C Explanatory memorandum
by Ms Petra Bayr, rapporteurNote
1 Introduction
1. The present report is based
on a motion for a resolution tabled by the Committee on the Election
of Judges to the European Court of Human Rights on 17 June 2024,
which was referred to it for report on 28 June 2024. The committee
appointed me as rapporteur at its meeting on 16 September 2024.
2. The motion reiterated that the Parliamentary Assembly needs
to ensure that the qualifications for being a judge of the European
Court of Human Rights (“the Court”), as set out in Article 21.1
of the European Convention on Human Rights (ETS No. 5, “the Convention”)
are duly met. It is therefore of utmost importance that both the
national selection procedure to produce the list of three candidates,
with the assistance of the Advisory Panel of Experts (“the Advisory
Panel”) established by the Committee of Ministers in 2010, and the election
procedure in the Assembly are fair, transparent, and fully in line
with the Convention. Although much progress has been made in this
respect over the past decade, both in terms of procedural improvements
and the interpretation of the eligibility criteria under Article
21 of the Convention, new proposals have been recently put forward,
notably in the report of the Drafting Group on issues relating to
judges of the European Court of Human Rights (DH-SYSC-JC) working
under the authority of the Steering Committee for Human Rights (CDDH).
The CDDH adopted this report at its 99th meeting (28 November-1
December 2023)
Note and the Committee of Ministers
took note of it at its meeting of 7-8 February 2024.
3. The motion also called on the Assembly to further consolidate
and improve its practice on the election of judges to the Court,
by addressing issues such as the assessment of national selection
procedures; the interpretation of the criteria laid down in Article
21.1 of the Convention;
Note the
requirement of independence and impartiality of the candidates,
including the avoidance of potential conflicts of interest during
their mandate if elected; the language skills required; the residence
requirement; the procedure for the appointment of ad hoc judges;
the procedure before the committee and the Assembly, including issues
such as the format of the interviews with candidates, the content
of the committee’s public recommendations addressed to the plenary, voting
rights and the announcement of the election results in the plenary;
the issues of post-mandate recognition of service of judges; extension
of the term of office of sitting judges due to delays in the election
of a new judge; compliance with ethical standards by former judges;
and further improvements in the co-operation and communication between
the Assembly, the Court and the Advisory Panel.
4. The motion also reflected the outcome of exchanges of views
held by the Committee on the Election of Judges to the European
Court of Human Rights with the Advisory Panel (joint meeting held
in Vienna on 13 May 2024)
Note as well
as with the former President of the Court, Ms Siofra O’Leary (Paris?
10 June 2024). The quality of the discussions held during these
exchanges helped the committee to identify the issues that need
to be reviewed with a view to refining and further improving the
election of the best possible judges to the Court, having also in
mind the attractiveness and current challenges of being a judge
at the Court. I would like to thank former President O’Leary and
members of the Advisory Panel for their extremely valuable contributions
and views.
5. The election of judges is one of the most important roles
that the Assembly has been entrusted with, under Article 22 of the
Convention. The scrutiny that the Committee on the Election of Judges
to the European Court of Human Rights applies to lists and candidates
for election as judge to the Court is intended to ensure that the
most highly qualified, independent and impartial judges are elected
by the Assembly to sit on the Court’s bench, following the criteria
laid down in Article 21 of the Convention. It can be observed that
the committee has become gradually stricter in applying these criteria.
This also applies to the national selection procedures which are
subject to the Guidelines of the Committee of Ministers on the selection
of candidates for the post of judge at the European Court of Human
Rights and the Assembly’s own resolutions and practice. It is important
in this context to recall that the Convention has laid down a co-decision
procedure for the election of judges with a clear division of roles
between the different actors involved: it is up to the High Contracting Parties,
assisted by the Advisory Panel, to submit three candidates, each
of whom must fulfill the eligibility criteria laid down in Article
21; and it is for the Assembly, assisted by its Committee on the
Election of Judges, to elect the most qualified of the three candidates.
It is not my intention to redefine this clearly established division
of roles, but to make proposals on how the overall selection and
election procedure could be improved, including by increasing transparency,
co-operation and mutual trust between all the bodies involved.
6. In the context of the preparation of this report, the Committee
on the Election of Judges to the European Court of Human Rights
held an exchange of views with the Bureau of the Court on 28 January
2025 and a hearing with experts (two former judges, Sir Nicolas
Bratza and Mr Yonko Grozev, and a university professor, Ms Laurence
Burgorgue-Larsen) on 24 March 2025. I have also had bilateral exchanges
with the current President of the Court, Mr Mattias Guyomar, as
well as with members of the Advisory Panel and other stakeholders
(during the seminar marking the 15th anniversary
of the Advisory Panel on 27 November 2025).
7. In my report, I will first summarise the latest reports of
the Assembly and changes to the procedure for the election of judges,
the recent CDDH report, and the main takeaways of the exchanges
and hearings held by the committee. I will then identify the existing
challenges that need to be addressed in relation to different topics
mentioned in the motion for a resolution and analyse a number of
proposals to modify the existing rules and procedure, including
any possible amendments to the Convention. A table on the latest
national selection procedures of all 46 member States can be found
here.
2 The latest Assembly reports and changes
to the procedure for the election of judges to the Court
8. In 2018 (
Resolution 2248 (2018))
Note and 2019 (
Resolution 2278 (2019)),
Note the Assembly introduced several
clarifications and improvements regarding the procedure for the
election of judges, including by codifying certain existing practices,
namely that:
- a list shall be
rejected when the national selection procedure did not satisfy the
minimum requirements of fairness and transparency or when the Advisory
Panel was not duly consulted (what is called, “rejection on procedural
grounds”);
- a list shall be rejected when not all of the candidates
fulfil each of the conditions set by Article 21.1 of the Convention
(what is called, “rejection on substantive grounds”);
- the committee shall decide on a proposal to reject a list
by a simple majority of the votes cast, thus reducing the previously
required majority of two-thirds (with the exception of a decision
to take into consideration single-sex lists, which continues to
require a two-thirds majority);Note
- as a reflection of the closer co-operation with the Advisory
Panel, the chairperson or another representative of the panel is
invited to explain the reasons for the panel’s views on candidates,
during briefing sessions scheduled before the discussion on each
list of candidates;
- members of the committee from the State whose list is
under consideration do not have the right to vote, neither on the
possible rejection of their country’s list nor on the expression
of preferences among candidates.
