Published on 20 June 2022

THIRD SECTION

Applications nos. 24159/22 and 25751/22 Guðmundur GUNNARSSON against Iceland

and Magnús Davíð NORÐDAHL against Iceland

lodged on 6 May 2022 and 20 May 2022 respectively communicated on 30 May 2022

SUBJECT MATTER OF THE CASE

The applications concern the Icelandic Parliamentary ( Alþingi ) elections of 25 September 2021, where the first applicant stood for election as the top candidate for the Liberal Reform Party ( Viðreisn ), and the second applicant stood for election as the top candidate for the Pirate Party ( Píratar ), both in the Northwest constituency of Iceland.

The Alþingi is made up of 63 parliamentary seats, including 54 constituency seats, which are elected at the constituency level with no electoral threshold, and 9 levelling seats, which are distributed at the national level to party lists reaching a threshold of five percent, in order to ensure proportionality between the election result at national level and the distribution of parliamentary seats.

According to the records of the Northwest constituency’s Electoral Committee, the vote count in the constituency was finalised in the morning of 26 September 2021. Pursuant to that vote count, and as reported by the Icelandic media on 26 September 2021, the first applicant had been elected to a levelling seat, and the second applicant had not been elected to a parliamentary seat. The second applicant submits that his party was a few votes shy of winning a seat in the constituency.

At around noon on the same day, in coordination with the National Electoral Committee, which had signalled a very narrow margin deciding the allocation of levelling seats in the Northwest and South constituencies, a recount was conducted of the Liberal Reform Party’s votes in the Northwest constituency. The recount resulted in the Liberal Reform Party receiving nine votes fewer than in the first count. This was confirmed in a full recount of all votes in that constituency which was conducted that afternoon, which also resulted in the Pirate Party receiving one vote fewer than in the original tally. A recount also took place in the South constituency, but that led to no changes in the tally.

The recount in the Northwest constituency led to a re-allocation of levelling seats, which resulted in the first applicant not being elected to Parliament.

The applicants, along with fifteen others, lodged separate complaints challenging the lawfulness of the vote count and the election results with Alþingi . Article 46 of the Constitution of the Republic of Iceland stipulates that Alþingi shall itself establish whether its members have been lawfully elected.

On 23 November 2021 the Parliament’s Preparatory Credentials Committee issued a report finding a number of flaws in the election procedure, including in the recount of votes, but concluding that the flaws were not such that the election results had to be annulled. Subsequently, a six-member majority of the Credentials Committee recommended that Parliament confirm the credentials of all 63 parliamentarians as elected pursuant to the recount tally. A two-member minority of the Credentials Committee recommended that Parliament annul the results of the election in the Northwest constituency. A one-member minority of the Credentials Committee recommended that Parliament annul the results of the election in all constituencies.

On 25 November 2022 Alþingi voted by a majority of 42 votes to confirm the credentials of parliamentarians elected in respect of the Northwest constituency. On the same day Alþingi voted unanimously to confirm the credentials of parliamentarians elected in respect of other constituencies.

The applicants complain that their right to free elections, under Article 3 of Protocol No. 1 to the Convention, and their right to an effective remedy, under Article 13 of the Convention read in conjunction with Article 3 of Protocol No. 1, have been violated.

The applicants submit that the recount of the votes in the Northwest constituency was irregular as there were no provisions in the applicable legislation allowing for such a recount. Moreover, they submit that the recount was irregular as proper procedure was not complied with, including legal provisions concerning the sealing of votes and prior notification of the recount to the political parties’ counting agents. They submit that the Supreme Court of Iceland is not competent to consider post-electoral disputes in parliamentary elections pursuant to the Constitution, and that this impeded their arguable complaints from receiving an effective examination by a competent body. The applicants thus submit that the dispute about the election results was decided by the parliamentarians who had a direct interest in the outcome, compromising its impartiality. Furthermore, they submit that Alþingi ’s review of its own election was accompanied by insufficient safeguards, and its discretion was not circumscribed with sufficient precision by domestic law provisions. Finally, they submit that Alþingi ’s review of their complaints was accompanied by insufficient safeguards, as the applicable domestic law did not lay down any particular procedure for the examination of such complaints.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention (see Sejdovic v. Italy [GC], no. 56581/00, § 46, 1 March 2006, and Paksas v. Lithuania [GC], no. 34932/04, § 75, 6 January 2011)? In particular, should the applicants have attempted to bring their complaints before the domestic courts?

2. Has there been a breach of the applicants’ right under Article 3 of Protocol No. 1 to stand as candidates in free elections which ensure the free expression of the opinion of the people in the choice of the legislature (see Mugemangango v. Belgium [GC], no. 310/15, §§ 67-74, 10 July 2020)?

3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention (see Mugemangango , cited above, §§ 125-26 and 130-31)?