B Explanatory
memorandum by Mr Christopher Chope, rapporteur
1 Introduction
1. This report stems from a motion
for a recommendation (
Doc. 11028) on National selection procedures for candidates for
the European Court of Human Rights, and a motion for a resolution
(
Doc. 11029) on Revision of Model Curriculum Vitae of Candidates
for the European Court of Human Rights: Linguistic Requirements, both
of which were presented by Mrs Bemelmans-Videc and others, and are
dated 21 September 2006. They are intended to implement “the need
to outline minimum standards for national nomination procedures
to ensure that the Court’s credibility and authority are not put
at risk by ad hoc and politicised processes in the nomination of
candidates.”
Note
2. At a hearing on 2 June 2008, the following experts addressed
the Committee on Legal Affairs and Human Rights on this subject:
Mr Tim Koopmans, former Judge on the European Court of Justice,
and former Advocate General at the Dutch Supreme Court, Mr Edward
Adams, Head of the Human Rights Division, United Kingdom Ministry
of Justice, Mr Jeremy McBride, Chairperson of the NGO Interights
(United Kingdom) and Mrs Elisabeth Palm, former Swedish judge on
the European Court of Human Rights and currently President of the
Council of Europe’s Administrative Tribunal. In addition, Professor
Jean-Francois Flauss, Secretary General of the Strasbourg-based
International Institute of Human Rights and Professor Kate Malleson,
Queen Mary College (University of London), participated as observers
in the hearing.
Note
3. The national selection procedures for candidates to the European
Court of Human Rights (Strasbourg Court) have important consequences
on the overall quality, efficacy and authority of the Court. The
Assembly has made considerable efforts to improve national nomination
procedures, in particular by fostering their transparency, impartiality
and openness.
Note The selection procedure
for candidates to the Strasbourg Court is important for two reasons:
firstly, they have a direct impact on the independence and impartiality
of the judges, which is required in order to ensure public confidence
in the independence of any judicial institution. Nomination procedures
must be and seen to be in conformity with international standards
guaranteeing judicial independence.
Note Secondly, shortcomings in the
national selection and international nomination procedures can engender
the risk that judges are not properly qualified to carry out their
mandates, to the detriment of the legitimacy and authority of the
Strasbourg Court, and to “the application and development of human
rights law on the international and (ultimately) national level”
Note.
In other words, “If good candidates are not put forward, or do not
come forward, the election procedure cannot lead to good results.”
Note Regrettably,
as already noted in my introductory memorandum, procedural improvements
at the Assembly level have not been matched by improvements at the
national level. This has been confirmed by a number of (non) replies
to a questionnaire sent out on this subject in June 2007.
Note National
selection procedures “often remain vague and opaque”.
Note Hence the need for concrete proposals for
improvement.
4. The Committee, during its meeting on 2 June 2008, agreed,
upon my suggestion, to change the title of this report to:
“Nomination of candidates and election of judges
to the European Court of Human Rights”. As a result,
the following analysis will focus on both the national selection
procedures for candidates to the Strasbourg Court (see motion for
a recommendation
Note),
and the election procedure at the level of the Assembly (notably
as regards the revision of the
curriculum
vitae pertaining to linguistic requirements (see motion
for a resolution
Note),
since the two procedures are linked. As noted by the Strasbourg
Court itself:
“The Parliamentary Assembly is … right in stressing
the importance of the composition of the lists of the candidates
by governments. This exercise is the starting point of the process
of election and, if it is not properly done, the scope of the Parliamentary
Assembly to carry out effectively its elective duty is correspondingly
reduced.”Note
2 National selection procedures:
situation still unsatisfactory
2.1 Criteria for office
2.1.1 Article 21 of the European
Convention on Human Rights (ECHR)
5. Article 21 §1, of the ECHR
stipulates:
“The
judges shall be of high moral character and must either possess
the qualifications required for appointment to high judicial office
or be jurisconsults of recognised competence.”
The
criterion of “high moral character” is somewhat vague and general,
Note whilst
that of eligibility for “high judicial office” is more operational.
