Doc. 9963

7 October 2003

Candidates for the European Court
of Human Rights

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Kevin McNamara, United Kingdom, Socialist Group

Summary

If the European Court of Human Rights is to command confidence, the process by which the judges are elected must echo the principles of the democratic method, the rule of law, accountability and transparency.

National procedure for nominating candidates must therefore meet a number of requirements, otherwise the Assembly should not consider the list of candidatures.

The Assembly also takes the view that a non-extendable nine-year term of office would guarantee continuity and strengthen the Court’s independence.

I.       Draft recommendation

1.       An independent judiciary is indispensable for the protection of human rights and fundamental freedoms.

2.       In order that the European Court of Human Rights continues to command public confidence, it is vital that the process by which judges are selected and appointed must also command confidence.

3.       The Parliamentary Assembly insists that the process of appointment must echo the principles of the democratic method, the rule of law, accountability and transparency.

4.       It is the statutory responsibility of the Parliamentary Assembly of the Council of Europe to elect a judge in respect of each contracting State to the European Convention on Human Rights on the basis of a list of three candidates submitted to it by the high Contracting Parties.

5.       In order to improve its own procedures in respect of the elections the Assembly decided in 1996 to draw up a model curriculum vitae to be sent to all candidates and resolved to invite the candidates to interviews to be held by an ad hoc Sub-Committee on the Appointment of Judges of the Committee on Legal Affairs and Human Rights.

6.       In light of the expansion of the Council of Europe and the increasing workload of the European Court of Human Rights, the Committee of Ministers established on 7 February 2001 an Evaluation Group to examine means of guaranteeing the future effectiveness.

7.       Discussion on necessary reforms to the Court and its procedures has been fruitful and is still ongoing.

8.       The Assembly notes that non-governmental organisations have made an important contribution to this debate and encourages all those with an interest in the promotion of human rights to participate.

9.       The ability of the Court to act without fear or favour will be strengthened by ensuring for its judges the appropriate status and remuneration, terms and conditions and security of tenure until the mandatory retirement age or expiry of the fixed term of office.

10.       The Parliamentary Assembly believes it has a legitimate role in contributing to the enhancement of employment conditions that will enable judges to work more efficiently. It is necessary to:

i.       ensure that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities;

ii.       provide adequate support staff and equipment to ensure that judges can act efficiently and without undue delay;

iii.       take all necessary measures to ensure the safety of judges, including the presence of security guards on court premises or providing police protection for judges who may become or are victims of serious threats;

iv.       ensure that Judges of the Court are entitled to freedom of expression and association subject to the qualification that their exercise of these rights is in a manner that preserves the dignity of their office, impartiality and independence.

11.       The Assembly notes that the Working Group on the Status of Judges found that current pension arrangements and other Social Security arrangements for judges and their families are inappropriate when compared to other international courts, to senior Council of Europe staff or national judges and that negotiations are now in progress.

12.       The Assembly notes that terms of office of one-half of the judges elected at the first election shall expire at the end of their six-year term of office in November 2004 and consequently that it is necessary to begin the process of selection and election in November 2003.

13.       The Assembly considers that a nine-year period of appointment would contribute to the greater efficiency and continuity of the Court and would consolidate its independence. Measures should be taken in order to preserve the rights of judges in office.

14.       The Assembly again draws the attention of members of the Court to the duty of all judges to retire upon reaching the age of 70. Further, it urges all Contracting Parties to the Convention to ensure that, where a vacancy may be foreseen, arrangements be put in place to ensure continuity and that a new list of candidates be submitted six months prior to the requirement for replacement.

15.       The Assembly reiterates that in any situation when a post falls vacant, whether by reason of resignation, death or other circumstance, it is the responsibility of the High Contracting Party to initiate the process of by-election by submitting a list of three candidates according to the rules as prescribed.

16.       The Assembly endorses the procedure adopted by the Legal Affairs and Human Rights Committee for by-elections to the Court

17.       The Assembly notes that the Committee of Ministers has been reluctant to comment the decision-making process in member states for the nomination of candidates; recalling that the national procedures for selecting candidates are not always satisfactory, it urges member states to publish their procedures for the selection of candidates for the Court.

18.       In particular, the Assembly believes it is not satisfactory merely to assert that the gender balance of the Court reflects the under representation of women in the judiciary of the member states. It is in the interests of the effectiveness of the Court for the Committee of Ministers and the Assembly to address this issue in considering procedures for the appointment of judges.

