CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I fully subscribe to the operative part of the instant judgment; I would nonetheless like to express certain reservations concerning the reasoning. They pertain, on the one hand, to the general methodology of Convention interpretation and, on the other hand, to certain detailed issues of electoral law.

2. The case raises important issues of treaty interpretation. They are connected with the fact that the power of Parliament to adjudicate on disputes concerning the election of its members belongs to the constitutional traditions of a few Council of Europe member States.

3. The interpretation of the Convention should take into account the guidelines enshrined in its Preamble. Three elements of the Preamble appear to be of particular relevance. Firstly, the Preamble reminds us that “the aim of the Council of Europe is the achievement of greater unity between its members”. In case of doubt, the Court should prefer an interpretation which contributes to the achievement of greater unity between the High Contracting Parties and avoid interpretative decisions which may cause divisions among them. The interpretation and application of the Convention should be aimed at devising legal solutions which best reconcile various legal traditions and fit different legal systems. Secondly, the Preamble contains a reference to “a common understanding and observance of the Human Rights”. Thirdly, the Preamble further refers to “European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law”.

The “common understanding of the Human Rights” and the “common heritage of political traditions, ideals, freedom and the rule of law” set clear limits to the European project of collective human rights protection and co-define the limits of the mandate entrusted to the European Court of Human Rights. The dynamic of the whole system in general and the so-called “evolutive interpretation” in particular should not go beyond the scope of common ideals and principles and should avoid – to the largest possible extent – imposing legal standards which are not accepted as belonging to this common legal heritage (compare: my dissenting opinion appended to the judgment in the case of Firth and Others v. the United Kingdom , nos. 47784/09 and 9 others, 12 August 2014, paragraph 3, and the joint dissenting opinion of Judges Pejchal and Wojtyczek appended to the judgment in the case of Orlandi and Others v. Italy , nos. 26431/12 and 3 others, 14 December 2017, paragraphs 2 and 5). Against this backdrop, the references to the “common understanding of the Human Rights” and to the “common heritage of political traditions, ideals, freedom and the rule of law” also constitute the legal basis for inferring the directive that the Convention should be interpreted in a way which protects national constitutional identities. It should be stressed that these guarantees against undue international interference extend beyond the scope of national constitutional identities and encompass other elements of national constitutional law which co-define the common constitutional heritage (compare my dissenting opinion appended to the judgment in the case of Baka v. Hungary [GC], no. 20261/12, 23 June 2016, paragraph 14).

The collective enforcement of human rights referred to in the Preamble to the Convention consists in transforming general and vague common principles and ideals into more specific and precise legal rules defining the common standards of human rights protection. More or less vague common principles and ideals are concretised and transformed, as a first step, into legal provisions of the Convention, which in turn may be – if necessary and within the strict limits set forth by the applicable rules of treaty interpretation – concretised and transformed, as a second step, by the case-law into more precise and judicially enforceable legal rules.

At the same time, it is clear that the common legal heritage at the foundation of the Convention and its interpretation cannot be equated with a mere juxtaposition of legal rules common to all member States. It is necessary to distinguish between a common core of fundamental principles on the one hand and, on the other hand, elements of legal systems which are of secondary importance and which reflect a great variety of legal views and national approaches in law. The enforcement of fundamental common principles may occasionally collide with detailed rules of national legal systems and exceptionally may even collide with some legal rules of constitutional rank. More specifically, blind spots in the system of rule-of-law guarantees do not belong to the core of the common constitutional heritage, even if they are deeply rooted in a national constitutional tradition.

4. The empowerment of the houses of Parliament to adjudicate on disputes concerning the election of their members was initially a measure ensuring the autonomy of those houses vis-à-vis the monarch and, more generally, the executive branch of the government. This solution was adopted in eighteenth and nineteenth-century constitutionalism, during a period when the judicial branch had not yet won the trust it enjoys today. A. Esmein has explained the logic of this system, in the context of the French constitutional regime, in the following terms:

“« Chacune des Chambres est juge de l’éligibilité de ses membres et de la régularité de leur élection » 1. L. const. 16 juillet 1875, art. 10. C’est une prérogative qui a surtout une importance politique; c’est avant tout une arme défensive aux mains des assemblées contre le pouvoir exécutif. ... Si ce droit ne lui appartenait pas, en cas de contestation, il faudrait soumettre le litige aux tribunaux. On peut craindre encore de leur part une complaisance pour le pouvoir exécutif ou la formation de jurisprudences contraires ou changeantes, enfin, peut-être aussi des sentences légales mais inutilement rigoureuses. La Constitution fait de chaque Assemblée l’unique et souverain juge de ces questions, malgré les inconvénients qui peuvent résulter de ce système et dont il sera bientôt parlé. Le souci de leur indépendance prime toute autre considération .” (A. Esmein, Éléments de droit constitutionnel français et comparé , Librairie de la société du Recueil Sirey, Paris, 1914, 6th ed., pp. 928-29) [1]

Given that in numerous countries the system of parliamentary adjudication of disputes entailed political abuses, it was gradually replaced by judicial review.

