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Nomination of candidates and election of judges to the European Court of Human Rights

Report | Doc. 11767 | 01 December 2008

Committee
Committee on Legal Affairs and Human Rights
Rapporteur :
Mr Christopher CHOPE, United Kingdom, EDG
Thesaurus

Summary

According to the European Convention on Human Rights, the Parliamentary Assembly elects the judges of the European Court of Human Rights from a list of three candidates submitted by each State Party. The procedures used to select those candidates are left to the state concerned – though the Convention lays down that judges must hold the qualifications for office and be of “high moral character”.

To ensure those criteria are met – and to maintain the efficiency and authority of the Court – the Assembly has made clear it expects national selection procedures to meet certain standards: they should be fair, transparent and as consistent as possible across countries. Yet, despite a marked improvement in some countries, there is still significant variance in meeting these standards, the Legal Affairs and Human Rights Committee believes, raising the risk of ad hoc or politicised nominations.

The committee strongly urges those governments which have not yet done so to set up appropriate national selection procedures, including public and open calls for candidatures and a mechanism to ensure that all the candidates they put forward possess an active knowledge of one of the Council of Europe’s official languages and a passive knowledge of the other – the languages in which the Court’s judgments are drafted.

The committee proposes that lists based on national selection procedures which fail to meet these criteria should be rejected by the Assembly.

A Draft resolution

1. The Parliamentary Assembly, whose task, by virtue of Article 22 of the European Convention of Human Rights, is to elect judges of the highest calibre to the European Court of Human Rights from a list of three candidates nominated by States Parties, underlines the importance of appropriate national selection procedures in order to ensure and reinforce the quality, efficacy and authority of the Court.
2. Despite a marked improvement in national selection procedures in several countries, there is still significant variance as concerns fairness, transparency and consistency. Referring to its Recommendation 1649 (2004) on candidates for the European Court of Human Rights, the Assembly yet again reiterates that the process of nominating candidates to the Court must reflect the principles of democratic procedure, transparency and non-discrimination. In the absence of a real choice among the candidates submitted by a State Party to the Convention and/or of a fair, transparent and consistent national selection procedure, the Assembly shall reject lists submitted to it.
3. In addition to the criteria set out in Article 21 § 1 of the European Convention on Human Rights (“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 Assembly has introduced linguistic requirements based on Article 21 § 1 of the Convention, the need for gender balance, as well as other requisites, such as the standard curriculum vitae for candidates. Before proceeding to the election of judges, the Assembly also invites candidates to take part in personal interviews before a sub-committee set up for that purpose.
4. Referring to the above-mentioned Recommendation 1649 (2004), the Assembly recalls that in addition to the criteria specified in Article 21 § 1 of the Convention, as well as the gender requirement, states should, when selecting and subsequently nominating candidates to the Court, comply with the following requirements:
4.1 issue public and open calls for candidatures;
4.2 when submitting the names of candidates to the Assembly, describe the manner in which they had been selected;
4.3 transmit the names of candidates to the Assembly in alphabetical order;
4.4 candidates should possess an active knowledge of one and a passive knowledge of the other official language of the Council of Europe (see model curriculum vitae appended hereto), and
4.5 that, if possible, no candidate should be submitted whose election might result in the necessity to appoint an ad hoc judge.
5. The Assembly also strongly urges the governments of member states which have still not done so, to set up – without delay – appropriate national selection procedures to ensure that the authority and credibility of the European Court of Human Rights are not put at risk by ad hoc and politicised processes in the nomination of candidates.

Appendix – Model curriculum vitae for candidates seeking election to the European Court of Human Rights

In order to ensure that the members of the Parliamentary Assembly of the Council of Europe have comparable information at their disposal when electing judges to the European Court of Human Rights, candidates are invited to submit a short curriculum vitae on the following lines:

I. Personal details

Name, forename

Sex

Date and place of birth

Nationality/ies

II. Education and academic and other qualifications

III. Relevant professional activities

a Judicial activities
b Non-judicial legal activities
c Non-legal professional activities

(Please underline the post(s) held at present)

IV. Activities and experience in the field of human rights

V. Public activities

a Public office
b Elected posts
c Posts held in a political party or movement

(Please underline the post(s) held at present)

VI. Other activities

a Field
b Duration
c Functions

(Please underline your current activities)

VII. Publications and other works

(You may indicate the total number of books and articles published, but mention only the most important titles (maximum 10))

VIII. Languages

(requirement: an active knowledge of one and a passive knowledge of the other official language of the Council of Europe)

Language

Reading

   

Writing

   

Speaking

   
 

VG

G

F

VG

G

F

VG

G

F

a. First language:

                 

....................................