19.       In addition to the moral qualities and experience properly expected of candidates, laid down in Article 21(1) of the Convention, the Assembly recommends to the Committee of Ministers to invite the Governments of the member states to meet six other criteria before submitting lists of candidates for the office of judge in the European Court of Human Rights and explicitly to ensure:

i.       that a call for candidatures has been issued through the specialised press;

ii.       that candidates have experience in the field of human rights;

iii.       that the list contains candidates of both sexes in every case;

iv.       that the candidates have a sufficient knowledge of at least one of the 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.

20.       The Assembly also urges the Governments of member states to notify their Parliaments and their appropriate committees of their procedures and timetables when drawing up lists of candidates for the Court.

21.       It invites the Committee of Ministers, on the occasion of the forthcoming revision of the Convention, to introduce the following amendments:

“Article 22- Election of judges

1….

2…

3 The same procedure shall apply to the replacement of a judge who is compelled to withdraw. (otherwise unchanged).

Article 23 – Term of office

1. Judges shall be elected for a term of nine years, including those elected to fill casual vacancies. They may not be re-elected. (otherwise unchanged)”

22.       The Assembly urges all parties involved in the Working Group on the status of judges to reach a speedy and mutually satisfactory conclusion.

23.       The Assembly invites NGOs to put forward suggestions for procedures and potential candidates.

II.       Draft resolution

1.       The Parliamentary Assembly, referring to its Recommendation (2003) …, continues to support the procedure by which candidates are asked to complete a standard curriculum vitae and believes the model to be used should be kept under review by the Ad hoc Sub-Committee on the Election of Judges to the European Court of Human Rights and proposals for modification reported for adoption by the Assembly.

2.       The Assembly remains convinced that the twelve-month timetable it has adopted provides a practical model for all participants; resolves nevertheless to keep its targets under review.

3.       The Assembly decides not to consider lists of candidates where:

i. the areas of competence from which the candidates have been selected appears to be unduly restricted;

ii. the list does not include at least one male and at least one female candidate;

iii. on examination of the candidates,

a.        they do not appear to have sufficient knowledge at least one of the official languages, or

b.        they do not appear to be of the stature to meet the criteria in Article 21(1) of the Convention.

4.       The Assembly continues to believe that the process of interview provides additional insight into the qualities of the candidates and decides:

i.       that nominated candidates should be informed as far as possible of the purpose of the interview and procedures for its conduct;

ii.       that alternative locations for interviews should be considered if a practical case can be made for interviews to be held outside Strasbourg and Paris;

iii.       that further staggering or additional sessions of the Sub-Committee might permit an extension of the time available for each interview;

iv.       that candidates should be made aware of the criteria employed by the Sub-Committee in reaching its decision;

v.       that a fair and efficient interview process requires a continuous process of training and re-assessment for the members and staff involved in panels;

vi.       that the obligation to promote an open and transparent process might require the Sub-Committee to give reasons for its recommendations and ranking of candidates;

vii. that it would be desirable to provide a timely feedback to both the individual candidate and the nominating state.

5.       The Assembly refers to its report on the procedure for elections held by the Parliamentary Assembly other than those of its President and Vice-Presidents, currently under preparation in the Committee on Rules of Procedure and Immunities, which aims at changing the procedure for the elections for example by removing the requirement for a second ballot when a candidate fails to receive an overall majority on the first ballot or in the event of a tied result.

6.       The Assembly, being concerned to ensure the independence and impartiality of judges, decides that their appointment should run for nine years non-renewable and considers that pending an amendment of the Convention, the application of Article 23.3 of the Convention could be used to secure this end.

7.       The Assembly decides to investigate at the national and European level what obstacles currently exist to the nomination of women candidates; what measures could be taken to encourage female applicants; and to consider whether there is a case for setting targets for achieving greater gender equality in the composition of the Court.

III.       Explanatory memorandum

      by Mr McNamara, Rapporteur

A.        Introduction

1. International law provides that an independent judiciary is indispensable for the protection of human rights and fundamental freedoms. It further provides that the independence of the judiciary is guaranteed, that measures may be required to give effect to that guarantee, and that measures may be taken to ensure that judicial decisions will be taken without improper influence or interference from any source.

2. The United Nations Basic Principles on the Independence of the Judiciary endorsed by the UN General Assembly in November 1985 highlight the importance of selection and career management of judges based on objective criteria of merit such as integrity, ability and efficiency without discrimination on grounds of sex, race, colour, national or social origin, religious or other opinion.

3. In order that the European Court continues to command public confidence, it is vital that the process by which judges are selected and appointed must also command confidence. The Assembly insists that the process of appointment must echo the principles of the democratic method; the rule of law; accountability and transparency.

