appeal to a court of law is the preferred option.Footnote ¹⁴⁵

Where states do provide for a remedy against (in)admissibility decisions, it is indeed almost exclusively courts that decide on appeal. However, in the case of more than half of the existing bottom-up instruments of direct democracy, including for example the Swiss proactive initiative and the Dutch agenda initiative, decisions declaring an initiative inadmissible cannot be challenged at all, meaning that the standards of the ICCPR and the Venice Commission Code are not met. Lack of a legal remedy is particularly problematic where a political body, that is, parliament or government, decides on admissibility. Both the Croatian and Latvian constitutional courts have stressed that, where the impartiality of the body deciding on the admissibility of citizens’ initiatives may be contested, availability of judicial review is all the more important.Footnote ¹⁴⁶ Nevertheless, parliamentary decisions on formal admissibility cannot be challenged before a court in 12 out of 20 cases, decisions on substantive admissibility in 14 out of 24 cases. Governmental admissibility decisions cannot be judicially reviewed in half of the cases. This means that, in all these cases, no judicial body is involved in the admissibility review at any stage of the procedure. From a rule of law perspective, this is highly problematic.

Formal check

In the case of 23 out of 39 instruments that are subject to such a check, the formal admissibility of citizens’ initiatives is reviewed before signature collection (Figure 11).

Figure 11.

Timing: formal check

That many states provide for an early check of formal admissibility is understandable. After all, the point of formal checks is to ensure that direct-democratic requests are within the grasp of voters: that they can freely form an opinion about them and express their will accordingly. This freedom may not only be at stake once it comes to a popular vote but already at the signature collection stage. The wording of a given initiative may considerably influence voters’ decisions as to whether to sign it. It therefore makes sense that unclear or even misleading initiatives are filtered out at this early stage.

Substantive check

The picture for the substantive check is just the opposite to that for the formal one: in 23 out of 40 cases substantive admissibility is reviewed after signature collection (Figure 12). Since the point of substantive checks is to remove certain issues from the reach of voters, rather than to ensure the freedom to vote, an early review is generally regarded as less important. That a given citizens’ initiative touches upon a prohibited subject matter does not, as such, affect potential signatories’ freedom to form an opinion about it. Voters may well want to manifest their support of a proposal regardless of whether it might later turn out to be inadmissible on substantive grounds. Reasons of efficiency and cost saving also speak for checking the admissibility of initiatives only once the required number of signatures have been collected. For example, the Swiss Federal Parliament rejected a proposal to review the admissibility of proactive initiatives before instead of, as is currently the case, after the signature collection. A majority of the members of parliament thought that it would not make sense to perform an extensive and costly review of initiatives that then turn out not to gather the necessary support.Footnote ¹⁴⁹

Figure 12.

Timing: substantive check

Nevertheless, for 17 instruments substantive admissibility is reviewed before the signature collection may start. This is the case, for example, in Slovenia, where the Constitutional Court has stated that it was not least in the interest of voters that any doubts regarding the admissibility of a rejective initiative should be resolved as soon as possible.Footnote ¹⁵⁰ Similarly, Liechtenstein has brought forward the substantive admissibility check for the proactive initiative from after to before signature collection as it was thought that late inadmissibility decisions could upset initiators’ expectations.Footnote ¹⁵¹

Assessment

Given the importance of formal admissibility requirements in ensuring the freedom to vote, it is highly problematic that for 16 instruments compliance with them is only checked after the signature collection has been completed. The freedom to vote protects not only voting as such but also acts such as signing citizens’ initiatives. The Italian Constitutional Court stressed as early as 1978 that it must be ensured that voters have a clear understanding of what exactly an initiative they consider signing would entail. The court, therefore, reprimanded the legislator for not having established a system for reviewing rejective initiatives for their compliance with formal requirements before the collection of signatures may start.Footnote ¹⁵²

If – as is the case in all European states – compliance of citizens’ initiatives with substantive requirements is reviewed as a question of admissibility, then that review should, for rule of law reasons, also be carried out prior to the signature collection. As explained above, especially parliament or the government may be influenced by the popularity of a given initiative when deciding on its admissibility. Once a proposal has been signed by a significant share of voters, it may become difficult for those vying for electoral support to invalidate it. The impartiality of the decision-making authority, a key element of the rule of law, may be strengthened by providing that the admissibility check takes place at a time when there will normally be less political pressure. Of course, reviewing initiatives before signature collection may entail an increased workload for the institution in charge of the review. Yet if this is what the rule of law requires, then that price is to be paid.