Judges on the European Court of Human Rights are elected by the Parliamentary Assembly on the basis of a list of three candidates provided to it by each state party to the European Convention on Human Rights. When a candidate withdraws, the state must replace him or her. This the Ukrainian authorities refused to do, after a candidate had withdrawn in late 2007. Instead, Ukraine has transmitted a new list of three candidates which the Assembly decided not to accept since there exists no exceptional circumstances to justify this.
The persistent refusal, by the Ukraine, to provide the name of a third candidate to the Assembly is considered by the Committee on Legal Affairs and Human Rights to be contrary to the country's obligations under the European Convention and constitutes a serious violation of basic principles of the Council of Europe's Statute. In the absence of a Ukrainian judge on the Court, the appointment in the meantime of ad hoc judges, not elected by the Assembly, aggravates the present unsatisfactory situation by circumventing the election procedure laid down by the Convention and threatens to undermine the credibility of the Court.
That said, the Ukrainian authorities have recently indicated to the Assembly that they have requested the Committee of Ministers to seek an Advisory Opinion from the Strasbourg Court on this subject. In these circumstances, the Committee on Legal Affairs and Human Rights proposed that the Assembly confirm the credentials of the Ukrainian parliamentary delegation, on the understanding that this matter be resolved quickly.
The committee also proposes that the Assembly recommend to the Committee of Ministers that such an Advisory Opinion be sought without delay. However, the request should not only deal with the purported right of a state to withdraw a list of candidates, once submitted, but should also cover the issue of the conformity, with the European Convention on Human Rights, of the Assembly’s refusal to accept a new list of candidates and the Assembly's insistence on being provided with the name of a third candidate.
by Mr Luzius Wildhaber and Mr Lucius CaflischNote
1. We have been asked, by letter of 19 December 2008, to indicate whether the Parliamentary Assembly of the Council of Europe “is correct in assuming that it has the right not to accept the withdrawal of a list of candidates submitted by a government when the Assembly considers that there exist no ‘exceptional circumstances’ for so doing”; and, if so, in the specific Ukrainian context, whether the Assembly is “at liberty to contact a candidate who had withdrawn his name from the list of candidates submitted to the Assembly by the Ukrainian Government, in the situation in which Ukraine does not intend to complete the said list”, and to ask the candidate “to reconsider his decision”.
2. On 29 April 2007, the Permanent Representative of Ukraine to the Council of Europe, acting in the name of the Ukrainian Ministry of Justice, submitted a list of three candidates for the position of a judge at the European Court of Human Rights (ECtHR). The candidates were Mr Serhiy Holovaty, Mr Vasyl Marmazov and Mrs Ganna Yudkivska.
3. On 17 September 2007, the Assembly’s Sub-Committee on the Election of Judges to the ECtHR conducted interviews with Mr Holovaty and Mrs Yudkivska. Mr Marmazov did not attend and, by letter of 28 September 2007, announced his withdrawal as a candidate “due to … personal matters”. Immediately before the interview date, on 14 September 2007, the Permanent Representative of Ukraine submitted a decree and a letter of the President of Ukraine, V. Yushchenko, who announced the withdrawal of the list of Ukrainian candidates because it did “not correspond to the requirements of Article 21 of the (European Convention on Human Rights, ECHR) and (the) aforementioned recommendations of the Council of Europe”. Also, “significant procedural violations (had been) committed”. “In particular”, a “transparent voting procedure for the candidates ha(d) not been ensured”, and the Council of Judges of Ukraine had considered that Mr Holovaty “was lacking in ‘high moral character’”. On 1 June 2007, the Council of Judges of Ukraine had indeed opposed Mr Holovaty on account of his “previous activity” and particularly of incidents which had occurred in 2005.
4. On 1 October 2007, the plenary of the Parliamentary Assembly agreed with its Sub-Committee on the Election of Judges and with the Assembly Bureau that there were “no exceptional circumstances justifying the acceptance, by the Assembly, of the withdrawal of the Ukrainian list in accordance with § 1 of the Appendix to Resolution 1432” (2005). The Assembly President R. van der Linden announced this decision on 2 October 2007 to President Yushchenko and Justice Minister O. Lavrynovych and asked them “to complete the list by replacing the candidate who withdrew his candidature”, i.e. Mr Marmazov.
5. On 3 October 2007, Minister of Justice Lavrynovych announced to the Assembly President van der Linden that the Government of Ukraine had “decided to replace the candidate who withdrew his candidature, namely Mr Vasyl Marmazov, with (the) candidature of Mr Stanislas Shevchuk”.
