CEDH · CASELAW;CLIN;ENG — 21 mai 2019

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law 229 May 2019 G.K. v. Belgium - 58302/10 Judgment 21.5.2019 [Section II] Article 3 of Protocol No. 1 Stand for election Failings in the decision-making process for accepting the resignation of a member of parliament, allegedly made under duress: violation Facts – Having been elected as a senator in June 2010, the applicant signed a resignation letter in August 2010. Several days later, she attempted to withdraw her resignation, emphasising to the President of the Senate that she had been subjected to intense pressure by two senators when signing the letter, and that her consent was thus invalid. In the absence of any regulations on this unprecedented situation in the Belgian Senate, the Senate’s legal department produced two opinions in which it ultimately found that although the resignation was irrevocable with immediate effect, the plenary Senate nevertheless had to rule on the validity of the resignation when it came to verify the successor’s credentials. The legal department also noted that there was no question of any judicial body being called upon to determine whether the composition of the Senate was lawful. In the report it submitted to the plenary Senate, the Bureau of the Senate concluded that there was no cause to dispute the validity of the applicant’s resignation. Endorsing that opinion, the Senate took formal note of her resignation and ratified her successor’s credentials. Law – Article 3 of Protocol No.   1: Although the Court had already held that a member of parliament could not simply be allowed to withdraw his or her resignation at any time (see, for example, Occhetto v.   Italy (dec.), 14507/07, 12   November 2013, Information Note   168), the present case was different in that the applicant alleged that she had not signed her resignation letter voluntarily. It was not for the Court to determine whether the applicant’s resignation had been obtained under duress or tendered of her own accord; in any event, that was not the decisive issue in this case. Where a dispute arose as to the resignation of a member of parliament who wished to retract that decision or to contend that the resignation was invalid under domestic law, the decision-making process had to afford minimum safeguards against arbitrariness. Firstly, the discretion enjoyed by the decision-making body should not be excessive but should be circumscribed, with sufficient precision, by the provisions of domestic law. However, that had not been the case in this instance. Neither the law nor the Rules of the Senate had provided for a procedure in the event of the withdrawal of a senator’s resignation. In particular, there had been no provisions specifying whether the resignation took effect ipso facto and was irrevocable or whether it only became irrevocable after being approved by the plenary Senate. Secondly, the procedure itself had to afford safeguards against arbitrariness: it had to be such as to   allow the persons concerned to express their position, while also preventing any abuse of power on the part of the relevant authority. Again, that had not been the case in this instance: –     admittedly, the Rules of the Senate had provided that the Bureau was required to review the credentials of the applicant’s successor, and thus, indirectly, the validity of her resignation. However, neither the applicant nor her lawyer had been heard by the Bureau. Nor had the applicant been invited to submit her arguments in writing before the adoption of the report; –     in the absence of any statutory provisions or regulations, the Bureau had stated that it had applied four principles in assessing the validity of the applicant’s resignation. However, no reasons had been given as to why it had rejected her arguments; –     the members of the Bureau had included two senators who had been directly accused by the applicant of having been involved in exerting pressure on her when she had signed the disputed resignation letter. There was no evidence to suggest that the two senators had refrained from taking part in the debate on the validity of the applicant’s resignation: as the Bureau had met in private, it was impossible to know what part they had played in the discussions. Accordingly, the composition of the Bureau of the Senate in the applicant’s case had not been such as to counter the impression that the senators directly accused by her had played a dominant role in the decision-making process; –     the plenary sitting of the Senate had not been conducted in such a way as to remedy the shortcomings in the proceedings before the Bureau. Firstly, the two senators mentioned above had also been present at the plenary sitting and there was no indication that they had abstained from voting. Secondly, the applicant had not had an opportunity to state her case since she had been prevented by security staff from entering the chamber. These failings in the decision-making process for accepting the applicant’s resignation as a senator had impaired the very essence of her rights under Article   3 of Protocol No.   1. Conclusion : violation (six votes to one). Article 41: EUR 5,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes