A Mugemangango v. Belgium Sequel in the Making

The 25 September 2021 parliamentary elections in Iceland were challenged due to alleged irregularities in the election process of the Northwest-constituency (Norðvesturkjördæmi). On 25 November 2021, the Icelandic Parliament ruled on the validity of the 25 September 2021 parliamentary elections. Individuals as well as a legal entity have stated their intent to file a complaint to the European Court of Human Rights for the alleged violations of the European Convention on Human Rights. If they go forward, they are likely to succeed as Icelandic law fails to meet the standards set out by the ECtHR for post-election review.

Icelandic law on post-election disputes

According to Article 46 of the Icelandic Constitution, the Icelandic Parliament decides whether its members are legally elected and also whether a member has lost eligibility for election to the Parliament. Challenges to the validity of elections are thus determined by Parliament itself. Articles 118 through 122 of Act No. 24/2000 on parliamentary elections address election complaints (e.g. claims for the annulment of elections), and the procedure before the Parliament once a complaint has been made. These are brief statutory provisions concerning e.g. when and where to file a complaint (Arts. 118-119), how the Parliament is tasked with examining and ruling on the complaints (Art. 120(1)), how the Parliament shall annul elections via a ruling thereon if electoral defects may be considered likely to have had an effect on the outcome of the election (Art. 120(3)), and how a repeat election shall be held if the Parliament rules the election of an entire candidate list in a constituency invalid (Art. 121). Additionally, Articles 5 and 6 of Act No. 55/1991 on the standing orders of Parliament briefly address the procedure before the Parliament.

The aftermath of the 2021 parliamentary elections in Iceland

On 25 November 2021, a majority of the members of the Icelandic Parliament voted to the effect of confirming the ballot papers issued by the National Electoral Commission to inter alia five candidates who were allotted balancing parliamentary seat (allotted on the basis of cross-constituency calculations) on account of a second counting of votes in the Northwest-constituency. Five other candidates could have claimed the same parliamentary seats according to the first counting of votes in the constituency. The Parliament’s ruling concurred with the findings of the majority of the Icelandic Parliament’s Credential Committee, which is tasked with examining and assessing any and all claims for the annulment of parliamentary elections, prior to the Parliament’s voting thereon. The Credential Committee’s findings further concluded that a defect associated with the custody (or lack thereof) of electoral data in between a first and second counting of votes in the constituency, and other less serious defects, did not affect the election results. The primary defect was, that the electoral data in the Northwest-constituency had been left for several hours in open boxes in a space that was not fully locked, sealed or within the reach of security cameras. Statutory provisions inter alia explicitly require ballot papers and voters’ rolls to be prepared in sealed packaging as soon as the counting is complete (see Article 104 of Act No. 24/2000 on parliamentary elections).

Unresolved constitutional questions

In the light of Article 46 of the Icelandic Constitution, it is unclear if the national courts are competent to review the Parliament’s decisions regarding the validity of elections. The accepted view is that the national courts do not have the power to review the Parliament’s ruling on the validity of elections (see Björg Thorarensen: Stjórnskipunarréttur: Undirstöður og handhafar ríkisvalds. Reykjavik 2015, at 274). The same is true for e.g. Denmark (see e.g. Jens Peter Christensen o.fl.: Dansk statsret. Copenhagen 2nd ed. 2016, at 82-83; Mugemangango v. Belgium, paras. 65-66). Alternatively, the view has been expressed that the competence of the national courts to conduct post-election review cannot be ruled out entirely. This view is based on the argument of constitutional development since Article 46 was first introduced, as the emphasis on the independence of the judiciary has since increased and its supervisory role vis-à-vis the Parliament has been recognized (see Thorarensen: Stjórnskipunarréttur, at 274). This is an unresolved issue within the field of Icelandic constitutional law. It might be worth noting, however, that Icelandic parliamentary elections have never been annulled on account of defects (i.e. irregularities in the election process). In contrast, municipal elections are subject to judicial review and have been annulled on several occasions (see e.g. Thorarensen: Stjórnskipunarréttur, at 220-226, 289).

European human rights standards

Last year, the Grand Chamber of the ECtHR rendered a judgment in the case of Mugemangango v. Belgium where the Court found that the Belgian post-election dispute resolution system (where the validity of elections is determined by parliament itself) was in breach of the ECHR. The seminal judgment was inter alia covered here, and here on the blog, where Professor Holmøyvik explained how the judgment has far-reaching consequences for several democratic states, including Denmark, Iceland, Luxembourg, the Netherlands and Norway, and partly Italy and Sweden, who all share that same attribute with the election dispute system in Belgium (see also Mugemangango v. Belgium, paras. 41-43).

In Mugemangango, the ECtHR found a violation of Article 3 of Protocol 1 to the ECHR (right to free elections). As explained by the ECtHR in the judgment, this Article contains positive obligations of a procedural character, requiring inter alia the existence of a national system where complaints and appeals regarding electoral rights can be effectively examined (para. 69). According to the Court, an examination is effective if the decisions are taken by a body which can provide sufficient guarantees of its impartiality, if the discretion enjoyed by the body is not excessive (i.e. must be “circumscribed with sufficient precision by the provisions of domestic law”), and if the procedure guarantees a fair, objective and sufficiently reasoned decision. (See para. 70.)

In Mugemangango, the factual circumstances failed on all three counts (see paras. 122-123). As I have expressed in a recent paper, the same would undoubtedly be true should the Icelandic circumstances be tested by the Court, due to the parallel legal foundations and factual circumstances between the two instances. This is because there are neither any legal provisions in national law that ensure impartiality during the proceedings before the Parliament, nor on the assessment of when an electoral defect amounts to the annulment of the elections (i.e. the standard for invalidation). The statutory provisions of Act No. 24/2000 do, however, contain instructions as to which proposals the Icelandic Parliament’s Credential Committee can make (i.e. to declare the elections of all members of parliament valid, to postpone a ruling on the validity in order to obtain reports cf. Article 5(1) of Act No. 55/1991 on the standing orders of Parliament, to invalidate the elections of a specific member of parliament cf. Article 120(4) of Act No. 24/2000, or to invalidate the election of a member of parliament, one or more, if significant electoral defects are associated with her/their candidature or election cf. Art. 120(3) of Act No. 24/2000). The Act also lacks sufficiently detailed rules on the procedure before the Parliament and the Credentials Committee, when deciding on the validity of elections. Even the Credentials Committee itself pointed out in its 25 November 2021 majority findings, that there is need for more specific procedural rules, citing Mugemangango to that effect.

In Mugemangango, the ECtHR also found a violation of Article 13 of the ECHR (right to an effective remedy), as the dispute had not been examined by a judicial body at the domestic level (paras. 125-126.) As explained by the Court, Article 13 requires the provision of a domestic remedy to deal with the substance of a complaint under the ECHR, and to grant appropriate relief. This remedy must be effective in practice as well as in law (paras. 130-131). The Court states that the authority referred to in Article 13 does not have to be a judicial authority and notes that if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective (para. 131). Here, the ECtHR inter alia emphasized the need for the competent body to offer sufficient guarantees of impartiality, adding that an impartial body was not necessarily a judicial body although a judicial or judicial-type remedy was in principle such as to satisfy the requirements of Article 3 of Protocol 1 to the ECHR (see paras. 137, 139). As I set out above, there are no legal provisions in Icelandic law that ensure impartiality during the proceedings before the Parliament and ambiguities remain as to whether the national courts are competent to review the Parliament’s rulings on the validity of elections. Iceland thus fails to meet the requirements spelled out by the ECtHR.

Legislative and constitutional reform awaits

It is imperative that states with intrinsically similar post-election dispute resolution systems respond to this situation via legislative amendments and potentially constitutional amendments. The Danish government had intervened as a third party in the case of Mugemangango v. Belgium (paras. 65-66). Following the judgment, the Danish Institute for Human Rights pointed out that Denmark was lacking an impartial body to resolve election disputes, and that if Denmark would not amend its system, it could face a judgment concluding upon its violations of human rights (see also Søren Rams Rasmussen: “Prøvelse og godkendelse af folketingsvalg i lyset af Mugemangango-sagen“. Ugeskrift for Retsvæsen no. 48 2020, 305-313). Professor Holmøyvik has made the same point regarding Norway, whereas the Norwegians have already initiated a process to carry out the necessary legislative amendments. As for Iceland, the new government has declared in its 28 November 2021 Agreement on the Platform for the Coalition Government that it will set in motion work by experts on constitutional provisions concerning the Icelandic Parliament, elections and constituencies, the courts and, as the case may be, other provisions, such as human rights provisions, together with continuing work on revising electoral law. These amendments would likely be focused on the shortcomings pointed out in Mugemangango v. Belgium. In order to meet its human rights obligation, Iceland needs to amend the very general and limited statutory provisions of Act No. 24/2000 on parliamentary elections, and amendments to Article 46 of the Icelandic Constitution are likely also necessary.