GRAND CHAMBER
CASE OF MUGEMANGANGO v. BELGIUM
(Application no. 310/15)
 
JUDGMENT
 
Art 3 P1 • Stand for election • Complaint calling for recount of ballot papers examined by body lacking impartiality, through procedure lacking adequate and sufficient safeguards • Not being ruled out that candidate could have been elected following recount, allegations serious and arguable • Insufficient guarantees of impartiality of a not yet constituted parliament, the decision-making body, including members of parliament whose election could have been called into question • Discretion enjoyed by the decision-making body not circumscribed with sufficient precision by provisions of domestic law • Safeguards afforded on a discretionary basis • Parliamentary autonomy can only be validly exercised in accordance with the rule of law
Art 13 (+ Art 3 P1) • Effective remedy • Failure to provide effective remedy by which to challenge election results and seek a recount

 
STRASBOURG
10 July 2020
 
This judgment is final but it may be subject to editorial revision. In the case of Mugemangango v. Belgium,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Linos-Alexandre Sicilianos, President,
 Robert Spano,
 Jon Fridrik Kjølbro,
 Ksenija Turković,
 Angelika Nußberger,
 Paul Lemmens,
 Ganna Yudkivska,
 Julia Laffranque,
 Helen Keller,
 Krzysztof Wojtyczek,
 Valeriu Griţco,
 Armen Harutyunyan,
 Stéphanie Mourou-Vikström,
 Jovan Ilievski,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Raffaele Sabato, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on 4 December 2019 and 14 May 2020,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The application concerns a post-election dispute. It relates to the procedure for examining a complaint by the applicant, who had demanded a recount of a number of ballot papers because of alleged irregularities in the election process. In particular, the applicant complained of the lack of safeguards against arbitrariness and the lack of a remedy before an independent and impartial authority. He relied on Article 3 of Protocol No. 1 and Article 13 of the Convention. PROCEDURE
2. The case originated in an application (no. 310/15) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian national, Mr Germain Mugemangango (“the applicant”), on 22 December 2014. 3. The applicant was represented by Ms M. Pétré, a lawyer practising in La Louvière, and Mr O. Stein and Mr I. Flachet, lawyers practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 27 November 2017 the Government were given notice of the application. On 11 June 2019 a Chamber of that Section, composed of Robert Spano, President, Paul Lemmens, Julia Laffranque, Valeriu Griţco, Stéphanie Mourou-Vikström, Ivana Jelić and Arnfinn Bårdsen, judges, and Stanley Naismith, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected (Article 30 of the Convention and Rule 72). 5. The composition of the Grand Chamber was decided in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 6. The applicant and the Government each filed a memorial on the admissibility and merits of the application. The President of the Grand Chamber also invited the European Commission for Democracy through Law (“the Venice Commission”) to intervene in the written procedure and granted leave to the Government of Denmark to do likewise (Article 36 § 2 of the Convention and Rule 44 § 3). 7. A hearing took place in public in the Human Rights Building, Strasbourg, on 4 December 2019 (Rule 71 and Rule 59 § 3). There appeared before the Court:
(a)  for the Government
Ms I. Niedlispacher, Federal Justice Department, Agent,
Ms I. Leclercq, Office of the Government Agent,
Mr J.-C. Marcourt, President of the Walloon Parliament,
Mr F. Janssens, Registrar of the Walloon Parliament, 
Mr G. Lambison, Spokesperson of the Walloon Parliament,
Ms S. Salmon, expert at the Walloon Parliament,  Advisers;
(b)  for the applicant
Mr G. Mugemangango,  Applicant,
Ms M. Pétré, lawyer,
Mr O. Stein, lawyer, Counsel,
Mr I. Flachet, lawyer,
Ms J. Laurent, lawyer,
Ms K. Van den Brande, Advisers. The Court heard addresses by Ms Niedlispacher and Ms Leclercq, followed by Ms Pétré and Mr Stein, and also their replies to questions from judges. The applicant, Mr Mugemangango, was then granted leave by the President to make a brief statement on the case. THE FACTS
8. The applicant was born in 1973 and lives in Charleroi. 9. At the time of lodging the application, the applicant was chairman of the Hainaut Province branch of the Workers’ Party of Belgium (Parti du travail de Belgique – “PTB”). He stood in the elections to the Parliament of the Walloon Region (“the Walloon Parliament”) on 25 May 2014 as the top candidate on the PTB-GO! list for the Charleroi constituency in Hainaut Province. 10. The PTB-GO! list received 16,554 votes, thus exceeding the threshold of 5% of all votes validly cast in the Charleroi constituency. The applicant explained that in order to qualify for the “related lists” (apparentement) system, whereby a list can take over any votes not used by “related lists” for other constituencies in the same province, a list had to obtain 16,567.83 votes in the Charleroi constituency. The PTB-GO! list was therefore fourteen votes short of the total needed to win a seat in the Walloon Parliament under the “related lists” system. In that event, the seat would have gone to the applicant as the top candidate on the list. 11. In addition, 21,385 ballot papers were declared blank, spoiled or disputed in the Charleroi constituency. 12. The day after the elections, the applicant contacted the main electoral board for the Charleroi constituency and the Hainaut Province central electoral board, seeking a recount of the ballot papers declared blank, spoiled or disputed in the Charleroi constituency. The boards in question refused his request on the grounds that they had no jurisdiction to take such action, and referred the applicant to the Walloon Parliament. 