CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 avril 2024

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font-size:6pt; vertical-align:super; color:#0069d6 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .sB853CD25 { font-family:Arial; font-size:9pt } .s391E78BA { font-family:Arial; background-color:#ffffff } .s71A789CD { font-family:Arial; font-size:9pt; background-color:#ffffff } THIRD SECTION CASE OF GUÐMUNDUR GUNNARSSON AND MAGNÚS DAVÍÐ NORÐDAHL v. ICELAND (Applications nos. 24159/22 and 25751/22)   JUDGMENT   Art 3 P1 • Stand for election • Failure to discharge positive procedural obligation to secure effective examination of applicants’ complaints concerning various irregularities surrounding vote recount in a regional constituency in the 2021 Parliamentary elections • Complaints examined in a fair and objective procedure guaranteeing a sufficiently reasoned decision • Absence of adequate institutional and procedural safeguards of impartiality • In case-circumstances, decision-making body lacked requisite impartiality guarantees and enjoyed discretion which was not circumscribed with sufficient precision by provisions of domestic law Art 13 (+ Art 3 P1) • Lack of an effective remedy in case-circumstances   Prepared by the Registry. Does not bind the Court.   STRASBOURG 16 April 2024   FINAL   16/07/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Guðmundur Gunnarsson and Magnús Davíð Norðdahl v. Iceland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Jolien Schukking,   Yonko Grozev,   Georgios A. Serghides,   Ioannis Ktistakis,   Andreas Zünd,   Oddný Mjöll Arnardóttir , judges , and Milan Blaško, Section Registrar, Having regard to: the applications (nos.   24159/22 and 25751/22) against the Republic of Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Icelandic nationals, Mr Guðmundur Gunnarsson and Mr Magnús Davíð Norðdahl (“the applicants”) on 6 and 20 May 2022 respectively; the decision to give notice to the Icelandic Government (“the Government”) of the complaints concerning the alleged violation of the applicants’ right to free elections, under Article 3 of Protocol No. 1 to the Convention, and their right to an effective remedy, under Article 13 of the Convention read in conjunction with Article 3 of Protocol No. 1; the parties’ observations; Having deliberated in private on 12 March 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the 2021 Icelandic parliamentary elections, where the applicants stood as candidates on the electoral lists of their respective parties in one of the regional constituencies, but were not elected to the Parliament of Iceland – Althingi . THE FACTS 2.     The first applicant, Mr Guðmundur Gunnarsson, was born in 1976 and lives in Kópavogur. The second applicant, Mr Magnús Davíð Norðdahl, was born in 1982 and lives Reykjavík. The applicants were represented by Mr   Sigurður Örn Hilmarsson, a lawyer practising in Reykjavík. 3.     The Government were represented by their Agent, Mrs Fanney Rós Þorsteinsdóttir, Attorney General for Civil Affairs, and co-Agent Guðrún Sesselja Arnardóttir, Supreme Court Attorney. 4.     The facts of the case may be summarised as follows. Parliamentary electoral system of Iceland 5 .     Althingi consists of sixty-three members elected for four years through an open-list proportional representation system. Fifty-four parliamentary seats are allocated at constituency level to candidates on party lists, according to the number of votes cast and without any electoral threshold. Nine additional levelling seats are allocated at national level to candidates on party lists if – across the country – their respective parties receive at least 5% of the total votes cast. 6.     For the purposes of parliamentary elections, the country is divided into six constituencies. At the time of the events, each constituency elected between eight and thirteen members of Althingi (constituency seats). The number of voters in each constituency varies significantly, with the largest constituency (Southwest) having more than three times as many voters as the smallest constituency (Northwest). Constituencies with smaller populations elect proportionally more members of parliament per capita than constituencies with larger populations. 7 .     The nine levelling seats serve to minimise the above imbalance and make the composition of Althingi reflect the national popular vote as closely as possible. Out of the nine levelling seats, the three largest constituencies receive two seats each and the three smallest receive one seat each. These seats are distributed through a complex allocation system driven primarily by the overall national results for each party and the constituency results for unelected candidates on the party lists. While the levelling seats are formally linked to the constituencies, they are allocated nationally, and a party may receive a levelling seat in a constituency where its results were not necessarily the highest. A change in election outcomes for one constituency may trigger changes in the allocation of levelling seats across the country. 8.     After the senior electoral commissions for each constituency count the votes, they announce the results and inform the National Electoral Commission of those results. Relying on the information received from across the country, the National Electoral Commission allocates seats and issues election certificates to the elected and substitute candidates. 9 .     