4. Following the adoption of the Protocol No 11 to the European Convention on Human Rights and Fundamental Freedoms, the permanent European Court of Human Rights was inaugurated on 3 November 1998.

5. As Lord Kirkhill recalled in his report on the Election of Judges to the European Court of Human Rights (Doc 8460, 9 July 1999), it is the statutory responsibility of the Parliamentary Assembly of the Council of Europe to elect a judge in respect of each contracting State to the Convention on the basis of a list of three candidates – who do not necessarily have to be nationals of that State - submitted to it by the Committee of Ministers.

6. The Parliamentary Assembly resolved to support the proposal set out in a letter written by the Secretary General of the Parliamentary Assembly agreeing a request of the Committee of Ministers that it should have first sight of the list. The three candidates are essentially the candidates proposed by the State in question. On no occasion has the Council of Ministers modified the list. Indeed it has merely noted that while the precise procedures used nationally for selection of candidates were a matter for each state, these should nonetheless respond to standards of transparency and fairness and be applied in a consistent manner

7. Acting on the proposal of the Committee on Legal Affairs and Human Rights set out in Resolution 1082 (1996), the Assembly decided to improve its own procedures in respect of the elections. First, it was decided to draw up a model curriculum vitae to be sent to all candidates. Second, it was resolved to invite the candidates to brief interviews to be held by the ad hoc Sub-Committee on the Appointment of Judges. It would then make a recommendation to the Assembly.

8. In light of the expansion of the Council of Europe and the increasing workload of the European Court of Human Rights, the Committee of Ministers established on 7 February 2001 an Evaluation Group to examine means of guaranteeing its future effectiveness. Its terms of reference, with due regard to the judicial status of the Court under the Human Rights Convention, were to:

a) examine matters concerning the observed and expected growth in the number of applications to the European Court of Human Rights and the Court’s capacity to deal with this growth; and 

b) consider all potential means of guaranteeing the continued effectiveness of the Court with a view, if appropriate, to making proposals concerning the need for reform and report thereon to the Committee of Ministers.

9. Discussion on necessary reforms to the Court and its procedures has been fruitful, is still ongoing and the Legal Affairs and Human Rights Committee has appointed an ad hoc Sub-Committee to report and make recommendations to the Parliamentary Assembly.

NGO engagement

10. The Rapporteur believes that Non-Governmental Organisations have made an important contribution to this debate and encourages all those with an interest with the promotion of human rights to participate in the debate on the future of the institutions of the Council of Europe.

11. The Rapporteur is indebted to the work of a group of eminent European jurists chaired by Professor Dr Jutta Limbach, former president of the Federal Court of Germany. The Group was established to consider the question of law and practice of judicial appointments to the European Court of Human Rights and assisted by research, analysis and interviews conducted by the International Centre for the Legal Protection of Human Rights (Interights). Results of these endeavours were published in May 2003 as: “Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights”.

12. The Lawyers Committee for Human Rights have published a briefing paper: Criteria for the Assessment of the Qualifications of Candidates for Judges of the International Criminal Court. These criteria assist the consideration of appointments to the European Court. They are supported by Human Rights Watch, Fédération Internationale des Ligues des Droits de l'Homme, Parliamentarians for Global Action and The Women's Caucus for Gender Justice. On the basis of the requirements stated in the Rome Statute, it proposes recommendations and sample criteria for the assessment of the qualifications of candidates.

B.       Conditions of employment of judges

13. The United Nations Basic Principles on the Independence of the Judiciary stress that the ability of the Court to act without fear or favour will be strengthened by ensuring for its judges the appropriate status and remuneration; terms and conditions; and security of tenure until the mandatory retirement age or expiry of the fixed term of office.

14. While conditions of employment for judges are a matter to be resolved by the Secretary-General of the Council of Europe and Committee of Ministers in discussion with representatives of the Court, the Parliamentary Assembly has a legitimate role in contributing to the enhancement of the employment conditions of the judiciary.

15. The Sub-Committee has been made aware of anecdotal evidence of suitably qualified candidates for judicial office in the European Court being deterred from applying by unfavourable terms and conditions of employment, including that of resettlement and pension provision. For many jurists with a successful career behind them, the discrepancy between the European judicial package and their earnings potential in the public and particularly in the private sector are acute.

16. The Committee of Ministers in Recommendation No R (94) 12 on the Independence, Efficiency and Role of Judges adopted on 13 October 1994 argues for provision of proper conditions to enable judges to work efficiently. Inter alia, this includes ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities.