13. On 6 June 2014 the applicant lodged a complaint with the Walloon Parliament under section 31 of the Special Law of 8 August 1980 on institutional reform (“the Special Law”), and requested a re-examination of the 21,385 ballot papers declared blank, spoiled or disputed in the Charleroi constituency and a recount of any votes validly cast on ballot papers which had been wrongly declared void. In support of his request he submitted that numerous problems had come to light during the vote-counting operations in the constituency. He explained that the irregularities in question could have affected the distribution of seats among the different electoral lists, and could have resulted in the allocation of one or two seats to the PTB-GO! list, in view of the very small number of votes by which the party had fallen short. In particular, the applicant complained that: witnesses present at some of the counting stations during the vote count had pointed to fatigue as a potential source of errors in the counting operations, some of which had lasted more than twelve hours without a break; the physical conditions in which the counting had taken place had been poor; some mistakes had occurred because counting stations had been set up hurriedly on the actual day of the elections and because the presiding and other officers of polling and counting stations had had insufficient training; some ballot papers had been found several days after the elections, and it could not be ascertained whether they had been counted or not; some mistakes had been discovered because the ballot papers had been too large in relation to the small size of the boxes that had to be ticked, and the red pencils distributed to voters had not left a clear mark on the pink ballot papers when they had not been pressed down hard enough; and several witnesses had reported that, contrary to the law in force, ballot papers containing marks or symbols which did not identify the voter had been declared spoiled, even though the votes had been validly cast. The applicant submitted various witness accounts and press articles in support of his allegations. 14. The applicant’s complaint was examined by the Walloon Parliament’s Committee on the Examination of Credentials (“the Credentials Committee”), whose members were chosen by drawing lots pursuant to Rule 7 of the Rules of Procedure of the Walloon Parliament (see paragraph 29 below) on 10, 11 and 12 June 2014. 15. On 10 June 2014 the applicant and his lawyer were heard by the Credentials Committee at a public sitting. The committee then deliberated in private. The records of the committee’s meetings show that the proposal concerning the applicant’s complaint was decided upon by four of the seven members of the committee, which had been constituted in accordance with Rule 7 § 1 of the Rules of Procedure of the Walloon Parliament. One of the members was unable to attend on 11 and 12 June and was therefore not involved in the full deliberations or the decision. As regards the other two members not involved in the decision on the applicant’s complaint, the records do not give any indication of their reason for not taking part in the vote. The Government stated in their observations that those two members had stood in the same constituency as the applicant and had decided on their own initiative not to vote on his complaint. According to the records, they were nevertheless present during the deliberations and the vote on the applicant’s complaint. 16. After the deliberations, the Credentials Committee voted on an initial proposal to declare the complaint admissible but ill-founded. There were two votes in favour of and two votes against the proposal, which was therefore rejected. Following fresh deliberations lasting more than two days, the committee found, by three votes to one, that the applicant’s complaint was admissible and well-founded. The committee proposed that the blank and spoiled ballot papers be checked and classified by the Federal Department of the Interior in the light of the applicable legislation and the relevant circulars, and that all the ballots cast in the Charleroi constituency should then be recounted by the Federal Department of the Interior. Consequently, the committee proposed that the credentials of the candidates elected in Hainaut Province should not be approved. 17. The six members of the Credentials Committee who were present adopted, by four votes to two, the report on all the complaints brought before it, to be presented at a plenary sitting. 18. The committee’s opinion on the applicant’s complaint was accompanied by a note analysing whether recounting the votes could have affected the distribution of seats. The analysis looked at a number of possible scenarios. It concluded that it was clear that both in the most extreme case and in more moderate scenarios, the distribution of seats in the Charleroi constituency was liable to change if the 21,385 blank and spoiled ballots were recounted and ultimately deemed to be valid votes. That change was also likely to affect the distribution of seats in other constituencies in Hainaut Province as a result of the “related lists” system. 19. On 13 June 2014 the Credentials Committee presented its findings at the constituent session of the Walloon Parliament. A debate was held on the committee’s findings. They were rejected by forty-three votes to thirty-two. All the members of the Walloon Parliament, including those who had been elected in the applicant’s constituency, took part in the vote. 20. On the same day, all the members of the Walloon Parliament voted on a motion to approve all the elected representatives’ credentials. The motion was passed by forty-three votes to twenty-eight, with four abstentions. 