Article 36 of the
Rome Statuteof the International Criminal Court (ICC) appears
to set a more stringent standard in requiring that candidates must
possess qualifications for “
highest judicial
offices in the State in question”. This may, in itself, amount to
an implicit minimum age requirement, depending on the criteria applicable
to candidates for the highest courts of the country concerned. For
instance, the Slovenian
Constitutional
Court Act requires judges to possess Slovenian nationality,
have expertise in law and be
at least
40 years of age.
Note Other
national systems impose a certain number of years of prior relevant work
experience of the candidates. While in the Ukraine, judges must
possess no less than three years of legal work experience,
Note Montenegro requires candidates to
possess at least 15 years of such experience.
Note Instead of imposing
a minimum age for the post of judge, which may not in itself be
a firm indicator of judicial capacity, one solution – as put forward
by Mrs Palm during the hearing – may be to require 10-15 years of
relevant work experience, which will imply a certain age requirement.
6. The meaning of “jurisconsults of recognised competence” also
requires further analysis. The
Interights report seems
to indicate that this qualification is recognised only by some member
states.
Note To
date, most candidates presented by national authorities are members
of the judiciary. As a result, the majority of the Strasbourg Court’s
judges have been members of the highest judicial bodies in their
national systems.
Note Jurisconsults (academics, legal practitioners)
follow in second position. There is, however, a dominant view that
while a balance of professional backgrounds is of great value to
the diversity of the Court, the emphasis should nevertheless remain
on judicial experience on the bench,
Note a position which was emphasised
by several of the experts during the hearing, who also found solid
judicial experience more relevant to the Court’s work than specific
experience in human rights law.
7. In addition to the moral qualities, qualifications and professional
experience which are expected of candidates for the post of judge
to the Strasbourg Court, the Assembly has proffered a set of criteria,
contained in
Recommendation
1649 (2004), which supplement Article 21 paragraph 1, namely that
i)
a call for candidatures be issued
through the specialised press; ii)
that
candidates have experience in the field of human rights,
iii)
that every list contains candidates
of both sexes, iv)
that candidates
have a sufficient knowledge of at least one of the two official
languages, v)
that the names
of the candidates are placed in alphabetical order; vi)
that as far as possible no candidate should
be submitted whose election might result in the necessity to appoint
an ad hoc
judge.Note So
when formulating a (confidential) recommendation to parliamentarians,
via the Bureau, the Sub-Committee
on the Election of Judges to the Strasbourg Court
Note considers the candidates not only
as individuals but also with an eye to a harmonious composition
of the Court, taking into account, for example, their professional
backgrounds and the gender balance.
Note It is interesting to note, in this connection, that
in its recent Advisory Opinion, the Strasbourg Court affirmed the
Assembly’s practice of formulating additional criteria, noting that:
“neither
Article 22 nor the Convention system sets any explicit limits on
the criteria which can be employed by the Parliamentary Assembly
in choosing between the candidates put forward. … Such rules undoubtedly
have a certain influence on the approach taken by Contracting Parties
in establishing their lists of candidates (see, in particular, the
reply by the Committee of Ministers to Parliamentary Assembly Recommendation 1649 (2004), paragraph 24 above)”.Note
8. Indeed, where the Sub-Committee is not satisfied that the
candidates on the list meet the requirements under the ECHR and
in various Assembly resolutions and recommendations – usually after
having interviewed the three candidates – it proposes to the Bureau
that the list be sent back to the national authorities. This has recently
occurred with respect to lists submitted by Azerbaijan (twice),
Bulgaria, Cyprus, Luxembourg, Moldova, San Marino and Turkey.
Note The
Strasbourg Court has reaffirmed the ‘legitimacy’ of this long-standing practice,
stating in the above-mentioned Advisory Opinion that:
“In
performing this task, the Parliamentary Assembly is bound first
and foremost by Article 21 § 1. As the body responsible for electing
judges, it must also ensure in the final instance that each of the
candidates on a given list fulfils all the conditions laid down
by Article 21 § 1, in order for it to preserve the freedom of choice
conferred on it by Article 22, which it must exercise in the interests
of the proper functioning and the authority of the Court.”Note
That
said, based on the replies received from member states to the questionnaire
(see Appendix and document AS/Jur (2008) 52), in my view, some criteria
must be further refined so as to better reflect the current reality
in which the work of the Court takes place.
2.1.2 Gender
9. Assembly
Resolution 1366 (2004), as amended by
Resolutions
1426 (2005) and 1627 (2008), emphasises the importance of achieving
gender balance, setting out the Assembly’s decision “not to consider lists
of candidates where … the list does not include at least one candidate
of each sex, except when the candidates belong to the sex which
is under-represented in the Court, i.e., the sex to which under
40% of the total number of judges belong.”
Note
10. Enhanced efforts to satisfy this criterion at the national
level would help avoid problems faced by the Assembly
Note (see
also, in this context, paragraph 26, below).
2.1.3 Language abilities
11. The importance of this criterion
was strongly emphasised at the hearing held on 2 June 2008. Although simultaneous
translation between the two official languages is generally provided
during the Court’s hearings and deliberations, individual Sections
often work (and produce their working documents) in only one of
the two official languages.
Note It would appear that committee
reports or draft judgments or decisions of Chambers are written
in only one of the two official languages; only exceptionally, within
Chambers (Sections), are texts available in both languages. That
said, documents are always circulated in both languages with respect
to cases dealt with by the Grand Chamber The Assembly has required
in the past, most recently in
Recommendation
1649 (2004), that candidates must have “a sufficient knowledge of
at least one of the two official languages.”
Note However,
the requirement that a judge have “sufficient” knowledge of one
language could mean, in practice, that his or her level of proficiency
may be below the standard that is necessary in order to be aware
of linguistic subtleties and nuances necessary for an understanding
of a complex case and which are clearly inherent in legal drafting
and arguments. This situation can be compared with the more stringent standard
enunciated in Article 36(3)(c) of the
Rome
Statute, which stipulates that: “Every candidate for
election to the Court shall have an
excellent
knowledge ofandbe fluent in at least one of the working languages
of the Court.”
Note At the national level, for
instance, Slovenia has interpreted this Assembly requirement to
mean “active” knowledge of one of the two official languages.
Note Going one step further,
the Polish selection procedure requires fluency in one of the official
languages of the Council of Europe and good knowledge of the other.
Note Similarly, Bulgaria has proffered the requirement
that candidates should have “perfect knowledge” of one of the official
languages and the ability to work in the other.
Note
12. In addition, were Protocol No 14 to enter into force, single-judge
formations will decide on the admissibility of applications, and
three-judge panels will render judgments with respect to manifestly
well-founded cases, as
per Article
35 § 3 of the ECHR. As this would inevitably involve the use of
either one of the two working languages of the Court, the current
language requirement may no longer adequately reflect the reality
in which the work of judges now takes (or is to take) place. As
pointed out in the Motion for a Resolution
on
the Revision of Model CV of candidates for the European Court of
Human Rights linguistic requirements, “experience has
shown that at least a passive knowledge of the other official language
would be appropriate in order to enable all judges to fully exercise
their responsibilities”
Note. Hence the suggestion that
the minimum requirement for the future should be that all candidates
shall possess an “active knowledge of one of the official languages
of the Council of Europe, and a passive knowledge of the other.”
Note That said,
some flexibility may be justifiable at the beginning of the judicial
office, provided the judge undertakes to undergo necessary training within,
say, six months of taking up office, as the complete lack of proficiency
in one of the Court’s official languages can be accepted for a limited
time span, in only really exceptional circumstances (see in this
context paragraph 23, and points VIII and IX in the model
curriculum vitae which incorporates
this proposal, attached to the draft resolution above).
2.1.4 Experience in the field
of human rights
13. Although the ECHR does not
itself set out a requirement for experience in the field of human
rights, the Assembly makes this explicit in
Recommendation 1429 (1999), urging states to ensure that candidates have practical
human rights experience, either as practitioners or as NGO activists.
Note Considering the role of
judges in guaranteeing the protection of human rights and in ensuring
the legitimacy and authority of the European Court’s mandate, the
Assembly still considers it useful for a judge of the Strasbourg
Court to possess some human rights experience. In their replies
to the questionnaire (see Appendix and document AS/Jur (2008) 52 for
details), many states indicated that consideration of a candidate’s
human rights experience forms part of their national selection procedure,
although – according to
Interights –
in practice the candidates’ level of human rights experience is
frequently unsatisfactory.
Note Whilst
human rights experience may be important, ability and experience
as a judge is even more relevant
Note.
A good judge can work his or her way into the field of human rights
law fairly easily. This view appears to be shared by several of
the experts who took part in the above-mentioned hearing.
Note
2.2 Fairness, transparency and
consistency of selection procedures
14. While few states, in their
reply to the questionnaire, expressly indicated that their national
selection procedures fulfil the relevant Assembly national selection
requirements,
Note the
large majority nevertheless indicated that their procedures ensure
fairness, transparency and consistency. Several states’ selection procedures
appear exemplary: Belgium makes a public call in the specialised
press and transmits the information by other means to all universities
and members of the legal profession, conducts interviews (including
an assessment of language abilities), and gives an important role
to an independent group of experts as well as academics with human
rights expertise. The Netherlands, in addition to making an open
call for candidatures in the specialised and general press, holding
interviews, and providing for an independent panel of experts, has
published a document describing the selection procedure in detail
(see document AS/Jur (2008) 52). Other national selection procedures
which appear to closely follow the Assembly’s requirements include Bosnia
and Herzegovina, Estonia and Latvia.
15. Despite the fact that many states claim that their national
selection procedures are fair, transparent and consistent, this
assertion is not necessarily backed by practice.
Note I
have been made aware of concerns expressed by local NGOs as well
as media sources regarding specific shortcomings of the selection procedures
in certain member states.
Note Only two member
states’ replies to the questionnaire, namely Andorra and Sweden,
admitted deficiencies in their national selection procedures.
16. The fact that a state has ‘produced’ judges, which have subsequently
been elected to the post of President of the Strasbourg Court does
not in and of itself indicate a fair, transparent and consistent
national selection procedure, as the French reply to the questionnaire
appears to suggest. It must be underscored that the focus of the
Assembly requirements is not only the result, but also the process
itself, which must include a real choice among well-qualified candidates.
In the absence of a fair, transparent and consistent national selection
procedure, the Assembly should seriously consider the possibility
of rejecting such lists.
Note
2.2.1 Existence of formal/established
procedures
17. There are three distinct categories
of national selection procedures: 1)
ad
hoc procedures without a formal legal basis
Note; 2) established procedures
without a formal legal basis
Note; and 3) established
procedures with a formal legal basis.
Note Although
the formal basis of a national selection procedure does not in itself guarantee
its substantive fairness, it does help ensure a certain level of
consistency and transparency. Whilst firmly established procedures
without a formal basis can also ensure these objectives, Mr McBride
(
Interights) rightly noted
during the hearing before the Committee that established procedures
with a clear legal basis are preferable to
ad
hoc arrangements. Based on the replies received, the
majority of national selection procedures appear to fall into the
second category, including two (Belgium and the Netherlands) which
can be perceived as exemplary. Regrettably, it is not readily apparent
from the majority of the replies what is understood by “established”.
Ad hoc procedures are more problematic
since they are reactive, often hastily drawn up, and risk subjugating
concerns of fairness, transparency, and most definitely, consistency.
2.2.1.1 Open call for candidatures
18. An open call for candidatures
helps contribute in particular to the fairness and transparency
of the selection procedure, making all potential candidates aware
of this vacancy.
Note The majority of
states’ replies assert that their national selection procedures
entail an open call for candidatures. That said, Hungary does not
organise an open call for candidatures, but instead relies on general
press reporting to inform the public about the vacancy, possible
candidates, and later on, specific details about candidates chosen
by the Prime Minister. Similarly, Liechtenstein motivates its absence
of a call for candidatures,
inter alia, by
the fact that a parliamentary inquiry into the selection process
results in the media picking up the issue and transmitting it to the
general public. This coverage presumably takes place only after
the candidatures have been received and well into the selection
process, so that the subsequent media coverage is merely an information
tool for the general public, not an indirect open call for qualified
candidatures. Other countries not conducting an open call for candidatures
include Andorra, France, Italy, Lithuania and Spain.
