THIRD SECTION
CASE OF GUÐMUNDUR GUNNARSSON AND 
MAGNÚS DAVÍÐ NORÐDAHL v. ICELAND
(Applications nos. 24159/22 and 25751/22)
 
JUDGMENT
 
Art 3 P1 • Stand for election • Failure to discharge positive procedural obligation to secure effective examination of applicants’ complaints concerning various irregularities surrounding vote recount in a regional constituency in the 2021 Parliamentary elections • Complaints examined in a fair and objective procedure guaranteeing a sufficiently reasoned decision • Absence of adequate institutional and procedural safeguards of impartiality • In case-circumstances, decision-making body lacked requisite impartiality guarantees and enjoyed discretion which was not circumscribed with sufficient precision by provisions of domestic law
Art 13 (+ Art 3 P1) • Lack of an effective remedy in case-circumstances
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
16 April 2024
 
FINAL
 
16/07/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Guðmundur Gunnarsson and Magnús Davíð Norðdahl v. Iceland,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Jolien Schukking,
 Yonko Grozev,
 Georgios A. Serghides,
 Ioannis Ktistakis,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the applications (nos. 24159/22 and 25751/22) against the Republic of Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Icelandic nationals, Mr Guðmundur Gunnarsson and Mr Magnús Davíð Norðdahl (“the applicants”) on 6 and 20 May 2022 respectively;
the decision to give notice to the Icelandic Government (“the Government”) of the complaints concerning the alleged violation of the applicants’ 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;
the parties’ observations;
Having deliberated in private on 12 March 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the 2021 Icelandic parliamentary elections, where the applicants stood as candidates on the electoral lists of their respective parties in one of the regional constituencies, but were not elected to the Parliament of Iceland – Althingi. THE FACTS
2. The first applicant, Mr Guðmundur Gunnarsson, was born in 1976 and lives in Kópavogur. The second applicant, Mr Magnús Davíð Norðdahl, was born in 1982 and lives Reykjavík. The applicants were represented by Mr Sigurður Örn Hilmarsson, a lawyer practising in Reykjavík. 3. The Government were represented by their Agent, Mrs Fanney Rós Þorsteinsdóttir, Attorney General for Civil Affairs, and co-Agent Guðrún Sesselja Arnardóttir, Supreme Court Attorney. 4. The facts of the case may be summarised as follows. Parliamentary electoral system of Iceland
5. Althingi consists of sixty-three members elected for four years through an open-list proportional representation system. Fifty-four parliamentary seats are allocated at constituency level to candidates on party lists, according to the number of votes cast and without any electoral threshold. Nine additional levelling seats are allocated at national level to candidates on party lists if – across the country – their respective parties receive at least 5% of the total votes cast. 6. For the purposes of parliamentary elections, the country is divided into six constituencies. At the time of the events, each constituency elected between eight and thirteen members of Althingi (constituency seats). The number of voters in each constituency varies significantly, with the largest constituency (Southwest) having more than three times as many voters as the smallest constituency (Northwest). Constituencies with smaller populations elect proportionally more members of parliament per capita than constituencies with larger populations. 7. The nine levelling seats serve to minimise the above imbalance and make the composition of Althingi reflect the national popular vote as closely as possible. Out of the nine levelling seats, the three largest constituencies receive two seats each and the three smallest receive one seat each. These seats are distributed through a complex allocation system driven primarily by the overall national results for each party and the constituency results for unelected candidates on the party lists. While the levelling seats are formally linked to the constituencies, they are allocated nationally, and a party may receive a levelling seat in a constituency where its results were not necessarily the highest. A change in election outcomes for one constituency may trigger changes in the allocation of levelling seats across the country. 8. After the senior electoral commissions for each constituency count the votes, they announce the results and inform the National Electoral Commission of those results. Relying on the information received from across the country, the National Electoral Commission allocates seats and issues election certificates to the elected and substitute candidates. 9. If any complaint is raised by a voter or a candidate concerning the election results, it is examined prior to Althingi’s confirmation of the newly elected members’ credentials. The Preparatory Credentials Committee, which is appointed by the acting Speaker of Althingi, initially considers complaints and prepares scrutiny of election credentials by the Credentials Committee. The Credentials Committee is elected during the first sitting of the newly elected Althingi. The members of both committees are selected from the pool of newly elected parliamentarians (whose credentials have not yet been confirmed). The Credentials Committee scrutinises the lawfulness of the elections and the eligibility of members of parliament, and adopts the relevant conclusions. 10. The conclusions of the Credentials Committee are submitted to Althingi for a vote, which definitively confirms the credentials of the newly elected members of parliament and the allocation of seats. Only upon such confirmation of credentials do the newly elected members pledge allegiance to the Constitution and acquire the full status of parliamentarians.