Although parliamentary autonomy belongs to the core of the common European constitutional heritage, the power to adjudicate on disputes concerning the election of members of parliament is certainly not an element of this core. Moreover, looking from the perspective of the national legal system of the respondent State, the power of the parliament to examine electoral appeals does not appear to be an important element of the national constitutional regime, let alone a constitutive element of the Belgian constitutional identity.

As rightly assumed in the reasoning of the judgment, parliamentary autonomy begins in principle once the parliament is constituted (see paragraphs 89-92). The empowerment of the parliament to adjudicate on electoral appeals is a constitutional remnant of the early stage of constitutionalism. It does not reflect any fundamental axiological or political choice. It has nothing to do with fundamental societal issues. It does not serve any specific and accepted legal purpose which could be justified, for instance, by the idea of non-justiciability of certain issues or the necessity to keep judges out of “the political thicket”. There are neither strong axiological nor political reasons to uphold such a system. Its abandonment would serve much better the fundamental principles of the rule of law and effective political democracy.

5. The general underlying assumption of the approach developed in the judgment is the “proceduralisation” of Article 3 of Protocol No. 1, consisting in focusing on the existence of formal guarantees of fair elections and trying to avoid considering the substantive standards of fair elections. I note in this context that not all irregularities in the electoral process may be reduced to the question “whether the examination of an applicant’s allegations was effective”. Electoral appeals may be well-founded but nonetheless prove unsuccessful, even if the State complies with all the procedural guarantees imposed by Article 3 of Protocol No. 1. In such cases, it may be necessary to look at the gist of the alleged irregularities from the viewpoint of the substantive standards of fair elections.

6. Concerning the detailed issues of electoral law, I would like to note first that the reasoning stresses the following in paragraph 71:

“In the specific context of electoral disputes, the Court is not required to determine whether the irregularities in the electoral process alleged by the parties amounted to breaches of the relevant domestic law (see Namat Aliyev , cited above, § 77) . ”

I am not persuaded that such an approach is tenable. Firstly, national electoral law determines the rules of political competition and is at the foundation of certain legitimate expectations of the competitors. Certain practices become serious irregularities in the electoral process only because they violate the rules of the game enshrined in the domestic law. In the instant case, the irregularities alleged by the applicant in the counting of the votes and the distribution of the seats consisted in violations of the rules of national law. The applicant has not alleged that the respondent State, in counting the votes and distributing parliamentary seats among the candidates, violated the general European standards of free elections as such. Secondly, the instant case shows that the Court has to determine whether an applicant had at least an arguable claim that the domestic law had been violated. For this purpose, it is necessary to look at the rules of domestic law. Thirdly, as stated above, at least in some cases it will be necessary to examine the observance of the substantive standards of free elections (see, for instance, Communist Party of Russia and Others v. Russia , no. 29400/05, §§ 123-28, 19 June 2012) and, moreover, to do so in the light of domestic law (see, for instance, Yumak and Sadak v. Turkey [GC], no. 10226/03, §§ 116-48, ECHR 2008; Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, §§ 76-81, ECHR 2012; Oran v. Turkey , nos. 28881/07 and 37920/07, §§ 55-68, 15 April 2014; and Mihaela Mihai Neagu v. Romania (dec.), no. 66345/09, §§ 34-42, 6 March 2014).

7. Paragraphs 109 to 114 of the judgment are placed under the subheading “Discretion enjoyed by the decision-making body”. I note that despite the wording of the subheading (referring to substantive law issues), this part of the reasoning addresses not only substantive but also procedural issues. The latter belong rather under the subsequent subheading, “Guarantees of a fair, objective and reasoned decision”.

The reasoning states the following:

“112. However, the criteria that could be applied by the Walloon Parliament in deciding on complaints such as the one lodged by the applicant were not laid down sufficiently clearly in the applicable provisions of domestic law (see, mutatis mutandis , Riza and Others , cited above, § 176). Nor did those provisions specify the effects of decisions to uphold a complaint, in this particular instance the circumstances in which a recount should take place or the election should be declared void.

...

114. ... [T]he discretion enjoyed by the Walloon Parliament was not circumscribed with sufficient precision by provisions of domestic law .”

In my view, this issue has not been properly considered. Firstly, legal rules should not be equated with provisions of law. Without entering into extensive legal theoretical considerations, it suffices to note here very briefly, in particular, that in numerous legal systems there are valid legal rules which do not have a textual basis in legal provisions . Secondly, the reasoning looks only at specific provisions of domestic law without trying to establish the totality of the applicable relevant legal rules and principles of law. In particular, it fails to consider whether the general principle of proportionality is applicable and circumscribes the discretion of the parliament. One also has to note here that certain principles guiding the bodies adjudicating in electoral matters have been developed in the Court’s case-law (see, for instance, Riza and Others v. Bulgaria , nos. 48555/10 and 48377/10, §§ 153-79, 13 October 2015; Davydov and Others v. Russia , no. 75947/11, §§ 335-38, 30 May 2017; and Kovach v. Ukraine , no. 39424/02, §§ 54-62, ECHR 2008). These principles circumscribe the powers of the Walloon Parliament. Thirdly, it does not appear necessary to adopt very specific legal rules if general legal principles would offer sufficient guidance to the decision-making body. In any event, the main guiding principle should be that of adequacy: the reaction of the body competent to examine electoral appeals should be adequate to the nature of the irregularities established and should especially take into account their impact upon the outcome of the elections.