19. Although many states (26 according to information provided
– see Appendix and document AS/Jur (2008) 52) make an open call
for candidatures, only seven states indicated expressly that they
do so through the specialised press (a requirement specifically
referred to in paragraph 19 of Assembly
Resolution 1649 (2004)).
Note Of
those countries which do not conduct an open call for candidatures,
Germany, for instance, has indicated in its reply that the relevant
ministries (Justice, Foreign Office, Chancellor’s Office) approach
potential candidates and solicit views from experts and relevant
actors in the field of politics and justice, before agreeing on
a final short-list, which is subsequently sent to the German Assembly
delegation for comments and possible objections, before a final
decision is made by the Cabinet (see document AS/Jur (2008) 52).
Similarly, Sweden’s selection procedure is based on a closed call
for candidatures, which, among other shortcomings (i.e. lack of
independent appointments board, etc.), has become the subject of
an inquiry by a constitutional body.
2.2.1.2 Assessment by an independent
body
20. The importance of involving
an independent body in the selection of candidates for international
courts has been explicitly recognised both in the ICJ and ICC Statutes,
and more recently by the EU.
Note Michael O’Boyle,
Deputy Registrar of the Strasbourg Court, notes that it is time
to take a fresh look at Assembly recommendations. He raises the
possibility of involving an independent body both at national
Note and at international level.
NoteInterights equally
prescribes a fundamental role to an independent body throughout
the selection procedure at national level and argues that states
should be bound by the deliberations of such a body.
Note Of the replies received, only
eleven states have indicated that their national selection procedures involve,
at some level of the process, (a panel of) independent experts.
Note Even these replies appear diverse or
unclear in their understanding of the meaning of ‘independent’,
and what the extent of their deliberative role is.
Note The majority
of the procedures appear to involve (more or less) independent bodies
at the pre-selection stage, with the final decision being taken
by a minister or a governmental body (Ministry of Justice, Ministry
of Foreign Affairs, Council of Ministers, or other).
2.2.2 Interviews, including language
assessment
21. An analysis of the states’
replies to the questionnaire suggests that less than 20 % assess
language abilities during an interview. Certain states, such as
Bosnia and Herzegovina, the Czech Republic and Romania have indicated
that their procedures include an assessment of language abilities
on a formal basis outside of the interview.
Note In a country where
one of the two official languages is spoken, this should not make the
evaluation of candidates’ knowledge of the other working language
of the Court redundant. The United Kingdom is therefore right in
assessing the candidates’ proficiency in French. Given the importance
of language abilities, as emphasised by the movers of one of the
motions underpinning this report and by the experts at the hearing,
interviews should always include a language assessment. If this
is done thoroughly at the national level, the Sub-Committee on the
Election of Judges will be able to focus its own interview on other substantive
criteria, such as judicial capacities, etc. That said, the Assembly’s
Sub-Committee (see below, Section III), when interviewing candidates,
should still ensure for itself that the person concerned has the required
linguistic competence.
2.2.3 Consultation with civil
society
22. Of the replies received to
the questionnaire, 15 states have indicated that their selection
procedures include the consultation of representatives of civil
society at some point of the procedure, two states (Estonia and
Germany) have indicated that their procedures are flexible in this
area, and one state (the Netherlands) indicated that it does not
expressly foresee nor exclude the possibility of consulting representatives
of civil society.
Note Whereas
some states’ national selection procedures directly invite or are
free to invite civil society to submit candidatures (Austria and
Azerbaijan), or allow for the possibility to consult civil society
(Bosnia and Herzegovina, Estonia, Germany, Hungary), other states
(Belgium, Bulgaria, Moldova, the Netherlands, Serbia) appear to
bestow a more important role on civil society members as forming
part of an advisory body, mandated to pre-select suitable candidates
for final decision by the respective government. Even in cases where
NGOs are consulted, “the opaque nature of procedure means that the
impact of such consultations is unclear.”