9. Following discussions in a specific case in 2019, the committee
also decided that it would no longer consider lists of candidates
when no interviews had been carried out during the national selection
procedure. This position was explicitly announced in the Committee
of Ministers by the then Secretary General of the Assembly.
10. Since then, the Assembly and the committee have been applying
the rules mentioned above. The committee also pays increasing attention
to the Committee of Ministers’ guidelines, particularly with regard
to national selection procedures and the composition of national
selection bodies. The practice shows a gradually stricter and more
refined application of the rules and guidelines, as can be observed
from the memorandum prepared by the Secretary General of the Assembly,
which contains specific examples of rejections of lists and is being
regularly updated.
Note
11. As regards the election as such by the Assembly (after the
committee has published its recommendation on the preference among
candidates addressed to the Assembly, usually on the Wednesday before
the part-session), the only recent change in the practice is that
the second round (in case no candidate obtains the absolute majority
of the votes cast in the first round, which usually takes place
on Tuesday morning) takes place in the afternoon sitting, not the
day after.
12. The committee has also developed a more formal dialogue with
the Advisory Panel, particularly following changes made to the Assembly
Rules of Procedures in 2019. Since 2022, it has regularly held joint
meetings with the panel with a view to further clarifying some issues,
including regarding the interpretation of the eligibility criteria
under Article 21 of the Convention and the required fairness and
transparency of national selection procedures. This takes place
in parallel with a more informal dialogue between the respective
secretariats, for the sake of better co-ordination and timely examination
of lists of candidates.
13. It is also important to note that the Assembly did not retain
in 2018 some of the reform proposals that had been put forward at
the time, including those by the CDDH in its 2017 report, such as
changing the rules on the composition of the committee and nomination
of its members and introducing sanctions for non-attendance of its
meetings; integrating a representative of the Advisory Panel of
Experts in interviews with candidates; giving more detailed reasons
for the committee’s recommendations and making them public before the
election; the committee sending to the Assembly lists of two candidates
or even only one when not all candidates are considered as sufficiently
qualified; and extending the duration of interviews by the committee. The
reasons for not accepting these proposals were well explained in
the 2018 report
Note prepared by Mr Boriss Cilevičs (Latvia,
SOC).
3 The
2023 report of the Steering Committee for Human Rights and its follow-up
14. In 2022, the CDDH instructed
its drafting group (DH-SYSC-JC) to prepare a “report evaluating
the effectiveness of the system for the selection and election of
the Court’s judges and the means to ensure due recognition for judges’
status and service on the Court and providing additional safeguards
to preserve their independence and impartiality”. During its mandate
DH-SYSC-JC held five meetings. It held exchanges of views with sitting
judges, academic experts, as well as with the then chairpersons
of the committee on the Election of Judges to the European Court
of Human (Mr Titus Corlăţean, Romania, SOC) and of the Advisory Panel,
Sir Paul Mahoney.
Note Our secretariat
also provided regular input on issues related to the election procedure.
The final report, which was adopted by the CDDH at the end of 2023,
covers five main areas: the national selection procedure; the election
procedure; issues related to judges’ active time in office; post-mandate
recognition of service on the Court; and ad hoc judges.
3.1 Conclusions
and proposals regarding the election procedure before the Assembly
15. As regards the election procedure
before the Assembly, the CDDH report took stock of the key decisions and
measures adopted by the Assembly since the last review process of
2018-2019, analysing the progress achieved and the new challenges
arising. It concluded that the practice of the Committee on the
Election of Judges to the European Court of Human involves assessment
of the lists of candidates on substantive, procedural and gender
representation grounds, before the interviews take place. A standard
and well-established procedure for the interviews and certain safeguards
have been put in place to preserve the reputation of candidates
when the committee’s recommendation to reject a list or its indication
of preference is submitted to the Assembly. In addition, the CDDH
welcomed the Assembly’s stricter scrutiny of national selection
procedures and its enhanced dialogue with the Advisory Panel. It
considered however that when the Assembly rejects lists on procedural
grounds “a publication of its conclusions and its reasoning in a
succinct manner would potentially encourage reflection not only
in the State Party concerned but also other State Parties regarding
the improvement of national selection procedures”. The CDDH finally
suggested that the Council of Europe consider organising an information
campaign on the election procedure, noting some concerns as to the
lack of detailed information about the election stage.
Note
16. The Committee of Ministers, in its decisions of 7-8 February
2024, endorsed these two recommendations regarding the election
procedure, inviting the Assembly, “when it rejects a list on procedural grounds,
to consider publishing its conclusions and reasoning”, and the Secretariat
(of the Council of Europe) “to consider organising an information
campaign on the election procedure”.
Note In my view, the regular update of
the memorandum of the Secretary General of the Assembly regarding
the election procedure, with specific examples of rejections on
procedural grounds (with a succinct reference to the grounds) in
a non-country-specific manner, is sufficient for the sake of transparency
and with a view to helping all States Parties to improve their selection
procedures. I believe there is no need to provide any additional
reasoning in the committee’s public and country-specific rejection,
bearing in mind that a reference to the specific reasons and the
year of rejection is already included in the memorandum of the Secretary
General of the Assembly.
Note With this
information, it is easy to identify the country whose list was rejected
and on which grounds. The latest activity report of the Advisory
Panel also includes non-country-specific overview of the national
procedures recently reviewed (July 2022 to June 2025)
Note, with the aim of identifying emerging
trends, drawing attention to areas in need of improvement and highlighting
good practices. This report should be read together with the memorandum
of the Secretary General of the Assembly in order to identify problematic
practices across member States, without signalling specific countries.