8. The reasoning states the following (see paragraph 107 of the judgment):

“The Court further reiterates that it must examine with particular care any measure which appears to operate solely, or principally, to the disadvantage of the opposition, especially where the nature of the measure is such that it affects the very prospect of opposition parties gaining power at some point in the future (see Tănase , cited above, § 179). In the present case, the risks of political decisions being taken on account of the foregoing considerations (see paragraphs 103-06 above) were not averted by the applicable voting rules. The decision on the applicant’s complaint was 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 (see paragraph 64 above), the rule on voting by simple majority that was applied without any adjustment in this particular case was 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.”

The reasoning also refers to the submissions of the Venice Commission. The Venice Commission has expressed the following view on this point (see paragraph 32 of its third-party comments submitted in the present case):

“Obviously, it is not only at first instance that the ‘judges’ must be impartial, including in the case of political assemblies or non-judicial bodies such as electoral commissions. The composition of the relevant body and the voting rules must leave as little scope as possible for partisan decisions, in keeping with the requirement for objective impartiality that applies in judicial proceedings [footnote omitted]. Direct opponents must be excluded in each case. The rules on majorities required for decisions must ensure fair representation. Clearly, it is within this set of rules that the greatest risk of lack of objectivity in purely parliamentary systems lies. The issue is not, however, that much different from that of partisan electoral commissions (whose members are appointed by political parties), which are very often appeal bodies. It is therefore possible to draw on the recommendation in the Code of Good Practice in Electoral Matters, which considers it at least ‘desirable that electoral commissions take decisions by a qualified majority or by consensus’ [footnote omitted].”

The reasoning quoted above from paragraph 107 of the judgment unequivocally criticises the simple majority rule and recommends that this rule should have been applied in the Walloon Parliament with “adjustments”, suggesting a qualified majority. This part of the reasoning does not appear to reflect the Venice Commission’s recommendations accurately. The Venice Commission does not recommend that a parliament should decide upon electoral appeals by a qualified majority.

The above-mentioned paragraph 107 also triggers more fundamental objections. Replacing the simple majority rule by a qualified majority does not appear to be a good solution because it enables the parliamentary minority to block any decision. There is a serious risk of denial of justice and a strong incitement to negotiate a political arrangement within the parliament rather than to render a decision based on the law. The solution recommended in the above-mentioned paragraph is therefore dysfunctional.

9. The reasoning rightly states the following (see paragraph 98 of the judgment):

“In this connection, the Court has held that members of parliament cannot be ‘politically neutral’ by definition (see Ždanoka , cited above, § 117).”

It also expresses the following view (see paragraph 137):

“The Court has held that the ‘authority’ referred to in Article 13 of the Convention does not necessarily have to be a judicial authority in the strict sense (see Kudła , § 157, and Centre for Legal Resources on behalf of Valentin Câmpeanu , § 149, both cited above). In a case concerning a post-election dispute about the election results and the distribution of seats, it is necessary and sufficient for the competent body to offer sufficient guarantees of its impartiality, for its discretion to be circumscribed with sufficient precision by the provisions of domestic law and for the procedure to afford effective guarantees of a fair, objective and sufficiently reasoned decision (see paragraph 70 above).”

The only possible conclusion is that an electoral appeal should be examined at least at final instance by an independent and extra-parliamentary body. Only such a body can offer sufficient guarantees of its impartiality. A body consisting of members of parliament will necessarily have the fundamental flaws pointed out in the reasoning.

10. The judgment engages in a laudable endeavour to accommodate the legal traditions of certain States of the Council of Europe where appeals against irregularities in parliamentary elections are examined by the parliaments. However, it may be criticised because of the failure to develop a structured approach to the European constitutional heritage and also because of the reluctance to clearly draw the – only possible – conclusion that the empowerment of the parliament to examine electoral appeals at final instance cannot be reconciled with the standards set out in the reasoning.

[1] “‘Each of the Houses shall be the judge of the eligibility of its members and the lawfulness of their election’ (Constitution of 16 July 1875, Article 10). This is a prerogative whose importance is above all political; it is above all a defensive weapon in the hands of the assemblies against the executive. ... If it did not enjoy that right, any disputes would have to be brought before the courts. It may still be feared that they would show deference to the executive or would adopt contradictory or changing positions, and indeed maybe also lawful but needlessly rigorous decisions. The Constitution makes each assembly the sole and sovereign judge over these matters, despite the disadvantages that may result from this system, which will be discussed shortly. The concern for their independence prevails over all other considerations.”