21. Following the vote on the applicant’s complaint, the Walloon Parliament’s decision was recorded in a document setting out the reasons for it. Drawing on the Credentials Committee’s findings, the Walloon Parliament observed first of all that the note appended to the committee’s report indicated that the distribution of seats was liable to change if the 21,385 ballot papers declared blank, spoiled or disputed were ultimately deemed to be valid votes, and that that change was also likely to affect the distribution of seats in other constituencies in Hainaut Province as a result of the “related lists” system. However, the number of votes by which the applicant’s list would have failed to qualify was different in each scenario considered. It could have been 15 votes in one scenario and as many as 1,582 in another. In any event, the Walloon Parliament found that most of the grievances raised by the applicant related to inherent features of the electoral system in general, and that it was not its task, in the context of the procedure for examining credentials, to cast doubt on the legal validity of the relevant rules. Some of the grievances had arisen from findings which, however regrettable, could have been made during any elections and in the vast majority of constituencies. Furthermore, the press articles submitted by the applicant did not constitute admissible evidence in the context of an electoral dispute, and the witness statements should have been referred to in the notice of results from the counting stations concerned, rather than being submitted as solemn declarations after the event. The Walloon Parliament further noted that the number of ballots declared blank, spoiled or disputed had been lower than at the previous elections in June 2009, and was thus unlikely in itself to arouse suspicion. Contrary to what the applicant had maintained, it was accepted, in electoral theory and practice, that any handwritten annotation other than the actual vote constituted an unlawful mark within the meaning of Article 157 of the Electoral Code, thus spoiling the ballot in question. Nevertheless, some members of the Walloon Parliament were alarmed that votes cast using anything other than a red pencil had been deemed spoiled by some but not all counting stations, and consideration was given to the fact that several witnesses had felt that some ballot papers had been wrongly declared spoiled. In any event, the applicant’s complaint had not indicated that these potential irregularities had been noted in any official record. 22. The applicant was notified of the reasoned decision of the Walloon Parliament by registered letter dated 24 June 2014. RELEVANT LEGAL FRAMEWORK AND PRACTICE
DOMESTIC LAWJurisdiction in post-election disputes

23. Article 48 of the Constitution provides:
“Each [Federal] House shall examine the credentials of its members and shall adjudicate on any disputes arising in this regard.”
24. The relevant parts of section 31 of the Special Law of 8 August 1980 on institutional reform read as follows:
“(1)  Each Parliament [of the federated entities] shall determine the validity of election procedures as regards its members and their substitutes. If an election is declared void, all the formalities must be recommenced, including the nomination of candidates. (2)  Any complaint concerning an election must, in order to be valid, be made in writing, be signed by one of the candidates standing and mention the complainant’s identity and home address. The complaint must be submitted within ten days from the publication of the results, and in any event before the examination of credentials, to the clerk of the parliament in question, who shall acknowledge receipt. (3)  Each Parliament shall examine the credentials of its members and shall adjudicate on any dispute arising in that regard. (4)  The clerks of the Walloon Parliament and the Flemish Parliament may, for the purposes of the examination of credentials by their respective assemblies, require the administrative authorities to send them, free of charge, any documents they consider necessary.
...”
25. As regards elections to the European Parliament, in relation to which post-election disputes are mainly governed by the law of each member State of the European Union (Articles 8 and 12 of the Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976, as amended by Decision 2002/772/EC, Euratom of 25 June and 23 September 2002), the Belgian House of Representatives determines the validity of election procedures that have taken place in Belgium and on any complaints submitted in that regard (section 43 of the Law of 23 March 1989 on the election of the European Parliament). 26. In accordance with the provisions cited above, the Belgian courts have consistently declined jurisdiction to deal with election-related questions submitted to them, whether raised with the Constitutional Court (judgment no. 34 of 19 February 1987, judgment no. 20/2000 of 23 February 2000, judgment no. 81/2000 of 21 June 2000 and judgment no. 152/2009 of 13 October 2009), the Court of Cassation (Cass., 18 October 1995, Pasicrisie belge (Pas.), 1995, I, no. 925, and Cass., 11 June 2004, Chroniques de droit public (CDPK), 2004, no. 553) or the Conseil d’État (CE no. 13.893 of 13 January 1970, CE no. 15.876 of 15 May 1973, CE no. 17.303 of 25 November 1975, CE no. 22.250 of 12 May 1982, CE no. 24.614 of 12 September 1984, CE no. 27.619 of 4 March 1987, CE no. 49.237 of 23 September 1994, CE nos. 53.170, 53.171 and 53.172 of 8 May 1995, CE no. 53.793 of 16 June 1995, CE no. 54.395 of 6 July 1995, CE no. 55.271 of 22 September 1995, CE, no. 118.570 of 24 April 2003, CE no. 171.527 of 24 May 2007, CE no. 203.980 of 18 May 2010, CE no. 227.344 of 12 May 2014 and CE no. 227.788 of 20 June 2014). 