C Explanatory memorandum by the rapporteur,
Ms Err
1. The Parliamentary Assembly is very much attached
to the principle of gender equality. It believes that a society
can be fully democratic and make full use of its potential only
if both women and men are properly represented in decision-making
bodies, including the judiciary. On international judicial bodies,
women are traditionally under-represented, which can be a threat
to these bodies’ legitimacy and authority.
2. The gender imbalance on the European Court of Human Rights
is slowly being righted, though it continues to exist today (15
of the 45 judges on 1 December 2008 were women, i.e. 33%, up from
11 of 44 judges on 1 March 2005, i.e. 25%). Since the Parliamentary
Assembly imposed the inclusion of a member of the under-represented
sex on candidate lists for the Court in 2004
Note, the proportion
of women on candidate lists has gone up considerably, and with it,
the proportion of women elected to the Court
Note.
3. The nomination of candidates at national level is, however,
far from being a transparent process in many countries. This makes
it very difficult to judge whether women are being discriminated
against in the selection procedure at national level.
Open call for candidatures at the national level
4. Even the most basic requirement for a fair and transparent
selection procedure, an open call for candidatures, is not organised
in all member states. The legal profession (and, in particular,
the judiciary) has a reputation as being conservative in many countries.
In these countries, it has taken years for women to reach the highest
echelons of the legal profession – indeed, in some countries, women
have yet to reach such positions. If no open call for candidatures
is held, names of female candidates may thus not simply “spring
to mind” to those selecting the candidates.
5. Similarly, it is important that the open call for candidatures
is conducted in a way which does not discriminate against women.
To take an example, having held judicial office is not a requirement
for becoming a judge at the European Court of Human Rights (some
of the most revered judges of the European Court of Human Rights
were, in fact, working as lawyers or in academia before their election
to the Court). In a country where few women have held judicial office,
it would thus be clearly discriminatory to add such a requirement to
the open call for candidatures at national level.
The selection process at the national level
6. From a gender equality point of view, who makes the
selection among the qualified candidates at national level is a
decisive factor. Only a minority of states involve (a panel of)
independent experts, at some level of the selection process. The
final decision is usually taken by a minister or a governmental
body (Ministry of Justice, Ministry of Foreign Affairs, Council
of Ministers, or other).
7. The proportion of women at the highest decision-making level
in the Ministries of Justice, the Ministries of Foreign Affairs
and the Councils of Ministers of most member states still leaves
much to be desired. The composition of selection panels (including
panels of independent experts) is also rarely gender-balanced. Countries
which have not advanced that much in terms of gender equality in
the past years will thus often resort to the “old-boys-network”
in the selection process, and will thus “find it hard” to “find”
qualified women – because they are unknown to the (male) decision-makers
in question.
8. Even in countries which are more advanced in terms of gender
equality, the odds may be stacked against qualified female candidates
if the decision-makers (or even the independent experts advising
on the selection) are predominantly men. The discrimination against
women does not have to be conscious: in the same way as subconscious
racial bias leads to discrimination against minorities in recruitment
panels (proven in many studies), subconscious gender bias can lead
to discrimination against women in such panels. Only gender-balanced
selection panels are able to overcome such bias and discrimination.
9. It should also be noted that there are countries which have
put into place quota-systems at the national level, including with
regard to judges on the Supreme Court and the Constitutional Court.
Thus, for example, Austria’s Law on Equal Treatment for Public Services
Note foresees not only that,
in case of equal merit, the woman has to be appointed, but also
that affirmative action is taken via quotas. Thus there is a special
regulation of the Federal Ministry of Justice on the Promotion of
Women within the Judiciary, covering the period until 1 January
2010
Note.
According to this regulation, which aims at raising the representation
of women in all positions within the judiciary, women are considered
“underrepresented” if the number of women employed in an organisational
unit within the judiciary is below 40%. In this case, binding requirements
for periods of 2 years are defined to raise the quota step by step
up to 40%. This regulation also applies to the Supreme Court.
