Information Note on the Court’s case-law 242

July 2020

Mugemangango v. Belgium [GC] - 310/15

Judgment 10.7.2020 [GC]

Article 3 of Protocol No. 1

Stand for election

Complaint calling for recount of ballot papers examined by body lacking impartiality, through procedure lacking adequate and sufficient safeguards: violation

Article 13

Effective remedy

Failure to provide effective remedy by which to challenge ele ction results and seek recount: violation

Facts – Under Belgian electoral law, legislative assemblies are themselves competent to verify any irregularities during the elections, thus excluding the jurisdiction of any external court or body. Having stood fo r election to the Walloon Region’s parliament in 2014, the applicant failed to win a seat by just fourteen votes. Without asking for the election to be declared void and for fresh elections to be held, the applicant called for a re-examination of the ballo t papers that had been declared blank, spoilt or disputed (over 20,000) and a recount of the votes validly cast in his constituency. While the Walloon Parliament’s Committee on the Examination of Credentials found the applicant’s complaint well-founded and proposed to hold a recount of votes, the Walloon Parliament, not yet constituted at the material time, decided not to follow that conclusion and approved all the elected representatives’ credentials. The applicant complained about the procedure for the ex amination of his complaint.

Law

Article 3 of Protocol No. 1: Where irregularities in vote counting or in election documents might have affected the outcome of the elections, a fair procedure for recounting votes was an important safeguard as to the fairnes s and success of the entire election process. The concept of free elections would be put at risk only if there had been evidence of procedural breaches capable of thwarting the free expression of the opinion of the people, and where complaints of such brea ches had received no effective examination at domestic level. The Court had therefore to ascertain firstly whether the applicant’s allegations were sufficiently serious and arguable, and secondly, whether they had received an effective examination.

(a) Whe ther the applicant’s allegations were serious and arguable – The Walloon Parliament’s Committee on the Examination of Credentials (“the Credentials Committee”) had established that in several of the scenarios envisaged, the distribution of seats in the app licant’s constituency would have been liable to change had the blank, spoiled and disputed ballot papers been ultimately counted as valid votes. That change would also have been likely to have affected the distribution of seats in other constituencies in t he Province. That had been confirmed by the plenary Walloon Parliament. In any event, it could not be ruled out that the applicant might have been declared elected following the recount he had been seeking. Accordingly, it could not be maintained that the alleged mistakes would not have undermined the reliability of the results.

The applicant had put forward sufficiently serious and arguable allegations that could have led to a change in the distribution of seats. However, that did not necessarily mean that the Walloon Parliament should have upheld his demand for a recount. Althou gh the recounting of votes was an important safeguard as to the fairness of the election process, it was not for the Court to determine precisely what action the authorities should have taken. It was the Court’s task to verify that the applicant’s right to stand for election had been effective; that would imply that his allegations, which were sufficiently serious and arguable, should have received an effective examination satisfying the requirements set out below.

(b) Whether the examination of the applica nt’s allegations had been effective – For the examination of appeals in matters concerning electoral rights to be effective, the decision-making process concerning challenges to election results had to be accompanied by adequate and sufficient safeguards e nsuring, in particular, that any arbitrariness was avoided. Such safeguards served to ensure the observance of the rule of law during the procedure for examining electoral disputes, and hence the integrity of the election, so that the legitimacy of Parliam ent was guaranteed and it could thus operate without the risk of any criticism of its composition. What was at stake was the preservation of the electorate’s confidence in Parliament. In that respect, those safeguards ensured the proper functioning of an e ffective political democracy and thus represented a preliminary step for any parliamentary autonomy.

Admittedly, the rules concerning the internal functioning of a parliament, including the membership of its bodies, as an aspect of parliamentary autonomy, in principle fell within the margin of appreciation of the Contracting States. The discretion enjoyed by the national authorities should nevertheless be compatible with the concepts of “effective political democracy” and “the rule of law” to which the Prea mble to the Convention referred. It followed that parliamentary autonomy could only be validly exercised in accordance with the rule of law.