17. I fully support the proposal made by the Committee of Ministers
and the CDDH to consider organising an information campaign on the
election procedure, addressed to the general public and potential
candidates. This could be co-organised by the Secretariat of the
Council of Europe (relevant Directorate), the Secretariat of the
Assembly, and the Registry of the Court, provided that sufficient
resources are allocated. At the same time, the presentation of the
election procedure and the mandate of the judges of the Court on
the websites of the Assembly, the Council of Europe and the Court
(including the links between the different stages and stakeholders
involved) could be improved further.
3.2 Conclusions
and proposals regarding other issues covered by the report of the
Steering Committee for Human Rights
18. I will only set out the main
proposals made by the CDDH regarding other issues covered by its
report:
- as regards national
selection procedures, the CDDH proposed that the Committee of Ministers
review its guidelines, with a view to ensuring their consistency
with Protocol No. 15 to the Convention (CETS No. 213) (new age limit
for candidates), and that it invite the Advisory Panel to publish
its views on national selection procedures in an anonymised and
non-country-specific manner;Note
- as regards issues related to judges’ active time in office,
the CDDH invited the Council of Europe to address some practical
issues encountered by judges in Strasbourg (schooling for children,
language training, private health insurance, etc.) and concluded
that there was no convincing reason to change the current term of
office of nine years to twelve, as had been suggested by former
President of the Court, Mr Robert Spano;
- as regards incompatible activities during the term of
office and the recusal of judges, the CDDH simply noted the ongoing
process of amendment by the Court of Rule 28 of the Rules of Court
and reiterated the Committee of Ministers’ previous position that
it was not for the Committee of Ministers to take any action about
the Court’s rules on recusal;Note
- as regards the post-mandate recognition of service and
threats and reprisals against judges, the CDDH proposed that the
Committee of Ministers promote more robust and complete recognition
of service as judge of the Court by means of a decision or declaration
calling on States to take action in this respect while also addressing
the issue of threats and reprisals against judges during or after
their terms of office;
- and finally, as regards the appointment of ad hoc judges,
the CDDH welcomed the changes to the Rules of Court on the extension
of the period for which they are appointed and the automatic appointment
of elected judges to serve as ad hoc judges when State Parties have
not submitted their lists of ad hoc judges in advance.Note
19. The Committee of Ministers, in its decisions of February 2024,
agreed to revise its guidelines (to make them consistent with Protocol
No. 15 as regards the new age limit);
Note invited
the Advisory Panel to publish its views on national selection procedures
in an anonymised and non-country-specific manner; and invited its Rapporteur
Group on Human Rights (GR-H) to prepare a draft declaration on the
protection of judges from threats and reprisals, and on recognition
of service as a judge of the Court. On this last issue, on 15 January 2025,
the Committee of Ministers adopted a Declaration on the protection
of judges of the European Court of Human Rights from threats and
reprisals and on the recognition of their service.
Note The
declaration notes that the recognition of service as a judge of
the Court after the end of their mandate is important to guarantee
both the attractiveness of the Court for highly qualified candidates
and the independence of the Court. It calls on member States to
“take appropriate measures to allow judges the possibility to be
granted leave of absence from their former posts, where possible”
and “where possible, take appropriate measures to allow judges to regain
their former or similar posts, or the possibility to accede to posts
at a level that is commensurate with the office that they have exercised
and the experience gained at the Court in order to pursue their
careers, should they so wish”. The Committee of Ministers also addressed
the issue of pension rights of judges, calling on States to permit
judges to remain in the national pension system; ensure adequate
consideration of their terms of office and any benefits accrued;
and where possible, permit their reintegration into the relevant national
pension scheme at the end of their mandate. It further called on
member States to “take appropriate measures to prevent and effectively
address situations in which judges of the Court, both during and
after their mandate, are subject to threats and reprisals because
of their appointment, service or activity as a judge of the Court”.
20. In parallel to the follow-up to its 2023 report, the CDDH
created a new drafting group to evaluate the first effects of Protocols
No. 15 and No. 16 to the Convention (DH-SYSC-PRO).
Note The
CDDH considered the reports prepared by the DH-SYSC-PRO during its
meeting in June 2025.
Note The
report on the effects of Protocol No. 15 examines the effects of
Article 2 of the Protocol which introduced a new age limit for candidates
(less than 65 years of age at the date by which the list has been
requested by the Assembly) and removed the upper-age limit of 70
for termination of office. The modification of this age limit aimed
at enabling highly qualified judges to serve the nine-year term
of office, thereby reinforcing the consistency of the membership
of the Court. It was considered no longer essential to impose an
upper-age limit of 70. The CDDH report notes that while 15 judges
had to leave the Court upon reaching the age of 70 between 1998
and 2021 (date of entry into force of Protocol No. 15) and one judge
currently in office will still have to leave the Court before nine
years due to reaching the age of 70 (since he was elected before
the entry into force of the Protocol), none of the judges elected
after the entry into force of Protocol No. 15 will reach the age
of 70 before the end of their terms of office. This can be explained
by the fact that these judges are generally younger than the ones
that were elected before; indeed, all of these judges were under
60 years of age when they were elected. Although this means that
the new rule has not had any practical effect on the mandate of
the judges currently in office, I understand that extending in theory
the age limit from 70 to 74 has at least ensured that the pool of
potential candidates aged 60–65 is not limited. It is also important
to note that the new age limit is fully taken into account in the
practice (letters) of the Secretary General of the Assembly when
inviting the States Parties to submit lists of candidates.
