Guide on Article 3 of Protocol No. 1 – Right to free elections Firstly, the discretion enjoyed by the decision-making body must be circumscribed, with sufficient precision, by the provisions of domestic law and, secondly, the procedure itself has to afford safeguards against arbitrariness 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. The Court established that a number of failings in the decision-making process for accepting the applicant’s resignation had impaired the very essence of her rights under Article 3 of Protocol No. 1. 100. In Selahattin Demirtaş v. Turkey (no. 2) [GC], 2020, the Court ruled for the first time on a complaint under Article 3 of Protocol No. 1 about the effects of pre-trial detention of elected MPs on their performance of parliamentary duties . Stressing that the imposition of a measure depriving an MP of liberty did not automatically constitute a violation of Article 3 of Protocol No. 1, the Court held that a procedural obligation under that provision required the domestic courts to show that, in ordering an MP’s initial or continued pre-trial detention, they had weighed up all the relevant interests, in particular those safeguarded by Article 3 of Protocol No. 1. As part of this balancing exercise, they must protect the expression of political opinions by the MP concerned, since the importance of the freedom of expression of MPs (especially of the opposition) was such that, where the detention of an MP was incompatible with Article 10, it would also be considered to breach Article 3 of Protocol No. 1. Another important element was whether the charges were directly linked to an MP’s political activity. Moreover, a remedy had to be offered by which MPs could effectively challenge their detention and have their complaints examined on the merits. Furthermore, the duration of an MP’s pre-trial detention must be as short as possible, and the domestic courts should genuinely consider alternative measures to detention and provide reasons if less severe measures were considered insufficient. In this context, whether there was a reasonable suspicion that the applicant had committed an offence, as required by Article 5 § 1, was equally relevant for the purposes of Article 3 of Protocol No. 1. The domestic courts had failed to duly consider all of these elements and to effectively take into account the fact that the applicant was not only an MP but also a leader of the opposition, the performance of whose parliamentary duties called for a high level of protection. Although the applicant retained his seat throughout his term of office, it was effectively impossible for him to take part in parliamentary activities. His unjustified pre-trial detention was therefore incompatible with the very essence of his right under Article 3 of Protocol No. 1 to be elected and to sit in Parliament. European Court of Human Rights 25/35 Last update: 30.04.2021