Report | Doc. 11767 | 01 December 2008
Nomination of candidates and election of judges to the European Court of Human Rights
Committee on Legal Affairs and Human Rights
Summary
According to the European Convention on Human Rights, the Parliamentary Assembly elects the judges of the European Court of Human Rights from a list of three candidates submitted by each State Party. The procedures used to select those candidates are left to the state concerned – though the Convention lays down that judges must hold the qualifications for office and be of “high moral character”.
To ensure those criteria are met – and to maintain the efficiency and authority of the Court – the Assembly has made clear it expects national selection procedures to meet certain standards: they should be fair, transparent and as consistent as possible across countries. Yet, despite a marked improvement in some countries, there is still significant variance in meeting these standards, the Legal Affairs and Human Rights Committee believes, raising the risk of ad hoc or politicised nominations.
The committee strongly urges those governments which have not yet done so to set up appropriate national selection procedures, including public and open calls for candidatures and a mechanism to ensure that all the candidates they put forward possess an active knowledge of one of the Council of Europe’s official languages and a passive knowledge of the other – the languages in which the Court’s judgments are drafted.
The committee proposes that lists based on national selection procedures which fail to meet these criteria should be rejected by the Assembly.
A. Draft resolution
(open)Appendix – Model curriculum vitae for candidates seeking election to the European Court of Human Rights
(open)In order to ensure that the members of the Parliamentary Assembly of the Council of Europe have comparable information at their disposal when electing judges to the European Court of Human Rights, candidates are invited to submit a short curriculum vitae on the following lines:
I. Personal details
Name, forename
Sex
Date and place of birth
Nationality/ies
II. Education and academic and other qualifications
III. Relevant professional activities
a. Judicial activities
b. Non-judicial legal activities
c. Non-legal professional activities
(Please underline the post(s) held at present)
IV. Activities and experience in the field of human rights
V. Public activities
a. Public office
b. Elected posts
c. Posts held in a political party or movement
(Please underline the post(s) held at present)
VI. Other activities
a. Field
b. Duration
c. Functions
(Please underline your current activities)
VII. Publications and other works
(You may indicate the total number of books and articles published, but mention only the most important titles (maximum 10))
VIII. Languages
(requirement: an active knowledge of one and a passive knowledge of the other official language of the Council of Europe)
Language |
Reading |
Writing |
Speaking |
||||||
---|---|---|---|---|---|---|---|---|---|
VG |
G |
F |
VG |
G |
F |
VG |
G |
F |
|
a. First language: |
|||||||||
.................................... (Please specify) |
|||||||||
b. Official languages: |
|||||||||
- English |
|||||||||
- French |
|||||||||
c. Other languages: |
|||||||||
.................................... |
|||||||||
.................................... |
|||||||||
.................................... |
IX. In the event that you do not meet the level of language proficiency required for the post of judge in an official language, please confirm your intention to follow intensive language classes of the language concerned prior to, and if need be also at the beginning of, your term of duty if elected a judge on the Court.
X. Other relevant information
XI. Please confirm that you will take up permanent residence in Strasbourg if elected a judge on the Court.
Indicative time-table for election of judges to the European Court of Human Rights
Time needed for a state to organise an open call for candidatures and to transmit a list of three candidates to the Parliamentary Assembly of the Council of Europe |
3 months |
Time needed for the Assembly for its election procedures (including interviews with all candidates) |
3 months (this time may be longer, depending on the scheduling of the Assembly's part-sessions) |
Time provided to newly-elected judge to terminate his or her previous employment and settle in Strasbourg. (If Protocol No14, ECHR, is not yet in force, the sitting judge – who may not have been re-elected – would need time to find other employment and/or to return to his or her home country) |
6 months |
Total time needed for the proceedings |
12 months |
B. Explanatory memorandum by Mr Christopher Chope, rapporteur
(open)1. Introduction
![(1)
Motion
for a recommendation, National Selection Procedures for Candidates
for the European Court of Human Rights,<a href='http://www.assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc06/EDOC11028.htm'>Doc
11028</a>, 21.09.2006, § 6. See Motion for a resolution, Revision
of Model Curriculum Vitae of Candidates for the European Court of
Human Rights: Linguistic Requirements, Doc. 11029, 21.09.2006.](/nw/images/icon_footnoteCall.png)
![(2)
A
number of proposals made by experts at the hearing have been incorporated
into this explanatory memorandum by the rapporteur. The process
and legitimacy in the nomination, election and appointment of international
judges is also a subject presently being studied in the context
of a three-year research project undertaken under the auspices of
the Centre for International Courts and Tribunals, University College,
