Procedure for examining a complaint about election results did not satisfy the effectiveness requirements of the Convention

GRAND CHAMBER JUDGMENT

Mugemangango v. Belgium 10.7.2020 (no.  310/15)

see here

SUMMARY

The case concerned a post-election dispute relating to the elections held on 25 May 2014. Before
the Court, Mr Mugemangango complained about the procedure conducted by the Walloon
Parliament after he had challenged the election results. He argued that the Walloon Parliament,
which was the only body with the power under domestic law to decide on his complaint, had acted
as both judge and party in examining it.

The Court found that Mr Mugemangango’s complaint had been examined by a body which had not
provided the requisite guarantees of its impartiality and whose discretion had not been
circumscribed with sufficient precision by provisions of domestic law. The safeguards afforded to
Mr Mugemangango during the procedure had likewise been insufficient, having been introduced on
a discretionary basis. His grievances had therefore not been dealt with in a procedure offering
adequate and sufficient safeguards to prevent arbitrariness and to ensure their effective
examination. The Court also held that in the absence of such safeguards, this remedy was likewise
not effective for the purposes of Article 13 of the Convention.

PROVISIONS

Article 3 of the First Additional Protocol

Article 13

PRINCIPAL FACTS

The applicant, Germain Mugemangango, is a Belgian national who was born in 1973 and lives in
Charleroi (Belgium).

On 25 May 2014 Mr Mugemangango stood in the elections to the Parliament of the Walloon Region
as the top candidate on the PTB-GO! list, which exceeded the 5% threshold in the Charleroi
constituency (Hainaut Province), obtaining 16,554 votes. Mr Mugemangango was not elected to the
Walloon Parliament.

On 6 June 2014 Mr Mugemangango lodged a complaint with the Walloon Parliament, requesting a
re-examination of the 21,385 ballot papers declared blank, spoiled or disputed in the Charleroi
constituency. In support of his request he submitted that numerous problems had come to light
during the vote-counting operations. The Walloon Parliament’s Credentials Committee, which found
that Mr Mugemangango’s complaint was admissible and well-founded, proposed that the Walloon
Parliament should not approve the credentials of the candidates elected in Hainaut Province and
that there should be a recount of the ballot papers declared blank, spoiled and disputed in the
Charleroi constituency.

On 13 June 2014, by 43 votes to 28 with four abstentions, the Walloon Parliament declared
Mr Mugemangango’s complaint admissible but ill-founded, concluding, among other things, that there was no compelling evidence of irregularities in the vote counting. Mr Mugemangango was notified of its decision on 24 June 2014. On 13 June 2014 the Walloon Parliament approved the credentials of its elected members without ordering a recount of the ballot papers.

THE DECISION OF THE COURT…

Article 3 of Protocol No. 1 (right to free elections)

The Court observed that Mr Mugemangango’s allegations had been sufficiently serious and
arguable, given that they could have led to a change in the distribution of seats in the Charleroi
constituency and other constituencies in Hainaut Province. It could therefore not be ruled out that
he might have been declared elected following the recount he was seeking. His allegations should
consequently have received an effective examination.

That being so, the Court decided to ascertain whether, in this particular case, the procedure
provided for by domestic law had afforded adequate and sufficient safeguards ensuring, in
particular, that any arbitrariness could be avoided.

The Court observed that the Walloon Parliament had been the only body with the power to give a
decision on Mr Mugemangango’s complaint. During the examination of credentials, all the newly
elected members of the Walloon Parliament whose credentials had yet to be approved had taken
part in voting on the complaint, including those elected in the same constituency in which
Mr Mugemangango had stood. Thus, contrary to the recommendations of the Venice Commission
(Code of Good Practice in Electoral Matters), the members elected in Mr Mugemangango’s
constituency, who were his direct opponents, had not been excluded from the voting in the plenary
Walloon Parliament. The decision had therefore been taken by a body that included members of
parliament whose election could have been called into question if Mr Mugemangango’s complaint
had been declared well-founded and whose interests had been directly opposed to his own.

Moreover, the rule on voting by simple majority that had been applied without any adjustment in
this case had been incapable of protecting Mr Mugemangango from a partisan decision. Accordingly,
his complaint had been examined by a body that had not provided sufficient guarantees of
impartiality.

The Court further considered that the discretion enjoyed by the Walloon Parliament had not been
circumscribed with sufficient precision by provisions of domestic law. Neither the law nor the Rules
of Procedure of the Walloon Parliament had provided at the relevant time for a procedure to deal
with complaints of this kind. Thus, the criteria applied by the Walloon Parliament in deciding on
complaints such as the one lodged by the applicant had not been laid down sufficiently clearly.
The Court also pointed out that the procedure in relation to electoral disputes had to guarantee a
fair, objective and sufficiently reasoned decision. In particular, complainants had to have the
opportunity to state their views and to put forward any arguments they considered relevant to the
defence of their interests by means of a written procedure or at a public hearing. In addition, it had
to be clear from the public statement of reasons by the relevant decision-making body that the
complainants’ arguments had been given a proper assessment and an appropriate response. In this
case, however, neither the Constitution, nor the law, nor the Rules of Procedure of the Walloon
Parliament had provided at the relevant time for an obligation to ensure safeguards of this kind
during the procedure for examination of credentials. Mr Mugemangango had nevertheless enjoyed
the benefit of certain procedural safeguards during the examination of his complaint by the
Credentials Committee (public sitting, reasons given for findings). The Walloon Parliament’s decision
had likewise contained reasons and Mr Mugemangango had been notified of it.

However, the safeguards afforded to Mr Mugemangango during the procedure were not sufficient.
In the absence of a procedure laid down in the applicable regulatory instruments, those safeguards
had been the result of ad hoc discretionary decisions taken by the Credentials Committee and the
plenary Walloon Parliament. They had been neither accessible nor foreseeable in their application.
The Court reiterated that the requirements of Article 3 of Protocol No. 1, and of the other provisions
of the Convention, took the form of a guarantee and not of a mere statement of intent or a practical
arrangement. This was one of the consequences of the rule of law.

Moreover, most of those safeguards had only been afforded to Mr Mugemangango before the
Credentials Committee, which had had no decision-making powers and whose conclusions had not
been followed by the Walloon Parliament. Admittedly, the Walloon Parliament had given reasons for
its decision. However, it had not explained why it had decided not to follow the Committee’s
opinion, even though the Committee had found, on the same grounds as were referred to by the
Parliament, that Mr Mugemangango’s complaint was admissible and well-founded, and had
suggested that all the ballot papers from the Charleroi constituency be recounted by the Federal
Department of the Interior.

In conclusion, Mr Mugemangango’s complaint had been examined by a body which had not
provided the requisite guarantees of its impartiality and whose discretion had not been
circumscribed with sufficient precision by provisions of domestic law. The safeguards afforded to
Mr Mugemangango during the procedure had likewise been insufficient, having been introduced on
a discretionary basis. The Court thus concluded that Mr Mugemangango’s grievances had not been
dealt with in a procedure offering adequate and sufficient safeguards to prevent arbitrariness and to
ensure their effective examination in accordance with the requirements of Article 3 of Protocol
No. 1. There had therefore been a violation of that Article.

Article 13 (right to an effective remedy)

Mr Mugemangango had had the opportunity to submit a complaint to the Walloon Parliament in
order to raise his grievances about the election results. As the system in Belgium currently stood, no
other remedy was available following a decision by the Walloon Parliament, whether before a
judicial authority or any other body. In that connection, the Court had already found, under Article 3
of Protocol No. 1, that the procedure for complaints to the Walloon Parliament had not provided
adequate and sufficient safeguards ensuring the effective examination of Mr Mugemangango’s
grievances. Therefore, in the absence of such safeguards, this remedy could likewise not be deemed
effective within the meaning of Article 13 of the Convention. That finding was sufficient for the
Court to conclude that there had been a violation of Article 13 of the Convention in conjunction with
Article 3 of Protocol No. 1.

Having regard to the subsidiarity principle and the diversity of the electoral systems existing in
Europe, it was not for the Court to specify what type of remedy should be provided in order to
satisfy the requirements of the Convention. This question, closely linked to the principle of the
separation of powers, fell within the wide margin of appreciation afforded to Contracting States in
organising their electoral systems. Nevertheless, the Court indicated that a judicial or judicial-type
remedy, whether at first instance or following a decision by a non-judicial body, was in principle such
as to satisfy the requirements of Article 3 of Protocol No. 1.

Just satisfaction (Article 41)

The Court held that Belgium was to pay Mr Mugemangango 2,000 euros (EUR) in respect of nonpecuniary damage and EUR 12,915.14 in respect of costs and expenses.

Separate opinions

Judges Turković and Lemmens expressed a joint concurring opinion. Judges Lemmens and Sabato
expressed a further joint concurring opinion. Judge Wojtyczek also expressed a concurring opinion.
The three opinions are annexed to the judgment.


ECHRCaseLaw

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