If any complaint is raised by a voter or a candidate concerning the election results, it is examined prior to Althingi ’s confirmation of the newly elected members’ credentials. The Preparatory Credentials Committee, which is appointed by the acting Speaker of Althingi , initially considers complaints and prepares scrutiny of election credentials by the Credentials Committee. The Credentials Committee is elected during the first sitting of the newly elected Althingi . The members of both committees are selected from the pool of newly elected parliamentarians (whose credentials have not yet been confirmed). The Credentials Committee scrutinises the lawfulness of the elections and the eligibility of members of parliament, and adopts the relevant conclusions. 10 .     The conclusions of the Credentials Committee are submitted to Althingi for a vote, which definitively confirms the credentials of the newly elected members of parliament and the allocation of seats. Only upon such confirmation of credentials do the newly elected members pledge allegiance to the Constitution and acquire the full status of parliamentarians. 2021 elections to Althingi 11.     The most recent elections to Althingi were held on 25   September   2021. In the Northwest constituency – the smallest in the country – the first applicant stood as the top candidate for the Liberal Reform Party ( Viðreisn ), and the second applicant as the top candidate for the Pirate Party ( Píratar ). 12 .     According to the records of the Northwest constituency’s senior electoral commission, the vote count in the constituency was finalised in the early morning on 26 September 2021. In line with that vote count, and as reported by the Icelandic media on that day: (i) the Liberal Reform Party received 1,072 out of 17,666 votes in the constituency and therefore, given the total number of votes cast for his party nationwide, the first applicant qualified for a levelling seat in Althingi ; and (ii) the Pirate Party received 1,082 out of 17,666 votes in the constituency and therefore the second applicant, as the party leader and the first candidate on the list, fell a few votes short of being elected to a constituency seat. 13 .     At around 12 noon on the same day the National Electoral Commission contacted the senior electoral commission in the Northwest consistency by phone and signalled that there was a very narrow margin of only two votes in the Northwest and South constituencies, which could affect the allocation of levelling seats. It was suggested that a recount should take place. A recount of the Liberal Reform Party’s votes in the Northwest constituency was conducted, which resulted in the party receiving 1,063   votes, which was nine votes less than in the first count. A full recount of all votes in the Northwest constituency followed in the early afternoon, with six parties losing between one and nine votes and four parties gaining between one and ten votes, which confirmed the above result of 1,063 votes for the Liberal Reform Party and established the new count of 1,081 (one vote less than in the original tally) for the Pirate Party. A recount that took place in the South constituency led to no changes in the tally. 14 .     In line with the principles governing the allocation of seats (see paragraphs 5-7 above), the recount in the Northwest constituency led to a reallocation of nationally distributed levelling seats, with five candidates, including the first applicant, losing their levelling seats. The changes did not affect the strength of the parliamentary parties, only which individuals had received levelling seats and in which constituencies. In the Northwest constituency, the levelling seat went from the Liberal Reform Party to the Centre Party ( Miðflokkurinn ), which left the Liberal Reform Party with no member of parliament elected from that constituency. Inquiry of the Preparatory Credentials Committee 15 .     On 5 and 1 October 2021 respectively the first and second applicants lodged separate complaints challenging the lawfulness of the vote count and the election results. Fifteen other complaints were submitted by other candidates and voters. 16 .     In his complaint, the first applicant relied on (a) the absence of a legal basis for the recount; (b) the improper storage and handling of the ballots between the initial count and the recount; (c) the failure of the senior electoral commission to inform the parties’ agents about the recount, thereby depriving them of the opportunity to observe it; and (d) inconsistent and unexplained changes in the number of votes cast for each party and in the number of blank and invalid ballots, after the recount. The first applicant also (a) raised the issue of whether Althingi ’s power to decide on electoral disputes complied with the judgment in Mugemangango v. Belgium [GC] (no. 310/15, 10   July   2020); and (b) argued that the alleged defects could be considered to have influenced the outcome of the elections and that in any case, under the case-law of the Icelandic Supreme Court, it was enough that they could be assumed to have influenced them. 17 .     In his complaint, the second applicant relied on (a) the improper storage and handling of the ballots between the initial count and the recount; and (b) the failure of the senior electoral commission to inform him, as the agent for his party’s list, about the recount, thereby depriving him of the opportunity to observe it. He further argued, with reference to the case-law of the Supreme Court, that it was enough that the defects had the potential to influence the outcome of the elections. 18.     