London: see <a href='http://www.ucl.ac.uk/laws/cict/'>http://www.ucl.ac.uk/laws/cict/</a>](/nw/images/icon_footnoteCall.png)
![(3)
See,
in this context, in particular Assembly Recommendation 1649 (2004) and the CM reply (2005) thereto; Assembly Recommendation 1429 (1999). See also Information document prepared by the Secretariat,
Sub-Committee on the Election of Judges to the European Court of
Human Rights, Procedure for electing
judges to the European Court of Human Rights, As/Jur/Cdh
(2008) 06, of 11.07.2008. See also, in this connection, the description
the European Court of Justice has given to the ‘principle of transparency’
which is “essentially intended to preclude any risk of favouritism
or arbitrariness”, Case C-496/99 <a href='http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&jurcdj=jurcdj&docj=docj&docnoj=docnoj&typeord=ALLTYP&allcommjo=allcommjo&affint=affint&affclose=affclose&numaff=c-496%2F99&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel='>P,
Succhi di Frutta [2004] ECR I-3801</a>, § 111.](/nw/images/icon_footnoteCall.png)
![(4)
See, in particular,
study prepared by an eminent group of European jurists on behalf
of the International Centre for the Legal Protection of Human Rights
(Interights), Judicial Independence:
Law and Practice of Appointments to the European Court of Human
Rights, May 2003 [hereinafter, Interightsreport], p. 6. As recently as 23.06.2008,
the Plenary Court adopted Resolution on Judicial Ethics, which,
going beyond the rather broad terms of the Convention, emphasises the
importance of a number of qualities for judicial office in particular,
independence, impartiality, integrity, diligence and competence,
and discretion.](/nw/images/icon_footnoteCall.png)
![(5)
Interights report, supra note 4, p. 6.](/nw/images/icon_footnoteCall.png)
![(6)
Michael Wood, The Selection of Candidates for International
Judicial Office: Recent Practice, Law of the Sea, Environmental
Law and Settlement of Disputes (Netherlands: Koninklijke Brill,
2007), Ndiaye and Wofrum (eds.), 357-368, at 357/8.](/nw/images/icon_footnoteCall.png)
![(7)
For a detailed analysis
of replies received to the questionnaire, see the Appendix to the
present report and document AS/Jur (2008) 52.](/nw/images/icon_footnoteCall.png)
![(8)
Assembly, National selection procedures for candidates
for the European Court of Human Rights, Introductory memorandum,
AS/Jur (2007) 23 rev., rapporteur: Christopher Chope (EDG), 14.05.2007,
§ 5.](/nw/images/icon_footnoteCall.png)
![(9)
Assembly Doc. 11028, supra note 1.](/nw/images/icon_footnoteCall.png)
![(10)
Assembly Doc. 11029, ibid.](/nw/images/icon_footnoteCall.png)
“The Parliamentary Assembly is … right in stressing the importance of the composition of the lists of the candidates by governments. This exercise is the starting point of the process of election and, if it is not properly done, the scope of the Parliamentary Assembly to carry out effectively its elective duty is correspondingly reduced.”
2. National selection procedures: situation still unsatisfactory
2.1. Criteria for office
2.1.1. Article 21 of the European Convention on Human Rights (ECHR)
“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.”
![(12)
As noted in the Interights report, supra note 4, “the problem lies not only with
the vagueness of criteria, but with the nomination procedure and
the absence of oversight thereof and with the international procedures
that review and ultimately elect candidates”, at p. 17.](/nw/images/icon_footnoteCall.png)
![(13)
<a href='http://www.us-rs.si/en/index.php?sv_path=3583,3519,3532,3534&lang=1'>Constitutional
Court Act</a>, Article 9. Emphasis added.](/nw/images/icon_footnoteCall.png)
![(14)
Interightsreport, supra note
4, p. 16.](/nw/images/icon_footnoteCall.png)
![(15)
Information on establishing
the list of candidates for the election of the judge for the European
Court of Human Rights, Montenegro Ministry of Foreign Affairs (Assembly Doc. 11529, 28.02.2008), p. 18.](/nw/images/icon_footnoteCall.png)
![(16)
Interights report, supra note 4, p. 16.](/nw/images/icon_footnoteCall.png)
![(17)
Introductory
memorandum, AS/Jur (2007) 23 rev., supra note
8, § 13.](/nw/images/icon_footnoteCall.png)
![(18)
Interights
report, supra note
4, p. 17: “The long-term constitutional impact of the Court’s jurisprudence
may also suggest the need for judges with constitutional and human
rights expertise”.](/nw/images/icon_footnoteCall.png)
![(19)
§ 19.](/nw/images/icon_footnoteCall.png)
![(20)
The Assembly, principally
through its Sub-Committee on the Election of Judges, created in
1997 by the Committee on Legal Affairs and Human Rights pursuant
to Assembly Resolution
1082 (1996) (§ 5), has made and continues to make considerable
efforts in seeking to improve national nomination procedures, in
particular the requirements of fairness, transparency and consistency.
See, in this context, Assembly Recommendation 1649 (2004) and the CM reply (2005) thereto; see also Assembly Recommendation 1429 (1999).](/nw/images/icon_footnoteCall.png)
![(21)
Procedure
for electing judges to the European Court of Human Rights, Information
document prepared by the Secretariat, AS/Jur/Cdh (2008) 06.11.2007.2008,
§ 12.](/nw/images/icon_footnoteCall.png)
“neither Article 22 nor the Convention system sets any explicit limits on the criteria which can be employed by the Parliamentary Assembly in choosing between the candidates put forward. … Such rules undoubtedly have a certain influence on the approach taken by Contracting Parties in establishing their lists of candidates (see, in particular, the reply by the Committee of Ministers to Parliamentary Assembly Recommendation 1649 (2004), paragraph 24 above)”.