Support


17. The recommendation also highlights the need to provide adequate support staff and equipment to ensure that judges can act efficiently and without undue delay; to take measures to assign non-judicial tasks to other persons, thereby acting to prevent and reduce excessive workload in the courts.

Safety


18. Further, the recommendation calls for all necessary measures to ensure the safety of judges, including the presence of security guards on court premises or providing police protection for judges who may become or are victims of serious threats.

Free Expression

19. Judges of the Court are entitled to freedom of expression and association subject to the qualification that their exercise of these rights is in a manner that preserves the dignity of their office, impartiality and independence. In qualifying the entitlement to freedom of expression, the Siracusa Principles (on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights) state that judges should not express public criticism or approval of governments or pronounce on controversial political issues, in order to avoid the impression of bipartisanship.

Pensions

20. The Council of Europe has a direct responsibility in respect of pensions for judges. The 20 November 2002 report of the Working Group on the Status of Judges found that current pension arrangements are inappropriate when compared to other international courts, to senior COE staff or national judges and made recommendations. The Rapporteur looks forward to the satisfactory outcome of discussions and urges all parties to reach a speedy and mutually satisfactory conclusion.

C.       Procedures for the election of judges

21.        The terms of office of one-half of the judges elected at the first election shall expire at the end of their six-year term of office in November 2004. In order that the Assembly can proceed along the lines of the timetable agreed in Resolution 1200 (adopted 24 September 1999) it is necessary to begin the process of selection and election in November 2003, that is at least twelve months before the expiration of the term of office of the sitting judges.

Age limit

22. In November 2000, the Assembly, at the proposal of the Committee on legal Affairs and Human Rights, adopted Resolution 1232 (2000) in which it drew attention to the 70-year age limit prescribed in the Convention and the need for judges to withdraw at that age. During the last round of interviews, the Sub-Committee asked the five candidates who would expect to reach the age of 70 before the end of their term of office whether they would resign upon reaching that age. In each case the candidate, including the President of the Court, gave a positive reply. The Sub-Committee drew these undertakings to the attention of the nominating governments.

23. The Assembly, in its Resolution 1232 (2000), has drawn attention to members of the Court to the duty of all judges to retire upon reaching the age of 70. Further, it urged all Contracting Parties to the Convention to ensure that, where a vacancy may be foreseen, arrangements be put in place to ensure continuity and that a new list of candidates be submitted six months prior to the requirement for replacement.

24. In any situation when a post falls vacant, whether by reason of resignation, death or other circumstance, it is the responsibility of the High Contracting Party to initiate the process of by-election by submitting a list of three candidates according to the rules as prescribed.

25. The Convention provides that a judge elected to replace a judge whose term of office has not expired shall hold office for the remainder of the predecessor's term. However, if it should be agreed that the term of office for a judge be nine years, it would be an advantage if the candidates nominated for casual vacancies be appointed for a fresh term of nine years. Over time, this would lead to a more staggered timetable for elections.

26. The Rapporteur proposes that the Assembly endorse the procedure adopted by the Legal Affairs and Human Rights Committee for by-elections to the Court

Nomination process

27.        The Convention provides in Article 21, setting out criteria for office, 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”.

28. The Committee of Ministers has been reluctant to interfere in the decision-making process in Member States for the nomination of candidates, suggesting that the process should, in general, reflect the method employed for the selection of candidates for appointment to high judicial office within each State.

29. This gives rise to criticism; first that the Council of Europe; does not elaborate clear criteria for candidates, and second, that the nomination process fails to meet required standards of impartiality and transparency and third some High Contracting Parties fail to nominate candidates of equal stature often to enhance the chances of the Party’s favoured candidate – usually but not always, a man.

30. In Recommendation No R (94) 12 adopted on 13 October 1994, the Committee of Ministers put forward proposals on the Independence, Efficiency and Role of Judges. Inter alia, the Committee suggested that:

c.    All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.

        However, where the constitutional or legal provisions and traditions allow judges to be appointed by the government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above. These guarantees could be, for example, one or more of the following:

        i.    a special independent and competent body to give the government advice which it follows in practice; or

        ii.    the right for an individual to appeal against a decision to an independent authority; or

        iii.    the authority which makes the decision safeguards against undue or improper influences.

31. As Assembly Recommendation 1429 (1999) on ‘National procedures for nominating candidates for election to the European Court of Human Rights’ recalled: It remains the case that the national procedures for selecting candidates, a matter on which the European Convention on Human Rights is silent, are not always satisfactory.