6. Nevertheless, on 10 October 2007, at a meeting of the Deputies of Ministers, the Permanent Representative of Ukraine stated that his Government did not accept the decision of the Assembly regarding the absence of exceptional circumstances which would justify the withdrawal of the list. That withdrawal “fully correspond(ed) to Article 22 of the ECHR and to the sovereign right of the member state to submit and to withdraw the nominated candidates”. The fact that the Assembly did not recognize the withdrawal of the list was considered as “neglect of the expression of the state’s will; attempt to intervene in the internal affairs of Ukraine; violation of the norms and principles of modern international law”. Ukraine would therefore “not complete the list by new candidatures”.
7. On 5 November 2007, Mr. Shevchuk announced that he could “not but comply” with the Edict of the President of Ukraine of 14 September 2007 withdrawing the list and opening a new selection procedure. He would “participate in this newly opened procedure” and, if elected, would “be honoured to continue my cooperation with you in the future”. The letter arrived shortly before the interview with Mr Shevchuk, which was scheduled for 12 November 2007.
8. On 20 December 2007, the Permanent Representative of Ukraine submitted, in the name of Minister of Justice Onischuk, a new list of candidates, composed of Mr Vasyl Marmazov, Mr Stanislaw Shevchuk and Mrs Ganna Yudkivska. In response, Assembly President van der Linden reiterated, on 21 December 2007, the position of the Assembly Bureau that it expected the Ukrainian “authorities to submit the name of a new third candidate to complete the list and not an entirely new list”.
9. Positions have not changed in 2008. On 8 April 2008, the Permanent Representative of Ukraine sent an Aide-Mémoire to the Chairman of the Ministers’ Deputies according to which Assembly Resolution 1432 (2005) had “a character of recommendation, and (was) not legally binding”. “It (was) clear that under no circumstances it could substitute or dispute respective provisions neither of the ECHR nor national legislation of the member-state”. Since the decision of the President of Ukraine to withdraw the (first) list of candidates, this list “ha(d) lost all legal validity”. Insistence on the completion of a document which had lost its legal effect for Ukraine would “bring the situation into a dead-end” and would “also lay the foundation of a divergence with the judicial corpse (sic) of Ukraine”.
10. In a letter of 9 July 2008, Minister of Justice Onischuk confirmed these views and added that an advisory opinion might be requested from the ECtHR on the question of whether and up to what point a list of candidates can be withdrawn by a member State.
11. Articles 21 and 22 ECHR are the relevant provisions dealing with the election of judges to the ECtHR. In a first step, a High Contracting Party designates three candidates possessing the qualifications required by Article 21 ECHR. In a second step, the Assembly elects a judge from the list of three candidates.
12. Two instances are therefore entrusted with the election of judges to the ECtHR. Both must contribute in good faith to the proper functioning of the Court. The High Contracting Parties must nominate the three candidates in a transparent and non-manipulative way. They must supply the Court with candidates of the highest quality. They must submit their proposals expeditiously so as not to impair the effectiveness of the Court, since the presence of a national judge is needed. And they must accept that the Convention entrusts the Assembly, not the national governments, with the choice between the three candidates.
13. The obligations to conduct a transparent and non-manipulative procedure, to look for a candidate of the highest quality and to elect judges expeditiously so as not to impair the effectiveness of the Court, are also incumbent on the Assembly.
14. The Assembly may enact rules with respect to the national procedures but is not empowered to select the three candidates itself; that right belongs to the State concerned. The State, by contrast, is not entitled to take the place of the Assembly when it comes to the actual election of a judge.
15. According to the relevant recommendations and resolutions of the Assembly, governments should ensure:
16. The recommendations and resolutions of the Assembly are not legally binding, but all of them must be in conformity with the ECHR. However, given the concision of Articles 21 and 22 ECHR, the Assembly may make reasonable additions. It may also be desirable, and a useful contribution to ensure the predictability of the law, to explain to the High Contracting Parties how the Assembly wishes the election procedure to be organised.
17. Coming now to questions submitted to us, the Ukraine presented a list of three candidates, and the Assembly organised interviews with them. Three days before the interviews were to take place, when the Assembly Sub-Committee members, their staff and the candidates had presumably all been convoked, had made their travel and hotel arrangements and had adjusted their work schedules, the President of Ukraine announced the withdrawal of the list of three candidates. The reasons given were unspecific and in no way related to facts that had come up since the presentation of the list. The Council of Judges of Ukraine which later opposed Mr Holovaty criticised his earlier activities. The Government and the Council of Judges of Ukraine must have been aware of these activities when they submitted the first list of three candidates.