![(23)
The Bureau takes note
of the Sub-Committee's recommendations and, on the basis of these
recommendations, formally transmits proposals to the Assembly in
a 'Progress Report of the Bureau', which – in turn – the Assembly 'ratifies'
when approving the progress report. This is recorded in the Verbatim
Record (CR) of the Assembly. See, in this connection, progress reports
of 19 and 21.01.2008 (Assembly Doc. 11490, parts I and II and AS (2008) CR 1), 01.10.2007 (Assembly Doc. 11384, part II and AS (2007) CR 28), and 22.06.2007 (Assembly Doc. 11313 Part 2, and AS (2007) CR 20).](/nw/images/icon_footnoteCall.png)
“In performing this task, the Parliamentary Assembly is bound first and foremost by Article 21 § 1. As the body responsible for electing judges, it must also ensure in the final instance that each of the candidates on a given list fulfils all the conditions laid down by Article 21 § 1, in order for it to preserve the freedom of choice conferred on it by Article 22, which it must exercise in the interests of the proper functioning and the authority of the Court.”
2.1.2. Gender
![(25)
At § 3.ii. See, in
this context, the Court’s Advisory Opinion, supra note
22, esp. §§ 49-51, and the addition made, by Assembly Resolution 1627 (2008), to consider single-sex lists of candidates of the sex
that is over-represented in the Court, but only when “exceptional
circumstances” exist. With the recent (re)election of three women
onto the Court, the 40% minimum ‘gender balance’ has nearly been
attained.](/nw/images/icon_footnoteCall.png)
![(26)
See also in this context
Assembly Recommendation
1429 (1999) and Doc. 8505 on national procedures for nominating candidates for
election onto the Court and note 61 below.](/nw/images/icon_footnoteCall.png)
2.1.3. Language abilities
![(27)
The
fact that the Sections are recomposed every three years enhances
the likelihood that a judge may have to switch working languages.
Thus, at a given point in time, judges must be fully functional
in both languages.](/nw/images/icon_footnoteCall.png)
![(28)
§ 19.](/nw/images/icon_footnoteCall.png)
![(29)
Rome
Statute of the ICC.](/nw/images/icon_footnoteCall.png)
![(30)
Slovenian reply to
questionnaire, p. 4.](/nw/images/icon_footnoteCall.png)
![(31)
Polish reply to questionnaire,
p.1.](/nw/images/icon_footnoteCall.png)
![(32)
Bulgarian reply to
questionnaire, p.1.](/nw/images/icon_footnoteCall.png)
![(33)
Motion
for a resolution, Doc. 11029, § 3.](/nw/images/icon_footnoteCall.png)
![(34)
§ 6.1. See also the
Court’s Resolution on Judicial Ethics, especially it’s Rule IV on
‘judicial diligence and competence’, adopted by the plenary Court
on 23.06.2008 (see note 4 above).](/nw/images/icon_footnoteCall.png)
2.1.4. Experience in the field of human rights
![(35)
Assembly Recommendation 1429 (1999), § 6.ii.](/nw/images/icon_footnoteCall.png)
![(36)
Interights report, p. 19, noting
that in 1998, one third of the candidates’ CVs did not contain any
information on relevant human rights experience, referring to J.-F.