27. The Belgian Constitutional Court has held that the rule that the elected legislative assemblies enjoy the utmost independence in discharging their duties stems from the basic principles of the democratic structure of the State. Such independence finds expression, inter alia, in their autonomous scrutiny of their own members as regards both the validity of their mandate and the manner in which the mandate is acquired by means of elections (see judgment no. 20/2000 of 23 February 2000, point B.3). The absence of judicial scrutiny is thus intended to guarantee the independence of the legislative assemblies vis-à-vis the other branches of power, and is therefore not manifestly unjustified (ibid., point B.6). 28. As regards municipal elections in the Walloon Region and the Brussels-Capital Region, an appeal lies to the Conseil d’État (see Article L4146-15 of the Code of Local Democracy and Decentralisation for the Walloon Region and section 76 bis of the Municipal Elections Act for the Brussels-Capital Region respectively). For provincial elections, jurisdiction is vested in the provincial council (Article L4146-18 of the Code of Local Democracy and Decentralisation for the Walloon Region). In the Flemish Region, complaints concerning municipal and provincial elections may be brought before the Council for Election Disputes (Article 203 of the Decree of 8 July 2011 organising local and provincial elections and amending the Municipal Decree of 15 July 2005, the Provincial Decree of 9 December 2005 and the Decree of 19 December 2008 on the organisation of public social welfare centres). Administrative appeals on points of law may be lodged against decisions of the Council for Election Disputes with the Conseil d’État (Article 215 of the aforementioned Decree). Procedure for examination of credentials in the Walloon Parliament
29. Rule 7 of the Rules of Procedure of the Walloon Parliament, concerning the examination of credentials and the taking up of seats, as in force at the material time, provided:
“1. At the first plenary session after the renewal of the Walloon Parliament, a seven-member Committee on the Examination of Credentials shall be set up by drawing lots. The Committee shall appoint one or more of its members to report to the Parliament. 2. Documentation relating to the elections, and any complaints arising from them, shall be submitted to the Committee. 3. The Walloon Parliament shall give a decision on the Committee’s findings, and the President shall proclaim elected as members and substitute members of the Walloon Parliament those persons whose credentials have been declared valid.
... 6. Members of the Walloon Parliament who have been proclaimed elected but who have not yet been sworn in may not participate in debates or voting, save in connection with the validation of elections.
...”
30. On 28 July 2017 Rule 7 of the Rules of Procedure of the Walloon Parliament was amended. It now provides that when the Parliament’s composition is renewed, three credentials committees are formed by the drawing of lots from among the members representing constituencies other than the ones concerned. Only members so appointed may attend meetings. 31. Pursuant to the new Rule 7 § 3 of the Rules of Procedure, regulations on the procedure for examining complaints about elections to the Walloon Parliament were adopted on 25 April 2018. The regulations govern the procedure for consideration of complaints by the Credentials Committee and the Walloon Parliament, laying down, in particular, the following aspects: complaints are examined by the committee at a public sitting, the committee may be assisted by experts, and the clerk of the Parliament attends the debates and deliberations (Article 6); the complainant is given a hearing (Article 5), and may be assisted by a lawyer in making his or her submissions (Article 8); members of the committee may put questions, request documents, interview witnesses and order a recount of ballot papers before formulating their proposal for a decision (Article 9); and reasons are given for the proposed decision, which may be supplemented by a note on the impact of redistribution of votes between lists (Article 10). The plenary session then decides on the credentials committees’ findings by means of a separate vote on each complaint (Article 12 §§ 1 and 2). If no majority can be reached at the plenary session, the credentials committees’ findings are sent back to them so that they can draw up a fresh proposal after giving the complainants the opportunity to make further submissions (Article 12 §§ 3 and 4). The decision taken at the plenary session is sent to the complainant by registered post (Article 13). INTERNATIONAL INSTRUMENTSWork of the European Commission for Democracy through Law (Venice Commission)Code of Good Practice in Electoral Matters

32. At its 51st and 52nd sessions on 5 and 6 July and 18 and 19 October 2002, the Venice Commission adopted its guidelines on elections and an explanatory report (CDL-AD(2002)023). These two documents together make up the Code of Good Practice in Electoral Matters, which was approved in 2003 by the Parliamentary Assembly and the Congress of Local and Regional Authorities of the Council of Europe. The relevant parts of the guidelines read as follows:
3.3. An effective system of appeal
“a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible.
b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals.
c. The appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). Neither the appellants nor the authorities should be able to choose the appeal body.
d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections.
e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned.
f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections.
g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance).
h. The applicant’s right to a hearing involving both parties must be protected.
i. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions.”