Note
3 Procedures before the Parliamentary
Assembly: areas for improvement
3.1 The context
23. Article 22 of the ECHR sets
out that “judges shall be elected by the Parliamentary Assembly
with respect to each High Contracting Party by a majority of votes
cast from a list of three candidates nominated by the High Contracting
Party”. Therefore, transmission of the list by national authorities
should be made directly to the Assembly.
Note In order to carry out its mandate
in the most effective manner, the Assembly set up, already back in
1997, a Sub-Committee of the Committee on Legal Affairs and Human
Rights specifically for the election of judges.
Note The
Appendix to
Resolution
1432 (2005) stipulates that once the lists are submitted to the
Assembly, they shall not be modified, but for exceptional circumstances
(§ 1). Where one of the three candidates on a list withdraws before
the first ballot, the Assembly shall interrupt the procedure and
ask the government concerned to complete the list of candidates
(§ 2). According to the Appendix, the Assembly strictly adheres
to the practice of listing candidates in alphabetical order on the
ballot paper, and stipulates that any expressions of governmental
preference shall play no role in the deliberations of the Sub-Committee
on the Election of Judges (§ 3). In my view, the Sub-Committee should
be encouraged to take the national preference into account to the extent
that it is satisfied that the national selection procedure is fair,
transparent and not tainted by political considerations, in accordance
with the above criteria (see § 28 below).
3.2 ii. Criteria for office
3.2.1 Language abilities
24. As noted previously, active
language abilities are of great importance in a bilingual Court
dealing with complex legal issues. Indeed, given the Court’s structure
and working methods, language abilities must be considered among
the most important criteria for office, a view which was reiterated
by several experts during the hearing in June 2008.
Note A thorough national selection
procedure (including an interview testing active language skills)
would assist the Sub-Committee on the Election of Judges in its
own nomination of candidates. Whilst good knowledge of one of the
Court’s official languages and a reasonable passive knowledge (i.e. sufficient
to understand the nuances of complex legal texts) of the other is
of primary importance, knowledge of other European languages frequently
used in the correspondence with the Court by applicants from different countries
(such as Russian or German) should also be taken into account in
assessing a candidate’s language abilities; conversely, for judges
whose native tongue is one of the official languages, the level
of proficiency required for the other may well be pitched higher
than for judges for whom both official languages are foreign.
25. In the event that candidates do not meet the level of language
proficiency required on the date of election, and provided they
are otherwise considered well qualified for the post of judge, a
solution may be for the Assembly to require, at the time of election,
a firm undertaking from the incoming judges of their intention to
follow intensive language classes in one of the Court’s official
languages prior to, or, exceptionally, at the beginning of their
term of duty.
Note This
is what the rapporteur proposes in the model
curriculum
vitae (see III.ii.a above). Preferably, judges should
be fully operational (with good knowledge of one official language
of the Court and at least a reasonable passive knowledge of the
other) from the beginning of their judicial term.
3.2.2 Gender
26. The Parliamentary Assembly
has long been an ardent supporter of equality between sexes, and
has done its utmost to ensure that men and women are evenly represented
on public bodies – not least on the European Court of Human Rights.
In 2004 it took the bold step of positive discrimination, and resolved
to accept lists of candidates put forward by States Parties only
if each list contains at least one member of the “under-represented
sex”. This has had a positive effect, and today 17 of the 47 judges
of the Court are women. However, some states, particularly smaller
ones with a limited number of qualified women candidates, have argued
that in rare circumstances it is difficult to meet this criterion
while also meeting Convention requirements. Eventually, the Court
itself, invited to give an Advisory Opinion by the Committee of
Ministers, indicated that – while the Assembly’s general approach
to promoting gender-equality was sound – applying the rule automatically
in every case,
without allowing for exceptions,
was not compatible with Article 21 of the Convention. Following
two controversial debates in the Assembly (and in the light of the
Court’s Advisory Opinion), the Assembly, in its
Resolution 1627 (2008), adopted on 30 September 2008, decided to allow for exceptions
to this rule, but only when a State Party demonstrates that it has
tried and failed to find a qualified candidate from the under-represented
sex.