2021 elections to Althingi
11. The most recent elections to Althingi were held on 25 September 2021. In the Northwest constituency – the smallest in the country – the first applicant stood as the top candidate for the Liberal Reform Party (Viðreisn), and the second applicant as the top candidate for the Pirate Party (Píratar). 12. According to the records of the Northwest constituency’s senior electoral commission, the vote count in the constituency was finalised in the early morning on 26 September 2021. In line with that vote count, and as reported by the Icelandic media on that day: (i) the Liberal Reform Party received 1,072 out of 17,666 votes in the constituency and therefore, given the total number of votes cast for his party nationwide, the first applicant qualified for a levelling seat in Althingi; and (ii) the Pirate Party received 1,082 out of 17,666 votes in the constituency and therefore the second applicant, as the party leader and the first candidate on the list, fell a few votes short of being elected to a constituency seat. 13. At around 12 noon on the same day the National Electoral Commission contacted the senior electoral commission in the Northwest consistency by phone and signalled that there was a very narrow margin of only two votes in the Northwest and South constituencies, which could affect the allocation of levelling seats. It was suggested that a recount should take place. A recount of the Liberal Reform Party’s votes in the Northwest constituency was conducted, which resulted in the party receiving 1,063 votes, which was nine votes less than in the first count. A full recount of all votes in the Northwest constituency followed in the early afternoon, with six parties losing between one and nine votes and four parties gaining between one and ten votes, which confirmed the above result of 1,063 votes for the Liberal Reform Party and established the new count of 1,081 (one vote less than in the original tally) for the Pirate Party. A recount that took place in the South constituency led to no changes in the tally. 14. In line with the principles governing the allocation of seats (see paragraphs 5-7 above), the recount in the Northwest constituency led to a reallocation of nationally distributed levelling seats, with five candidates, including the first applicant, losing their levelling seats. The changes did not affect the strength of the parliamentary parties, only which individuals had received levelling seats and in which constituencies. In the Northwest constituency, the levelling seat went from the Liberal Reform Party to the Centre Party (Miðflokkurinn), which left the Liberal Reform Party with no member of parliament elected from that constituency. Inquiry of the Preparatory Credentials Committee
15. On 5 and 1 October 2021 respectively the first and second applicants lodged separate complaints challenging the lawfulness of the vote count and the election results. Fifteen other complaints were submitted by other candidates and voters. 16. In his complaint, the first applicant relied on (a) the absence of a legal basis for the recount; (b) the improper storage and handling of the ballots between the initial count and the recount; (c) the failure of the senior electoral commission to inform the parties’ agents about the recount, thereby depriving them of the opportunity to observe it; and (d) inconsistent and unexplained changes in the number of votes cast for each party and in the number of blank and invalid ballots, after the recount. The first applicant also (a) raised the issue of whether Althingi’s power to decide on electoral disputes complied with the judgment in Mugemangango v. Belgium [GC] (no. 310/15, 10 July 2020); and (b) argued that the alleged defects could be considered to have influenced the outcome of the elections and that in any case, under the case-law of the Icelandic Supreme Court, it was enough that they could be assumed to have influenced them. 17. In his complaint, the second applicant relied on (a) the improper storage and handling of the ballots between the initial count and the recount; and (b) the failure of the senior electoral commission to inform him, as the agent for his party’s list, about the recount, thereby depriving him of the opportunity to observe it. He further argued, with reference to the case-law of the Supreme Court, that it was enough that the defects had the potential to influence the outcome of the elections. 18. The complaints were assigned to the Preparatory Credentials Committee, which adopted its procedural rules for the examination of ballots on 8 October 2021 (see paragraph 34 below). The Committee’s nine members were nominated by the political parties, along with two observers from parties not represented in the Committee. None of its members had been elected to a parliamentary seat in the Northwest constituency. 19. Within the subsequent period of less than two months the Preparatory Credentials Committee conducted an extensive inquiry by, inter alia, obtaining relevant documents, correspondence and email exchanges, collecting comments on the applicants’ complaints, requesting information from the authorities, questioning complainants and witnesses (officials, candidates and candidates’ agents), and hearing experts in constitutional and administrative law. Overall, it held thirty-four open and closed meetings and made three field-visits to the facility where the vote count in the Northwest constituency had taken place to examine it and test different elements of the count. At least two committee meetings were televised and streamed on Althingi’s website. 20. On 20 and 26 October and 2 November 2021 the complainants were invited to appear before the Preparatory Credentials Committee and send written comments on the available material. The applicants appeared before the committee on 22 October 2021. On 8 November 2021 the complainants were invited to provide their comments on a draft description of the events on which the Committee would rely in its assessment. The first applicant provided his comments on 10 November 2021. The repeated request for comments on an updated draft was sent on 17 November 2021, to which the first applicant replied on 18 November 2021. 21. All of the material collected throughout the inquiry was made available on Althingi’s website, except for confidential material and material relating to the Committee’s closed hearings, which was available only to members of parliament. On 18 October 2021 all members of parliament were notified that the material was available. 