Mugemangango v. Belgium: finally a Grand Chamber judgment on post-election disputes.

By Mathieu Leloup

Post-election disputes and the type of body that should handle them is a topic that comes up before the Court every now and again. In 2010, in the case of Grosaru v. Romania, the Court had indicated that a parliamentary body could not be seen as sufficiently impartial when it had to rule on a dispute about its own election results. After this judgment, it was generally accepted by Belgian constitutional scholars that the system of election disputes in Belgium, which is also parliamentary in nature, was not in line with the Convention standards. It was simply a matter of time until a Belgian case on the issue was brought before the Court.

With Mugemangango v. Belgium that time had arrived. A bit more than a decade after the Grosaru judgment, the Court was going to rule on the Belgian system of election disputes. What was more, the normal chamber had relinquished its jurisdiction in favour of the Grand Chamber and that Grand Chamber had made the rather unusual decision of asking for an opinion of the Venice Commission on the issue. In this opinion, the Commission mostly reiterated the standards it had set out in earlier opinions and concluded that Belgium did not meet them. In these circumstances, it looked like the Court had an ideal position in the Mugemangango case to impose a clear standard, requiring election disputes to be ruled on by an independent and impartial body instead of by the parliament itself. The Grand Chamber indeed unanimously concluded to a double violation of the right to free elections and the right to an effective remedy. However, in four paragraphs, which can only be described as an obiter dictum, the Court left the door open to a parliamentary system of election disputes after all.

Facts

Mugemangango ran for a spot in the Walloon Parliament for the party PTB-Go! in the elections of 2014, for which he was first on the list. His party got enough votes to pass the electoral threshold, but came 14 votes short to get a seat in the parliament. However, since over 21.000 votes were declared blanc, spoiled or disputed, he asked for a recount of these votes. According to Belgian law, the Walloon parliament itself, as constituted by the outcome of the 2014 elections, was in charge of this decision. Whereas the credentials committee decided that there should be a recount, the plenary session of the Walloon parliament was not of the same opinion. It held that there was no reason to order a recount of the blanc, spoiled or disputes votes and verified the credentials of the elected parliamentarians. Subsequently, Mugemangango appealed to the Court, claiming that the fact that the Walloon Parliament had to decide on the election dispute violated his right to stand for a candidate in free elections and his right to an effective remedy.

Judgment

As far as the claim about the right to free elections was concerned, the Court’s reasoning followed two steps. In a first step, it concluded that the applicant’s allegations were sufficiently serious and arguable. Since he only came 14 votes short, it was not impossible that he would have been elected in case the blanc, spoiled or disputed votes were recounted. Then, in a second step, the Court assessed whether the examination of the applicant’s complaint was effective. The Court would thus review whether the proceedings in front of the Walloon Parliament provided an effective examination of Mugemangango’s complaint. In its review, the Court focused on three distinct aspects.

A first aspect was whether the Parliament afforded sufficient guarantees of impartiality. The Court held that, while electoral disputes fall outside of the scope of Article 6 ECHR, Article 3 of the First Additional Protocol still imposes certain requirements as to the impartiality of the body that decides these disputes. In this regard, the Court had previously held that members of parliament cannot be politically neutral by definition. In Belgium, the final decision was taken by the plenary session of the Walloon Parliament, consisting, among others of the members who were elected in Mugemangango’s constituency and were therefore his direct opponents in the election. The decision was thus taken by a body that was partly composed of members with an interest directly opposing that of the applicant. In such circumstances, the Court held that the Walloon Parliament had not been impartial.

A second aspect was whether the Walloon Parliament’s discretion in this decision was sufficiently circumscribed by the domestic law. Here, the Court looked at the relevant Belgian legislation and concluded that it did not provide sufficiently clear criteria that the parliament could apply in deciding the electoral dispute. Moreover, the relevant legal provisions did not specify what would happen in case the parliament upheld the complaint. Consequently, the Court held that the discretion enjoyed by the Walloon Parliament had not been sufficiently circumscribed by the domestic legal provisions.

The third and last aspect was whether the parliament afforded guarantees of a fair, objective and reasoned decision. Again, the Court noted that none of the relevant domestic provision, be it the Constitution, the law or the rules of procedure of parliament provided for an obligation to ensure procedural safeguards during the decision making process. Granted, the applicant had received some safeguards, for example he had been heard, but this was the consequence of a decision ad hoc rather than a predictable consequence of the law. In such circumstances, the Court held that the safeguards afforded to Mugemangango had been insufficient.

When taking these three aspects together, the Court held that Mugemangango’s complaint had not been dealt with in a procedure that offered sufficient safeguards against arbitrariness and that could ensure the effective examination of the complaint in accordance with the requirements of Article 3 of the First Additional Protocol. Consequently, it found a violation of this provision.

As far as the complaint about Article 13 was concerned, the Court mainly referred to its previous findings under the right to free elections. It held that these findings sufficed to conclude that there had likewise been a violation of the right to an effective remedy. However, it did not stop there. After finding a violation, it added that according to long-standing case law, Article 13 ECHR does not require a judicial remedy. In a case concerning post-election disputes as well, it is necessary and sufficient for the competent body to be sufficiently impartial, for its discretion to be sufficiently circumscribed and for the procedure to afford sufficient safeguards. Having regard to the subsidiary position of the Court it was not its task to impose a certain kind of remedy on this topic, which is closely connected to the separation of powers.

Comments

In Mugemangango the Court has unanimously concluded to a double Convention violation. In doing so, it made clear that the current system of election disputes in Belgium is not in accordance with the Convention standards, after having avoided this issue in an earlier judgment. This finding is of particular importance in Belgium, since it is not only the Walloon Parliament that is in charge of its own election disputes. Similar rules apply for other regional parliaments in Belgium, as well as for the federal Chamber of Representatives and Senate. All of these systems will have to be amended.

The logical question is then in what way they should be amended. For those who expected the Grand Chamber to once and for all unequivocally state that post-election disputes should be decided by an impartial and independent body, this judgment may come as a surprise and maybe even as a disappointment. The Court decidedly did not do this. On the contrary, it explicitly held that a parliament may be in charge of its own election disputes provided that it is sufficiently impartial, its discretion is sufficiently circumscribed and if it affords sufficient procedural safeguards.

One could wonder, however, how this can work in practice. As was noted elsewhere, particularly the condition of impartiality seems almost impossible to achieve. The Court itself has held that members of parliament cannot by definition be impartial. How then, can a body existing exclusively of parliamentarians ever be considered impartial? These questions remain even when measures are taken to improve the situation, such as excluding the direct competitors for the seat that is at issue. It is not difficult to imagine party politics or ongoing coalition formations weighing on the decision-making process in parliament. These interests suffice to establish at least an appearance of partiality. As the concurring opinions of judges Turković and Lemmens and judge Wojtyczek pointed out, it would seem that a final appeal to an independent and impartial body is the only viable option.

To a certain degree the judgment thus appears to be contradictory. The obiter dictum after the finding of a violation of Article 13 ECHR is difficult if not impossible to bring in line with the rest of the judgment. Exactly why these considerations have been added we will most likely never know. What we can predict is that, by leaving the door open like that, this judgment will give rise to debate on its required consequences. Opponents of institutional reform in Belgium will most likely point to the Court’s final considerations as proof that the respective parliaments can remain competent, while others will see the judgment as a confirmation that there should be an independent and impartial body in charge.

There only remain a handful of European countries that have a system where the parliament itself is competent to rule on the election disputes. Three of these countries have already taken some kind of step to abolish this system. In Luxembourg, Article 68(3) of the proposed Constitution gives this competence to the Constitutional Court. In Norway, a joint expert and political commission recommended to introduce an appeal to a judicial body.  In Iceland, a 2011 draft new constitution allowed for judicial review in this matter. This draft was, however, never officially accepted. In such circumstances, it can be regretted that the Court did not use this existing European common ground to impose a clear standard where election disputes should, at least in final instance, be decided by an independent and impartial body. The deference that the Court has shown to the constitutional traditions of the European countries and issues like the separation of powers within these countries, has led to a judgment that is reluctant to impose any firm standards and will most likely give rise to plenty of debate, both in political and academic circles.

 

Mathieu Leloup: PhD student in constitutional and administrative law at the University of Antwerp, Belgium, member of the research group Government and Law.

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