4 Key
takeaways from the exchanges of views with different stakeholders
21. On 13 May 2024, the Committee
on the Election of Judges to the European Court of Human Rights
met in Vienna with a delegation of the Advisory Panel of Experts,
at the invitation of the Austrian delegation to the Assembly and
the President of the Constitutional Court of Austria, Mr Christoph
Grabenwarter (chairperson of the panel between 2019-2020). This
was an excellent opportunity to openly discuss issues of common
interest regarding the national selection procedures, the interpretation
of the criteria for office laid down in Article 21 of the Convention
and co-operation between the two bodies. The main takeaways from
the discussions can be summarised as follows:
- on national selection procedures: it was noted that the
Advisory Panel was taking stock of current practices with a view
to compiling good practices across member States. The exchanges
with the Advisory Panel (through chairpersons or secretariat) on
national selection procedures should be enhanced. The committee
would also appreciate if the Advisory Panel could look into the
issue of gender balance of national selection bodies. It was also
important to advise governments to choose one or more reserve candidates.
The Advisory Panel would also try to include views on national selection
procedures in its activity reports and in its short guide, in line
with the recent decisions of the Committee of Ministers;
- interpretation of the criteria for office laid down in
Article 21 of the Convention: if the Advisory Panel considered that
a candidate combined elements of both criteria under Article 21.1
(“possess the qualifications required for appointment to high judicial
office” and “jurisconsults of recognised competence”) whilst the
threshold of either of the criteria is not met, it should disclose
which candidate is concerned and include human rights knowledge/sensibility
and Convention experience among the elements to be taken into account
as a compensating factor. A section on human rights experience has been
reintroduced in the new curriculum vitae format. It was also proposed
that the panel gives the committee a brief overview of the hierarchy
of the courts of the country concerned. With regard to the independence
and impartiality of candidates, including when national civil servants
and government agents were put forward, the consensus was that this
issue should be examined on a case-by-case basis.
- co-operation between the committee and the Advisory Panel:
it was agreed that a joint meeting between both bodies should be
held at least every two years and when there was a new activity
report by the panel in between.
22. The exchange of views with the former President of the Court
on 10 June 2024 had a wider scope. It did not only deal with the
election procedure and the interpretation of the criteria for office,
but it also touched upon issues such as the independence and impartiality
of judges during the term of office and the updated recusal rule
in the Rules of Court; recent procedural reforms including the revised
Rule 39 (indication of interim measures to States Parties in the
case of imminent risk of irreparable damage) of the Rules of Court;
post-mandate recognition of service for career and pension purposes:
practical difficulties related to the term of office and life in
Strasbourg (residence requirement); language requirements; extension
of the term of office due to the non-election of a new judge; and
public statements of former judges. As regards the issue of the extension
of the term of office in cases of non-election of a new judge in
due time, President O’Leary reiterated that the Convention did not
provide for a solution at present but that the 9-year non-renewable
mandate should be applicable equally across member States. The question
of the post-mandate situation of judges, interlinked with that of
the independence of judges and the attractiveness of the post, had
been addressed several times in the past (including by the Committee
of Ministers and the Assembly), with no tangible results. She indicated that
she had repeatedly emphasised before the Committee of Ministers
the need to tackle this issue once and for all, stating that judges
need to have their service on the Court recognised for employment
and pension purposes when reintegrating their national systems.
Note
23. There was general agreement that exchanges between the committee,
and the President of the Court should be held regularly, for instance
every two years; and that the President of the Court could also
be invited to address the plenary Assembly once a year or at least
once during their mandate. President O’Leary invited the committee
to visit the Court and exchange with the President and the Bureau
of the Court.
24. These proposals have been successfully implemented. For example,
in January and June 2025, Presidents Bošnjak and Guyomar both addressed
the Assembly in the context of two debates: “The need for a renewed
rules-based international order” and “The European Court of Human
Rights: rising to the challenges of our times”. On 28 January 2025,
the committee met with the Court's Bureau to discuss issues such
as the attractiveness of the judge position, national selection
procedures, criteria for office, and the election procedure. All
participants agreed that these joint meetings should be regular
and longer. I intend to invite the Bureau of the Court to one of
our upcoming meetings in Paris for a half-day session.
25. I should also briefly present some of the proposals discussed
by the former judges and experts that we heard at the hearing held
on 24 March 2025:
- a more robust
text might be needed to address the issue of post-mandate recognition
(not only a declaration of the Committee of Ministers);Note
- there are no reasons to change the current term of office
(from 9 years to 12 years);Note
- the composition of national selection committees should
not be dominated by the executive branch and should include a variety
of representatives from the judiciary, lawyers, civil society, academia,
and former Court judges (of a different nationality). The committee
could play a significant role in imposing harmonisation of the composition
of national selection committees;Note
- civil society should play a greater role in the evaluation
of candidates, which should be more transparent, following the examples
of the Inter-American and African systems, including through more
media attention;Note
- the requirement for competence/knowledge in international
human rights law should be expressly mentioned in the Convention
as it is in the American Convention on Human RightsNote and the Ouagadougou
Protocol.Note At the very least, this should
be a central element of the candidates’ assessment in practice;Note
- the committee’s interviews with the candidates should
be longer and focus on assessing how the candidates’ views align
with European standards of protection, following the approach used
by the panel of experts (from academia and civil society) in the
Inter-American system; Note
- the presence of diversified profiles on each list of candidates
should be ensured (for example a career judge, an academic and a
lawyer);Note
- when electing judges, the Assembly should take into account
the different political situations and contexts in each State, including
the growing pressure on the judiciary in some countries, as well
as the risk of some States influencing the selection of judges who
align with their governments;Note
- the post-mandate situation of judges should be properly
addressed, as it is a risk factor for the independence of Court’s
judges, who are generally elected now at a younger age;Note
- qualifications such as knowledge of the second language
limit the pool of potential candidates.Note
- the Assembly could force governments to take responsibility
and go “head hunting” for highly qualified candidates and to arrange
issues related to status and post-mandate recognition, by using
its power to reject lists;Note
5 Proposals
to modify the existing procedure and rules and to further improve
the election of judges to the Court
26. The importance of maintaining
the highest quality of judges selected and elected to the Court
is central to the success of the Convention system and the authority
and legitimacy of the Court. Although the committee’s and the Assembly’s
procedures concerning the election of judges have been significantly improved
over the years, the time has come for the Assembly to review and
refine, if necessary, certain aspects of its practice and/or rules.