(Please specify)

                 

b. Official languages:

                 

- English

                 

- French

                 

c. Other languages:

                 

....................................

                 

....................................

                 

....................................

                 

IX. In the event that you do not meet the level of language proficiency required for the post of judge in an official language, please confirm your intention to follow intensive language classes of the language concerned prior to, and if need be also at the beginning of, your term of duty if elected a judge on the Court.

X. Other relevant information

XI. Please confirm that you will take up permanent residence in Strasbourg if elected a judge on the Court.

Indicative time-table for election of judges to the European Court of Human Rights

Time needed for a state to organise an open call for candidatures and to transmit a list of three candidates to the Parliamentary Assembly of the Council of Europe

3 months

Time needed for the Assembly for its election procedures (including interviews with all candidates)

3 months (this time may be longer, depending on the scheduling of the Assembly's part-sessions)

Time provided to newly-elected judge to terminate his or her previous employment and settle in Strasbourg. (If Protocol No14, ECHR, is not yet in force, the sitting judge – who may not have been re-elected – would need time to find other employment and/or to return to his or her home country)

6 months

Total time needed for the proceedings

12 months

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 recommendationNote), 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 resolutionNote), 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 CourtNote 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 AssemblyNote (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 relevantNote. 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 basisNote; 2) established procedures without a formal legal basisNote; 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 nationalNote 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 existNote. 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 ECHRNote), 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

Appendix – Overview of national selection procedures

A. Summary and analysis based on information available to the rapporteur

1. Request for information addressed to member states

1. In my Introductory memorandum on National selection procedures for candidates for the European Court of Human Rights (AS/Jur (2007) 23 rev), the Committee accepted my proposal that national authorities provide information on the procedures currently in place for selecting candidates to the Strasbourg Court (paragraph 28). The questionnaire, sent out in June 2007, contained the following questions:

1. How do your procedures meet the criteria of fairness, transparency and consistency?

(see, in this connection, reply from the Committee of Ministers to Assembly Recommendation 1649 (2004))Note

2. Is a public call for candidatures organised?

If so, please state how (e.g. publication in the general/specialised press).

3. Does the selection follow an established procedure made public beforehand?

If so, please indicate whether the procedure has a formal legal basis.

4. Does the procedure include interviews with the short-listed candidates?

If so, please state who conducts the interviews and whether the interviews include an assessment of candidates' linguistic abilities.

5. Does the procedure include consultations with civil society bodies?

If so, please state which and at what stage.

6. Does the procedure involve a panel of independent experts?

If so, please state its composition, mission and authority (advisory/binding).

2. 41 replies were received to the Assembly questionnaire sent out to all 47 Council of Europe member states. Replies were provided from the following Contracting State Parties to the ECHR: Andorra, Armenia, Azerbaijan, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Netherlands, Norway, Poland, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Ukraine and the United Kingdom.

3. Overall, the replies displayed a diverse range of clarity, coherence and specificity (see document AS/Jur (2008) 52 for details), with less useful repliesNote coming from the following states: Andorra, Armenia, France, Greece, Iceland, Lithuania, Luxembourg, Norway, Poland, Spain, and Switzerland. As a result of the foregoing, inevitably, the comparative overview and charts are not free from potential inaccuracies.

4. Also, six states have not replied to the questionnaire, despite ‘reminders’. These states are: Albania, Croatia, Georgia, Montenegro, Portugal, and Turkey.

2. Summary of replies to questions Nos. 2-6 of the questionnaire

5. Given that the greatest diversity among the replies was contained in response to questions nos. 1 and 3 of the questionnaire, and the difficulty of quantifying these in a comparative manner, these replies will be examined separately below. For details, consult AS/Jur (2008) 52.

