JOINT CONCURRING OPINION OF JUDGES TURKOVIĆ AND LEMMENS

(Translation)

1. We agree with the findings of a violation of Article 3 of Protocol No. 1 and of Article 13 of the Convention.

In this separate opinion, we would like to focus on one aspect of the reasoning under Article 13 of the Convention, namely the type of remedy required by that Article in order to challenge the results of an election.

2. In relation to Article 13 of the Convention, the judgment concludes that the applicant did not have an “effective remedy” in that the Walloon Parliament, which examined his complaint at first and last instance, did not provide “adequate and sufficient safeguards ensuring the effective examination of the applicant’s grievances” (see paragraph 135 of the judgment). For our esteemed colleagues, this conclusion is sufficient to find a violation of Article 13 (see paragraph 136 of the judgment). They proceed no further. They take the view that it falls within the Contracting States’ margin of appreciation to organise their own electoral system (see paragraph 138 of the judgment). Nevertheless, they suggest that “a judicial or judicial-type remedy, whether at first instance or following a decision by a non-judicial body, is in principle such as to satisfy the requirements of Article 3 of Protocol No. 1” (see paragraph 139 of the judgment).

3. For our part, although we are attached to the principle of the subsidiarity of the Court’s review, we would have preferred the Court to take a clear stand and to infer from Article 13 a proper obligation to provide for a judicial or quasi-judicial remedy in respect of decisions taken by a parliament in electoral matters.

Such an interpretation of Article 13 would be fully in accordance with the developments that can be observed in the constitutional systems of the Council of Europe member States. Already in 2010, the Court noted that “several [of these] States have adopted judicial review and only a few States still maintain purely political supervision of elections” (see Grosaru v. Romania , no. 78039/01, § 56, ECHR 2010). It can be seen from the overview of existing systems outlined in the present judgment that in the vast majority of States, a judicial remedy is available (see paragraphs 44-45 of the judgment). Indeed, only “a few States”, including Belgium, have kept a system in which electoral disputes are resolved by the parliament itself, without any possibility of appealing against its decisions (see paragraphs 41-42 of the judgment).

4. The Venice Commission is likewise of the view that the possibility of a complaint to the parliament alone cannot satisfy the requirements of an effective remedy. While there is nothing to “prevent appeals being made in parliaments concerning their own election”, in such cases an appeal to a court must be possible, so that the court can give the final decision. “Where electoral appeals do not concern political issues outside the supervision of the courts, the protection of the right to free elections ... implies the existence of a judicial remedy” (third-party comments by the Venice Commission; see paragraph 63 of the judgment).

It is perhaps unnecessary to go so far as to require a remedy before a judicial body. A quasi-judicial body may also satisfy the requirements of Article 13 of the Convention provided that it offers sufficient procedural guarantees (see paragraph 137 of the judgment, and the judgments cited therein).

5. What conclusions can be drawn from the present judgment?

While in theory, according to the judgment, States have the choice between a complaint to the parliament and an appeal, at least at final instance, to a judicial or quasi-judicial body, there are sound reasons for believing that in practice, only the latter option is open (see, to similar effect, the concurring opinion of our colleague Judge Wojtyczek, paragraph 9). It is hard to see how a parliament constituted following elections whose results are disputed could be regarded as objectively impartial, whereas impartiality is one of the conditions that the decision-making body must satisfy (see, in relation to Article 3 of Protocol No. 1, paragraphs 70 and 94-108 of the judgment). As the Court has previously held, members of parliament “cannot be ‘politically neutral’ by definition” (see Ždanoka v. Latvia [GC], no. 58278/00, § 117, ECHR 2006 ‑ IV, cited in paragraph 98 of the present judgment), especially when they have to take a decision that could have consequences in terms of their own election or the respective influence that the different political parties will have within the parliament.

How then can a complaint to the parliament, with no possibility of appeal, satisfy the requirements of Article 13?