It should also formulate new recommendations on the different aspects
relating to the election of judges to the Court and its different
stages.
5.1 National
selection procedures
27. The key requirements for the
fairness and transparency of national selection procedures are contained in
the guidelines of the Committee of Ministers (sections III-VI).
Note Basing
itself on these guidelines, the Assembly (and the committee) have
gradually placed a greater emphasis on this issue. The committee
has rejected lists on procedural grounds when the Advisory Panel
had not been consulted properly, or there was no clear national
selection procedure at all. The committee also decided not to accept
any more lists where candidates were not interviewed at the national
level. It has also rejected a list on procedural grounds where the
national selection procedure, whilst elaborate and transparent,
had been heavily dominated by representatives of the government.
More recently, the committee has rejected a list on the ground that
the national selection procedure had not been sufficiently transparent,
as the possibility of presenting candidates to the selection body
was limited to a number of official entities and it was not clear
how these entities had made their initial selection. It has also
rejected a list because it could not be presumed that the members
of the selection body were free from undue influence.
28. The Advisory Panel, in its assessment of lists of candidates,
has also identified a number of challenges, shortcomings and practices
that fall short of the required standards. According to its latest
activity report (the sixth one) the panel identified concerns in
relation to the national selection procedure in at least 15 of the
35 lists examined during the period concerned (July 2022-June 2025).
The issues identified by the panel concern: insufficient number
of candidates; lack of sufficient publicity of calls and too short
deadlines to apply; lack of balanced composition of national selection
bodies; excessive role for the executive or the president of the republic;
lack of clarity of the evaluation criteria and final decision making;
excessive political influence and exclusion of highly qualified
candidates: lack of effective interviews and evaluation of language
skills; and insufficient information provided to the panel. While
the panel does not have the mandate to reject lists or give a negative
opinion on a list only on the basis of the procedure, it can address
specific questions on procedural issues to the respective government
before issuing its opinion. It can also highlight in its opinion
its concerns about the procedural shortcomings identified, while
giving a positive substantive assessment on the candidates. In its
recent practice, the panel has referred to procedural issues more
frequently in its opinions transmitted to the committee. For example,
in one opinion, it was noted that a new nationality requirement (excluding
dual nationals) had a negative impact on the pool of potential candidates.
Note In another
case, the panel noted the decisive role played by a commission composed
exclusively of officials from the president’s office, which was
also the only body to conduct interviews, with the exclusion of
the judicial body which had participated in the shortlisting process.
29. The recent practice by the panel and the committee reveals
that procedural challenges remain. In some instances, the panel
and the committee do not share the same concerns as regards a specific
procedure. It would therefore be useful to further clarify and revise
the guidelines of the Committee of Ministers in relation to the
requirements applicable to national selection procedures.
Note For instance, the guidelines
could clarify what is exactly meant by “balanced composition” of
the selection body and how to ensure that the body is “free from undue
influence”. In this respect, the explanatory memorandum to the guidelines
states that the selection body “is generally established under the
authority of the government and contains members drawn from the administration,
and thus cannot be considered independent in the strict sense of
the word. It should nevertheless be free from undue influence since
the composition of the final list of candidates must not be, and must
not appear to be a result of political patronage or preference”.
Based on best practices, the guidelines could for example indicate
that as a general rule members of the selection body should be drawn
from the ombudsperson’s office, the judiciary, the bar association,
academics or human rights experts, besides the relevant ministries
and the executive. The government-appointees should not dominate
the composition of the selection body, and a significant proportion
or the majority of its members should come from outside the governmental
structure. This would reinforce the appearance of independence of
proposed candidates vis à vis the government nominating them. This
is in fact what can be found in the majority of national procedures reviewed
(see appendix): in at least 32 countries, it appears that the national
selection bodies do not have a majority of governmental representatives.
Note
30. The revised guidelines could also stipulate that the composition
of the selection body should be disclosed in advance, not only for
the candidates but also for the public, for the sake of transparency.
The general composition should be set out in the relevant regulation
(statutory law or government decree) and not left to the discretion
of the relevant minister, for the sake of predictability. Member
States should also ensure gender balance within national selection
bodies, as previously requested by the Assembly.
Note The
role of civil society, even if only with an observer capacity, could
also be further encouraged, as suggested by some experts. However,
civil society representatives should be sufficiently qualified in
order to participate in selection panels. Another important issue
is that all candidates should be treated equally in the national
selection process. For instance, if one candidate is offered an
online interview, this should be made available to all candidates
who request it.
31. Other examples of good practice that have been identified
in recent national procedures include:
- representatives of civil society, legal professions or
independent institutions are present in the interviews (Bulgaria,
Poland);
- the national selection body seeks advice from former judges
at the Court in respect of the country concerned (Norway, Sweden)
or includes one among its members (Greece, Italy, Liechtenstein, Netherlands,
Republic of Moldova);
- if the final decision maker considers deviating from the
selection body’s recommendation, it must ask the selection body
for an opinion on the applicants who were not shortlisted (Norway);
- relevant documents from the Council of Europe on the election
of judges are translated into the national language and made available
to the national selection body (Poland).
32. In the absence of a revision of the guidelines of the Committee
of Ministers, or pending such a revision, the Assembly could invite
member States to draw inspiration from some of these examples as
a means of ensuring their full implementation and of preventing
some of the above-mentioned shortcomings.
5.2 Substantive
criteria for office
33. The substantive criteria for
the election of judges are laid down in Article 21.1 of the Convention,
which states that “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”.
34. The Assembly has over the years given further indications
as to the qualities it expects from candidates. These include the
requirements that the areas of competence of candidates shall not
“appear to be unduly restricted”
Note and that the candidates have “experience
in the field of human rights”
Note either as practitioners
or as activists in NGOs working in this area.