The applicant’s case involved a post-election dispute relating to the result of the elections, that is to say, to t he lawfulness and legitimacy of the composition of the newly elected parliament. In that regard, the present case differed from disputes that might arise after the valid election of a candidate, that is to say, in respect of a full member of parliament at a time when the composition of the legislature had been approved in accordance with the procedure in force in the national system concerned. At the time they had examined and given their decision on the applicant’s complaint, both the Credentials Committee and the plenary Walloon Parliament had been composed of members of parliament elected in the elections whose validity was being challenged by the applicant. Furthermore, at the time when the Walloon Parliament decided to reject the complaint, its members’ credentials had not yet been approved and they had not been sworn in. The Parliament had thus yet to be constituted. That factor had to be taken into account in the weight attached by the Court to parliamentary autonomy when reviewing the observance of th e rights guaranteed by Article 3 of Protocol No. 1.

The Court focused its review on the following issues:

(i) Guarantees of the impartiality of the decision-making body – Article 3 of Protocol No. 1 sought to strengthen citizens’ confidence in Parliament by guaranteeing its democratic legitimacy and as such certain requirements also flowed from that Article in terms of the impartiality of the body determining electoral disp utes and the importance that appearances might have in that regard.

In the context of the right to free elections secured by Article 3 of Protocol No. 1, the requisite guarantees of impartiality were intended to ensure that the decision taken was based sol ely on factual and legal considerations, and not political ones. The examination of a complaint about election results must not become a forum for political struggle between different parties. In that connection, by definition members of parliament could n ot be “politically neutral”. It followed that in a system such as the one in place in Belgium, where Parliament was the sole judge of the election of its members, particular attention had to be paid to the guarantees of impartiality laid down in domestic l aw as regards the procedure for examining challenges to election results.

Having regard to standards developed and the recommendations issued by other European and international bodies, the question arose as to whether the system set up under Belgian law, as applied in the circumstances of the applicant’s case, had afforded sufficient guarantees of impartiality.

The applicant’s complaint had initially been examined by the Credentials Committee. That Committee had seven members drawn by lot from among all th ose elected to the Walloon Parliament. It was exclusively composed of members of parliament, and it was not required by law to be representative of the various political groups in Parliament. Two members of parliament sitting on the Credentials Committee h ad been elected for the same constituency in which the applicant had stood. At the material time, there had been no provision in the Rules of Procedure of the Walloon Parliament or any other regulatory instrument for the withdrawal of those members of parl iament concerned, and they had refrained voluntarily from taking part. The conclusions of the Committee’s report indicated that the members in question had nevertheless been present during the deliberations on the applicant’s complaint and had voted on the final report to be submitted to the plenary Parliament, which included the opinion on the merits. In any event, the Credentials Committee’s opinion was then submitted to the plenary Walloon Parliament, which had not followed the conclusions of the report.

The members elected in the applicant’s constituency, who were his direct opponents, had not been excluded from the voting in the plenary Walloon Parliament. The decision had therefore been taken by a body that included members of parliament whose electio n could have been called into question if the applicant’s complaint had been declared well-founded and whose interests had been directly opposed to his own. The decision on the applicant’s complaint had been taken by a simple majority. A voting regulation of that kind allowed the prospective majority to impose its own view, even though there would also be a significant minority. Thus, contrary to the Venice Commission’s recommendations, the rule on voting by simple majority that had been applied without any adjustment in the particular case had been incapable of protecting the applicant – a candidate from a political party not represented in the Walloon Parliament prior to the elections of 25 May 2014 – from a partisan decision.

It followed that the applican t’s complaint had been examined by a body that had not provided sufficient guarantees of impartiality.

(ii) Discretion enjoyed by the decision-making body – The discretion enjoyed by the body taking decisions in electoral matters could not be excessive; it had to be circumscribed, with sufficient precision, by the provisions of domestic law. The applicable rules had to be sufficiently certain and precise.

In the applicant’s case, those requirements had not been met. Domestic law did not provide at the rele vant time for a procedure to deal with complaints, such as the one lodged by the applicant, and conferred exclusive jurisdiction on the Walloon Parliament to rule on the validity of electoral processes and on any disputes arising in relation to its members ’ credentials. The criteria that could be applied by the Walloon Parliament in deciding on such complaints were not laid down sufficiently clearly in the applicable provisions of domestic law. Nor did those provisions specify the effects of decisions to up hold a complaint, in this particular instance the circumstances in which a recount should take place or the election should be declared void.