22. On 25 October 2021 the first applicant’s lawyer requested access to various items used in the inquiry, including documents from a pending criminal investigation against members of the senior electoral commission for violations of the Act on Parliamentary Elections to Althingi. By a letter of 4 November 2021 Althingi replied to the request, directing him to its website for the published material and providing him with certain email exchanges which had been requested and the call log from the telephone of the senior electoral commission’s chairman, but refusing to provide material, which was confidential under the applicable legislation, and material relating to the committee’s closed hearings. A letter from the first applicant’s lawyer dated 8 November 2021 repeatedly requested access to the material and argued, with reference to the domestic law and the principles established in the judgment in Mugemangango (cited above), that the refusal to provide such material was unlawful. By a letter of 10 November 2021 Althingi again refused access to certain material, relying on the same grounds as those it had referred to previously. 23. On 23 November 2021 the Preparatory Credentials Committee issued a ninety-page report in which, inter alia, it identified a number of irregularities in the vote recount in the Northwest constituency. The report established the relevant facts, recounted the arguments advanced by the complainants and the views expressed by the senior electoral commission, and provided an analysis of the applicable legal norms, the Supreme Court’s practice in electoral disputes and scholarly opinions. The report was further informed by an analysis of the consequences of establishing electoral defects, which had been submitted by Althingi’s Office on 19 October 2021, and a ministerial memorandum of 22 October 2021 on the Supreme Court’s jurisprudence on electoral disputes concerning local government and presidential elections, and elections to the Constitutional Assembly. Those documents extensively discussed the legal and historical background of establishing electoral defects and the consequences this had on any assessment of the validity of elections, and analysed the relevant case-law on electoral disputes. 24. The Preparatory Credentials Committee’s report discussed the following alleged deficiencies in the conduct of the elections in the Northwest constituency, with reference to the requirements of the Act on Parliamentary Elections to Althingi:
After the initial count of votes, the ballots had not been sealed and had been left unattended until the recount had taken place several hours later. During that period they had been stored in open boxes in a closed, but unsupervised, room in a hotel. The room had three entrances, one of which could not be locked, while hotel staff had had keys to the other two. Surveillance cameras had not covered the area where the ballot papers had been kept, but surveillance footage showed that hotel staff had in fact entered the room. Moreover, during the period in question the chairman of the Northwest senior electoral commission had spent approximately half an hour in the room alone. The Preparatory Credentials Committee concluded that all the above amounted to a serious defect. The recounting of votes after the public announcement of results had not been expressly regulated by law at the time of the elections. The Preparatory Credentials Committee concluded that in order to ensure that the will of voters was properly expressed, senior electoral commissions were authorised to perform such recounts when mistakes or inaccuracies came to their attention or when a legitimate demand for a recount was made. The initial counting of votes and the recount had begun in the Northwest constituency without the candidates’ agents knowing about this and without anyone being appointed to act in their stead. Also one of the agents had not been sufficiently notified of the recount and the recount had not been postponed pending his arrival, although he had requested to do so. The number of valid ballot papers had also changed between the initial count and the recount, and the senior electoral commission – contrary to what was legally required – had not secured the participation of the agents in ruling on the validity of ballots. The Preparatory Credentials Committee concluded that all the above were defects in the conduct of the elections. The following were all found to have deviated from the applicable legislation: the procedures for verifying consistency between the ballots cast and the voting results; and the fact that ballots had not been mixed before counting and that counting had started before the polls had closed, in a room that had not been securely locked. In addition, the Preparatory Credentials Committee noted that a change in the procedure for counting, which was in progress, went against good practice, but concluded that this could not be considered a defect in the conduct of the elections. Lastly, the Preparatory Credentials Committee concluded that it was a significant defect that the minutes of the senior electoral commission had not recorded key events and decisions regarding the counting of votes. 25. In its report, the Preparatory Credentials Committee noted that previously the Supreme Court had used two standards for invalidating elections: (i) a “specific standard”, requiring that a defect must in fact have had an effect on the outcome of elections; and (ii) a “general standard”, requiring only that a defect was liable to have affected the outcome of elections. The Committee also mentioned scholarly opinion as regards the existence of a third standard, that is, the authorities’ inability to establish that a defect had not affected the outcome of elections. The Committee further stated that the scarcity of jurisprudence and the case-by-case approach of the Supreme Court had meant that it was not possible to draw general conclusions on the standard to be applied, and that the choice between the first and second standards would have to depend on the nature of the alleged defects. 26. In assessing the established deficiencies, the Preparatory Credentials Committee concluded that the unsecured and unsupervised storage of the ballots between the first count and the recount was the most serious deficiency. The Committee was, however, divided as to the consequences of this defect. While certain committee members believed that this had not affected the results, others considered that this was a possibility. The report also stated that it had additionally been suggested that the inconsistencies between the first and second counts could be remedied by a third count. In conclusion, on this issue, the report stated that it would be for the Credentials Committee to formulate the relevant proposals. As to the other deficiencies identified, the Preparatory Credentials Committee concluded that they could not be held to have affected the election results. Confirmation of credentials by Althingi