Note Another requirement that
can be found in the Assembly’s texts is that as far as possible
no candidate should be submitted whose election might result in
the necessity to appoint an ad hoc judge.
Note This requirement is however not
always applied when it comes to candidates who have previously acted
as judges in the highest courts of their countries. The Assembly
also requires an active knowledge of one of the official languages
and (at least) a passive knowledge of the other,
Note although this does not strictly
derive from Article 21.1 of the Convention.
35. The guidelines of the Committee of Ministers (paragraph II)
reproduce the criteria laid down in Article 21.1 of the Convention
and the language requirement. They also state that “candidates need
to have knowledge of the national legal system(s) and of public
international law. Practical legal experience is also desirable”.
They do not refer to knowledge or experience in the field of human
rights.
36. Over the years, the Advisory Panel has applied the criteria
under Article 21.1 of the Convention, having due regard for the
guidelines of the Committee of Ministers. Its 2025 activity report
provides an excellent summary of how it has interpreted the two
alternative professional qualifying conditions provided for in this provision:
possessing “the qualifications required for appointment to high
judicial office” or being “jurisconsults of recognised competence”.
Note In both
cases, it requires professional experience of long duration at a
high level. Knowledge of human rights law is only one component
of the assessment, as the acquisition of qualifying professional
expertise is also possible in other legal fields such as constitutional,
European or public international law. Candidates with an international
background are expected to have sufficient familiarity with their
national legal system. Extensive and sufficiently high-level experience
of practice of the law opens the door to legal professionals other
than judges and academics (under the heading “jurisconsults of recognised competence”),
such as practicing lawyers, legal advisors or civil servants of
public bodies and international organisations. In some cases, the
Advisory Panel seeks to identify whether legal professionals who
fall short of the required level of experience have any compensating
factor, such as experience in the field of human rights. On the
basis of an overall assessment of the curriculum vitae, the panel
may also accept that a combination of elements falling under the
two professional categories mentioned in Article 21.1 of the Convention
renders the expertise sufficient.
37. In the majority of cases, the Committee on the Election of
Judges gives particular weight to the panel’s opinions on whether
the candidates comply with the substantive criteria. For example,
it has now become established practice for the committee to reject
lists without interviews when the panel has issued a negative opinion
on at least one candidate and the government concerned has nevertheless
submitted the list to the Assembly. Differences in assessment between
the panel and the Assembly may occasionally arise, particularly in
dubious cases. This is explained by the fact that the panel may
deem all candidates acceptable “on paper”, but the committee may
find after the interview that one or more candidates do not comply
with the minimum requirements. In recent years, there have also
been cases where the panel has accepted a candidate and the Committee
on the Election of Judges rejected him/her without even conducting
an interview, on the sole basis of the curriculum vitae.
Note Discrepancies
cannot be completely avoided as the two bodies have different compositions
and roles, but their regular joint meetings should help to clarify,
as far as possible, the interpretation of the substantive criteria
provided for in Article 21.1.
38. In light of the relatively well-established interpretation
and application of the somewhat general eligibility criteria under
Article 21.1, I see no reason to amend the text of this Convention
provision, as some experts have suggested.
Note The
criterion of the experience in the field of human rights, which
is expressly mentioned in the Assembly’s template curriculum vitae,
can form part of the overall assessment of the candidates’ professional
career, without expressly mentioning it in the Convention. Article
21.1 is sufficient to identify the standards that must be met and
the possible professional career paths that may lead to them. However,
I suggest we include this criterion explicitly in our new resolution,
and that the Committee of Ministers includes it in its guidelines
if and when they are updated.
39. I also suggest that the new resolution should highlight the
need for candidates to have knowledge of, or at least be familiar
with, the national legal system of the State that is putting forward
their candidacy. Former and current judges of the Court have emphasised
the important role of “national” judges in the Court's judicial formations.
Recent elections involving small-sized and other countries have
demonstrated that the nationality of the candidates is not as important
as their connection to and familiarity with the relevant national
legal system.
40. Another suggestion made during our expert hearing was to introduce
a binding rule in our texts or practice that governments should
put forward a balanced list of candidates with different professional
profiles (e.g. one career judge, one lawyer and one academic). In
my view, this would be too rigid and further complicate the pre-selection
process for States. However, I suggest that we emphasise the importance
of diversity among the Court's judges in the draft resolution, bearing
this in mind when examining lists of candidates.
5.3 Gender
balance
41. Unfortunately, women are still
under-represented at the Court, accounting for less than 40% of
the total number of judges.
Note I note with satisfaction
that some States (Andorra, Cyprus) have recently submitted all-female
lists, something which is fully in line with the Assembly’s rules
as codified in 2011.
Note In this scenario, the Assembly strictly
applies the “exceptional circumstances” high threshold to justify
exceptions to the rule that the lists submitted must contain at
least one female candidate. While the Committee on the Election
of Judges had previously accepted all-male lists on this basis (on
two occasions in 2012), in 2022 it rejected an all-male list despite
the explanations provided by the relevant minister. This demonstrates
the Assembly’s commitment to addressing the issue of gender balance
and the ongoing under-representation of women at the Court.
42. Having regard to our strict approach to this matter, I do
not consider it necessary at this stage to propose an amendment
to Article 22 of the Convention to incorporate the requirement of
gender balance for the submission of lists in the Convention itself,
as the Assembly had done years ago.
Note
5.4 Post-mandate
recognition of service
43. The Assembly has consistently
expressed concern about the post-mandate situation of judges of
the Court.
Note Many
stakeholders in the Convention system have noted the risks posed
by the professional uncertainty the judges face after the end of
their mandate to their perceived independence and the attractiveness
of the post of judge. These considerations may weigh heavily when
potential candidates of the highest professional standing make up
their minds about whether or not to apply for the post of judge
at the Court, which would require them to interrupt their national
careers for nine years if elected. Former judges may face a number
of significant difficulties, whether as a result of prolonged absence
from the domestic legal system or even arising out of the exercise
of their mandate. Some former judges have been unemployed or given
no opportunity to resume their career at the national level.