Note
3.3 Other issues
3.3.1 Alphabetical order of candidates’
names
27. Assembly
Recommendations 1429 (1999) and 1649 (2004) and the Appendix to
Resolution 1432 (2005) specify that national authorities should submit lists
of candidates in alphabetical order. Expressions of governmental
preference shall play no role in the deliberations of the Sub-Committee
on the Election of Judges.
Note Lists are nevertheless frequently
submitted in order of preference.
Note
28. When the Sub-Committee on the Election of Judges interviews
candidates, it does so in alphabetical order, without taking into
account the reasons (if provided) for the order of preference. In
my view, it may be useful for the Sub-Committee to take cognisance
of the national preference, in particular if the national selection
procedure has been open and fair, and if it has been carried out
objectively by an independent body. Under these conditions, the
Assembly’s task could become easier, as it might indeed be inclined
to follow the proposal of the government concerned.
Note To sum up, member
states should be able, when submitting their lists of candidates
to the Assembly, to indicate their preference and describe the national
selection procedure followed; provided the Sub-Committee is satisfied
that this procedure is fair and transparent, it should be able to
take the national preference into account when formulating its recommendations.
3.3.2 Age owf judges
29. Protocol No. 11 introduced
a mandatory age of retirement for judges. Article 23 § 6 of the
ECHR, as amended by Protocol No. 11, stipulates:
“The terms of office of judges
shall expire when they reach the age of 70.”Note
30. Courts and tribunals established by the UN (ICJ, ICC, ICTY/ICTR),
as well as other regional (human rights) courts do not provide for
a mandatory age of retirement.
31. In certain instances, the fact that a person is already in
his or her mid 60s does not prevent states from putting forward
the person’s candidature for the Strasbourg Court, even where this
may impede him/her from completing his/her mandate.
Note
32. The ECHR provides no indication as to a possible minimum starting
age. The requirement that candidates possess a certain number of
years of relevant work experience (in particular judicial) may indirectly impact
on judges’ starting ages. This matter may merit further reflection
in the light of the existence, in a number of member states, of
a minimum age (and professional experience) requirement for eligibility
to high judicial office.
Note
3.3.3 Ad hoc judges
33. The subject of
ad hoc judges has been given specific
attention, notably in Assembly
Recommendation 1649 (2004), which stipulates that “as far as possible no candidate
should be submitted whose election might result in the necessity
to appoint an
ad hoc judge.”
Note The
need for appointing
ad hoc judges
arises, for instance, where the sitting judge in a particular case
against the country in respect of which he/she has been elected
was a former Government Agent involved in preparing the case in
question, or a former senior national judge who participated in
the decision rejecting the applicant’s final internal appeal. This
may create a conflict of interest. As matters stand currently,
ad hoc judges are nominated directly
by member states pursuant to Article 27 of the ECHR, without any
involvement of the Assembly, thus giving rise to legitimacy and
independence issues.
Note While
the use of
ad hoc judges has
to date not been frequent, a possible reduction in the number of
judges in the future could lead to an increased use of
ad hoc judges.
Note
34. Similarly, the American Convention on Human Rights (ACHR)
grants states the possibility to appoint
ad hoc, unelected
judges in order to ensure their 'representation' on the seven-member
Inter-American Court on Human Rights.
Note By
contrast, in the eleven-member African Court on Human and Peoples’
Rights (ACHPR), such a possibility does not appear to exist
Note. This
may be attributable to the fact that the founding texts of the African
Court, like the Rome Statute of the ICC, and unlike the ECHR and
ACHR, do not promote “national representativity” in individual cases.
Note In
fact, Article 22 of the Protocol to the ACHPR even explicitly foresees the
exclusion of any judge from a case “if the judge is a national of
any State which is a party to a case submitted to the Court”.
35. The new Article 26 § 4 to be inserted into the Convention
by Protocol No. 14 requires states to draw up reserve lists in advance
from which the President of the Court shall choose a person where
the need arises to appoint an
ad hoc judge,
such as in a case where there is no judge elected in respect of
the High Contracting Party concerned or the judge is unable to sit.