27. The report of 23 November 2021 was submitted to the nine-member Credentials Committee, which issued its recommendations on 25 November 2021 after holding three meetings. All nine members had previously sat on the Preparatory Credentials Committee. 28. The majority of the Credentials Committee (six members) endorsed the findings of the Preparatory Credentials Committee in an eight-page recommendation. They concluded that the unsecured and unsupervised storage of the ballots between the first count and the recount was not the kind of defect that called for the application of the “general standard”, which required only that defects were liable to have affected election results. Having analysed the facts and explanations provided by hotel staff and the chairman of the senior electoral commission, they further concluded that there was no indication that the ballots had in fact been tampered with, and that the different results between the first count and the recount could be the result of human error. Applying the “specific standard”, the majority found that the defect in question had not affected the election results and recommended that Althingi should confirm the credentials of all sixty-three newly elected parliamentarians, in line with the results obtained following the recount. 29. The minority of the Credentials Committee also issued detailed recommendations concerning the relevant established facts as regards the storage of the ballots. One member concluded that the “specific standard” applied, but that in cases such as the present one, where it could not be proved that the defect had affected the election, the results had to be annulled if the defect was of a kind which was liable to have affected them. A second member of the committee concluded that the defect was of a kind that jeopardised trust in election results and should therefore lead to their annulment, without proof being required that it had actually had an effect. Both those members of the minority therefore recommended that the results of the election in the Northwest constituency should be annulled and that a re-election should take place in that constituency. A third member of the minority reasoned, inter alia, that owing to legislative uncertainties as regards how to conduct re-elections and legislative changes to the number of constituency seats in the Northwest and Southwest constituencies in the intervening period, a re-election would have to take place across the country. He recommended the annulment of the results across the country and a change to Article 46 of the Constitution, which allows Althingi itself to decide on the validity of election results (see paragraph 31 below). 30. On the same day, 25 November 2021, the recommendations of the Credentials Committee were presented at the first session of Althingi sitting as a full chamber. Each of the recommendations was presented separately and debated publicly and on record by the members of parliament, with the debates on all the recommendations lasting over five hours. The proposals by the minority of the Credentials Committee for a re-election across the country or in the Northwest constituency were rejected. Out of the nine members of parliament who had been allocated levelling seats, three voted in favour of the proposals and four abstained from the vote. Two members who had been allocated levelling seats, including the member who had been elected to a levelling seat in the Northwest constituency instead of the first applicant, voted against the proposals. All members of parliament who had received regular constituency seats in the Northwest constituency also voted against the proposal for a re-election in that constituency. As regards the Northwest constituency and all levelling seats, by forty-two votes to five, with sixteen abstentions (out of a total of sixty-three votes), Althingi voted in favour of the proposal by the majority of the Credentials Committee and confirmed the credentials of the relevant members. Out of the nine members of parliament who had been allocated levelling seats, six abstained from the vote and two voted against the proposal. The member who had been elected to a levelling seat in the Northwest constituency instead of the first applicant voted in favour of the proposal. All members of parliament who had received regular constituency seats in the Northwest constituency also voted in favour of the proposal. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic lawThe Constitution of the Republic of Iceland

31. The relevant parts of the Constitution of the Republic of Iceland provide as follows:
Article 46
“Althingi decides itself whether its members are legally elected and also whether a member has lost eligibility for election to Althingi.”
Article 60
“Judges settle all disputes regarding the competence of the authorities. No one seeking a ruling thereon can, however, temporarily evade obeying an order from the authorities by submitting the matter for a judicial decision.”
Article 70
“Everyone shall, for the determination of his rights and obligations or in the event of a criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the resolution of an independent and impartial court of law ...”
The Act on Parliamentary Elections to Althingi
32. At the material time, elections to Althingi were regulated by Act no. 24/2000 on Parliamentary Elections to Althingi, the relevant parts of which provided as follows:
Chapter XXI. Complaints and charges concerning elections
Section 118
“If a voter brings a complaint alleging that a member who has been elected has failed to meet any of the requirements for standing as a candidate, or that a candidate list has unlawfully been put forward for election or elected, with the result that the election ought to be declared invalid, that person shall, within four weeks of the announcement of the election result, butbefore the next Althingi convenes, send the Ministry [of Justice] the complaint, in duplicate. The Ministry shall immediately send one copy to the agent for the candidate list; the other shall be submitted to Althingi at the beginning of the parliamentary session.”
Section 119
“Where they are not subject to a decision by local authorities, electoral commissions or Althingi, complaints arising from violations of this Act shall be directed to the appropriate police commissioners and shall be treated in accordance with the provisions on criminal procedure. In no case may a voter who casts a vote in a general election be required to reveal in court for whom he or she voted.”