44. Following the CDDH recommendations, the Committee of Ministers
adopted a declaration on this matter on 15 January 2025 (see paragraph
19 above). It is doubtful whether a declaration will be sufficient,
given the differences in national legal systems and the leeway that
the declaration leaves to States Parties, by using the term “where
possible” or “where appropriate” in most of its recommendations.
My view is that a more robust text in the form of a Committee of
Ministers’ recommendation with more concrete guidelines would best
fit the purpose. The Assembly should therefore invite the Committee
of Ministers to supplement the declaration with a future recommendation
addressed to member States, containing more concrete guidelines
and based on best practices from member States. This work could
use the information on the recognition of service as a judge of
the Court provided to the DH-SYSC-JC in 2023 as a starting point.
Note
5.5 The
election procedure before the Assembly
45. The 2023 CDDH report did not
make any substantial recommendation to modify the procedure in the committee
or in the plenary Assembly. The only new proposal concerned the
invitation to the Assembly to publish its conclusions and its reasoning
when rejecting lists on procedural grounds (see my position on this
in paragraph 16 above). The current procedure is explained in detail
in the memorandum prepared by the Secretary General of the Assembly
(SG-AS(2025)01).
46. During the preparation of this report, the committee has again
discussed some of the issues that were raised in 2018, such as the
extension of the duration of the interviews and the voting rights
of committee members from the State whose list is under consideration.
There was a clear consensus to maintain the current practice on
these matters.
47. However, I propose to introduce certain changes to our rules
in order to address unforeseen problems that have recently arisen.
Where necessary, the chairperson of the committee or another committee representative
(for example a vice-chair) should be entitled to speak in the debate
on the progress report of the Bureau and the Standing Committee.
This would be rather exceptional, used only to present the committee’s recommendations
in specific cases, for instance when there is an attempt to challenge
the committee’s recommendation to reject a list in the plenary.
The chairperson could explain why the committee decided to reject
a list, particularly in cases where such a rejection was on procedural
grounds or due to non-compliance with the gender balance rule. It
would not be appropriate to do the same concerning rejections on
substantive grounds, as any explanation in the plenary could affect
the reputation of the candidates concerned.
48. Another aspect that needs revising is the possibility for
candidates to withdraw from the list at any moment before a vote
by the Assembly (see Appendix to Resolution 1432 (2005)). This scenario
recently occurred, blocked an election at the last minute (Cyprus,
2025). While candidates may have their own reasons for doing so,
this results in the suspension of the procedure until the candidate
is replaced by the government, and the repetition of interviews
for the remaining candidates, with the possibility that the committee’s recommendation
may change after the second round of interviews. We could clarify
that the Assembly shall only interrupt the election procedure if
the withdrawal takes place before the committee’s recommendation
is made public. In such a case, the government shall be invited
to replace the candidate who has withdrawn, who will have to be
assessed by the Advisory Panel and interviewed by the committee,
together with the other candidates who remained on the list. After
the publication of the committee’s recommendation, the election procedure
will in any case proceed, on the basis of the list of three candidates
originally submitted. It is important to underline that according
to the wording of Article 22 of the Convention the Assembly shall
elect “from a list of three candidates nominated by the High Contracting
Party”. The Assembly could also codify the existing practice that
the list of candidates, once submitted to the Assembly, can only
be withdrawn or modified by the government before the expiry of
the deadline given by the Secretary General of the Assembly. After
the expiry of such deadline, the government can no longer withdraw
or modify the list on its own initiative. It can only replace candidates
who have withdrawn.
Note
5.6 Delays
in the submission of lists and automatic extension of the mandate
of the sitting judge beyond the term of office
49. Delays in the presentation
of lists by some States Parties, including those that need to replace
one or more candidates following a rejection by the Assembly, may
result in the automatic extension of the mandate of the sitting
judges beyond their term of office. Article 23.2 of the Convention
clearly states that “the judges shall hold office until replaced”.
If the sitting judge has decided to leave (for private or professional
reasons), it may result in the absence of a sitting judge in respect
of that State, with the consequence of having to appoint ad hoc
judges for each case against that State. This situation does not
only create problems and uncertainty for the Court and the sitting
judges concerned, including in terms of workload distribution, composition
of sections and private life, but also fundamentally goes against
the logic and spirit of the nine-year non-renewable term of office
introduced by Protocol No. 14. The issue was raised by the Vice-President
of the Court Ms Ivana J
elić at the seminar marking the 15th anniversary of the Advisory
Panel on 27 November 2025. The most extreme case is the situation
of the sitting judge in respect of Bosnia and Herzegovina, who has
remained in office beyond the end of his term of office in 2021,
due to the non-submission of a list by his State. He is not the
only case in the history of the Court.
50. There is consensus within the committee that the Assembly
should propose introducing a new mechanism to prevent these situations
and put pressure on the States Parties concerned to submit acceptable lists
in due time. This could be achieved by amending Article 23.2 in
a way that sitting judges would only be able to remain in office
for up to one additional year after the expiry of their nine-year
term, namely for a total of ten years. After the tenth year, the
country concerned would not have a sitting judge on the Court if
a new judge has not yet been elected. The Court could still continue
to process cases against that State, as it could appoint ad hoc
judges in accordance with its own Rules, including sitting judges
elected in respect of other States Parties.
Note
51. I am aware that an amending protocol to the Convention requires
consensus at the intergovernmental level and could take many years
to be agreed upon and come into force.
Note I am of
the view that the Assembly should however launch the proposal in
its new recommendation to the Committee of Ministers, also to signal to
governments that judges’ terms of office should not be
de facto extended in this way and
that this creates problems for the functioning of the Court.