The complaints were assigned to the Preparatory Credentials Committee, which adopted its procedural rules for the examination of ballots on 8 October 2021 (see paragraph 34 below). The Committee’s nine members were nominated by the political parties, along with two observers from parties not represented in the Committee. None of its members had been elected to a parliamentary seat in the Northwest constituency. 19.     Within the subsequent period of less than two months the Preparatory Credentials Committee conducted an extensive inquiry by, inter alia , obtaining relevant documents, correspondence and email exchanges, collecting comments on the applicants’ complaints, requesting information from the authorities, questioning complainants and witnesses (officials, candidates and candidates’ agents), and hearing experts in constitutional and administrative law. Overall, it held thirty-four open and closed meetings and made three field-visits to the facility where the vote count in the Northwest constituency had taken place to examine it and test different elements of the count. At least two committee meetings were televised and streamed on Althingi ’s website. 20.     On 20 and 26 October and 2 November 2021 the complainants were invited to appear before the Preparatory Credentials Committee and send written comments on the available material. The applicants appeared before the committee on 22 October 2021. On 8 November 2021 the complainants were invited to provide their comments on a draft description of the events on which the Committee would rely in its assessment. The first applicant provided his comments on 10 November 2021. The repeated request for comments on an updated draft was sent on 17 November 2021, to which the first applicant replied on 18 November 2021. 21.     All of the material collected throughout the inquiry was made available on Althingi ’s website, except for confidential material and material relating to the Committee’s closed hearings, which was available only to members of parliament. On 18 October 2021 all members of parliament were notified that the material was available. 22.     On 25 October 2021 the first applicant’s lawyer requested access to various items used in the inquiry, including documents from a pending criminal investigation against members of the senior electoral commission for violations of the Act on Parliamentary Elections to Althingi . By a letter of 4   November 2021 Althingi replied to the request, directing him to its website for the published material and providing him with certain email exchanges which had been requested and the call log from the telephone of the senior electoral commission’s chairman, but refusing to provide material, which was confidential under the applicable legislation, and material relating to the committee’s closed hearings. A letter from the first applicant’s lawyer dated 8   November 2021 repeatedly requested access to the material and argued, with reference to the domestic law and the principles established in the judgment in Mugemangango (cited above), that the refusal to provide such material was unlawful. By a letter of 10 November 2021 Althingi again refused access to certain material, relying on the same grounds as those it had referred to previously. 23 .     On 23 November 2021 the Preparatory Credentials Committee issued a ninety-page report in which, inter alia , it identified a number of irregularities in the vote recount in the Northwest constituency. The report established the relevant facts, recounted the arguments advanced by the complainants and the views expressed by the senior electoral commission, and provided an analysis of the applicable legal norms, the Supreme Court’s practice in electoral disputes and scholarly opinions. The report was further informed by an analysis of the consequences of establishing electoral defects, which had been submitted by Althingi ’s Office on 19 October 2021, and a ministerial memorandum of 22   October 2021 on the Supreme Court’s jurisprudence on electoral disputes concerning local government and presidential elections, and elections to the Constitutional Assembly. Those documents extensively discussed the legal and historical background of establishing electoral defects and the consequences this had on any assessment of the validity of elections, and analysed the relevant case-law on electoral disputes. 24 .     The Preparatory Credentials Committee’s report discussed the following alleged deficiencies in the conduct of the elections in the Northwest constituency, with reference to the requirements of the Act on Parliamentary Elections to Althingi : After the initial count of votes, the ballots had not been sealed and had been left unattended until the recount had taken place several hours later. During that period they had been stored in open boxes in a closed, but unsupervised, room in a hotel. The room had three entrances, one of which could not be locked, while hotel staff had had keys to the other two. Surveillance cameras had not covered the area where the ballot papers had been kept, but surveillance footage showed that hotel staff had in fact entered the room. Moreover, during the period in question the chairman of the Northwest senior electoral commission had spent approximately half an hour in the room alone. The Preparatory Credentials Committee concluded that all the above amounted to a serious defect. The recounting of votes after the public announcement of results had not been expressly regulated by law at the time of the elections. The Preparatory Credentials Committee concluded that in order to ensure that the will of voters was properly expressed, senior electoral commissions were authorised to perform such recounts when mistakes or inaccuracies