ECHR judgment of 21 May 2019 in the case of G.K. (G.K.) v. Belgium (application No. 58302/10).
In 2010, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Belgium.
In the case, a complaint was successfully considered regarding the shortcomings of the decision-making process on the issue of accepting the resignation of the parliamentarian, who was allegedly pressured. There was a violation of Article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant, elected senator in June 2010, filed a letter of resignation in August 2010. A few days later, she tried to withdraw it by notifying the President of the Senate of Belgium that she was under strong pressure from two senators at the time of signing this petition and that her consent was therefore invalid.
In the absence of regulation on such issues, which the Senate had not previously encountered, the Senate Legal Service made two conclusions, according to which, in fine, despite the fact that the letter of resignation could not be withdrawn immediately, nevertheless, the Senate was in plenary decide on the validity of the resignation at the time of checking the credentials of the applicant’s successor. The legal service clarified that no court could have been called to resolve questions about the legality of the composition of the Senate.
In a report presented in plenary, the Senate Bureau concluded that there was no reason to doubt the reality of the applicant's resignation. Agreeing with this conclusion, the Senate decided on the resignation of the applicant and approved the authority of her successor.
QUESTIONS OF LAW
Regarding compliance with Article 3 of Protocol No. 1 to the Convention. The European Court, in particular, has already established that a parliamentarian cannot withdraw a letter of resignation at any time (see, in particular, the Occhetto v. Italy judgment of 12 November 2013). complaint N 14507/07). However, the present case is different from the others, as the applicant claimed that she did not sign the letter of resignation of her own free will.
The Court should not have resolved the question of whether the letter of resignation was signed under duress or was the result of free will. This issue was not decisive in any case.
When a dispute arises regarding the resignation of a member of parliament who wants to withdraw his application or claims that it was filed in violation of the laws of the country, the decision-making process should be accompanied by a minimum list of guarantees against arbitrariness.
Firstly, the autonomous appraisal powers of the decision-making body should not be excessive: they should be established with a sufficient degree of certainty in the legislation of the country.
However, in the present case the situation was different. Neither the legislation nor the Senate regulations provided for a procedure for considering cases of recall by the senator of his request for resignation. In particular, none of the provisions of the Belgian law determined whether the request for resignation had consequences in itself and was not subject to withdrawal or became irrevocable only after approval by the plenary of the Senate.
Secondly, the procedure itself had to be accompanied by guarantees against arbitrariness: its nature was to allow interested parties to express their point of view and exclude any abuse of authority by the relevant authority.
However, in the present case, this was also not so:
- in particular, the Senate regulations stipulated that the bureau should have verified the powers of the applicant’s successor and, thus, indirectly verified the legality of her resignation. But neither the applicant nor her lawyer were heard by the bureau. The applicant was also not invited to present her arguments in writing before drawing up the report;
- in the absence of legislative provisions or by-laws, the bureau indicated that four principles had been applied in order to assess the validity of the applicant’s resignation. However, no explanation was provided as to why the bureau rejected the applicant's arguments;
- among the members of the bureau there were those two senators who were directly suspected of being connected with the applicant’s allegations that they had forced her to sign the disputed letter of resignation. Nevertheless, it does not follow from the case file that they did not participate in the discussion of the validity of the applicant's resignation: since the bureau was closed, it was impossible to establish what their role in the discussion was. Thus, the composition of the Senate Bureau in the present case did not contribute to protecting the applicant from the appearance of the predominant role of the senators directly accused of her in the decision-making process;
- The course of the plenary session of the Senate also did not allow to eliminate the shortcomings of the decision-making procedure in the bureau. On the one hand, the two senators mentioned above also participated in the plenary meeting, and there is no indication that they abstained from participating in the vote. On the other hand, the applicant did not have the opportunity to speak because the security service did not allow her to enter the courtroom.
These shortcomings in the decision-making process on the issue of approving the applicant’s resignation from her senatorial position encroached on the very essence of the applicant’s right guaranteed by Article 3 of Protocol No. 1 to the Convention.
In the case, there was a violation of the requirements of Article 3 of Protocol No. 1 to the Convention (adopted by six votes in favor and one against).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 5,000 in respect of non-pecuniary damage; the claim for pecuniary damage was rejected.