Guide on Article 3 of Protocol No. 1 – Right to free elections Convention organs examined complaints by unsuccessful candidates who alleged that the electoral processes had been unfair, but dismissed them for lack of any real damage with regard to the outcome of the election. In Riza and Others v. Bulgaria, 2015, the results of 23 polling stations set up abroad had been invalidated on account of alleged anomalies, depriving an MP of his seat. The Court examined both the interference with the voting rights of 101 electors and the right to stand for election of the MP and the party he represented. It found that only purely formal grounds had been given to invalidate the election in a number of polling stations. In addition, the circumstances relied on by the court to justify its decision were not provided for, in a sufficiently clear and foreseeable manner, in the domestic law, and it had not been shown that they would have altered the choice of the voters or distorted the result of the election. In addition, electoral law did not provide for the possibility of organising fresh elections in the polling stations where the ballot had been invalidated – contrary to the Venice Commission’s Code of Good Practice in Electoral Matters – which would have reconciled the legitimate aim pursued by the annulment of the election results, namely the preservation of the legality of the election process, with the subjective rights of the electors and the candidates in parliamentary elections. Consequently, the Court found that there had been a violation of Article 3 of Protocol No. 1. Decisions to invalidate a ballot must therefore be based on a genuine inability to establish the wishes of the electors. 106. In Davydov and Others v. Russia, 2017, which concerned alleged anomalies in federal legislative and municipal elections, the applicants had participated in these elections in various capacities: they were all registered on the electoral rolls, and some had also stood for election to the legislative assembly (so the case concerned both the active and passive aspects of the right to free elections), and others were members of electoral commissions or observers. The Court found there had been a violation of Article 3 of Protocol No. 1 for the following reasons: the applicants have presented, both to the domestic authorities and to the Court, an arguable claim that the fairness of the elections had been seriously compromised by the procedure in which the votes had been recounted (§§ 310-311). Such irregularities could lead to gross distortion of the voters’ intent in all the constituencies concerned. But the applicants had not had their complaints about the recount process effectively examined by the domestic authorities, i.e. the electoral commissions, the public prosecutor, the commission of inquiry or the courts (§§ 336-337). 107. In Mugemangango v. Belgium [GC], 2020, the Court further clarified the scope of the adequate and sufficient procedural safeguards to prevent arbitrariness, required for the effective examination of electoral disputes by Article 3 of Protocol No. 1. The applicant, who had failed to win a seat in the Walloon Region Parliament by only 14 votes, called for a re-examination of about 20,000 ballot papers. While the relevant committee found the applicant’s complaint well-founded and proposed a recount, the Walloon Parliament, not yet constituted at the material time, decided not to follow that conclusion and approved all the elected representatives’ credentials. The Court firstly emphasised that parliamentary autonomy could only be validly exercised in accordance with the rule of law. It therefore took into account the fact that the Walloon Parliament had examined and rejected the applicant’s complaint before its members were sworn in and their credentials were approved. As to the scope of the procedural safeguards against arbitrariness, the Court stressed that the guarantees of impartiality of a decision-making body were intended to ensure that the decision taken was based solely on factual and legal considerations, and not political ones. Given that members of parliament cannot be “politically neutral” by definition, in a system where parliament is the sole judge of the election of its members, particular attention had to be paid to the guarantees of impartiality laid down in domestic law as regards the procedure for examining challenges to election results. Furthemore, the discretion enjoyed by the body concerned must not be excessive and must be circumscribed with sufficient precision by the provisions of domestic law. The procedure in the area of electoral disputes must also guarantee a fair, objective and sufficiently reasoned decision. Complainants must have the opportunity to state their views and to put forward any arguments they consider relevant to the defence of their interests by means of a written procedure or, where appropriate, at a public hearing. Applying the said principles, on the facts of the case, the Court European Court of Human Rights 27/35 Last update: 30.04.2021