32. In light of the replies provided by national delegations to a questionnaire, and of the experience gained on the occasion of the procedure for electing judges to the Court, the Assembly observed that the method of selecting candidates varies considerably from one country to another; in the majority of cases there are no rules governing the selection of candidates; a substantial number of governments did not include a woman on their list of three candidates; the candidates put forward did not always meet the criteria established by the Convention: because they lacked experience in human rights, or had never held judicial office, or were not sufficiently fluent in at least one of the two official languages of the Council of Europe or the candidates were not of equal sufficient calibre.

33. In order to remedy these shortcomings and assist the Governments of the member states in their procedures for selecting, the Assembly, in its Recommendation 1429 (1999), recommended that the Committee of Ministers invite the Governments of the member states to apply the following criteria when drawing up lists of candidates for the office of judge in the European Court of Human Rights:

i. issue a call for candidatures through the specialised press, so as to obtain candidates who are indeed eminent jurists satisfying the criteria laid down in Article 21, paragraph 1, of the Convention;

ii. ensure that the candidates have experience in the field of human rights, either as practitioners or as activists in non-governmental organisations working in this area;

iii. select candidates of both sexes in every case;

iv. ensure that the candidates are in fact fluent in either French or English and are capable of working in one of these two languages;

v. put the names of the candidates in alphabetical order.

34. The Rapporteur believes this request should be restated and that the Assembly adopts its own procedures to achieve the desired result.

35. The Assembly also recommended that the Committee of Ministers invite the Governments of Member States to consult their National Parliaments when drawing up the lists so as to ensure the transparency of the National selection procedure.

36. The Rapporteur considers that the nomination process would be enhanced by encouraging NGOs to put forward suggestions for procedures and potential candidates.

Gender equality

37. The Assembly has identified the need to address the under representation of women in public life throughout Europe. The Rapporteur believes it is not satisfactory merely to assert that the gender balance of the Court reflects the under representation of women in the judiciary of the Member States.

38. In Order No. 519 (1996), the Assembly instructed its Committee on Legal Affairs and Human Rights to examine the question of the qualifications and manner of appointment of judges to the European Court of Human Rights, with a view to achieving a balanced representation of the sexes.

39. The Rapporteur believes it is in the interests of the effectiveness of the Court to address this issue in considering procedures for the appointment of judges.

40. In Order 558 (adopted 24 September 1999), the Assembly referred to its recommendation 1429 (1999) on the procedure for the nomination of candidates at national level and instructed the Sub-Committee on the Election of Judges to make sure that in future elections to the Court member states apply the criteria drawn up for the establishment of lists of candidates, in particular the presence of candidates of both sexes.

41. The Assembly has previously sought the assistance of the Committee of Ministers in attaining the voluntary co-operation of nominating Member States to put forward a mixed-gender nomination list. In 1999, only six out of the eighteen lists submitted met this criterion. Ten of the eighteen nominating Member States submitted lists with an all-male list of candidates.

42. The Rapporteur now proposes that the Assembly resolves that it will not to proceed to an election where the list of nominations fails to include both male and female candidates and instructs the Sub-Committee on the Appointment of Judges to return any list that fails to meet this requirement.

43. The Rapporteur believes that further measures should be taken to address the issue of under-representation and promote the involvement of women in the Court. He therefore proposes that the Assembly requests the Sub-Committee on the election of Judges to investigate at the National and European level what obstacles currently exist to the nomination of women judges; what measures could be taken to encourage female applicants; and to consider the case for setting targets for achieving greater gender equality in the composition of the Court.

Curriculum Vitae

44. For the first election to the Court, candidates were invited to complete and return a short curriculum vitae based upon a model adopted by the Assembly in its Resolution 1082 (1996). The model contained essential questions to facilitate comparison between the candidates.

45. On the basis of an assessment of experience of the conduct of the first elections, and following informal consultation with the Committee of Ministers, changes were sought in the proposed curriculum vitae and a new model was approved in Resolution 1200 (adopted 24 September 1999). This is reproduced at Appendix II.

46. The Rapporteur believes the model curriculum vitae should be kept under review by the ad hoc Sub-Committee and proposals for modification reported for adoption by the Assembly.

Timetable for elections

47. In Resolution 1200 (adopted 24 September 1999) the Assembly called upon the Secretary General, and all others involved in the process of selection and election, to start the proceedings at least twelve months before the expiration of the term of office of the sitting judge and to respect an indicative timetable for the partial renewals of the Court set out in an Appendix to the resolution.