came to their attention or when a legitimate demand for a recount was made. The initial counting of votes and the recount had begun in the Northwest constituency without the candidates’ agents knowing about this and without anyone being appointed to act in their stead. Also one of the agents had not been sufficiently notified of the recount and the recount had not been postponed pending his arrival, although he had requested to do so. The number of valid ballot papers had also changed between the initial count and the recount, and the senior electoral commission – contrary to what was legally required – had not secured the participation of the agents in ruling on the validity of ballots. The Preparatory Credentials Committee concluded that all the above were defects in the conduct of the elections. The following were all found to have deviated from the applicable legislation: the procedures for verifying consistency between the ballots cast and the voting results; and the fact that ballots had not been mixed before counting and that counting had started before the polls had closed, in a room that had not been securely locked. In addition, the Preparatory Credentials Committee noted that a change in the procedure for counting, which was in progress, went against good practice, but concluded that this could not be considered a defect in the conduct of the elections. Lastly, the Preparatory Credentials Committee concluded that it was a significant defect that the minutes of the senior electoral commission had not recorded key events and decisions regarding the counting of votes. 25 .     In its report, the Preparatory Credentials Committee noted that previously the Supreme Court had used two standards for invalidating elections: (i) a “specific standard”, requiring that a defect must in fact have had an effect on the outcome of elections; and (ii) a “general standard”, requiring only that a defect was liable to have affected the outcome of elections. The Committee also mentioned scholarly opinion as regards the existence of a third standard, that is, the authorities’ inability to establish that a defect had not affected the outcome of elections. The Committee further stated that the scarcity of jurisprudence and the case-by-case approach of the Supreme Court had meant that it was not possible to draw general conclusions on the standard to be applied, and that the choice between the first and second standards would have to depend on the nature of the alleged defects. 26 .     In assessing the established deficiencies, the Preparatory Credentials Committee concluded that the unsecured and unsupervised storage of the ballots between the first count and the recount was the most serious deficiency. The Committee was, however, divided as to the consequences of this defect. While certain committee members believed that this had not affected the results, others considered that this was a possibility. The report also stated that it had additionally been suggested that the inconsistencies between the first and second counts could be remedied by a third count. In conclusion, on this issue, the report stated that it would be for the Credentials Committee to formulate the relevant proposals. As to the other deficiencies identified, the Preparatory Credentials Committee concluded that they could not be held to have affected the election results. Confirmation of credentials by Althingi 27.     The report of 23 November 2021 was submitted to the nine-member Credentials Committee, which issued its recommendations on 25   November   2021 after holding three meetings. All nine members had previously sat on the Preparatory Credentials Committee. 28 .     The majority of the Credentials Committee (six members) endorsed the findings of the Preparatory Credentials Committee in an eight-page recommendation. They concluded that the unsecured and unsupervised storage of the ballots between the first count and the recount was not the kind of defect that called for the application of the “general standard”, which required only that defects were liable to have affected election results. Having analysed the facts and explanations provided by hotel staff and the chairman of the senior electoral commission, they further concluded that there was no indication that the ballots had in fact been tampered with, and that the different results between the first count and the recount could be the result of human error. Applying the “specific standard”, the majority found that the defect in question had not affected the election results and recommended that Althingi should confirm the credentials of all sixty-three newly elected parliamentarians, in line with the results obtained following the recount. 29 .     The minority of the Credentials Committee also issued detailed recommendations concerning the relevant established facts as regards the storage of the ballots. One member concluded that the “specific standard” applied, but that in cases such as the present one, where it could not be proved that the defect had affected the election, the results had to be annulled if the defect was of a kind which was liable to have affected them. A second member of the committee concluded that the defect was of a kind that jeopardised trust in election results and should therefore lead to their annulment, without proof being required that it had actually had an effect. Both those members of the minority therefore recommended that the results of the election in the Northwest constituency should be annulled and that a re-election should take place in that constituency. A third member of the minority reasoned, inter alia , that owing to legislative uncertainties as regards how to conduct re-elections and legislative changes to the number of constituency seats in the Northwest and Southwest constituencies in the intervening period, a re-election would have to take place across the country. He recommended the annulment of the results across the country and a change to Article 46 of the Constitution, which allows Althingi itself to decide on the validity of election results (see paragraph 31 below). 