33. The relevant parts of the explanatory report read as follows:
3.3. An effective system of appeal
“92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding. 93. There are two possible solutions:
- appeals may be heard by the ordinary courts, a special court or the constitutional court;
- appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experience[d] with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second. 94. Appeal to parliament, as the judge of its own election, is sometimes provided for but could result in political decisions. It is acceptable as a first instance in places where it is long established, but a judicial appeal should then be possible. 95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings. 96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases. 97. It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission, or where the powers of different courts – e.g. the ordinary courts and the constitutional court – are not clearly differentiated.
... 99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections. 100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded. 101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated. 102. Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.”
Report on Electoral Law and Electoral Administration in Europe
34. The Report on Electoral Law and Electoral Administration in Europe (“Synthesis study on recurrent challenges and problematic issues”) was adopted by the Council for Democratic Elections at its 17th meeting (Venice, 8-9 June 2006) and by the Venice Commission at its 67th plenary session (Venice, 9-10 June 2006). The relevant parts of the report read as follows:
XII. Election appeals and accountability for electoral violations 
 
“... 167. Complaint and appeals procedures must be open at least to each voter, candidate, and party. A reasonable quorum may, however, be imposed for appeals by voters on the results of election (CDL-AD(2002)023rev, para. 99). In order to comply with international standards, the complaint and appeals procedures should clearly provide the following rights for voters, candidates, and political parties: The rights to file a complaint, to present evidence in support of the complaint, to a public and fair hearing on the complaint, to an impartial and transparent proceedings on the complaint, to an effective and speedy remedy, as well as to appeal an appellate court if a remedy is denied (see for example CDL-AD(2004)027, para. 111). In practice, however, these rights are not always respected. At times, even credible complaints are left without any legal redress. 168. Due to different legal and political traditions, a variety of procedures are used in the resolution of election disputes. In many established democracies in Western Europe (like France, Germany, Italy, or the United Kingdom) election appeals are heard by ordinary administrative and judicial bodies operating under special procedures. In contrast, in most emerging and new democracies in Central and Eastern Europe (and in other regions of the world), the responsibility for deciding on election complaints and appeals is shared between independent electoral commissions and ordinary courts. ...”
Reports and recommendations of the Organization for Security and Co-operation in Europe (OSCE)
35. In its October 2003 report entitled “Existing commitments for democratic elections in OSCE participating States”, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) stated the following:
“10.3  Election contestants must have the ability to submit complaints concerning all aspects of election operations, to have their complaints heard by the competent administrative or judicial body, and to appeal to the relevant court. Voters shall have the ability to complain and appeal concerning a violation of their suffrage rights, including voter registration.”
36. In its report of 19 October 2007 following the observation of the federal parliamentary elections of 10 June 2007 in Belgium, the ODIHR concluded as follows:
“Notwithstanding any possible considerations on the substance of [the cases brought before the credentials committees of the two Houses of Parliament] and their handling by the [Credentials] Committees, the principle according to which it is up [to] the winning parties in an election to act as the ultimate judges on election disputes is unusual and potentially problematic. The system could certainly call into question the impartiality of the adjudicating body and the effectiveness of the remedy available to complainants. In this respect, some interlocutors suggested that the Constitutional Court should be entitled to review the decisions of the [Houses] of Parliament. The OSCE/ODIHR inventory of commitments and other principles for democratic elections states that election contestants must have the opportunity to submit complaints on all aspects of election operations to a relevant court. ... Notwithstanding the established legal basis for the existing complaint procedure, the new Parliament should consider measures to provide for impartial resolution of electoral disputes, including the possibility of an appeal to a court.”
37. In its needs assessment mission report of 8 April 2014 on the 25 May 2014 federal parliamentary elections in Belgium, the ODIHR stated as follows:
“The decisions and actions of [constituency main election committees] regarding producing the ballots, including use of party logos as well as decisions to declare the candidates elected before election day can also be appealed to the Court of Appeals. Other decisions of election committees cannot be appealed to the courts, including in respect of the election results, distribution of seats, and election day complaints. Such practice is not in line with OSCE commitments. Instead, the newly-elected House of Representatives has the final authority in adjudicating election disputes when validating the election results, with no possibility of appeal. The only exception concerns decisions to withdraw a mandate of a newly-elected MP based on campaign finance violations, which can be appealed to the Constitutional Court. The jurisdiction of the House of Representatives to validate the election of their own members, with no possibility of judicial review is contrary to OSCE commitments and international good practice. The OSCE/ODIHR has previously recommended that authorities consider measures to provide for impartial resolution of electoral disputes, including the possibility of an appeal to a court.”
Observations of the United Nations Human Rights Committee
38. Article 25 of the International Covenant on Civil and Political Rights secures to every citizen the right and the opportunity, without any distinction and without unreasonable restrictions, to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors; and to have access, on general terms of equality, to public service in his or her country. 39. In its General Comment no. 25 (57) of 27 August 1996 adopted under Article 40 (4) of the International Covenant on Civil and Political Rights (CCPR/C/21/Rev.1/Add.7), the United Nations (UN) Human Rights Committee stated the following:
“20. An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. States should take measures to guarantee the requirement of the secrecy of the vote during elections including absentee voting, where such a system exists. This implies that voters should be protected from any form of coercion or compulsion to disclose how they intend to vote or how they voted, and from any unlawful or arbitrary interference with the voting process. Waiver of these rights is incompatible with article 25 of the Covenant. The security of ballot boxes must be guaranteed and votes should be counted in the presence of the candidates or their agents. There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes. Assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees.”