Key

Yes

X No

N/A Not applicable, which in this context means either not replied at all or reply does not answer question satisfactorily

LA Language assessment

SP Specialised press – this is limited to the written press in the strictest terms and does not pertain to legal databases

SC Secretariat comment

 

1. Public call

2. Formal legal basis

3. Interviews (language assessment)

4. Consultation with civil society

5. Involvement of panel of independent experts

State

 

Albania

         

Andorra

X

X

X

X

X

Armenia

N/A

X

N/A

N/A

Austria

N/A

√ (LA)

X

Azerbaijan

√ (SP)

X

Belgium

√ (SP)

X

√ (LA)

Bosnia and Herzegovina

√ (LA outside interview)

N/A

Bulgaria

N/A

N/A (LA, not clear at what stage)

N/A [SC: although Selection Committee consisted in majority of academics and NGO members ]

Croatia

         

Cyprus

X

X (LA outside interview)

X

X [SC: although panel includes two independent experts]

Czech Republic

√ (semi-public)

X

√ (LA outside interview)

X

Denmark

√ (SP)

X

X

X

X

Estonia

Flexible

√ [SC: panel includes some independent members]

Finland

√ (SP)

X

X

X

France

X

N/A

N/A

N/A

N/A

Georgia

         

Germany

X

X

Possible

X (flexible)

X

Greece

N/A

N/A

N/A

N/A

N/A

Hungary

X

X

X (but in past consultations have been held)

X

Iceland

N/A

X

N/A

N/A

N/A

Ireland

√ (SP)

X

X

X

Italy

X

X

X

X

Latvia

√ (LA)

Liechtenstein

X

X

√ (LA part of selection but not specifically tested)

X

X

Lithuania

X

X

N/A

N/A

N/A

Luxembourg

X

X

N/A

X

Malta

X

X

X

X

MoldovaNote

√ (SP)

X

X

X

Monaco

N/A

Possible but not systematic

X

X

Montenegro

         

Netherlands

√ (SP)

X

√ (LA)

Neither expressly foreseen nor excluded

Norway

√ (press release)

X

N/A

N/A

N/A

Poland

X

N/A

N/A

N/A

Portugal

         

Romania

√ (LA outside of interview)

X

Russian Federation

X

√ (LA)

X

X

San Marino

X

X

X

X

Serbia

X

N/A

N/A [SC: although two of three members of Selection Commission were from civil society sector/academia]

Slovak Republic

N/A

N/A

√ (LA)

√ [SC: although not all members can be considered independent]

Slovenia

X (LA outside interview)

X

X

Spain

X

X

X

X

X

Sweden

X

X

X

X

Switzerland

X

X

X

“the former Yugoslav Republic of Macedonia”

X

X

√ [SC: panel includes independent experts]

Turkey

         

Ukraine

√ (LA in form of formal test outside interview)

United Kingdom

X

√ (LA)

X

3. Fairness, transparency and consistency (replies to question No. 1)

6. The various replies to this particular question are not easily quantifiable and are best understood by a careful examination of individual responses in a comparative manner (see document AS/Jur (2008) 52 for details). Generally speaking, although there appears to be great variance between the individual states’ national selection procedures, with many states adhering to ad hoc proceduresNote without formal legal basis, the majority of the responses assert that their national procedures guarantee fairness, transparency and consistency either by explicitly following relevant Assembly recommendations or by adhering to national procedures that, in the respective state’s view, adequately reflect these values. For instance, the French reply sets out that the French authorities adhere to the principle of independence of magistrates both on the national and international level. Many replies, however, limit themselves to describing, sometimes in technical detail, their respective selection procedures, without explaining how these procedures guarantee these three values.

7. Only two states (Andorra and Sweden) have noted that their procedures are deficient in their level of fairness, transparency and consistency. According to the reply by Andorra, Andorra’s selection procedure does not follow the criteria established in Assembly Recommendation 1649 (2004). The Swedish case is particularly noteworthy here, as its selection procedure is currently being scrutinised by a Committee of Inquiry as regards the role and powers of the government in appointing candidates to the Strasbourg Court.

4. Additional background information

a. A public, open call for candidates

8. Of the replies received, 26 states conduct an open call for candidatures, with seven of these states making an open call in the specialised press (see Table 1 above). One state, the Czech Republic, conducts a semi-open call for candidatures (see document AS/Jur (2008) 52).

b. Established procedure made public beforehand

9. Overall, the majority of states did not explicitly answer this question. The ad hoc nature of a procedure could, however, help infer, in some cases, the likelihood that such measures will be made public beforehand.

10. Of the replies received, only eight states, namely Bosnia and Herzegovina, Estonia, Latvia, Romania, Russian Federation, Slovenia and “the former Yugoslav Republic of Macedonia” and UkraineNote have indicated that their selection procedures have a formal legal basis.

c. Interviews (language assessment)

11. Of the replies received, 16 states have indicated that their selection procedures include interviews, seven of these states conduct language assessments during the interview, and two states’ selection procedures do not systematically provide for interviews, but do not exclude that possibility either (Germany and Monaco). 23 states either do not conduct interviews, or have not explicitly replied to this question.