18. One of the three candidates, Mr Marmazov, did not attend the interviews and subsequently stepped down as a candidate, again without giving specific reasons. Nonetheless his name was also included in the second list of candidates.
19. The Assembly Sub-Committee on the Election of Judges examined the above events in the light of paragraph 1 of the Appendix to Resolution 1432 (2005), which specifies:
“In principle, the list of candidates for the election of judges, once submitted to the Parliamentary Assembly, should not be modified. The Assembly shall only exceptionally accept partial or complete modification of the list on the initiative of the government concerned”.
20. The Sub-Committee took the view that in the instant case there were no “exceptional circumstances” justifying the complete modification and withdrawal of the list of three candidates. We agree with that view because no new important and material facts unknown before the submission of the first list of candidates were established or alleged to exist. Since the names of Mr Marmazov and Mrs Yudkivska can also be found on the second list of candidates, it would seem that the withdrawal of the first list was based on the presence of Mr Holovaty on it. We do not know the reasons therefore. But surely Mr Holovaty, twice Minister of Justice of Ukraine, and a long-time member of the Verkhovna Rada and the Assembly, was a well-known Ukrainian politician whose merits or demerits must have been a matter of common knowledge, so that the Ukrainian Government which had proposed him as a candidate must have known him well and must – at least at that point in time – have found him an acceptable candidate. Of course, the Assembly is free to form its own opinion on all these points.
21. The withdrawal of the list can hardly be justified merely by procedural mistakes because, whatever new procedure different from the earlier one may have been conducted by Ukraine, it led to the renewed candidatures of Mr Marmazov and Mrs Yudkivska on the second list of candidates. The only change was that Mr Holovaty was replaced by Mr Shevchuk. This confirms our view that the withdrawal of the list must be seen as a belated attempt to remove Mr Holovaty.
22. In our opinion, these events have nothing to do with the sovereignty or the will of Ukraine and do not constitute an interference in the internal affairs of Ukraine. Ukraine was free to evaluate potential candidates for the election as judges of the ECtHR. She exercised her sovereignty and expressed her will when submitting her first list of three candidates. At that point Ukraine had contributed her part to the election of a judge to the ECtHR, and there were no exceptional circumstances allowing for a different conclusion.
23. Article 22 ECHR calls for the submission of lists of candidates. It does not provide, either expressly or implicitly, for the withdrawal of lists at any time when they are already in the hands of the Assembly. Inasmuch as Ukraine is concerned, to read Article 22 ECHR as permitting the withdrawal of a list already placed before the Assembly would be in contradiction with the general rule of treaty interpretation codified in Article 31.1 of the Vienna Convention on the Law of Treaties, of 23 May 1969. Under that rule treaties shall be interpreted, inter alia, “in accordance with the ordinary meaning to be given to the terms of the treaty in their context” and in the light of their “object and purpose”. As suggested by the case-law of the ECtHR (see for instance Wemhoff v. Germany, judgment of 27 June 1968, Series A, No. 7, § 8; Mamatkulovand Askarov v. Turkey, GC, Nos. 46827/99 and 46951/99, judgment of 4 February 2005, § 101), that element is of particular relevance for the interpretation of law-making treaties, such as instruments for the international protection of human rights.
24. What is the main purpose and object of the ECHR, especially as far as Ukraine is concerned? Undoubtedly, that object is the proper functioning of the system of protection created by it, particularly of the mechanism of individual applications established by its Article 34. This is particularly true for Ukraine, one of the Court’s main “clients” (8,250 pending applications out of a total of 97,000, which means that Ukraine is the fourth-largest user). The longer the absence of an Ukrainian judge on the bench, the longer the Court’s inactivity regarding such applications and, consequently, the weaker the protection of the human rights alleged to have been infringed by Ukraine. For this reason, recourse to Article 31.1 of the 1969 Vienna Convention, and consideration of the “object and purpose” of the ECHR and especially of its Article 22, strongly suggest that the latter should be interpreted as not authorising the withdrawal of the Ukrainian list at any time if the latter is already in the hands of the Assembly .
25. The basic rule under Article 22 ECHR must be that once a government has submitted a list of candidates to the Assembly, there is a transfer of competence to the Assembly. There may be circumstances, however, where there are good reasons for the withdrawal of a list, provided the government concerned acts promptly, explains its action adequately and adduces specific reasons. This is why it seems desirable to allow for the withdrawal of a list in “exceptional circumstances”, as is done in the Appendix to the Assembly Resolution 1432 (2005). However, no such “exceptional circumstances” can be made out in the instant case.