Chapter XXII. Rulings by Althingi on the validity of elections
Section 120
“If Althingi receives a complaint to the effect that a newly-elected member has not met the requirements for standing for election, or has for other reasons unlawfully stood for election or been elected, it shall investigate the complaint and deliver a ruling on it, in addition to which it shall investigate the election certificates of all newly elected members and the material regarding their election that it has received from the National Electoral Commission and the senior electoral commission and it shall deliver a ruling on the validity of the election in the manner prescribed in further detail in its standing orders. If a member has not met the requirements for standing for election, Althingi shall rule that his or her election was invalid. If there have been flaws in a member’s candidature or election that may be considered likely to have had an effect on the outcome of the election, Althingi shall rule that the member’s election was invalid; it shall also do so without the preceding condition if the member himself or herself, his or her agents, or his or her sponsors deliberately caused the irregularities, providing that these were substantial. If the irregularities apply to the candidate list as a whole, the same as otherwise applies to an individual member shall apply to all members elected from that list. If, in the same general election, a member has stood for election on two candidate lists in a constituency or constituencies, Althingi shall rule that his or her election was invalid.”
Section 121
“If Althingi rules the election of an entire candidate list in a constituency invalid, a repeat election shall be held there.”
The Standing Orders of Althingi
33. The Standing Orders of Althingi (the rules of procedure) is a statutory instrument enacted by Act no. 55/1991. The relevant parts in force at the material time stated as follows:
 
Article 1
“... 2. At the first sitting of Althingi following general parliamentary elections, nine members shall be elected to a committee, in accordance with the provisions of Article 82, in order to verify the election credentials of newly elected members and alternate members and confirm their lawful election ... The committee shall elect a chairman and a rapporteur and return a recommendation to Althingi as to whether the election and eligibility of each member should be accepted as lawful. The recommendations may be submitted orally without prior notice, and they may be put to the vote collectively. 3. When election credentials have been issued following parliamentary elections, and prior to the opening sitting of Althingi, the acting Speaker ... may appoint a committee composed of nine members for the purpose of preparing the scrutiny of the election credentials that will take place at the opening sitting in accordance with paragraph 2. The choice of members of the committee shall follow the proportion rule of Article 82. Parliamentary groups that are not represented in the committee may nominate an observer. 4. A debate on recommendations pursuant to paragraph 2 shall be subject to the same rules as the second readings of legislative bills.
...”
Article 2
“1. Each new member shall render the following pledge of loyalty to the Constitution as soon as it has been attested that the member has been duly elected in accordance with Article 47 of the Constitution: I, the undersigned, having being elected as a member of Althingi, do pledge on my honour and integrity to respect the Icelandic Constitution. 2. Subject to the provisions of paragraph 5 of Article 5, while a member has not rendered a pledge pursuant to this Article, the member shall not participate in the proceedings of Althingi.”
Article 4
“1. The Credentials Committee elected under Article 1 shall also scrutinise such election credentials as may be presented later and verify the lawfulness of the elections and eligibility of members on which a decision has been deferred by Althingi, and any complaints that may arise concerning the election or eligibility of members who have already been accepted by Althingi. 2. Should this committee return a written recommendation or move to declare an election invalid, its recommendations shall be debated in accordance with the rules on the second readings of legislative bills. Otherwise, committee recommendations are dealt with in accordance with the rules on such recommendations in Article 1 ...”
Article 5
“1. In the course of scrutiny pursuant to Article 1, Althingi may declare a member’s election unlawful even when no complaints have been lodged, and it may also defer the acceptance of an election in order to receive reports on the matter. The same applies in relation to the election of a member who is not present or whose election credentials have not been received at the time of the first sitting of Althingi. 2. The same rules apply to questions of eligibility. 3. Althingi will not otherwise investigate the lawfulness of elections or the eligibility of members on its own initiative, and will do so only if a complaint is lodged. 4. A complaint concerning a member’s election or eligibility shall be recognised only if it is lodged at the outset of a session following a general election or before a member’s election has been accepted by Althingi. 5. During the scrutiny of members’ elections and eligibility, every member shall enjoy full parliamentary privileges. However, if Althingi votes to defer its decision on a member’s election credentials, that member shall not participate in the proceedings of Althingi until a decision has been reached in the matter and the member’s election and eligibility have been accepted.”