COMPARATIVE-LAW MATERIAL
40. The material available to the Court on the legislation in Council of Europe member States, in particular a survey of thirty-eight member States and information supplied by the Venice Commission in relation to a further two States, indicates the following. 41. In five States (Denmark, Iceland, Luxembourg, the Netherlands and Norway), similarly to the system for examining credentials in Belgium, challenges to the validity of elections are determined by Parliament itself, and there is no provision for an appeal to a judicial body. 42. In one State (Italy), there are two separate stages of the procedure. Results are reviewed and decisions on candidates’ and parties’ complaints are taken by panels formed within the courts of appeal, which carry out their supervision from an administrative perspective. They decide on disputed ballot papers and voting tallies and send the results to the Court of Cassation. The Court of Cassation gives rulings on appeals against decisions by local polling stations and on internal reviews (revisione in autotutela). It also proclaims the election results, allocates the seats obtained and informs the relevant house of parliament. After the members have been declared elected by the Court of Cassation, the appropriate committees of the houses of parliament examine any appeals, ensuring that certain safeguards are in place (see paragraph 47 below). However, the final decision is taken by each house at a plenary session. 43. In one State (Sweden), the only appeal body is a collegiate body answerable to Parliament, and no appeal lies to any judicial authority. The members of the body are elected by Parliament, and its chair must be a permanent judge. 44. In the other thirty-three States surveyed, a judicial remedy is available. In fourteen States the judicial remedy is direct, that is to say, the complaints are lodged directly with the appropriate court. In nineteen States the judicial body examines the matter at second instance, generally following an initial complaint to a central electoral commission (particularly in the great majority of central and east European countries), and sometimes following a decision by Parliament (Germany) or the executive (Switzerland). 45. The court with jurisdiction to determine post-election disputes varies from one State to another. It may be the higher courts (for example the Constitutional Court, the Supreme Court, the Supreme Administrative Court or the High Court), a special election tribunal or the ordinary administrative courts. 46. As regards procedural safeguards, where the dispute is determined by a court, domestic law generally affords complainants the same set of procedural rights as are available to litigants in ordinary proceedings (the adversarial principle, the right to submit written and/or oral observations, access to the case file, the right to a reasoned and public decision and the right to seek legal aid). Not all States provide for a public hearing. 47. In States where Parliament is the only body competent to determine a dispute concerning election results or the distribution of seats, complainants are not afforded procedural safeguards in Denmark, Iceland, the Netherlands and Norway. In Denmark, the report drawn up by the parliamentary committee responsible for examining the complaint is nevertheless made public. In Italy, the debates before the relevant committees of both houses of parliament are adversarial, and a number of procedural safeguards are afforded: a public hearing is held, and complainants can submit observations and documents, be represented by a lawyer, respond to the committee rapporteur’s analysis and submit final oral observations in person. The committee’s decision is then referred to the relevant house of parliament for examination at a plenary session. THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION
48. The applicant alleged that the refusal of the Walloon Parliament to recount the ballot papers declared blank, spoiled or disputed in the Charleroi constituency, after it had acted as both judge and party in the examination of his complaint, had infringed his right to stand as a candidate in free elections as guaranteed by Article 3 of Protocol No. 1, which provides:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
Admissibility
49. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
50. The applicant submitted that under Article 3 of Protocol No. 1, Belgium had a positive obligation to hold free elections. The right to stand for election would only be effective and genuine if appropriate authorities could ensure that it was respected throughout the electoral process and, in particular, if any complaints were dealt with by a competent body capable of performing an effective examination of the complainants’ grievances. However, that had not happened in his case, because the Walloon Parliament had not acted impartially in taking its decision. 51. The applicant observed that with fourteen more votes his party would have won at least one additional seat and he himself would have been elected. The shortfall in votes had in fact been due to irregularities during the electoral process. The fact that the ballot papers had not been recounted had created uncertainty as to the will of the electorate. The Credentials Committee had endorsed the applicant’s position by acknowledging that the irregularities complained of had been serious, should have led to a recount and could have changed the outcome of the election. The Walloon Parliament had also confirmed that a recount might have had an effect on whether or not the applicant was elected. 52. The applicant had only been able to raise his complaints with the Credentials Committee, which was solely empowered to issue an opinion. The Walloon Parliament had been the only decision-making body and no judicial remedy had been available. The applicant referred to the recommendations of the Venice Commission, the observations of the UN Human Rights Committee and the Court’s conclusions in Grosaru v. Romania (no. 78039/01, ECHR 2010), concluding on that basis that there had been a manifest breach of Article 3 of Protocol No. 1. 