30.     On the same day, 25 November 2021, the recommendations of the Credentials Committee were presented at the first session of Althingi sitting as a full chamber. Each of the recommendations was presented separately and debated publicly and on record by the members of parliament, with the debates on all the recommendations lasting over five hours. The proposals by the minority of the Credentials Committee for a re-election across the country or in the Northwest constituency were rejected. Out of the nine members of parliament who had been allocated levelling seats, three voted in favour of the proposals and four abstained from the vote. Two members who had been allocated levelling seats, including the member who had been elected to a levelling seat in the Northwest constituency instead of the first applicant, voted against the proposals. All members of parliament who had received regular constituency seats in the Northwest constituency also voted against the proposal for a re-election in that constituency. As regards the Northwest constituency and all levelling seats, by forty-two votes to five, with sixteen abstentions (out of a total of sixty-three votes), Althingi voted in favour of the proposal by the majority of the Credentials Committee and confirmed the credentials of the relevant members. Out of the nine members of parliament who had been allocated levelling seats, six abstained from the vote and two voted against the proposal. The member who had been elected to a levelling seat in the Northwest constituency instead of the first applicant voted in favour of the proposal. All members of parliament who had received regular constituency seats in the Northwest constituency also voted in favour of the proposal. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law The Constitution of the Republic of Iceland 31 .     The relevant parts of the Constitution of the Republic of Iceland provide as follows: Article 46 “ Althingi decides itself whether its members are legally elected and also whether a member has lost eligibility for election to Althingi. ” Article 60 “Judges settle all disputes regarding the competence of the authorities. No one seeking a ruling thereon can, however, temporarily evade obeying an order from the authorities by submitting the matter for a judicial decision.” Article 70 “Everyone shall, for the determination of his rights and obligations or in the event of a criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the resolution of an independent and impartial court of law ...” The Act on Parliamentary Elections to Althingi 32 .     At the material time, elections to Althingi were regulated by Act no.   24/2000 on Parliamentary Elections to Althingi , the relevant parts of which provided as follows: Chapter XXI.   Complaints and charges concerning elections Section 118 “If a voter brings a complaint alleging that a member who has been elected has failed to meet any of the requirements for standing as a candidate, or that a candidate list has unlawfully been put forward for election or elected, with the result that the election ought to be declared invalid, that person shall, within four weeks of the announcement of the election result, butbefore the next Althingi convenes, send the Ministry [of Justice] the complaint, in duplicate. The Ministry shall immediately send one copy to the agent for the candidate list; the other shall be submitted to Althingi at the beginning of the parliamentary session.” Section 119 “Where they are not subject to a decision by local authorities, electoral commissions or Althingi , complaints arising from violations of this Act shall be directed to the appropriate police commissioners and shall be treated in accordance with the provisions on criminal procedure. In no case may a voter who casts a vote in a general election be required to reveal in court for whom he or she voted.” Chapter XXII. Rulings by Althingi on the validity of elections Section 120 “If Althingi receives a complaint to the effect that a newly-elected member has not met the requirements for standing for election, or has for other reasons unlawfully stood for election or been elected, it shall investigate the complaint and deliver a ruling on it, in addition to which it shall investigate the election certificates of all newly elected members and the material regarding their election that it has received from the National Electoral Commission and the senior electoral commission and it shall deliver a ruling on the validity of the election in the manner prescribed in further detail in its standing orders. If a member has not met the requirements for standing for election, Althingi shall rule that his or her election was invalid. If there have been flaws in a member’s candidature or election that may be considered likely to have had an effect on the outcome of the election, Althingi shall rule that the member’s election was invalid; it shall also do so without the preceding condition if the member himself or herself, his or her agents, or his or her sponsors deliberately caused the irregularities, providing that these were substantial. If the irregularities apply to the candidate list as a whole, the same as otherwise applies to an individual member shall apply to all members elected from that list. If, in the same general election, a member has stood for election on two candidate lists in a constituency or constituencies, Althingi shall rule that his or her election was invalid.” Section 121 “If Althingi rules the election of an entire candidate list in a constituency invalid, a repeat election shall be held there.” The Standing Orders of Althingi 33 .     