Article 82
“1. Elections in Althingi shall proceed as provided for in paragraph 2 of Article 3, with the addition that when elections involve two or more candidates, whether for duties inside or outside Althingi, the Speaker shall employ a method of proportional voting known as the d’Hondt system (the list system). The method is described in paragraphs 2-4 ... 2. Members who have mutually agreed to vote for the same candidates in the same order shall submit to the Speaker, at the time of the election, a list of their candidates, in that order. When the Speaker has received these lists, each shall be marked with a letter of the alphabet ... [Subsequently, the members of parliament vote on the lists and a record of the votes for each list is made.] The number [of votes] thus achieved by each list is then divided, first by 1, then by 2, then by 3, and so on, as needed [giving the quotient received by each list] ... 3. Results of elections are decided according to quotients, with the list receiving the highest quotient being awarded the first candidate, the list receiving the second highest quotient being awarded the second candidate, and so on, until the required number of candidates has been elected. If two or more lists receive the same quotient, lots are drawn to determine from which list a candidate should be chosen. 4. Candidates on each list shall be elected in the order in which they appear on the list.”
The Procedural Rules of the Preparatory Credentials Committee
34. The Preparatory Credentials Committee appointed after the elections in 2021 adopted its procedural rules on 8 October 2021, which were endorsed by the Speaker of Althingi on 12 October 2021. The rules laid down the basic rules and principles for the committee’s functioning, powers and inquiry procedures. The rules stated in particular that the role of the committee was to prepare the material for Althingi’s examination of election credentials (Article 1) on the basis of an objective and legal assessment (Article 6). The information was to be in principle collected in writing (Article 2), made available to the members of parliament in time to inform their individual decision-making, and published, unless the applicable rules provided otherwise (Article 5). Complaints were to be examined in accordance with the principles of Administrative Procedures Act no. 37/1993 and the general principles of administrative law, in so far as applicable, and complainants were to be provided with a reasonable opportunity to clarify their position and object to the data gathered (Article 3). Proposals concerning the legality of elections were to be submitted to the Credentials Committee, which was not bound by them in the exercise of its constitutional duties (Articles 1 and 6). Jurisprudence of the Icelandic Supreme Court
35. The Icelandic Supreme Court has never ruled on the legitimacy of elections to Althingi. However, in its decision of 25 July 2012 regarding the 2012 presidential elections it considered that the principle underlying section 120(3) of the Act on Parliamentary Elections was the general principle of electoral law in Iceland and stated the following:
“Section 120(3) of Act no. 24/2000, cf. also section 94 of Act no. 5/1998 on Local Government Elections, lays down the principle in Icelandic law that general elections should only be declared invalid if they have such defects that may be considered likely to have had an effect on the outcome of the election. An exception to this principle is made by the first mentioned legal provision providing that parliamentary elections shall be invalidated if a member of parliament, his agents or sponsors are found to have deliberately caused the irregularities, and provided they are significant. Act no. 36/1945 does not prescribe when defects in presidential elections should result in their invalidation. Although there is no substantive reference there to section 120(3) of Act no. 24/2000, the same rules must apply, given the nature of the matter, when ruling on the validity of presidential elections and parliamentary elections, since in both cases these are general elections held throughout the country. Accordingly, the above‑mentioned flaws in the presidential election on 30 June 2012 should not lead to its invalidation, as they were completely unrelated to the candidate who received the most votes, his agents and supporters, and obviously had no effect on the outcome of the election.”
36. In its decision of 25 January 2011, the Supreme Court found that several defects had tainted elections to the Constitutional Assembly which had been conducted in part with reference to the rules of the Act on Parliamentary Elections, and it invalidated the election results. The Supreme Court, inter alia, stated the following:
“Act no. 24/2000 is based on the main perspective of transparency as regards the counting of votes. In this connection, it is to be noted that it is not sufficient that the results of the count are correct if it cannot be trusted that counting was conducted in such a manner ... There are examples from judicial practice where elections have been invalidated when their conduct was not in accordance with legislation and liable to breach the secrecy of elections ... The ... defects in the conduct of the election to the Constitutional Assembly on 27 November 2012 will be taken as a whole in the assessment of the case, and the Supreme Court concludes that on account of those defects the annulment [of the election] is inevitable.”
