May 1995 - June 1996
the V Ministerial Session
Kalmar 2-3 July 1996
The Commissioner of the Council of the Baltic Sea States
on Democratic Institutions and Human Rights,
including the Rights of Persons belonging to Minorities
2.6 RIGHTS OF NON-CITIZENS RESIDING LEGALLY IN THE MEMBER STATES
This study concentrates on discriminatory measures vis-a-vis non-citizens in the CBSS countries. The starting point was that international developments encourage the reappraisal of rules related to the treatment of persons who due to economic or personal reasons or as a consequence of hostilities in their homeland stay for a prolonged period in a foreign state.
It is in the interest of both citizens and non-citizens and of the countries concerned that discriminatory measures towards non-citizens are as few as possible in order to establish friendly relations between the countries and harmonious coexistence among the residents. Obviously this subject is particularly topical in the Baltic States, especially Estonia and Latvia with their large non-ethnic populations. But it is also of great significance in Russia, Poland and some other CBSS member states.
In the initial letter, several questions were asked about various rights of non-citizens residing legally in the member states. After having received replies to these questions I decided to split the study up into two parts. The first part deals with the voting rights and the right to stand for public office. It was completed and sent to the Chairman of the Council in the spring of 1996. Main conclusions and recommendations are listed below. The second part deals with other areas of discrimination and will be completed and sent to the Chairman of the Council this summer.
PART 1. VOTING RIGHTS AND THE RIGHT TO STAND FOR PUBLIC OFFICE
Most fundamental rights of the individual are provided for in the constitutions of the CBSS member states. These rights are often guaranteed for citizens only. This might to some extent be seen in light of "the legislative history" of the constitutions.
As an example, I could mention that Finland, in its answer to my questions, has given the following explanation:
"The Constitution Act was adopted in a political turbulent atmosphere, shortly after Finland gained its independence in December 1917. The provisions of the Act reflect the conception of a democratic state in the beginning of the century. At that time the inclusion in the Constitution of the basic rights for all citizens was considered to be the best guarantee for the existence of the rule of law in a state. Accordingly.... (a number of basic rights) are constitutionally guaranteed exclusively for Finnish citizens. Ordinary legislation and international human rights conventions have, however, extended fee application of most human rights to non-citizens as well...."
Finland concludes that notwithstanding its legislative history, the Constitution Act has proved to be flexible.
A development from linking certain rights and duties to the citizenship of a person towards granting citizens and non-citizens equality of treatment has taken place in many countries. The European Convention on Human Rights stipulates that the rights and freedoms in the Convention are secured to everyone; if restrictions are intended to apply to aliens, it is explicitly provided for in the provisions of the Convention. The differentiation by a state between its citizens and non-citizens must remain an exception. The Convention has provided for an exception as regards restrictions on certain political activities of aliens.
The development towards creating equality of treatment must be seen in connection with the fact, that residence of non-citizens on national territory is now a permanent feature of European societies (cf. the preamble of the Convention on the Participation of Foreigners in Public Life at Local level). Large communities of migrants live in most European states, with second and third generations emerging - often without acquiring the citizenship of the host country.
It is often argued that there ought to be a relation between the contribution of non- citizens to a country's prosperity on the one hand and the possibilities of non-citizens to influence the political decisions in the country concerned on the other hand. In a democracy all groups of the population ought to have equal opportunities.
It is also generally accepted that migrants should be integrated in the society where they live, and that lack of integration can be a source of social tension and conflict.
In countries which have granted non-citizens voting rights at local elections, experience shows that this has increased the interest in the society in the situation of non-citizens. This heightened interest and awareness has facilitated the integration of the non-citizens in society (cf., inter alia, "Rostratt och Medborgerskap", SOU 1984:11, a Swedish Report from a Parliamentary Voting Rights Committee on the possibility of extending voting rights for non-citizens also to parliamentary elections).
In Sweden non-citizens have also been elected to posts in municipal councils and local government boards, which has given them increased possibilities for exercising influence and contributing to the integration of their fellow non-citizens.
In the light of these experiences the majority of the members of the above
mentioned Swedish Voting Rights Committee considered, that the place of
residence - and not the citizenship - should be the criterion for determining
who should have voting rights in parliamentary elections in Sweden. Such an
amendment to the Swedish legislation has, however, not yet been agreed on.
I find it of decisive importance that non-citizens residing legally in a country are integrated in the society in as many ways as possible, i.a. by having the opportunity to participate in political life.
It has been argued that the most appropriate means of achieving this aim would be to reduce the period of residence requirements for citizenship. In my opinion this is, however, not a very practicable solution. Some people may have legitimate reasons for wishing to keep their original citizenship for a longer period, yet still wish to be integrated; to this should be added the difficulties which some states are presently facing with regard to processing large numbers of applications for citizenship.
In order to achieve the aim of integration, non-citizens should in my opinion as a rule (possibly after a certain residence period) be granted the same rights and have the same duties as citizens. Considering the different situations of the CBSS member states I recognize, however, that there may be reasons for exercising caution and for implementing reforms in various stages.
I doubt whether any CBSS member state is currently ready for a reform which grants non-citizens voting rights in parliamentary elections.
More weighty grounds prevail, when it comes to the question of granting voting rights at local elections. Non-citizens have the same duties at local level as citizens, and they often face specific problems, e. g. because of unfamiliarity with the culture of the host country. The policies aiming at solving these problems (job training, promoting job creation, education policies, pre-school child care, housing etc.) are mostly decided on at local level. Granting non-citizens voting rights at local elections may stimulate the interest to solve these problems. At the same time it may stimulate the non-citizens' interest in learning more about local public matters and contribute to increasing the solidarity of non-citizens with the society. Thus, it may prevent or diminish social tension and conflicts.
I therefore recommended that all members of the CBSS undertake to grant non- citizens the right to vote and to stand for public office in local authority elections, provided that the non-citizens fulfil the same legal requirements as apply to citizens and furthermore have been lawful and habitual residents in the state concerned for a period not exceeding 2-3 years prior to the elections.
At the same time it should be considered whether there is at least a basis for an agreement between the members of the CBSS on equal treatment of CBSS-citizens. It may seem difficult to understand, why for instance a Dane may vote in Sweden but not in Poland, and why a Norwegian cannot vote in Germany, while a Finn has this right.
In case some states might want to uphold the principle that only citizens should be eligible to be elected for posts in municipal and county councils, I recommended that non-citizens as a minimum are granted voting rights at local elections. I must emphasize, however, that in my opinion it is very important that the two rights are granted simultaneously, since both rights must be considered as significant means to overcome the obstacles relating to the integration of non-citizens.
Even though it must be recognized, that some member states are facing very specific problems in the sense that non-citizens form a very high percentage of fee total electorate, it should in my opinion be possible to find solutions to these problems. Certain restrictions to the general rules may be considered in such cases, based on e.g. the criterion of the residence period or by laying down specific provisions concerning the composition of the lists of candidates. This might be done on a temporary basis.
Having taken this into consideration, I further recommended that the European Convention on the Participation of Foreigners in Public Life at Local Level is ratified by all CBSS member states, which have not yet done so.
I have noted that the Latvian Parliament recently rejected a proposal to grant voting rights to non-citizens at municipal elections. I hope that further discussions and deliberations will lead to the adoption of such a proposal at a later stage.