EHRM, 10-07-2020, nr. 310/15

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.

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.

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.

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).

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.

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).

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:

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 applicant was born in 1973 and lives in Charleroi.

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.

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.

In addition, 21,385 ballot papers were declared blank, spoiled or disputed in the Charleroi constituency.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 fifteen 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.

The applicant was notified of the reasoned decision of the Walloon Parliament by registered letter dated 24 June 2014.

Declares the application admissible;

Holds that there has been a violation of Article 3 of Protocol No. 1;

Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of Protocol No. 1;

Holds

Dismisses the remainder of the applicant's claim for just satisfaction.

Johan Callewaert

Deputy to the Registrar

Linos-Alexandre Sicilianos

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

L.A.S.

J.C.

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

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

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

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

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

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

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

What conclusions can be drawn from the present judgment?

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

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

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

In this separate opinion, we would like to focus on one aspect of the reasoning under Article 3 of Protocol No. 1, namely the discretion enjoyed by the decision-making body in electoral matters.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The reasoning states the following:

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

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

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

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

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

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

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

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

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