The Standing Orders of Althingi (the rules of procedure) is a statutory instrument enacted by Act no.   55/1991. The relevant parts in force at the material time stated as follows:   Article 1 “... 2. At the first sitting of Althingi following general parliamentary elections, nine members shall be elected to a committee, in accordance with the provisions of Article 82, in order to verify the election credentials of newly elected members and alternate members and confirm their lawful election ... The committee shall elect a chairman and a rapporteur and return a recommendation to Althingi as to whether the election and eligibility of each member should be accepted as lawful. The recommendations may be submitted orally without prior notice, and they may be put to the vote collectively. 3. When election credentials have been issued following parliamentary elections, and prior to the opening sitting of Althingi , the acting Speaker ... may appoint a committee composed of nine members for the purpose of preparing the scrutiny of the election credentials that will take place at the opening sitting in accordance with paragraph 2. The choice of members of the committee shall follow the proportion rule of Article 82. Parliamentary groups that are not represented in the committee may nominate an observer. 4. A debate on recommendations pursuant to paragraph 2 shall be subject to the same rules as the second readings of legislative bills. ...” Article 2 “1. Each new member shall render the following pledge of loyalty to the Constitution as soon as it has been attested that the member has been duly elected in accordance with Article 47 of the Constitution: I, the undersigned, having being elected as a member of Althingi , do pledge on my honour and integrity to respect the Icelandic Constitution. 2. Subject to the provisions of paragraph 5 of Article 5, while a member has not rendered a pledge pursuant to this Article, the member shall not participate in the proceedings of Althingi .” Article 4 “1. The Credentials Committee elected under Article 1 shall also scrutinise such election credentials as may be presented later and verify the lawfulness of the elections and eligibility of members on which a decision has been deferred by Althingi , and any complaints that may arise concerning the election or eligibility of members who have already been accepted by Althingi . 2. Should this committee return a written recommendation or move to declare an election invalid, its recommendations shall be debated in accordance with the rules on the second readings of legislative bills. Otherwise, committee recommendations are dealt with in accordance with the rules on such recommendations in Article 1 ...” Article 5 “1. In the course of scrutiny pursuant to Article 1, Althingi may declare a member’s election unlawful even when no complaints have been lodged, and it may also defer the acceptance of an election in order to receive reports on the matter. The same applies in relation to the election of a member who is not present or whose election credentials have not been received at the time of the first sitting of Althingi . 2. The same rules apply to questions of eligibility. 3. Althingi will not otherwise investigate the lawfulness of elections or the eligibility of members on its own initiative, and will do so only if a complaint is lodged. 4. A complaint concerning a member’s election or eligibility shall be recognised only if it is lodged at the outset of a session following a general election or before a member’s election has been accepted by Althingi . 5. During the scrutiny of members’ elections and eligibility, every member shall enjoy full parliamentary privileges. However, if Althingi votes to defer its decision on a member’s election credentials, that member shall not participate in the proceedings of Althingi until a decision has been reached in the matter and the member’s election and eligibility have been accepted.” Article 82 “1. Elections in Althingi shall proceed as provided for in paragraph 2 of Article 3, with the addition that when elections involve two or more candidates, whether for duties inside or outside Althingi , the Speaker shall employ a method of proportional voting known as the d’Hondt system (the list system). The method is described in paragraphs 2-4 ... 2. Members who have mutually agreed to vote for the same candidates in the same order shall submit to the Speaker, at the time of the election, a list of their candidates, in that order. When the Speaker has received these lists, each shall be marked with a letter of the alphabet ... [Subsequently, the members of parliament vote on the lists and a record of the votes for each list is made.] The number [of votes] thus achieved by each list is then divided, first by 1, then by 2, then by 3, and so on, as needed [giving the quotient received by each list] ... 3. Results of elections are decided according to quotients, with the list receiving the highest quotient being awarded the first candidate, the list receiving the second highest quotient being awarded the second candidate, and so on, until the required number of candidates has been elected. If two or more lists receive the same quotient, lots are drawn to determine from which list a candidate should be chosen. 