(iii) Guarantees of a fair, objective and reasoned decision – The procedure in the area of electoral disputes had to guarantee a fair, objective and sufficiently reasoned decision. In particular, complainants had to have had the opportunity to state their views and to put forward any arguments they considered relevant to the defence of their interests by means of a w ritten procedure or, where appropriate, at a public hearing. In that way, their right to an adversarial procedure was safeguarded. In addition, it had to be clear from the public statement of reasons by the relevant decision-making body that the complainan ts’ arguments had been given a proper assessment and an appropriate response.

In the applicant’s case, neither the Constitution, nor the law, nor the Rules of Procedure of the Walloon Parliament as applicable at the material time, had provided for an obli gation to ensure safeguards of that kind during the procedure for examination of credentials. In practice, however, the applicant had enjoyed the benefit of certain procedural safeguards during the examination of his complaint by the Credentials Committee. He and his lawyer had both been heard at a public sitting and the Committee had given reasons for its findings. Furthermore, the Walloon Parliament’s decision likewise contained reasons and the applicant had been notified of it.

However, the safeguards af forded to the applicant during the procedure had not been sufficient. In the absence of a procedure laid down in the applicable regulatory instruments, those safeguards had been the result of ad hoc discretionary decisions taken by the Credentials Committe e and the plenary Walloon Parliament. They had been neither accessible nor foreseeable in their application.

Moreover, most of those safeguards had only been afforded to the applicant before the Credentials Committee, which did not have any decision‑makin g powers and whose conclusions had not been followed by the Walloon Parliament. Admittedly, the Walloon Parliament had given reasons for its decision. However, it had not explained why it had decided not to follow the Committee’s opinion, even though the C ommittee had expressed the view, on the same grounds as had been referred to by the Parliament, that the applicant’s complaint was admissible and well-founded and that all the ballot papers from the applicant’s constituency should be recounted.

It followed that the applicant’s complaint had been examined by a body which had not provided the requisite guarantees of its impartiality and whose discretion had not been circumscribed with sufficient precision by provisions of domestic law. The safeguards afforded to the applicant during the procedure had likewise been insufficient, having been introduced on a discretionary basis. The applicant’s grievances had not been dealt with in a procedure offering adequate and sufficient safeguards to prevent arbitrariness a nd to ensure their effective examination in accordance with the requirements of Article 3 of Protocol No. 1.

Conclusion : violation (unanimously).

Article 13 of the Convention in conjunction with Article 3 of Protocol No. 1: As the system in Belgium current ly stood, no other remedy had been available following the decision by the Walloon Parliament, whether before a judicial authority or any other body. Indeed, domestic law conferred exclusive jurisdiction on the Walloon Parliament to rule on the validity of elections as regards its members. Pursuant to those provisions, the courts declined jurisdiction to deal with disputes concerning post-election issues.

The Court had concluded, under Article 3 of Protocol No. 1, that the procedure for complaints to the Wa lloon Parliament had not provided adequate and sufficient safeguards ensuring the effective examination of the applicant’s grievances. Therefore, in the absence of such safeguards, that remedy could likewise not be deemed “effective” within the meaning of Article 13 of the Convention.

The “authority” referred to in Article 13 did not necessarily have to be a judicial authority in the strict sense. Having regard to the subsidiarity principle and the diversity of the electoral systems existing in Europe, it was not for the Court to indicate what type of remedy should be provided in order to satisfy the requirements of the Convention. That question, closely linked to the principle of the separation of powers, fell within the wide margin of appreciation afforde d to Contracting States in organising their electoral system. A judicial or judicial-type remedy, whether at first instance or following a decision by a non-judicial body, was in principle such as to satisfy the requirements of Article 3 of Protocol No. 1.

Conclusion : violation (unanimously).

Article 41: EUR 2,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See also Dadydov and Others v. Russia , 75947/11, 30 May 2017, I nformation Note 207 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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