10. This binding regulation, which constitutes a quota of outcome
(not only of candidatures, as was introduced by the Assembly in
2004) has also had an effect on the gender-balance on Austria’s
Constitutional Court, to which the regulation does not apply, by
creating an environment in which more and more women are appointed
to the highest judicial office of the country (appointments which
have a political dimension). In Belgium, there is a requirement
that both sexes be represented on the Constitutional Court
Note,
again a quota of outcome. Other countries have more general gender-balance
requirements, such as Bosnia and Herzegovina
Note or
Latvia
Note, or have
a statutory duty to have regard to the need to encourage diversity
in the range of persons available for selection for judicial appointments
(United Kingdom).
11. More countries may want to follow Austria’s and Belgium’s
example. Why not constitute a quota of outcome (for candidatures
to the European Court of Human Rights) at national level, stipulating
that at least two of the three candidates proposed to the Assembly
have to be women, at the national level, until women are no longer
under-represented on the European Court of Human Rights?
Procedures before the Parliamentary Assembly
12. The gender-balance on the Sub-Committee for the Election
of Judges (as of its parent Committee, the Committee on Legal Affairs
and Human Rights
Note)
is heavily skewed towards men. As only gender-balanced selection
panels are able to overcome (often subconscious) gender bias and
discrimination, it would be desirable that the political groups
(which nominate the members on the Sub-Committee) put forward more women
parliamentarians for membership on the Sub-Committee.
13. The “electoral college” itself being the Parliamentary Assembly,
it would, of course, also be desirable that more women parliamentarians
be chosen at the national level to be part of the Assembly. This
would have positive effects in other areas of the Assembly’s work,
as well.
Ad hoc judges
14. Ad hoc judges
replace a country’s sitting judge when, for example, there is a
conflict of interest which prevents the sitting judge from ruling
on a case brought before the European Court of Human Rights
Note. These
ad hoc judges are nominated directly
by member states pursuant to Article 27 of the European Convention
of Human Rights, without any involvement of the Assembly, “thus
giving rise to legitimacy and independence issues”, as the Rapporteur
of the Committee on Legal Affairs and Human Rights rightly notes
Note.
15. The figures for
ad hoc judges
for 2007 and 2008 show that the appointment of
ad hoc judges directly by member
states may also give rise to gender equality issues, as only 8 of
the 27 (30 %)
ad hoc judges
appointed in 2008 were women (though 15 of the 27 (56 %) appointed
in 2007 were women)
Note.
16. Obviously, it would be better if more women were appointed
ad hoc judges, but the ideal solution
would, in fact, lie in a reduced number of
ad
hoc judges (by, for example, having recourse to a sitting
judge elected for another member country, as the Rapporteur of the
Committee on Legal Affairs and Human Rights suggests
Note) or in a new procedure which gives
the Assembly more influence over the choice of
ad hoc judges.
Conclusions and recommendations
17. In conclusion, to ensure a better gender-balance
on the European Court of Human Rights and avoid discrimination against
women amongst the candidates for the post of judge on that Court,
I would recommend that member states:
i organise fair and transparent selection procedures, which
include open calls for candidates;
ii ensure that the selection bodies/panels (and those advising
on selection) are as gender-balanced as possible;
iii consider putting into place quotas of outcome on the national
level, stipulating that at least two of the three candidates proposed
to the Assembly have to be women, until women are no longer under-represented
on the European Court of Human Rights;
iv appoint more women parliamentarians members of the Parliamentary
Assembly.
18. For the same reason, political groups should put forward more
women parliamentarians for membership on the Sub-Committee on the
Election of Judges (of the Committee on Legal Affairs and Human
Rights).
__________________________
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. 11028 and 11029,
Reference No. 3279 of 6 October 2006
Opinion adopted by the committee on 26 January 2009.
Secretariat of the committee: Mrs Kleinsorge, Mrs Affholder,
Mrs Devaux