Presumably, in order for the President to have a ‘real choice’
Note under
the terms of this Article, the list is required to contain two or
more persons. In my introductory memorandum I had suggested that,
in the interim, a possible solution may be to draw up reserve lists, containing
names of candidates who have been interviewed by the Sub-Committee
on the Election of Judges, considered well-qualified for the post
of judge at the Strasbourg Court, though not elected.
Note Another fall-back solution which ought
to be resorted to more often, is for a state not to insist on the
appointment of an
ad hoc 'national'
judge, as the Rules of Court permit.
Note The obvious advantage
of this solution is two-fold: the sitting judge has been elected
by the Assembly, and not appointed by a state, and he or she is
fully operational at once. But the drawback might be the lack of
a detailed knowledge of the country's legal system.
36. At present, the Assembly has no say in the manner in which ad hoc judges are appointed, What
role, if any, the Parliamentary Assembly should or could play with
respect to ad hoc judges under
Protocol No 14 to the ECHR, also remains unclear. This subject merits
further reflection in the future.
3.3.4 Miscellaneous
37. While not directly related
to the criteria for office for the post of judge as such, the question
of the judges’ social security scheme (medical expenses and pension
entitlement) is of relevance when one considers that it is linked
to the independence of judges.
Note
38. Another subject that may need to be considered by member states
is the question of former judges’ re-integration into the national
job market after completion of their term of duty at the Strasbourg
Court. The assumption, based on Article 21 § 1 of the Convention,
is that judges of the Court are of high moral character and have
outstanding professional qualifications and experience.
Note In
returning to 'home base', former judges are likely to enrich the
legal profession's knowledge of Strasbourg case-law with their uniquely
acquired European experience. The UK
Human
Rights Act of 1998 provides a good example of how this
can be attained. Section 18 (2) stipulates that the holder of a
judicial office may take up the post of judge at the European Court of
Human Rights without having to relinquish definitively his or her
office in the UK.
Note
39. Finally, modern-day Europe is the home of much racial, ethnic
and cultural diversity. Currently, however, the selection criteria
for the post of judge at the European Court of Human Rights do not
give any consideration to other requirement for diversity or representativity
among judges other than on the grounds of gender. Given the Court’s
mandate for the protection of the rights of all, the Assembly may
wish to consider introducing other representativity criteria (e.g.
belonging to a visible minority) in the future. National representativity
– one judge for each member state, who shall sit on all cases concerning
this state – may also need further refinement, possibly in light
of the experience of more recently established international courts,
such as the ICC and the African Court of Human and Peoples’ Rights.
4 Conclusions
40. Although there has been a marked
improvement in the selection procedures at the national level since 1998,
there is still significant variance in the procedures as concerns
fairness, transparency and consistency. The Committee of Ministers,
in its reply to Assembly
Recommendation
1649 (2004), underscored its reluctance to be “excessively prescriptive
concerning the precise means of [the] implementation [of the basic
principles] so as to allow for differences of national systems and
the exercise of sovereignty”. Whilst I cannot but agree with refuting
any “excessive” prescriptiveness, the Assembly’s criteria are sufficiently
flexible to allow for the respect of diversity and sovereignty –
keeping in mind that upon accession, member states commit themselves to
the core values of the Council of Europe, which include ensuring
effective justice for human rights violations. Given the importance
of the quality of judges for achieving this goal, some minimum standards
of fairness, transparency and consistency must be considered indispensable
for the selection of candidates for the Court.
41. Even if there is no statutory basis for imposing a uniform
procedure, it should be possible to make certain recommendations
to the States Parties which would also guide the Assembly’s own
approach. The more thorough the implementation of the Assembly’s
criteria is at the national level, the less likely it is that the Assembly
will feel obliged to send back lists of candidates for lack of a
real choice among appropriately qualified candidates. Whilst “there
is a clear hierarchy among various criteria for office”,
Note (with primary importance
attached to those of Article 21 § 1 ECHR
Note), the Assembly should yet again
emphasise the need for states to conduct open calls for candidatures
and to ensure that all candidates short-listed possess an active knowledge
of one and a passive knowledge of the other official language of
the Council of Europe.APPENDIX
