JOINT CONCURRING OPINION OF JUDGES LEMMENS AND SABATO

(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 3 of Protocol No. 1, namely the discretion enjoyed by the decision-making body in electoral matters.

2. In paragraph 70 of the judgment, the Court sets out the three conditions which the decision-making process concerning challenges to election results must satisfy from the standpoint of Article 3 of Protocol No. 1 in order for the examination of appeals to be effective. The second of these conditions is that “the discretion enjoyed by [the competent body] must not be excessive; it must be circumscribed with sufficient precision by the provisions of domestic law”. This condition is reiterated in paragraph 109 of the judgment.

The condition in question originated in the Podkolzina v. Latvia judgment (no. 46726/99, § 35, ECHR 2002 ‑ II). This case concerned a decision to remove the applicant’s name from the list of candidates in parliamentary elections on account of her allegedly insufficient knowledge of Latvian. The Court held that States had a wide margin of appreciation when establishing eligibility conditions, but that decisions finding that a particular candidate had failed to satisfy those conditions had to comply with a number of criteria framed to prevent arbitrary decisions, and that the decision-making process accordingly had to satisfy three conditions, namely those referred to in paragraph 70 of the present judgment (see Podkolzina , cited above, § 35). In that case, the Court found that the second condition had not been met, since “the full responsibility for assessing the applicant’s linguistic knowledge was left to a single civil servant, who had exorbitant power in the matter” (ibid., § 36).

Since the Podkolzina case, the “discretion” in question has always been construed as relating to the assessment by the competent body of certain “conditions” laid down in domestic law. These conditions may concern, for example, the eligibility of candidates (see, besides Podkolzina , cited above, Ādamsons v. Latvia , no. 3669/03, §§ 121 and 125, 24 June 2008, and Ofensiva tinerilor v. Romania , no. 16732/05, §§ 56-59, 15 December 2015), the lawfulness of an election and the validity of election results (see Kovach v. Ukraine , no. 39424/02, §§ 54 and 57-59, ECHR 2008, and Riza and Others v. Bulgaria , nos. 48555/10 and 48377/10, §§ 143 and 172-76, 13 October 2015), the allocation of seats on the basis of election results (see Grosaru v. Romania , no. 78039/01, §§ 47 and 49-52, ECHR 2010), or the validity of an elected representative’s resignation (see G.K. v. Belgium , no. 58302/10, §§ 57-59, 21 May 2019).

The fact that in the present case there were no clear rules concerning the procedure to be followed by the Credentials Committee and the plenary Walloon Parliament, and that a particular procedural arrangement was adopted for the needs of the applicant’s case (see paragraphs 110-11 and 113 of the judgment), has no connection in our view to the condition concerning the extent of the parliament’s discretion.

3. In fact, the procedure forms the subject of another condition, the third one laid down in Podkolzina (cited above, § 35): “the procedure ... must be such as to guarantee a fair and objective decision and prevent any abuse of power on the part of the relevant authority”. This condition is reiterated in paragraph 70 of the present judgment, where it is stated that “the procedure must be such as to guarantee a fair, objective and sufficiently reasoned decision”; the observance of this condition is then assessed in paragraphs 115-21 of the judgment, under the heading “Guarantees of a fair, objective and reasoned decision”. It is in the context of this examination that the lack of clear procedural rules is (once again) mentioned (see paragraph 117 of the judgment).

In our opinion, this is indeed the context in which this factor is relevant. If there are no clear, predefined procedural rules, the system for post-election disputes will not protect those concerned against potential abuses.

4. We regret that a certain confusion between the two above-mentioned conditions – the one concerning the discretion enjoyed by the decision-making body and the one concerning procedural guarantees – appears to have found its way into the reasoning of the judgment.