4. Candidates on each list shall be elected in the order in which they appear on the list.” The Procedural Rules of the Preparatory Credentials Committee 34 .     The Preparatory Credentials Committee appointed after the elections in 2021 adopted its procedural rules on 8 October 2021, which were endorsed by the Speaker of Althingi on 12 October 2021. The rules laid down the basic rules and principles for the committee’s functioning, powers and inquiry procedures. The rules stated in particular that the role of the committee was to prepare the material for Althingi ’s examination of election credentials (Article 1) on the basis of an objective and legal assessment (Article 6). The information was to be in principle collected in writing (Article 2), made available to the members of parliament in time to inform their individual decision-making, and published, unless the applicable rules provided otherwise (Article   5). Complaints were to be examined in accordance with the principles of Administrative Procedures Act no. 37/1993 and the general principles of administrative law, in so far as applicable, and complainants were to be provided with a reasonable opportunity to clarify their position and object to the data gathered (Article 3). Proposals concerning the legality of elections were to be submitted to the Credentials Committee, which was not bound by them in the exercise of its constitutional duties (Articles 1 and   6). Jurisprudence of the Icelandic Supreme Court 35 .     The Icelandic Supreme Court has never ruled on the legitimacy of elections to Althingi . However, in its decision of 25 July 2012 regarding the 2012 presidential elections it considered that the principle underlying section 120(3) of the Act on Parliamentary Elections was the general principle of electoral law in Iceland and stated the following: “Section 120(3) of Act no. 24/2000, cf. also section 94 of Act no. 5/1998 on Local Government Elections, lays down the principle in Icelandic law that general elections should only be declared invalid if they have such defects that may be considered likely to have had an effect on the outcome of the election. An exception to this principle is made by the first mentioned legal provision providing that parliamentary elections shall be invalidated if a member of parliament, his agents or sponsors are found to have deliberately caused the irregularities, and provided they are significant. Act no. 36/1945 does not prescribe when defects in presidential elections should result in their invalidation. Although there is no substantive reference there to section 120(3) of Act no. 24/2000, the same rules must apply, given the nature of the matter, when ruling on the validity of presidential elections and parliamentary elections, since in both cases these are general elections held throughout the country. Accordingly, the above ‑ mentioned flaws in the presidential election on 30 June 2012 should not lead to its invalidation, as they were completely unrelated to the candidate who received the most votes, his agents and supporters, and obviously had no effect on the outcome of the election.” 36 .     In its decision of 25 January 2011, the Supreme Court found that several defects had tainted elections to the Constitutional Assembly which had been conducted in part with reference to the rules of the Act on Parliamentary Elections, and it invalidated the election results. The Supreme Court, inter alia , stated the following: “Act no. 24/2000 is based on the main perspective of transparency as regards the counting of votes. In this connection, it is to be noted that it is not sufficient that the results of the count are correct if it cannot be trusted that counting was conducted in such a manner ... There are examples from judicial practice where elections have been invalidated when their conduct was not in accordance with legislation and liable to breach the secrecy of elections ... The ... defects in the conduct of the election to the Constitutional Assembly on 27 November 2012 will be taken as a whole in the assessment of the case, and the Supreme Court concludes that on account of those defects the annulment [of the election] is inevitable.” International instruments 37.     The relevant international instruments were previously reproduced in the Grand Chamber judgment in Mugemangango (cited above, §§ 32-39). THE LAW JOINDER OF THE APPLICATIONS 38.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF Article 3 of Protocol N o . 1 to the Convention 39.     The applicants complained that the irregularities in the counting procedures during the parliamentary elections and the lack of an effective examination of their post-election complaints had violated their rights under Article 3 of Protocol No. 1, which reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” Admissibility 40.     In their submissions, the Government raised a non-exhaustion plea, arguing that while Article 46 of the Constitution provided that Althingi itself decided on the legality of the elections of its members, this provision should be interpreted in conjunction with Article 70 of the Constitution, which provided for a general judicial remedy and access to a court. The Government submitted that Althingi ’s decisions on the legality of elections could be considered to be comparable to acts of public administration, and that Articles   60 and 70 of the Constitution opened