5.7 The
Advisory Panel and its co-operation with the Assembly
52. The functioning of the Advisory
Panel and its recent co-operation with the Assembly is described
in the panel’s last activity report. In 2010, the Assembly welcomed
the initiative to establish a panel of experts to advise governments
before lists of candidates are submitted to the Assembly.
Note Since
then, and even more so since the creation of a fully-fledged Assembly
committee in 2015, the two bodies have endeavoured to co-operate
as closely as possible while recognising the different roles they
play in the process. Since 2019, and as a reflection of the closer
co-operation, the chairperson or a representative of the panel has
been invited to explain the reasons for the panel’s views on lists
during briefing sessions scheduled before the discussion on each
list of candidates. More joint meetings were also held to discuss
issues of common interest. The respective secretariats also co-operate
more closely to avoid misunderstandings and prepare the briefing sessions.
However, there is still room for improvement.
53. When it comes to national selection procedures, the panel
has been traditionally cautious when addressing this issue in its
own opinions to governments, which are also shared confidentially
with the committee. The mandate given to the panel is to advise
States on whether candidates meet the criteria for office under
Article 21.1 of the Convention and paragraph II of the guidelines
of the Committee of Ministers, therefore excluding the criteria
stipulated in paragraphs III-V of the guidelines relating to the
national selection procedures. Under the terms of paragraph VI.2
of the guidelines of the Committee of Ministers, when sending its
list of candidates to the panel, a government should also submit
information on the national selection procedure followed. The panel
has deduced from this requirement that, while it has no express
power of review in this domain, in its final views on the candidates
it may, where appropriate, draw attention to aspects of the national
selection procedure. In recent times, the panel has referred to
procedural issues more frequently in its opinions transmitted to
governments, including in its written opinions sent to the Secretary
General of the Assembly. The panel’s views on the selection procedures
are extremely useful, since they help the committee in its own assessment
of these procedures. The panel has the opportunity to clarify issues
and put questions to the governments concerned at an earlier stage,
before the list is submitted to the Assembly. For these reasons,
I suggest that we include in the draft recommendation a proposal
to revise the Committee of Ministers’ resolution on the panel, giving
the panel an explicit mandate to advise governments on national
selection procedures. During the seminar marking the 15th anniversary
of the panel, one of its members raised the possibility of going
even further by giving the panel the power to sit on national selection
bodies as observers. I think that this requires careful consideration,
particularly with regard to the budgetary and practical issues involved.
54. In the meantime, the committee will continue to explore ways
to enhance its co-operation with the panel, including through more
effective and timely ways to share information and avoid misunderstandings.
6 Conclusions
55. The authority and legitimacy
of the Court depend on the quality and independence of its judges.
At a time when the Court is being criticised for certain aspects
of its case law, including from top politicians, and when the Convention
system and the international legal order are facing new and unprecedented
challenges, it is crucial that all stakeholders, including the governments,
assisted by the Advisory Panel and the Assembly, ensure that the
judges elected to the Court are of the highest calibre, through
the best possible national selection procedures and a rigorous and
consistent election process in the Assembly. This is central to
the continuing success of the Convention system, which has a history
spanning 75 years, and to which member States recommitted only three
years ago at the Reykjavik Summit. Critics of the Court should be
reminded that its judges are elected democratically by a political
body composed of members of national parliaments. The Court’s democratic
legitimacy derives from the fact that its judges are elected by
a body that reflects the prevailing political trends across member
States. That is why opposing the Court and its supposedly far-reaching
interpretation of the Convention, and democratic governments and
parliaments, is not justified. The system is based on the principles
of subsidiarity and shared responsibility, as well as the democratic
legitimacy given to the Court by the Assembly.
56. The procedure leading up to the election of the judges of
the Court must be beyond reproach, both at the level of national
selection procedures and of the Assembly. This is important for
the credibility of the Court as well as for attracting the interest
of candidates with the requisite high level of professional qualifications
and experience. In order to attract candidates of the highest calibre,
it is necessary to ensure that they are in a position to have confidence
in the quality, consistency and fairness of the selection process
at national level and the election process at the Council of Europe
level. Considerable improvements have been made over the past decades
at both levels, including through new tools created by the Committee
of Ministers (guidelines of the Committee of Ministers, Advisory
Panel) and the consolidation and strengthening of the election procedure in
the Assembly, including the procedure before the Committee on the
Election of Judges.
57. However, there is always room for improvement. Following in-depth
discussions on possible reforms with various stakeholders and within
the committee, I propose certain changes to the rules and procedures,
as well as proposals and recommendations directed at different stakeholders,
including the States Parties, the Committee of Ministers, the Advisory
Panel and the Court. These are reflected in the draft resolution
and draft recommendation. The main changes and proposals are as
follows:
- the codification of
examples of good practice in recent national selection procedures
that could help States Parties to improve the fairness and transparency
of their own procedures;
- the invitation addressed to the Committee of Ministers
to consider revising its guidelines to include these examples as
best practice with a view to refining the requirements;
- the reference to the knowledge of the national legal system
and the experience in the field of human rights as qualities that
the Assembly will take into account when assessing candidates;
- the recommendation addressed to the Committee of Ministers
to supplement and develop its January 2025 Declaration on the protection
of judges of the Court from threats and reprisals and on the recognition
of their service with a more robust text, namely with a recommendation
based on good practice;
- the proposal to amend the Convention in order to prevent
the lengthy extension of the mandate of a sitting judge beyond the
term of office, and to limit it to one year after the end of the
nine-year term in case he or she has not yet been replaced (total
of ten years);
- the proposal to give the panel an explicit mandate to
advise governments on national selection procedures;
- the chairperson of the Committee on the Election of Judges
should have the right to speak in the debate on the progress report
of the Bureau and Standing Committee, to present the committee’s recommendations
when necessary;
- the election procedure should be interrupted if one of
the three candidates withdraws only if the withdrawal takes place
before the committee’s recommendation is made public, not after;
- the invitations addressed to the panel and the Court to
maintain and enhance their dialogue and co-operation with the committee.
