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Candidates for the European Court of Human Rights

Motion for a resolution | Doc. 11532 | 11 March 2008

Ms Marie-Louise BEMELMANS-VIDEC, Netherlands, EPP/CD ; Ms Tina ACKETOFT, Sweden ; Mr Boriss CILEVIČS, Latvia, SOC ; Ms Herta DÄUBLER-GMELIN, Germany ; Mr Jean-Charles GARDETTO, Monaco, EPP/CD ; Mr Andreas GROSS, Switzerland, SOC ; Mr Serhiy HOLOVATY, Ukraine, ALDE ; Mr Željko IVANJI, Serbia, EPP/CD ; Mr András KELEMEN, Hungary ; Mr Eduard KUKAN, Slovak Republic ; Ms Sabine LEUTHEUSSER-SCHNARRENBERGER, Germany, ALDE ; Mr Dick MARTY, Switzerland, ALDE ; Mr Felix MÜRI, Switzerland, ALDE ; Mr Paul ROWEN, United Kingdom, ALDE ; Mr Kimmo SASI, Finland, EPP/CD ; Mr Yuri SHARANDIN, Russian Federation ; Mr Christoph STRÄSSER, Germany, SOC ; Mr Tuğrul TÜRKEŞ, Turkey, EDG ; Mr Vasile Ioan Dănuţ UNGUREANU, Romania ; Mr Øyvind VAKSDAL, Norway
Referred to the Committee on Legal Affairs and Human Rights, for report, and to the Committee on Equal Opportunities for Women and Men, for opinion: Reference No. 3434 (18th Sitting, 18 April 2008).

In January 2004 the Assembly adopted Recommendation 1649 (2004) and Resolution 1366 (2004). In these texts, it confirmed the necessity to keep the procedure of selection which had been set up in 1996. It also emphasised the need for candidates to posses the required level to exercise the function of judge by virtue of Article 21 of the European Convention on Human Rights (ECHR) as well as the need for gender balance. In March 2005, Resolution 1366 (2004) was amended by Resolution 1426 (2005) by which single-sex lists of candidates would be considered if the sex was under-represented (under 40% of judges).

In its reply to Recommendation 1649 (2004), the Committee of Ministers indicated that “circumstances may exceptionally arise in which, as a result of the correct application of the other five criteria [enumerated in paragraph 19 of the recommendation], a contracting party may find itself obliged to submit a list containing candidates of only one sex in derogation from that rule.... In this context, the Committee draws attention to the danger that such an obligation could under certain circumstances give rise to difficulties in satisfying the requirements of Article 21 of the Convention” (Doc. 10506, emphasis added).

The Committee of Ministers therefore invited the Assembly “to consider the possibility of modifying its own rules in order to allow exceptional derogation from the rule where the authorities of the contracting party concerned present convincing arguments to the Committee of Ministers and the Assembly to the effect that, in order to respect the requirements concerning the individual qualifications of candidates, it could not do otherwise than to submit a single-sex list” (again, emphasis added).

On 17 April 2007, a draft resolution presented by the Committee on Legal Affairs and Human Rights (Doc. 11208) aimed at amending paragraph 3.ii of Resolution 1366 (2004), as amended by Resolution 1426 (2005), was rejected by the plenary Assembly.

On 17 July 2007, the Committee of Ministers requested the European Court of Human Rights to give, in accordance with Article 47 of the ECHR, an advisory opinion in particular on the question of the refusal by the Assembly to consider a list of candidates for the post of judge at the Strasbourg Court solely on the basis of gender-related issues.

On 12 February 2008, the Court came to the conclusion that “in not allowing any exceptions to the rule that under-represented sex must be represented, the current practice of the Parliamentary Assembly is not compatible with the Convention” and that “exceptions to the principle that lists must contain a candidate of the under-represented sex should be defined as soon as possible”.

Under these circumstances, the Assembly decides to re-examine the present practice regarding consideration of lists of candidates submitted to it by states parties to the ECHR.