International instruments
37. The relevant international instruments were previously reproduced in the Grand Chamber judgment in Mugemangango (cited above, §§ 32-39). THE LAW
JOINDER OF THE APPLICATIONS
38. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF Article 3 of Protocol No. 1 to the Convention
39. The applicants complained that the irregularities in the counting procedures during the parliamentary elections and the lack of an effective examination of their post-election complaints had violated their rights under Article 3 of Protocol No. 1, which reads as follows:
“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
40. In their submissions, the Government raised a non-exhaustion plea, arguing that while Article 46 of the Constitution provided that Althingi itself decided on the legality of the elections of its members, this provision should be interpreted in conjunction with Article 70 of the Constitution, which provided for a general judicial remedy and access to a court. The Government submitted that Althingi’s decisions on the legality of elections could be considered to be comparable to acts of public administration, and that Articles 60 and 70 of the Constitution opened up the way for judicial review. In the Government’s opinion, any restrictions on access to a court should be construed narrowly, and in the absence of any such restriction in Article 46, the applicants had had at their disposal a judicial remedy to be exhausted. Since the Icelandic courts had never ruled on the matter or been asked to do so, in their submissions, the Government relied on the interpretation of domestic constitutional and statutory provisions, as well as scholarly opinions on this matter. 41. The applicants disagreed with the Government’s contention and argued that Article 46 of the Constitution unequivocally stated that Althingi itself had the final say on electoral disputes, that there was a need for a clear legal basis confirming the applicability of Article 70 of the Constitution to disputes following parliamentary elections, and that nothing in the legislation in force or in practice indicated the existence of such a remedy. They further stated that in their opinion, Althingi’s rulings on the legality of elections could not be compared to administrative acts, and that nothing in the proceedings in which their complaints had been examined had demonstrated that judicial review was available. In their submissions, they relied on the interpretation of domestic constitutional and statutory provisions, opinions expressed by parliamentarians in relation to the post-election complaints, provisions of the Danish Constitution and the Norwegian Constitution, and scholarly opinions on the matter. Lastly, they submitted that the Government, by indicating a mere hypothetical possibility of judicial review, had failed to discharge their burden of proof as regards the existence of the alleged remedy in theory and in practice. 42. The Court is mindful that Article 3 of Protocol No. 1 does not only impose on the State a substantive positive obligation to hold free elections, but also entails a procedural positive obligation to put in place a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights, and this system must be secured with procedural safeguards (see paragraphs 58-59 below). An assessment of the effectiveness of that system forms an integral part of the assessment of the merits of any complaint raised under the above Convention provision. Accordingly, at the present stage, the Court will limit its scrutiny exclusively to the plea of non-exhaustion of domestic remedies, owing to the applicants’ alleged failure to bring their grievances before the domestic courts. 43. Turning to the issue at hand, it must be stressed at the outset that the effective domestic remedies should be available in theory and in practice at the relevant time and offer reasonable prospects of success (see Akdivar and Others v. Turkey, no. 21893/93, § 68, 16 September 1996). It is well established that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case, which means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicants (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 286, ECHR 2012 (extracts)). 44. In proceedings before the Court, it is incumbent on the Government claiming non-exhaustion to demonstrate the existence and availability of remedies. The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case‑law, which must in principle be well established and date back to the period before the application was lodged, subject to exceptions which may be justified by the particular circumstances of the case (see Gherghina v. Romania (dec.) [GC], no. 42219/07, § 88, 9 July 2015, with further references). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting him or her from this requirement (see McFarlane v. Ireland [GC], no. 31333/06, §§ 117 and 120, 10 September 2010, and Akdivar and Others, §§ 68 and 96, cited above). 45. It is clear from the text of the Constitution and the parties’ submissions in the present case that Article 46 of the Constitution expressly provides for Althingi having the power to rule itself on the legality of the elections of its members. While the provisions of Article 70 of the Constitution do provide for a general judicial remedy and access to a court, no provision of the Constitution deals with the interplay of that right with the special rule stipulated in Article 46. The Court further notes that in civil cases the conditions for access to court are set out in detail in the Code of Civil Procedure no. 91/1991. The Government, however, did not submit any explanations on the conditions, modalities and time-limits for the lodging and resolution of the applicants’ complaints under that Code. 46. The parties agree that, unlike in Mugemangango v. Belgium ([GC] no. 310/15, § 26, 10 July 2020), the Icelandic courts have never ruled or been asked to rule on their jurisdiction to consider disputes following parliamentary elections where Althingi has issued a ruling under Article 46 of the Constitution. 47. Lastly, in their submissions, both the Government and the applicants referred to various academic commentaries in the area of constitutional and administrative law to substantiate their opinions on the existence of a judicial remedy. It appears that according to these writings the traditional doctrine is that there is no access to court for individuals wishing to challenge Althingi’s ruling on whether its members are legally elected. Without casting any doubt on the repute of the authors referred to, the Court notes that the different positions taken by the scholars are, by their nature, interpretations that are not binding on the authorities in any way. 48. It is not the Court’s role to rule in the abstract on whether a judicial remedy exists in Iceland in respect of electoral disputes and rulings by Althingi under Article 46 of the Constitution on the lawfulness of the election of members of parliament. In the present case, having raised the non‑exhaustion plea, the Government have been unable to substantiate their position with reference to consistent case-law in cases similar to the applicants’ (see, similarly, Mikolajová v. Slovakia, no. 4479/03, § 34, 18 January 2011). While the Court is, in principle, ready to accept that this may be more difficult in smaller jurisdictions, such as in the present case, where the number of cases of a specific kind may be fewer than in larger jurisdictions (see M.N. and Others v. San Marino, no. 28005/12, § 81, 7 July 2015), it notes that the provisions of Article 46 of the Constitution in substance date back to earlier constitutional provisions adopted in 1874 and 1915. The current Constitution has been in force since 1944 and despite regular elections and recurrent election disputes, no such case has ever been brought before the Icelandic Supreme Court or examined by it. Further, the Government have not provided either a reasonable explanation for the absence of case-law on Althingi’s decisions concerning election of members of parliament (compare Gherghina, cited above, §§ 100-106) or any relevant case-law on challenges to similar Althingi’s decisions in other fields (see Ádám and Others v. Romania, nos. 81114/17 and 5 others, §§ 49-50, 13 October 2020). Therefore, at the present moment the existence of the alleged remedy remains theoretical and abstract (compare McFarlane, cited above, §§ 117-120). Under these circumstances, the Court finds it unreasonable to expect that the applicants must have attempted to exhaust the remedy relied on by the Government. 49. Accordingly, in the Court’s opinion, the Government in the present case have not discharged their burden of proof in relation to the plea of non-exhaustion of a domestic judicial remedy, and have not conclusively demonstrated that such a remedy existed at the material time and was available to the applicant (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 225, ECHR 2014 (extracts)). Therefore, their plea of non-exhaustion must be dismissed. 50. The Court is further satisfied that the applicants’ complaint are not manifestly ill-founded, nor are they inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe parties’ submissions

51. The applicants submitted that their right under Article 3 of Protocol No. 1 to stand for election had been violated, on account of various irregularities surrounding the recount of votes in the Northwest constituency and the failure of the Icelandic authorities to effectively examine their complaints. In particular, they pointed out that there had been no sufficient legal basis for the recount, that there had been grave irregularities in the storage and handling of ballots, and that the agents of the parties concerned had had no effective opportunity to observe the recount. In the applicants’ opinion, contrary to the assessment of the majority of the Credentials Committee and the vote of Althingi, the irregularities which had been identified had jeopardised the reliability of the outcome of the elections and should have led to the election results being invalidated. 52. In respect of the procedure whereby their complaints had been examined, they argued that the Preparatory Credentials Committee was ill‑equipped to inquire into such complaints and had not adopted its rules of procedure until after they had filed their post-election complaint. They also argued that they had not had sufficient opportunity to effectively participate in the procedure, access all the material and present their position and objections to the Committee and the full chamber of Althingi. They further maintained that the same nine members of parliament had sat on both the Preparatory Credentials Committee and the Credentials Committee, and that just like all other members of parliament, they had lacked the requisite impartiality in considering the complaints. In the applicants’ opinion, members of Althingi decided their own fate, and voting in the full chamber largely followed party lines. The fact that such a decision could be taken by a simple majority also raised concerns about it possibly being politically motivated. They contended that nothing had limited Althingi’s authority and discretion in the decision-making process relating to the complaints, and that the procedure before the full chamber had been quick and obscure. 53. In the applicants’ opinion, all of the above factors undermined public confidence in free elections, cast doubt on the election results and led to a violation of Article 3 of Protocol No. 1. 54. In their submissions, the Government maintained that following the applicants’ complaints at national level, the Preparatory Credentials Committee had conducted an extensive and comprehensive inquiry. They claimed that the information and documents which had been collected were available and generally accessible on Althingi’s website. The inquiry and the decision-making process had been duly regulated and fair and had allowed for the complainants’ effective participation. Although the inquiry had identified irregularities in the handling of ballots between the first and the second counts, the majority of the Credentials Committee had concluded that these flaws had not been likely to have had an effect on the results of the elections. In the Government’s opinion, the irregularities had been neither exceptionally widespread nor serious enough to have had an impact on the election results. 55. In the Government’s opinion, the proceedings before the Preparatory Credentials Committee had been sufficiently regulated by the applicable legal rules and the general principles of administrative law, as they had afforded the applicants an opportunity to effectively participate in the proceedings and present their opinions and objections orally and in writing. The inquiry of the Preparatory Credentials Committee had been detailed and exhaustive and had taken account of all the complaints and objections raised in connection with the elections. Members of parliament had had continuous access to all the available material used in the inquiry and had therefore been well aware of the facts and reasons underlying the report of the Preparatory Credentials Committee and the proposals of the Credentials Committee. This had allowed the full chamber to make an informed decision. The applicants had had full access to all the material used in the inquiry, except for the material from the closed hearings and material which was otherwise protected by confidentiality rules. The Government maintained that it had not been necessary to provide the applicants with a further opportunity to present their views to the Credentials Committee and the full chamber, since their position had already been well reflected in the report. They considered that the voting outcomes had clearly demonstrated the absence of bias, since even if none of the members elected in the Northwest constituency or to a levelling seat had voted, the proposal of the majority of the Credentials Committee would still have passed. 56. Overall, the Government’s submissions indicated that the applicants’ complaints had been appropriately examined at domestic level in an effective procedure, and that the alleged irregularities in the elections had been identified, examined and assessed as having had no impact on the outcome of the elections. Accordingly, in their opinion, there had been no violation of Article 3 of Protocol No. 1.

Outcome for Article 13: violation