12. Many states have indicated that they follow Assembly recommendations in their selection procedure, which by extension, includes a language assessment, but only few statesNote have specifically indicated that they conduct language assessment on a formal basis (diplomas, CVs in one of the two official languages, etc.). The Ukrainian selection procedure holds formal language tests with candidates, which is separate from the interview.

Percentage of states conducting interviews with candidates (16 out of 41 replies received)
Graphic
Percentage of states conducting language assessments during interviews (7 out of 16 states from 41 replies received)
Graphic

d. Consultation with civil society

13. Of the replies received, 15 states have indicated that their selection procedures include consultation with members of civil society, with two states (Estonia and Germany) indicating that their procedures are flexible in this regard, and one state (the Netherlands) indicating that it does not expressly foresee or exclude the possibility of such consultation.

e. Involvement of panel of independent experts

14. Eleven states have indicated that their selection procedures involve, at some level of the process, (a panel of) independent experts (although replies appear diverse in what constitutes ‘independent’).

15. Finally, it should not be forgotten that this overview is not complete, as six states have not replied to the questionnaire (see paragraph 4 above).

B. Overview of member states’ replies to the questionnaire

Detailed replies from member states to the questionnaire can be found in document AS/Jur (2008) 52 available on request from the Secretariat of the Committee on Legal Affairs and Human Rights of the Assembly.

***

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Docs 11028 and 11029, Reference No. 3279 of 6 October 2006

Draft resolution adopted unanimously by the committee on 11 November 2008

Members of the committee: Mrs Herta Däubler-Gmelin (Chairperson), Mr Christos Pourgourides, Mr Pietro Marcenaro, Mr Rafael Huseynov (Vice-Chairpersons), Mr José Luis Arnaut, Mrs Meritxell Batet Lamaña, Mrs Marie-Louise Bemelmans-Videc (alternate: Mr Pieter Omtzigt), Mrs Anna Benaki (alternate: Mr Miltiadis Varvitsiotis), Mr Erol Aslan Cebeci, Mrs Ingrīda Circene (alternate: Mr Boriss Cilevičs), Mrs Alma Čolo, Mr Joe Costello (alternate: Mr Terry Leyden), Mr Nikolaos Dendias, Mrs Lydie Err, Mr Renato Farina, Mr Valeriy Fedorov, Mr Joseph Fenech Adami, Mrs Mirjana Ferić-Vac (alternate: Mr Miljenko Dorić), Mr György Frunda, Mr Jean-Charles Gardetto, Mr Jószef Gedei, Mrs Svetlana Goryacheva, Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin Hakl, Mr Andres Herkel, Mr Serhiy Holovaty (alternate: Mr Serhii Kivalov), Mr Michel Hunault, Mrs Fatme Ilyaz, Mr Kastriot Islami, Mr Želiko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques, Mr Karol Karski, Mr András Kelemen, Mrs Kateřina Konečná, Mr Eduard Kukan (alternate: Mr József Berényi), Mr Oleksandr Lavrynovych, Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger (alternate: Mr Jürgen Herrmann), Mr Humfrey Malins (alternate: Mr Christopher Chope), Mr Andrija Mandic, Mr Alberto Martins, Mr Dick Marty, Mrs Ermira Mehmeti, Mrs Assunta Meloni, Mr Morten Messerschmidt, Mr Philippe Monfils, Mr Alejandro Muñoz Alonso (alternate: Mr Arcadio Díaz Tejera), Mr Felix Müri, Mr Philippe Nachbar, Mr Fritz Neugebauer, Mr Tomislav Nikolić, Mr Valery Parfenov, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr John Prescott, Mr Valeriy Pysarenko, Mrs Marie-Line Reynaud, Mr François Rochebloine, Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Christoph Strässer, Mrs Chiora Taktakishvili, Lord John Tomlinson, Mr Mihai Tudose, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Vasile Ioan Dănuţ Ungureanu, Mr Øyvind Vaksdal, Mr Giuseppe Valentino (alternate: Mr Giuseppe Saro), Mr Hugo Vandenberghe, Mr Egidijus Vareikis, Mr Luigi Vitali, Mr Klaas de Vries, Mr Dimitry Vyatkin, Mrs Renate Wohlwend, Mr Jordi Xuclà i Costa, Mr Krysztof Zaremba, Mr Łukasz Zbonikowski

N.B.: The names of the members who took part in the meeting are printed in bold

Secretariat of the committee: Mr Drzemczewski, Mr Schirmer, Mrs Maffucci-Hugel, Ms Heurtin

;