Flauss, “Analysis of the election of the new European Court of Human Rights”,
AS/Jur (1999) 3, 20.01.1999, at p. 2.](/nw/images/icon_footnoteCall.png)
![(37)
This is not to say,
however, that candidates must necessarily possess judicial work
experience, since Article 21 § 1 of the Convention also encompasses
the category of “jurisconsults of recognised competence”, which
could include a wide variety of categories, such as academics, practising
lawyers, etc., although in a large majority of cases, candidates
may have judicial work experience (see, in this context, § 7).](/nw/images/icon_footnoteCall.png)
![(38)
This was in particular
mentioned by Mr Koopmans and Mrs Palm.](/nw/images/icon_footnoteCall.png)
2.2. Fairness, transparency and consistency of selection procedures
![(39)
These
countries include, in particular: Azerbaijan, Belgium, Bulgaria,
Cyprus, Denmark, Estonia, Ireland, Moldova, Monaco, Russian Federation,
San Marino, Serbia, Switzerland, and “the former Yugoslav Republic
of Macedonia”. See Appendix and document AS/Jur (2008) 52 for details.](/nw/images/icon_footnoteCall.png)
![(40)
See in this connection
J.-F. Flauss “Les élections de juges
à la Cour européenne des Droits de l’Homme (2005-2008)”
in Revue trimestrielle des droits de
l’homme (2008), pp. 713-741, passim.](/nw/images/icon_footnoteCall.png)
![(41)
Over
the last year or so, critical comments have been recorded with respect
to procedures in, inter alia,
Bulgaria, Moldova and Turkey.](/nw/images/icon_footnoteCall.png)
![(42)
See, in this connection, proposal made
by the rapporteur in the draft resolution (Section A of report,
above).](/nw/images/icon_footnoteCall.png)
2.2.1. Existence of formal/established procedures
![(43)
Ad
hoc procedures without formal legal basis: Armenia, Bulgaria
(?), the Czech Republic, Finland, Iceland, Italy (?), Lithuania,
Luxembourg (?), Moldova, Norway, Poland, San Marino, Serbia, and
the United Kingdom. (Explanation: a question mark – (?) – placed
next to a state indicates insufficient information provided in a
reply to the question posed to make definitive assessment; see document
AS/Jur (2008) 52).](/nw/images/icon_footnoteCall.png)
![(44)
Established
procedures without formal legal basis: Azerbaijan, Austria (?),
Belgium, Cyprus, Denmark, France (?), Germany (“informal procedure”,
see reply in Appendix II), Hungary, Ireland, Liechtenstein, Malta
(procedures adopted for first time in 2006), Monaco (?), the Netherlands,
Sweden (?) and Switzerland (?).](/nw/images/icon_footnoteCall.png)
![(45)
Established procedures
with formal legal basis: Bosnia and Herzegovina, Estonia, Latvia
(?), Romania (?), the Russian Federation, Slovenia and “the former
Yugoslav Republic of Macedonia”, Ukraine.](/nw/images/icon_footnoteCall.png)
2.2.1.1. Open call for candidatures
![(46)
Introductory
memorandum, AS/Jur (2007) 23 rev, § 13. See, in this context, Assembly Recommendations 1429 (1999) and 1649 (2004).](/nw/images/icon_footnoteCall.png)
![(47)
Azerbaijan,
Belgium, Bulgaria, Denmark, Finland, Ireland, Moldova, the Netherlands,
and Romania. Some countries, although not making a call in the specialised
press, nevertheless inform members of the legal profession (i.e.
Austria, Cyprus, the Czech Republic) and in ideal cases, states’
national selection procedures entail both (i.e. in Denmark).](/nw/images/icon_footnoteCall.png)
2.2.1.2. Assessment by an independent body
![(48)
See
Article 6 of <a href='http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0'>ICJ
Statute</a> and Article 36 (4)(a) of the Rome Statute. See also
the procedure that is envisaged for the EU judicial bodies if and
when the Lisbon Treaty enters into force. Article 255 Treaty on
the Functioning of the European Union (TFEU) foresees the appointment
of a new panel, which is mandated to give its opinion on the suitability
of candidates to the post of Judge and Advocate-General.](/nw/images/icon_footnoteCall.png)
![(49)
Michael O’Boyle, “On
Reforming the Operation of the European Court of Human Rights”,
European Human Rights Law Review, Issue 1 2008, §§ 1-12, at p. 10.
He suggests that the role of an independent body, consisting of
judges and individuals with academic and relevant experience in
international law and human rights, could interview and shortlist candidates.
In addition thereto, he recommends that states should submit details
of selection procedures with candidate lists so as to enhance transparency
and oversight.](/nw/images/icon_footnoteCall.png)
![(50)
Ibid.,
p. 10. Here he recommends either an independent body making recommendations
to the Parliamentary Assembly, or, the strengthening of the existing
Sub-Committee on the Election of Judges by way of having available
to it a panel of independent judicial assessors, who would assist
in the interviewing of candidates and would be expected to provide
advice on the candidates, based on their experience, to members
of the Sub-Committee.](/nw/images/icon_footnoteCall.png)
![(51)
At page 19, where reference
is made to relevant international texts. See also General Principle
1.3 of the European Charter on the Statute for Judges (Council of
Europe, 1998).](/nw/images/icon_footnoteCall.png)
![(52)
Although Bulgaria and
Serbia have not clearly answered this question and Cyprus has answered
question No. 6 in the negative, their selection procedures nevertheless
include independent experts (see Table
I, in Part A of the Appendix) and may even be similar
to the position of those states which have in fact replied in the
affirmative (i.e. Slovak Republic, “the former Yugoslav Republic
of Macedonia”).](/nw/images/icon_footnoteCall.png)
![(53)
See for instance Serbia’s
reply in the document AS/Jur (2008) 52.](/nw/images/icon_footnoteCall.png)
2.2.2. Interviews, including language assessment
![(54)
This includes verification
ranging from mandatory presentation of a certificate issued by authorised
bodies certifying the professional knowledge of one of the CoE working
languages, other diplomas, submitting the CV in one of the working languages
of the CoE, taking into account the language of the educational
institutions attended, considering languages spoken throughout judicial
work experience, etc. See also information provided by Ukraine and
Montenegro (note 87 below).](/nw/images/icon_footnoteCall.png)
2.2.3. Consultation with civil society
![(55)
These
statistics result from a more narrow interpretation of what constitutes
civil society as mainly representing non-governmental human rights
bodies. Interights, on the
other hand, appears to construe ‘civil society’ as a broader concept, encompassing
not only NGOs but also state bar associations and judicial bodies, Interights report, p. 18. Indeed,
the rapporteur is of the view that consultation of bar associations
and national independent judicial bodies/councils (where they exist),
may be more relevant than consultations with NGOs.](/nw/images/icon_footnoteCall.png)
![(56)
Interights
report, supra note
4, p. 18.](/nw/images/icon_footnoteCall.png)
3. Procedures before the Parliamentary Assembly: areas for improvement
3.1. The context
![(57)
In the past, the list
has frequently been transmitted either to or via the Committee of
Ministers.](/nw/images/icon_footnoteCall.png)
![(58)
For more details, see
note 20 above.](/nw/images/icon_footnoteCall.png)
3.2. ii. Criteria for office
3.2.1. Language abilities
![(59)
In particular Mrs Palm
noted that the current language ability of certain judges is unsatisfactory,
not least in light of the working methods of the individual Sections
of the Court.](/nw/images/icon_footnoteCall.png)
![(60)
See,
in this context Lord Woolf, Review of the Working Methods of the
European Court of Human Rights, December 2005. See, in particular,
Recommendation No. 7, which recommends a formal induction programme
for new judges and, where necessary, intensive language training.