48. This timetable suggests:

i.       Time to be granted to the Governments to Member States for the selection of their candidates and their transmission to the Secretary General of the Council of Europe: 4 months;

ii.       Time to be granted to the Committee of Ministers for consideration of the candidates and deliberation prior to transmission to the Assembly: 1.5 months (although the Assembly’s attention should be drawn to the fact that there is no provision in the Convention for this procedure which was agreed by the Parliamentary Assembly at the request of the Committee of Minister’s Deputies (see Appendix III of Resolution 1200))

iii.       Time to be granted to the Assembly for its election process: 2.5 months (this depends on the timing of the Assembly part-sessions and may be longer)

iv.       Time to be granted to the judge elected for terminating his or her previous employment and settling in Strasbourg: 4 months

Total time required: 12 months

49. The Rapporteur remains convinced that the 12 month timetable adopted by the Assembly provides a practical model for all participants and recommends that it should be kept.

Interviews


50. In accordance with previous practice and the decisions of the Assembly adopted in Resolution 1200 (adopted 24 September 1999) candidates are invited to interviews organised and conducted by the Ad Hoc Sub-Committee on the Appointment of Judges of the Committee on Legal Affairs and Human Rights.

51. As Lord Kirkhill recalled in his report on the Election of Judges to the European Court of Human Rights (Doc 8460, 9 July 1999), Resolution 1082 left it to the Committee on Legal Affairs and Human Rights to decide whether it should ask its Sub-Committee on Human Rights to carry out the interviews or whether a special ad hoc committee should be established. The latter option was adopted since the composition of the interview could then be constructed from those Members available to attend on the allocated date.

52. The Committee on Legal Affairs and Human Rights also considered that, in deciding the membership of the Sub-Committee, a balance should be struck between the main political groups in the Assembly and that the composition should reflect, as far as possible, the geographical diversity of the Assembly. Every titular member of the Sub-Committee was expected to attend and provision was made for an informal system of alternates in the event of unavoidable absences. Nominations for the Sub-Committee are made by political groups.

53. The Rapporteur continues to believe that the process of interview provides additional insight into the qualities of the candidates and facilitates the Sub-Committee in making a better-informed recommendation to the Members.

54. The current requirement for the Sub-Committee to conduct interviews for one half of all judicial posts at the same time of the same year and maintain the recommended timetable without diminishing the quality of the process constitutes an enormous logistic challenge.

55. In order to maintain a fair procedure, the same interview panel should hear each candidate for any given appointment. To achieve this, the Sub-Committee has decided that each of the three candidates must be available for interview on the same day.

56. The Rapporteur believes that the interview process may be further improved and requests the ad hoc Sub-Committee to bring back proposals for change taking into account the following propositions:

a)        At the time of their invitation for interview, the nominated candidates should be informed as far as possible the purpose of the interview and procedures for its conduct

b)        In the interest of time and cost efficiency for both participants and staff, interviews of candidates have been conducted in Paris and in Strasbourg. The Sub-Committee should remain open-minded on alternative locations if a practical case can be made.

c)        While the Sub-Committee interview is only one part its overall appraisal of the candidates, the present allocation of a minimum of 15 minutes for the assessment of each candidate might appear brief in comparison with the importance of the appointment. Interview procedures must be constant across all appointments. Recognising budgetary implications and overall constraints including Member’s time, to seek further staggering or additional sessions of the Sub-Committee that might permit an extension of the time available for each interview.

d)        The candidates should be made aware of the criteria employed by the Sub-Committee in reaching its decision. In assessing the candidates, the Sub-Committee will have considered the completed model curriculum vitae. By interview, Members have the opportunity to explore and clarify their skills and abilities and to make further assessment of the candidate based on:

- knowledge and awareness of European Convention jurisprudence

- general legal knowledge and experience

- intellectual and analytical ability

- maturity and soundness of judgement

- decisiveness and authority

- communication and listening skills

- integrity and independence

- fairness and impartiality

- understanding of people and society

- courtesy and humanity

- commitment to public service

- conscientiousness and diligence

e)        The task of conducting a fair and efficient interview process requires a continuous process of training and re-assessment for the members and staff involved in panels.

f)        While the privacy of the ad hoc Sub-Committee deliberations are essential in order to reach consensus, the Human Rights Sub-Committee is aware of its obligation to promote an open and transparent process. In this light, the Sub-Committee might consider whether and in what form it might be possible to explain the reasons for its recommendations and ranking of candidates either in terms of general considerations or in providing an account of a particular decision.

g)        As far as it is possible to provide reasons for a given decision, it will then be possible for the Sub-Committee to investigate how to provide a timely feedback to both the individual candidate and the nominating State.

