G. K. v. Belgium, No. 58302/10, ECtHR (Second Section), 21 May 2019

Failings in the decision-making process for accepting the resignation of a member of Parliament, allegedly made under duress.

Art. 3 Prot. 1 ECHR

1. The Court had already held that a member of parliament could not simply be allowed to withdraw his or her resignation at any time. The present case, however, was different in that the applicant claimed that she had not signed her resignation letter voluntarily. When a dispute arises over the resignation of a member of parliament who wants to retract that decision or argue that the resignation is invalid under domestic law, the decision-making process must offer minimum guarantees against arbitrariness. Firstly, the discretionary power of the decision-making body should not be excessive, but should be circumscribed, with sufficient precision, by the provisions of domestic law. Secondly, the procedure itself had to offer guarantees against arbitrariness: it had to be such as to allow the persons concerned to express their views, while preventing any abuse of power by the competent authority.

1. In the present case, the applicant was not provided with the minimum guarantees against arbitrariness: she was not heard and not given the opportunity to produce documentation in support of her arguments, she was not provided with any reasons by the Bureau of the Belgian Senate, the Bureau was also composed of two persons directly involved in the case and, finally, the plenary session of the Senate was not held in such a way as to remedy the shortcomings of the procedure before the Bureau. These shortcomings in the decision-making process to accept the applicant's resignation as a Senator undermined the very essence of her rights under Article 3 Prot. 1 ECHR.
(After being elected as a senator in June 2010, the applicant signed a letter of resignation in August 2010. A few days later, she attempted to withdraw her resignation, pointing out to the President of the Senate that she had been subjected to strong pressure from two senators when she signed the letter, and that her consent was therefore invalid).