53. He pointed out that when the Credentials Committee had been called upon to give an opinion to the Walloon Parliament, it had considered his complaint well-founded, but its opinion had not been followed by the Parliament. The decision-making power in his case had rested solely with the Walloon Parliament, that is to say, with members of parliament whose election might have been called into question if the complaint had been declared well-founded and whose interests had been directly opposed to his own, given that they belonged to different political parties. The members of the Walloon Parliament had therefore had a direct and personal interest in the outcome of the case. Accordingly, in the applicant’s submission, the only available remedy had been dealt with by a body which had been both judge and party and had provided no guarantees at all of its impartiality. 54. Moreover, the applicant submitted that he had not been afforded any procedural safeguards before the decision-making body: the discretion enjoyed by the Walloon Parliament had not been circumscribed with sufficient precision by the provisions of domestic law; neither the right to a fair and public hearing of his appeal nor the right to a transparent and impartial decision on the appeal by a tribunal had been respected; the Walloon Parliament had taken its decision without giving the applicant a hearing or respecting his right to an adversarial procedure; and he had not had an opportunity to take cognisance of and, as appropriate, reply to the evidence on which the Walloon Parliament’s decision had been based. The Court’s previous case-law, however, had established the need for judicial review of the application of electoral rules. 55. The applicant contended that it was precisely the fact that Belgium had a long-standing democratic tradition that required it to fine-tune its system in order to ensure that all elections were fully in accordance with that tradition. The separation of powers could not justify the Belgian system for dealing with post-election disputes, because that principle had to be viewed as requiring the establishment of a genuinely democratic and pluralistic parliament, and thus implying a judicial review of post-election disputes. The applicant referred to legal theory and the fact that leading writers had expressed their belief that the existing system for examining credentials in Belgium was outdated, unsuited to contemporary needs and incompatible with the necessity of preserving the independence of Parliament and safeguarding fundamental rights and democracy. (b)   The Government
56. The Government submitted that the mistakes alleged by the applicant had not undermined the reliability of the election results and had not impeded the free expression of the opinion of the people on the choice of the legislature. They observed that a mere mistake or irregularity would not per se signify that the elections had been unfair, as long as the general principles of equality, transparency, impartiality and independence in electoral administration had been complied with, as they had in the present case. Indeed, elections were regulated by detailed legislation, the counting of votes and the registration and transmission of the results were open and transparent, and the Electoral Code laid down various measures to ensure the neutrality of polling and counting stations, in accordance with the recommendations of the Venice Commission. The Government emphasised that the alleged errors had not been referred to in the records drawn up by the counting stations, nor had they been mentioned by any political parties other than the PTB. 57. Furthermore, the Walloon Parliament had reached its decision on the applicant’s complaint on the basis of an acceptable and proportionate assessment of the relevant facts. Noting the reasons given for the impugned decision, the Government concluded that the alleged errors could not be considered to have been exceptionally widespread or serious. Moreover, as regards the effect of the alleged errors on the outcome of the elections, they referred to the finding by the Walloon Parliament that in one of the possible scenarios, the applicant’s list would have fallen 1,582 votes short of being able to qualify. The fact that the applicant’s election had been a matter of a small number of votes was not a sufficient reason to recount certain ballot papers. Had such a step been taken, it would have been discriminatory against candidates in other constituencies. 58. The Government contended that the Belgian system for examining credentials had the advantage of being structured around a single, unequivocal remedy, a factor liable to strengthen legal certainty. Moreover, that system was part of the Belgian State’s constitutional heritage and was founded on the constitutional principle of the separation of powers. The system was one of a series of mechanisms aimed at ensuring parliamentary independence. The fact that members of parliament could be viewed as both “judge and party” was a drawback offset by the advantages of the system in terms of the independence of the legislature from the executive and the judiciary. Accordingly, the rules governing post-election disputes did not stem from an insignificant choice but from the application of one of the basic principles of the democratic edifice. 59. Next, the Government submitted that the discretion enjoyed by the various parliaments in Belgium could not be considered excessive: it was, precisely, circumscribed by Article 48 of the Constitution and section 31 of the Special Law of 8 August 1980 on institutional reform. Observing that neither the Special Law nor the Rules of Procedure of the Walloon Parliament laid down a sufficiently precise procedure for challenging the validity of elections, and being aware that the procedure no longer corresponded to the democratic criteria currently recognised by European States, the Walloon Parliament – ruling on a complaint of this kind for the first time – had used its parliamentary autonomy in the applicant’s case in ensuring that the procedure for examining the complaint satisfied contemporary criteria by affording a number of procedural safeguards to the applicant. 60. The Government submitted that those procedural safeguards had been appropriate and sufficient against arbitrariness. In the present case the members of parliament from the constituency in which the applicant had stood had not taken part in the debates or the voting within the Credentials Committee, which showed that the Walloon Parliament, exercising its full discretion, had ensured that the committee provided the utmost guarantees of impartiality. Moreover, the committee had examined the applicant’s complaint at a public sitting, and the applicant had been able to put forward his arguments to the committee and to be assisted by a lawyer. Furthermore, the Walloon Parliament had replied in detail to the applicant’s arguments. Those safeguards had made it possible to protect the applicant from any impression that the members of parliament concerned had had an excessive influence over the decision-making process and to avoid any accusations of abuse on the part of the majority. Lastly, the Government pointed out that the procedural safeguards afforded to the applicant were now laid down in the new Rules of Procedure of the Walloon Parliament. Third-party comments
(a)   The Venice Commission
61. The Venice Commission pointed out that the system of examination of credentials by parliaments themselves had originated in the seventeenth and eighteenth centuries with the 1689 English Bill of Rights and the 1787 Constitution of the United States of America. It had subsequently been introduced in the countries of Europe as they had moved towards parliamentary systems in the course of the nineteenth century. This system, firmly rooted in the constitutional history of various countries, was based on a particular approach to the separation of powers and on the idea of Parliament as a sovereign body with specific rights that no judicial authority could impinge upon. Nevertheless, incidents and abuses observed in certain countries had pointed to the need to transfer electoral disputes to independent and impartial bodies, and had led several countries to divest their parliaments of responsibility for supervising the election of their members. Twentieth-century European constitutions had generally abolished the power of parliaments to be the judge over elections, at least at last instance, and most European States had now assigned that power to a judicial body, although there was still considerable variety in the remedies available in those States. 62. The Venice Commission submitted that in free elections, the choice of representatives had to comply with precise rules whose application had to be verifiable and to leave no room for uncertainty or arbitrariness. The principle of the rule of law included the principle of legality, which encompassed supremacy of the law and compliance with the law. One of the other principles of the rule of law was that the law had to be the same for all: any doubts in that regard contributed to mistrust and hence the calling in question of the power of anyone who had abused the law or was suspected of being able to do so. Regardless of which authority had the power to deal with electoral disputes, the Venice Commission submitted that those principles could not be observed without ensuring procedural rights such as the existence of an effective remedy and a method of dealing with complaints that was based on the principles of a fair trial. 63. Accordingly, with particular reference to the Code of Good Practice in Electoral Matters (see paragraph 32 above), the Venice Commission emphasised that the Code did not prevent appeals being made in parliaments concerning the election of their own members, but that final appeals to a court had to be possible. Where electoral appeals did not concern political issues, the protection of the right to free elections implied the existence of a judicial remedy. The type of court was of little importance; what mattered was for the decision to be taken by a body that was established by law, was independent of the executive and the legislature or, in specific cases, acted wholly independently and impartially in determining legal matters in proceedings that were judicial in nature, and therefore afforded sufficient institutional and procedural safeguards against arbitrary and political decisions. 64. Nevertheless, even where an appeal to Parliament was provided for at first instance, the composition of the relevant body and the voting rules should leave as little scope as possible for partisan decisions. Thus, direct opponents had to be excluded in all cases and the rules on the majority required for decisions had to ensure fair representation. Furthermore, the Venice Commission recommended that the procedure adopted should be simple, devoid of formalism and adversarial. Time-limits for appealing and for reaching a decision should be short. The hearing should be public and decisions should be reasoned and made public. (b)   The Government of Denmark
65. The Government of Denmark pointed out that the Danish Constitution of 1849 provided for a system for examining the credentials of members of parliament that was similar to the Belgian system at issue in the present case. Having been introduced with the aim of ensuring the independence of Parliament and protecting it from intervention by the monarch, this system was an integral part of the constitutional structure, the separation of powers and the long-established and firmly entrenched democratic traditions in Denmark. 66. The Government of Denmark submitted that neither Article 3 of Protocol No. 1 nor Article 13 of the Convention could require States to abolish long-established electoral systems in which parliaments validated their members’ credentials. In their view, where the Court sought to establish whether an electoral system provided sufficient safeguards against arbitrariness, it should conduct an overall assessment of all the relevant factors, including the specific context and the democratic tradition of the State in question. States had a wide margin of appreciation where the right to stand for election was in issue. Access to a judicial remedy was only one of the many factors to be taken into account in determining whether a system of validation of credentials was in conformity with the Convention. The Court should attach significant weight to the discretion enjoyed by Parliament: if clear and accessible rules and procedures regulated the holding of elections and thus limited the scope of Parliament’s discretion, this significantly minimised the risk of arbitrary action and politically motivated decisions, and was therefore indicative of a system that ensured the fairness and objectivity required by the Convention. Thus, the absence of access to judicial review of Parliament’s decision to validate its members’ credentials would not in itself breach Article 3 of Protocol No. 1 taken alone or in conjunction with Article 13 of the Convention.

Outcome for Article 13: violation