Assembly election procedures

57. Having interviewed all three nominated candidates, the Sub-Committee allows a further period to deliberate and reach a conclusion on recommendations that will be made to the Assembly.

58. On receipt of recommendations, the Assembly services arrange to make them available to members of the Assembly. Before the ballot, the completed model curriculum vitae for each candidate are made available. Under the direction of the President, who acts as the returning officer, arrangements are then put in place for orderly progress towards a secret ballot between the candidates.

59. Under current procedures, a candidate must obtain 50 per cent plus 1 of the total number of votes cast in order to be successful. In the event of no candidate achieving this, a fresh election is held on another date with the same candidates on the ballot paper. On this second ballot, the candidate with the highest number of votes cast is elected. In either case, at the completion of the count, the President declares the successful candidate duly elected.

60. The requirement to run a second ballot is an unsatisfactory procedure. It is an inefficient use of Assembly time. The inevitable change of members available to vote represents a de facto change in the electorate between the two votes. In a recent election, confusion was created in a second ballot where two candidates secured an equal number of votes. No procedures currently exist that would enable the Assembly to address this difficulty.

61. The Rapporteur considers that the Rules Committee be asked to make proposals to the Parliamentary Assembly to change the procedure for the elections to remove the requirement for a second ballot. The rules should provide that Members be asked to vote by indicating in order of their 1st and 2nd preference. In the event of no candidate obtaining 50 per cent plus one of the votes cast, the candidate with the lowest 1st preference votes is eliminated and his/her 2nd preference votes are distributed between the two remaining candidates. The Rules Committee should also be asked to make provision for a casting vote in the event of a tie or for the winner to be decided by lot.

D.       Other matters

Ad hoc judges

62. In recent years a practice has arisen regarding the appointment of ad hoc judges. It has been found on occasion that the sitting judge is temporarily indisposed or has been associated as a Member of the Committee of Ministers, as an advocate or agent before the Court or a member of the civil service of his or her nominating Government in a case under consideration. In these instances, the Governments concerned have been asked to nominate an ad hoc judge.

63. There is no provision for such a procedure under the Convention. The procedure risks damage to the Court by creating a two-tier judiciary. A role is created for judges that have not been subject to election and consequently lack the legitimacy of their colleagues.

64. The Assembly believes that the current practice and procedures for appointing ad hoc judges must cease.

65. It should be pointed out that the historical anomaly whereby past Members of the Council of Deputies or senior figures of the nominating Government have been appointed as European Court judges is addressed by stricter adherence to the guidelines governing eligibility.

66. In order to address temporary indispositions in the future, the Sub-Committee is requested to give consideration to procedures whereby a nominating Member State might be asked to submit a list of names of three potential ad hoc judges to the Parliamentary Assembly. The Sub-Committee could consider the nominations and make recommendation for a temporary appointment that would be qualified by reference to the cases to be considered and duration of such an appointment. The principle that all appointments should be made by the Parliamentary Assembly must be maintained.

Security of tenure

67. The Evaluation Group in its report of 27 September 2001 recommends amending the term of office for elected judges (EG/Court (2001)1 (paragraph 89). The Group considers that the Convention should be amended so as to lay down that judges of the Court are elected for a single, fixed term, without possibility of re-election. It argues that this term should not be less than nine years. Such a change would ensure continuity within the Court and to offer a further guarantee of the Court's independence.

68. Renewable terms of office carry risk of threats to judicial independence. The Sub-Committee is aware both of anecdotal reports and one specific case concerning judges who have expressed views or ruled contrary to the wishes of their nominating government coming under pressure from that government. The threat of non re-nomination may carry with it substantial adverse consequences for the individual concerned. These matters are discussed in a Sub-Committee aide memoire drafted by the Rapporteur in March 2002.

Terms of Office

69. The Rapporteur considers that a 9-year period of appointment would contribute to the greater efficiency and continuity of the Court and would consolidate its independence. Accordingly, he supports amendment being made to the Convention to this effect. It would then be appropriate to amend the Convention to provide initially that one third of the judges are renewed every three years.

Withdrawal of lists

70.        The Rapporteur has been made aware that Rules of Procedure currently make no provision for steps to be taken subsequent to the withdrawal of a list of candidates by a High Contracting Party. He recommends that the Sub-Committee be asked to consider this matter and make proposals.

APPENDIX I

Extract from the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No 11

Section II – European Court of Human Rights

Article 19 – Establishment of the Court

To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as "the Court". It shall function on a permanent basis.

