C Explanatory memorandum by the rapporteur,
Ms Err
Chronology of events
1. The last time the Committee
on Legal Affairs and Human Rights tried to amend the Parliamentary Assembly
Resolutions which govern the composition of candidate lists for
the European Court of Human Rights (hereafter: “the Court”), this
Committee was firmly opposed. Based on the Committee’s opinion in
Doc. 11243 (2007) as presented by the then rapporteur, Mr Mendes
Bota, the Assembly rejected the draft resolution put forward by
the Committee on Legal Affairs and Human Rights in April 2007.
2. As a result, the Assembly’s position on the need for states
to include at least one member of the under-represented sex on the
Court (currently still women) on their lists of three candidates
for the position of judge on the Court remains unchanged.
3. What has changed is that, following the defeat of the Committee
on Legal Affairs and Human Rights’ draft resolution in the Plenary
in April 2007, upon the proposal of Malta (the only country which
has – twice – put forward all-male candidate lists in defiance of
the Assembly’s rules), the Committee of Ministers asked the European
Court of Human Rights for an advisory opinion on the matter. This
opinion (the Court’s first) was delivered on 12 February 2008, and
is available on the Court’s internet site
Note. I would like to underline that
the opinion was addressed to the Committee of Ministers and is of
an advisory character. The Assembly is thus not bound by it
Note.
The Committee’s position
4. This Committee, in principle,
opposes any attempt to weaken the few gender-based quotas the Assembly
has put into place in the past few years.
5. However, the committee does not wish to push the Assembly
into an open confrontation with the Committee of Ministers, one
of its member states, and/or the European Court of Human Rights.
6. It is thus willing to accept that, in truly exceptional circumstances,
states be allowed to derogate from the requirement to include a
member of the under-represented sex on their candidate lists to
the Court, if the Assembly itself so decides.
7. For this committee, such exceptional circumstances can only
exist if:
a “the Contracting Party
has taken all the necessary and appropriate steps to ensure that
the list contains a candidate of the under-represented sex”: this
means that the Contracting Party has to have run an open and transparent
procedure on the national level to select the candidates, and that
the selecting authority/panel was gender-balanced to ensure the
absence of sex discrimination;
b “the Contracting Party has not been able to find a candidate
of the under-represented sex who satisfies the requirements of Article
21 § 1 of the European Convention on Human Rights”: this means that
no candidate of the under-represented sex of “high moral character”
and either possessing “the qualifications required for appointment
to high judicial office” or being a “jurisconsult of recognised competence”
has come forward/ been found;
c these exceptional circumstances have been duly considered
so by “double majorities” in the Sub-Committee on the Election of
Judges, the Committee on Legal Affairs and Human Rights, and the Bureau
of the Assembly, and this position has been ratified by the Assembly
itself;
d the Committee on Equal Opportunities for Women and Men
has been consulted by the Bureau, as the specialised committee dealing
with equality questions, and thus best placed to give an opinion
on whether the exceptional circumstances claimed by the Contracting
Party truly exist.
8. The committee is not willing to accept that the power to propose
whether or not a candidate list should be rejected be taken away
from the Bureau of the Assembly – upon which both the Committee
on Legal Affairs and Human Rights and this committee are represented.
The committee is proposing an amendment which seeks to correct this
(Amendment A).
9. Let me explain the committee’s position on this point: The
Committee on Legal Affairs and Human Rights has, so far, had no
decision-making powers when it comes to candidate lists for the
European Court of Human Rights. It is the Bureau which has this
power (subject to ratification by the Assembly)
Note, with the Sub-Committee on the
Election of Judges making recommendations to it directly.
10. However, the Sub-Committee on the Election of Judges – while
politically balanced – is not gender balanced. While it is encouraging
that the rapporteur of the Committee on Legal Affairs and Human
Rights, Ms Bemelmans-Videc, suggests in her explanatory memorandum
that the Sub-Committee invite the Chairperson of the Committee on
Equal Opportunities for Women and Men (or his/her representative)
to take part as an observer (with no right to vote) in a possible
exchange of views with the chairperson of the Assembly national
delegation concerned, this does not make up for the fact that the
Sub-Committee on the Election of Judges has no expertise in the
gender equality area. The Sub-Committee – and indeed also the full
Committee – may thus find it quite difficult
Note to evaluate
whether or not “the Contracting Party has taken all the necessary and
appropriate steps to ensure that the list contains a candidate of
the under-represented sex”, and whether or not the Contracting Party
truly could “not find a candidate of the under-represented sex who
satisfies the requirements of Article 21 § 1 of the European Convention
on Human Rights”.
11. The Committee on Equal Opportunities for Women and Men would
thus like to be formally associated with the decision on whether
or not truly exceptional circumstances exist in a country, which
would force it to put forward a candidate list exclusively composed
of members of the over-represented sex. (This request is taken up
in Amendment B). This committee does not oppose the addition of
the Committee on Legal Affairs and Human Rights to the validation
proceedings, as long as the Bureau is not excluded from its current
role of proposing to the Assembly the rejection of candidate lists,
and the Bureau consults the only specialised committee – this committee
– before taking its decision.
12. I feel that it is necessary to point out here that evaluating
whether a country truly cannot find a woman national qualified enough
to be a candidate for the post of judge on the European Court of
Human Rights is not simply a procedural or a legal question: it
is a political question, and a gender equality question. Thus both
the Committee on Equal Opportunities for Women and Men (as the committee
specialised in questions of gender equality) and the Bureau (as
the Assembly body responsible for political questions) must be associated.
Conclusion
13. In conclusion, the Committee
on Equal Opportunities for Women and Men supports the draft resolution on
the condition that the amendments it proposes are accepted, to ensure
that the Bureau of the Assembly (on which both the Committee on
Legal Affairs and Human Rights, and the Committee on Equal Opportunities
for Women and Men are represented) retains its decision-making powers
when it comes to proposing to the Assembly the rejection of candidate
lists, and to ensure that the Committee on Equal Opportunities for
Women and Men is consulted before the Bureau takes its position.
Reporting committee:
Committee on Legal Affairs and Human Rights.
Committee seized for opinion:
Committee on Equal Opportunities for Women and Men
Reference to committee:
Doc. 11532, Reference N° 3434 of 18 April 2008
Opinion adopted by the committee on 12 September 2008
Secretariat of the committee: Mrs Kleinsorge, Mrs Affholder,
Mrs Devaux.