26. The Assembly Sub-Committee on the Election of Judges to the ECtHR was confronted with the refusal of Ukraine to name a third candidate. Initially, the name of Mr Shevchuk was proposed, but he stepped down in view of the decree of the Ukrainian President calling for a completely new list of candidates. The question that arises is whether the Assembly could approach Mr Shevchuk and invite him to an interview.
27. In our opinion, such a course of action seems legal and appropriate. Firstly, there should be three rather than two candidates, according to Article 22 ECHR. Secondly, Mr Shevchuk’s name can be found on the second Ukrainian list, so that he continues to be an official candidate. Thirdly, if the Assembly was entitled not to accept the withdrawal of the entire list of candidates, it follows logically that it should look for a possible third candidate in as rational a way as possible. We agree that it would seem best, in the given circumstances, to approach Mr Shevchuck.
28. We answer both questions submitted to us in the affirmative.
Further to my letter as of 9 July 2008 No.725-0-3-08-33 and taking note of the actual situation as to the election of the judge to the European Court of Human Rights in respect of Ukraine I, being the Minister of Justice, would like to inform that Ukraine has availed of its right provided for by Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms and asked the Committee of Ministers of the Council of Europe to lodge a request to the European Court of Human Rights (hereinafter – ECHR) to give advisory opinion on the right of the State to withdraw the list of candidates once submitted.
I consider that such advisory opinion will be additional mechanism capable to solve the problems which Ukraine asMember – State of the Council of Europe has faced while electing the candidates for the position of the judge to the ECHR.
Bearing in mind the abovementioned, I hope that within the time when the Court considers our request any procedural actions as to the election of the judge in respect of Ukraine will be halted.
Hereby, please accept the assurances of my highest consideration and satisfaction as to our meeting held on 28 April 2009.
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc. 11921, Reference No. 3573 of 29 May 2009
Draft resolution adopted unanimously, with one abstention, and draft recommendation adopted unanimously by the committee on 22 June 2009
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, Mrs Anna Benaki, Mr Petru Călian, Mr Erol Aslan Cebeci, Mrs Ingrīda Circene (alternate: Mr Boriss Cilevičs), Mrs Ann Clwyd, Mrs Alma Čolo, Mr Joe Costello, Mrs Lydie Err, Mr Renato Farina, Mr Valeriy Fedorov, MrJoseph Fenech Adami, Mrs Mirjana Ferić-Vac, Mr György Frunda, Mr Jean-Charles Gardetto, Mr Jószef Gedei, Mrs Svetlana Goryacheva, Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajibayli, Mr Serhiy Holovaty, Mr Johannes Hübner, Mr Michel Hunault, Mrs Fatme Ilyaz, Mr Kastriot Islami, Mr Želiko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques, Mr András Kelemen, Mrs Kateřina Konečná, Mr Franz Eduard Kühnel, Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger, Mr Aleksei Lotman, Mr Humfrey Malins, Mr Andrija Mandic, Mr Alberto Martins, Mr Dick Marty, Mrs Ermira Mehmeti, Mr Morten Messerschmidt, Mr Akaki Minashvili (alternate: Mrs Chiora Taktakishvili), Mr Philippe Monfils, Mr Alejandro Muñoz Alonso, Mr Felix Müri, Mr Philippe Nachbar, Mr Adrian Năstase (alternate: Mr Tudor Panţiru, Ms Steinunn Valdís Óskarsdóttir, Mrs Elsa Papadimitriou, Mr Valery Parfenov (alternate: Mr Sergey Markov), Mr Peter Pelegrini, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr Valeriy Pysarenko (alternate: Mr Hryhoriy Omelchenko), Mr Janusz Rachoń, Mrs Marie-Line Reynaud (alternate: Mr René Rouquet), Mr François Rochebloine, Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Fiorenzo Stolfi, Mr Christoph Strässer, Lord John Tomlinson, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Viktor Tykhonov (alternate: Mr Ivan Popescu), Mr Øyvind Vaksdal, Mr Giuseppe Valentino, Mr Hugo Vandenberghe, Mr Egidijus Vareikis, Mr Luigi VItali, Mr Klaas de Vries,Mrs Nataša Vučković,Mr Dimitry Vyatkin, Mrs Renate Wohlwend, Mr Jordi Xuclà i Costa
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, Ms Heurtin