Article 20 – Number of judges

The Court shall consist of a number of judges equal to that of the High Contracting Parties.

Article 21 – Criteria for office

1       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.

2       The judges shall sit on the Court in their individual capacity.

3       During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office; all questions arising from the application of this paragraph shall be decided by the Court.

Article 22 – Election of judges

1       The 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.

2       The same procedure shall be followed to complete the Court in the event of the accession of new High Contracting Parties and in filling casual vacancies.

Article 23 – Terms of office

1       The judges shall be elected for a period of six years. They may be re-elected. However, the terms of office of one-half of the judges elected at the first election shall expire at the end of three years.

2       The judges whose terms of office are to expire at the end of the initial period of three years shall be chosen by lot by the Secretary General of the Council of Europe immediately after their election.

3       In order to ensure that, as far as possible, the terms of office of one-half of the judges are renewed every three years, the Parliamentary Assembly may decide, before proceeding to any subsequent election, that the term or terms of office of one or more judges to be elected shall be for a period other than six years but not more than nine and not less than three years.

4       In cases where more than one term of office is involved and where the Parliamentary Assembly applies the preceding paragraph, the allocation of the terms of office shall be effected by a drawing of lots by the Secretary General of the Council of Europe immediately after the election.

5       A judge elected to replace a judge whose term of office has not expired shall hold office for the remainder of his predecessor's term.

6       The terms of office of judges shall expire when they reach the age of 70.

7 The judges shall hold office until replaced. They shall, however, continue to deal with such cases as they already have under consideration.

APPENDIX II

Model Curriculum Vitae for candidates seeking election to the European Court of Human Rights

(adopted by the Assembly in Resolution 1200 (1999) on 24 September 1999)

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 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. Details of judicial activities

b. Details of non-judicial legal activities

c. Details of non-legal professional activities

(Candidates are asked to underline the post(s) that are currently held).

IV. Activities and experience in the field of human rights

V. Political activities

a) Public office

b) Elected posts

c) Posts held in a political party or movement

(Candidates are asked to underline the post(s) that are currently held.)

VI. Other activities

- Field

- Duration

- Functions

(Candidates are asked to underline current activities.)

VII. Publications and other works

(Candidates may indicate the total number of books and articles published but select only the most important (maximum eight))

VIII. Languages

Language	Reading	Writing	Speaking
	VG G F	VG G F	VG G F
a. First language: ………………. (Please specify)	o o o	o o o	o o o
b. Official languages: - English - French	o o o o o o	o o o o o o	o o o o o o
c. Other languages: ……………………… ……………………… ………………………	o o o o o o o o o	o o o o o o o o o	o o o o o o o o o

IX. Other relevant information

X. Candidates are asked to confirm that, if elected, they will take up residence in Strasbourg as the seat of the Court.

APPENDIX III

List of part-sessions at which elections of judges to the ECHR have taken place

Part-session	Country concerned	Doc No	Observations
January 1998	31 countries	7985	Austria and Switzerland: no recommendation from the Sub-Committee. Malta: recommendation of Sub-Committee not followed
April 1998	Bulgaria, Croatia, Liechtenstein, Portugal, San Marino, Slovenia, Ukraine, United Kingdom	8060	United Kingdom: recommendation of Sub-Committee not followed
June 1999	Georgia	8447
September 1999	Russia	8504
April 2001	16 countries	8927 8990 part I, II, III
June 2001	Moldova, Romania, Ukraine	9130
January 2002	Georgia	9283
June 2002	Poland	9490	Recommendation of Sub-Committee not followed
September 2002	Spain	9468 9468 addendum 9468 corrigendum	Equal votes between 2 candidates: election to be redone
January 2003	Spain (new list)	9639
April 2003	Sweden Armenia, Azerbaijan,	9694 9721	Armenia: recommendation of Sub-Committee not followed

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9162, reference No 2641 of 25 September 2001

Draft resolution and draft recommendation adopted by the Committee on 17 September 2003 with one vote against

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr Alibeyli, Mrs Arifi, Mr Arzilli, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Møller, Mr Cilevics, Mr Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Ivanov, Mr Kalezić, Mr Kelber, Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli (alternate: Mr Ateş), Mr Malins (alternate: Mr Wilkinson), Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu (alternate: Mrs Cliveti), Mrs Pasternak, Mr Pehrson, Mr Pellicini (alternate:
Mr Budin), Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando (alternate: Mr Attard Montalto), Mr Raguz, Mr Ransdorf, Mr Rochebloine (alternate: M. Dreyfus-Schmidt), Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko, Mr Tabajdi, Mr Takkula, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner