Guide on Article 3 of Protocol No. 1 – Right to free elections IV. Electoral disputes 101. Cases concerning election-related disputes have been numerous. The Court has established that the rights guaranteed by Article 3 of Protocol No. 1 cover not only the process of the organisation and management of the voting process, but also the manner of review of the outcome of elections and disputes concerning counting of votes and validation of election results (Kovach v. Ukraine, 2008, §§ 55 et seq.; Namat Aliyev v. Azerbaijan, 2010, § 81; Kerimova v. Azerbaijan, 2010, § 54; Davydov and Others v. Russia, 2017; Mugemangango v. Belgium [GC], 2020). 102. Article 3 of Protocol No. 1 contains certain positive obligations of a procedural character, in particular requiring the existence of a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights. The existence of such a system is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State’s administration of the electoral process and constitutes an important device at the State’s disposal in achieving the fulfilment of its positive obligation under Article 3 of Protocol No. 1 to hold democratic elections (Namat Aliyev v. Azerbaijan, 2010, §§ 81 et seq.; Uspaskich v. Lithuania, 2016, § 93; Mugemangango v. Belgium [GC], 2020, § 69). 103. The Court has held that post-election phases must be surrounded by precise procedural safeguards; the process must be transparent and open, and observers from all parties must be allowed to participate, including opposition representatives. It pointed out, however, that Article 3 of Protocol No. 1 was not conceived as a code on electoral matters designed to regulate all aspects of the electoral process. Thus the Court’s level of scrutiny in a given case depended on the aspect of the right to free elections. Tighter scrutiny should be reserved for any departures from the principle of universal suffrage, but a broader margin of appreciation could be afforded to States where the measures prevented candidates from standing for elections. A still less stringent scrutiny would apply to the more technical stage of vote counting and tabulation (Davydov and Others v. Russia, 2017, §§ 283-288). 104. A mere mistake or irregularity in the electoral process, and in particular at the more technical stages of it, would not, per se, signify unfairness of the elections, if the general principles of equality, transparency, impartiality and independence of the electoral administration were complied with. The concept of free elections would be put at risk only if (i) there is evidence of procedural breaches that would be capable of thwarting the free expression of the opinion of the people, for instance through gross distortion of the voters’ intent; and (ii) where such complaints receive no effective examination at the domestic level (Davydov and Others v. Russia, 2017, § 287; Mugemangango v. Belgium [GC], 2020, § 72). Accordingly, in order to attract the scrutiny of the Court of the manner in which election-related complaints were dealt at the domestic level, the applicant must demonstrate that those complaints were “serious and arguable” (Namat Aliyev v. Azerbaijan, 2010, § 78; Gahramanli and Others v. Azerbaijan, 2015, § 73; Davydov and Others v. Russia, 2017, §§ 289 et seq.; Mugemangango v. Belgium [GC], 2020, §§ 78 et seq.). 105. Decisions to invalidate an election must reflect a genuine inability to establish the wishes of the electors (Kovach v. Ukraine, 2008). In Kerimova v. Azerbaijan, 2010, the Court found that tampering by two election officials had not succeeded in altering the final result of the election, in which the applicant had been successful. The national authorities had, nevertheless, invalidated the results in breach of domestic electoral law and without taking into account the limited impact of the effects of the tampering. By doing so, the authorities had essentially helped the officials to obstruct the election. This decision had arbitrarily infringed the applicant’s electoral rights by depriving her of the benefit of election to Parliament. It had also shown a lack of concern for the integrity and effectiveness of the electoral process which could not be considered compatible with the spirit of the right to free elections. The role of the courts is not to modify the expression of the people. Thus in two cases (I.Z. v. Greece, Commission decision, 1994; and Babenko v. Ukraine (dec.), 1999) the European Court of Human Rights 26/35 Last update: 30.04.2021