This was also emphasised by Mrs Palm during the AS/Jur’s expert
hearing in Paris on 02.06.2008. Although this is not made explicit
in his review, it appears that Lord Woolf is suggesting intensive language
training even after the commencement
of term of duty. Bearing in mind the substantial workload and other professional
commitments of incoming judges, in reality Lord Woolf’s proposal
that judges can take intensive language courses upon commencing
their term of duty may be difficult to implement. However, in my
view, such a scenario can be envisaged in exceptional circumstances.
Exceptional circumstances would constitute a situation where a judge
replaces a sitting judge due to death or illness, or, in the case
of simple replacement, where the time period between the election
and commencement of the term of duty is so short that the incoming
judge could not possibly take an intensive language course beforehand.](/nw/images/icon_footnoteCall.png)
3.2.2. Gender
![(61)
See also
Assembly Doc. 11682 of 04.07.2008, report of the Committee on Legal Affairs
and Human Rights (Rapporteur: Mrs Bemelmans-Videc) and Doc. 11718, 26.09.2008, opinion of the Committee on Equal Opportunities
for Women and Men (Rapporteur: Mrs Err), as well as §§ 9 and 10
above.](/nw/images/icon_footnoteCall.png)
3.3. Other issues
3.3.1. Alphabetical order of candidates’ names
![(62)
Appendix
to Resolution 1432 (2005), § 3. Candidates for the post of Judge are always listed
in alphabetical order on the ballot paper. Note: the ad hoc Sub-Committee has become,
as of November 2007, a permanent sub-committee of the AS/Jur: see
note to Rule 48.6 in Rules of Procedure of the Assembly, Strasbourg,
2008, p. 72.](/nw/images/icon_footnoteCall.png)
![(63)
See, for instance,
the following lists of candidates: Albania, Armenia, Azerbaijan,
Georgia, Italy, Spain and “the former Yugoslav Republic of Macedonia”
(Assembly Doc. 11359, 26.07.2007); Cyprus (Assembly Doc. 11359 Addendum 1, 07.09.2007); San Marino, to which was added
the criterion of San Marino nationality (Assembly Doc. 11529, 03.04.2008); Bulgaria and Slovenia (Assembly Doc. 11446 Addendum I, 11.12.2007 and Assembly Doc. 11529, 28.02.2008). See also letter from Ministry of Justice
of Ukraine (Assembly Doc. 11446, 29.10.2007).](/nw/images/icon_footnoteCall.png)
![(64)
See my introductory
memorandum, AS/Jur (2007) 23 rev., supra note
8, § 32. That said, it will need to ensure (to the extent possible)
that political considerations have not influenced the choice of
candidates. See also, in this connection, comments made by Mrs Marie-Louise
Bemelmans-Videc, the Sub-Committee's Chairperson, in her 'Comments
on the Wise Persons' Report from the perspective of the Parliamentary
Assembly of the Council of Europe' in San Marino Colloquy of 22-23.03.2007,
Future Developments of the European Court of Human Rights in the
Light of the Wise Persons' Report (Council of Europe Publication,
2007), §§ 44-51, at p. 51.](/nw/images/icon_footnoteCall.png)
3.3.2. Age owf judges
“The terms of office of judges shall expire when they reach the age of 70.”
![(66)
A subject broached
by Flauss, in his article in the Revue
trimestrielle des droits de l’homme in July 2008 (see
note 40 above), at p. 739 with respect to the recent election of
the Swiss judge and re-election of the Italian judge.](/nw/images/icon_footnoteCall.png)
![(67)
See
also § 5 above, and reference to this ‘problem’ in the Interights report and in the article
by Professor Flauss (note 40, above).](/nw/images/icon_footnoteCall.png)
3.3.3. Ad hoc judges
![(68)
See, in this context,
Rule 29, Rules of the Court, which stipulates: “1.(a) If the judge
elected in respect of a Contracting Party concerned is unable to
sit in the Chamber, withdraws, or is exempted, or if there is none,
the President of the Chamber shall invite that Party to indicate
within 30 days whether it wishes to appoint to sit as judge either
another elected judge or an ad hoc judge
and, if so, to state at the same time the name of the person appointed.”](/nw/images/icon_footnoteCall.png)
![(69)
John
Hedigan, “The election of judges to the European Court of Human
Rights” in Promoting Justice, Human Rights and
Conflict Resolution through International Law: Liber AmicorumLucius
Calflisch, M.G. Kohen, ed. (Leiden: Martinus Nijhoff
Publishers, 2007), §§ 235-253, at pp. 247-248.](/nw/images/icon_footnoteCall.png)
![(70)
See, in this context,
the Report of the Group of Wise Persons to the Committee of Ministers,
CM(2006)203, 15.11.2006.
Indeed, the Group of Wise Persons recommends “limiting the number
of members of the Court while ensuring the presence of a national
judge of the State Party to a dispute through the appointment of
an ad hoc judge.” § 121.](/nw/images/icon_footnoteCall.png)
![(71)
Of particular interest
is Article 55 of the <a href='http://www.oas.org/juridico/English/treaties/b-32.html'>ACHR</a>, which stipulates that: “If a judge is a national of
any of the States Parties to a case submitted to the Court, he shall
retain his right to hear that case.” Identical wording is contained
in Article 10 § 1 of the Statute of the Inter-American Court of
Human Rights. Article 18 of the Inter-American Court’s Rules of Procedure
sets out in a detailed manner the rules with respect to ad hoc judges.](/nw/images/icon_footnoteCall.png)
![(72)
See, in this connection,
the Protocol to the African Charter on Human and Peoples’ Rights
on the Establishment of an African Court on Human and Peoples’ Rights, passim.](/nw/images/icon_footnoteCall.png)
![(73)
Article 14 § 2 of the
Protocol to the ACHPR does, however, promote regional representativity
(“main regions of Africa and of their principal legal traditions”).](/nw/images/icon_footnoteCall.png)
![(74)
This term is borrowed
from the Parliamentary Assembly as regards its own election procedures.](/nw/images/icon_footnoteCall.png)
![(75)
Introductory memorandum,
AS/Jur (2007) 23 rev., supra note
8, §17.](/nw/images/icon_footnoteCall.png)
![(76)
Rule 29 (Ad hoc judges), cited in note 68
above. This option of appointing sitting judges has been resorted
to on a number of occasions.](/nw/images/icon_footnoteCall.png)
3.3.4. Miscellaneous
![(77)
Wise
Persons Report, supra note
70, § 143. This matter has obvious budgetary implications, linked inter alia, to the exceptionally
high number of judges of the European Court of Human Rights, compared
to other international courts (a subject which is likely to be discussed
in the report Mrs Bemelmans-Videc is preparing on “Guaranteeing
the authority and effectiveness of the ECHR“). See also, in this
context paper presented at Conference on International Courts and Tribunals
held in London on 06-07.10.2008 by Paul Mahoney “The International
Judiciary – Independence and Accountability”. P. Mahoney is President
of the European Union Civil Service Tribunal (Luxembourg) and former
Registrar of the European Court of Human Rights.](/nw/images/icon_footnoteCall.png)
![(78)
Speech delivered by
Jean-Paul Costa in Stockholm on 09.06.2008, in the context of the
Colloquy “Towards stronger implementation of the European Convention
on Human Rights at national level”, p. 6.](/nw/images/icon_footnoteCall.png)
![(79)
<a href='http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_2'>Human
Rights Act 1998</a>. Subsequently, in the Access to Justice Act, 1999, Section
68, this arrangement was extended to all UK judges holding office
in other international courts.](/nw/images/icon_footnoteCall.png)
4. Conclusions
![(80)
See Assembly Doc. 11682, note 61 above, § 26.](/nw/images/icon_footnoteCall.png)
![(81)
Advisory Opinion, note
22 above, § 51.](/nw/images/icon_footnoteCall.png)
Appendix – Overview of national selection procedures
(open)A. Summary and analysis based on information available to the rapporteur
1. Request for information addressed to member states
1. In my Introductory memorandum on National selection procedures for candidates for the European Court of Human Rights (AS/Jur (2007) 23 rev), the Committee accepted my proposal that national authorities provide information on the procedures currently in place for selecting candidates to the Strasbourg Court (paragraph 28). The questionnaire, sent out in June 2007, contained the following questions:
1. How do your procedures meet the criteria of fairness, transparency and consistency?
(see, in this connection, reply from the Committee of Ministers
to Assembly Recommendation
1649 (2004))
2. Is a public call for candidatures organised?
If so, please state how (e.g. publication in the general/specialised press).
3. Does the selection follow an established procedure made public beforehand?
If so, please indicate whether the procedure has a formal legal basis.
4. Does the procedure include interviews with the short-listed candidates?
If so, please state who conducts the interviews and whether the interviews include an assessment of candidates' linguistic abilities.
5. Does the procedure include consultations with civil society bodies?
If so, please state which and at what stage.
6. Does the procedure involve a panel of independent experts?
If so, please state its composition, mission and authority (advisory/binding).
2. 41 replies were received to the Assembly questionnaire sent out to all 47 Council of Europe member states. Replies were provided from the following Contracting State Parties to the ECHR: Andorra, Armenia, Azerbaijan, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Netherlands, Norway, Poland, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Ukraine and the United Kingdom.
3. Overall, the replies displayed a diverse range of clarity,
coherence and specificity (see document AS/Jur (2008) 52 for details),
with less useful replies coming from the following
states: Andorra, Armenia, France, Greece, Iceland, Lithuania, Luxembourg,
Norway, Poland, Spain, and Switzerland. As a result of the foregoing, inevitably,
the comparative overview and charts are not free from potential
inaccuracies.
4. Also, six states have not replied to the questionnaire, despite ‘reminders’. These states are: Albania, Croatia, Georgia, Montenegro, Portugal, and Turkey.
2. Summary of replies to questions Nos. 2-6 of the questionnaire
5. Given that the greatest diversity among the replies was contained in response to questions nos. 1 and 3 of the questionnaire, and the difficulty of quantifying these in a comparative manner, these replies will be examined separately below. For details, consult AS/Jur (2008) 52.
Key
√ Yes
X No
N/A Not applicable, which in this context means either not replied at all or reply does not answer question satisfactorily
LA Language assessment
SP Specialised press – this is limited to the written press in the strictest terms and does not pertain to legal databases
SC Secretariat comment
1. Public call |
2. Formal legal basis |
3. Interviews (language assessment) |
4. Consultation with civil society |
5. Involvement of panel of independent experts |
|
---|---|---|---|---|---|
State |
|||||
Albania |
|||||
Andorra |
X |
X |
X |
X |
X |
Armenia |
N/A |
X |
√ |
N/A |
N/A |
Austria |
√ |
N/A |
√ (LA) |
√ |
X |
Azerbaijan |
√ (SP) |
X |
√ |
√ |
√ |
Belgium |
√ (SP) |
X |
√ (LA) |
√ |
√ |
Bosnia and Herzegovina |
√ |
√ |
√ (LA outside interview) |
√ |
N/A |
Bulgaria |
√ |
N/A |
N/A (LA, not clear at what stage) |
√ |
N/A [SC: although Selection Committee consisted in majority of academics and NGO members ] |
Croatia |
|||||
Cyprus |
√ |
X |
X (LA outside interview) |
X |
X [SC: although panel includes two independent experts] |
Czech Republic |
√ (semi-public) |
X |
√ (LA outside interview) |
√ |
X |
Denmark |
√ (SP) |
X |
X |
X |
X |
Estonia |
√ |
√ |
√ |
Flexible |
√ [SC: panel includes some independent members] |
Finland |
√ (SP) |
X |
X |
X |
√ |
France |
X |
N/A |
N/A |
N/A |
N/A |
Georgia |
|||||
Germany |
X |
X |
Possible |
X (flexible) |
X |
Greece |
N/A |
N/A |
N/A |
N/A |
N/A |
Hungary |
X |
X |
X (but in past consultations have been held) |
√ |
X |
Iceland |
N/A |
X |
N/A |
N/A |
N/A |
Ireland |
√ (SP) |
X |
X |
X |
√ |
Italy |
X |
X |
X |
√ |
X |
Latvia |
√ |
√ |
√ (LA) |
√ |
√ |
Liechtenstein |
X |
X |
√ (LA part of selection but not specifically tested) |
X |
X |
Lithuania |
X |
X |
N/A |
N/A |
N/A |
Luxembourg |
√ |
X |
X |
N/A |
X |
Malta |
√ |
X |
X |
X |
X |
Moldova |
√ (SP) |
X |
X |
√ |
X |
Monaco |
√ |
N/A |
Possible but not systematic |
X |
X |
Montenegro |
|||||
Netherlands |
√ (SP) |
X |
√ (LA) |
Neither expressly foreseen nor excluded |
√ |
Norway |
√ (press release) |
X |
N/A |
N/A |
N/A |
Poland |
√ |
X |
N/A |
N/A |
N/A |
Portugal |
|||||
Romania |
√ |
√ |
√ (LA outside of interview) |
√ |
X |
Russian Federation |
X |
√ |
√ (LA) |
X |
X |
San Marino |
√ |
X |
X |
X |
X |
Serbia |
√ |
X |
N/A |
√ |
N/A [SC: although two of three members of Selection Commission were from civil society sector/academia] |
Slovak Republic |
N/A |
N/A |
√ (LA) |
√ |
√ [SC: although not all members can be considered independent] |
Slovenia |
√ |
√ |
X (LA outside interview) |
X |
X |
Spain |
X |
X |
X |
X |
X |
Sweden |
X |
X |
X |
√ |
X |
Switzerland |
√ |
X |
√ |
X |
X |
“the former Yugoslav Republic of Macedonia” |
√ |
√ |
X |
X |
√ [SC: panel includes independent experts] |
Turkey |
|||||
Ukraine |
√ |
√ |
√ (LA in form of formal test outside interview) |
√ |
√ |
United Kingdom |
√ |
X |
√ (LA) |
X |
√ |
3. Fairness, transparency and consistency (replies to question No. 1)
6. The various replies to this particular question are not
easily quantifiable and are best understood by a careful examination
of individual responses in a comparative manner (see document AS/Jur
(2008) 52 for details). Generally speaking, although there appears
to be great variance between the individual states’ national selection
procedures, with many states adhering to ad
hoc procedures without
formal legal basis, the majority of the responses assert that their
national procedures guarantee fairness, transparency and consistency
either by explicitly following relevant Assembly recommendations
or by adhering to national procedures that, in the respective state’s
view, adequately reflect these values. For instance, the French
reply sets out that the French authorities adhere to the principle
of independence of magistrates both on the national and international
level. Many replies, however, limit themselves to describing, sometimes
in technical detail, their respective selection procedures, without
explaining how these procedures
guarantee these three values.
7. Only two states (Andorra and Sweden) have noted that their procedures are deficient in their level of fairness, transparency and consistency. According to the reply by Andorra, Andorra’s selection procedure does not follow the criteria established in Assembly Recommendation 1649 (2004). The Swedish case is particularly noteworthy here, as its selection procedure is currently being scrutinised by a Committee of Inquiry as regards the role and powers of the government in appointing candidates to the Strasbourg Court.
4. Additional background information
a. A public, open call for candidates
8. Of the replies received, 26 states conduct an open call for candidatures, with seven of these states making an open call in the specialised press (see Table 1 above). One state, the Czech Republic, conducts a semi-open call for candidatures (see document AS/Jur (2008) 52).
b. Established procedure made public beforehand
9. Overall, the majority of states did not explicitly answer this question. The ad hoc nature of a procedure could, however, help infer, in some cases, the likelihood that such measures will be made public beforehand.
10. Of the replies received, only eight states, namely Bosnia
and Herzegovina, Estonia, Latvia, Romania, Russian Federation, Slovenia
and “the former Yugoslav Republic of Macedonia” and Ukraine have indicated that
their selection procedures have a formal legal basis.
c. Interviews (language assessment)
11. Of the replies received, 16 states have indicated that their selection procedures include interviews, seven of these states conduct language assessments during the interview, and two states’ selection procedures do not systematically provide for interviews, but do not exclude that possibility either (Germany and Monaco). 23 states either do not conduct interviews, or have not explicitly replied to this question.
12. Many states have indicated that they follow Assembly recommendations
in their selection procedure, which by extension, includes a language
assessment, but only few states have specifically
indicated that they conduct language assessment on a formal basis
(diplomas, CVs in one of the two official languages, etc.). The Ukrainian
selection procedure holds formal language tests with candidates,
which is separate from the interview.
Percentage of states conducting interviews with candidates (16 out of 41 replies received)
Percentage of states conducting language assessments during interviews (7 out of 16 states from 41 replies received)
d. Consultation with civil society
13. Of the replies received, 15 states have indicated that their selection procedures include consultation with members of civil society, with two states (Estonia and Germany) indicating that their procedures are flexible in this regard, and one state (the Netherlands) indicating that it does not expressly foresee or exclude the possibility of such consultation.
e. Involvement of panel of independent experts
14. Eleven states have indicated that their selection procedures involve, at some level of the process, (a panel of) independent experts (although replies appear diverse in what constitutes ‘independent’).
15. Finally, it should not be forgotten that this overview is not complete, as six states have not replied to the questionnaire (see paragraph 4 above).
B. Overview of member states’ replies to the questionnaire
Detailed replies from member states to the questionnaire can be found in document AS/Jur (2008) 52 available on request from the Secretariat of the Committee on Legal Affairs and Human Rights of the Assembly.
***
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Docs 11028 and 11029, Reference No. 3279 of 6 October 2006
Draft resolution adopted unanimously by the committee on 11 November 2008
Members of the committee: Mrs Herta Däubler-Gmelin (Chairperson), Mr Christos Pourgourides, Mr Pietro Marcenaro, Mr Rafael Huseynov (Vice-Chairpersons), Mr José Luis Arnaut, Mrs Meritxell Batet Lamaña, Mrs Marie-Louise Bemelmans-Videc (alternate: Mr Pieter Omtzigt), Mrs Anna Benaki (alternate: Mr Miltiadis Varvitsiotis), Mr Erol Aslan Cebeci, Mrs Ingrīda Circene (alternate: Mr Boriss Cilevičs), Mrs Alma Čolo, Mr Joe Costello (alternate: Mr Terry Leyden), Mr Nikolaos Dendias, Mrs Lydie Err, Mr Renato Farina, Mr Valeriy Fedorov, Mr Joseph Fenech Adami, Mrs Mirjana Ferić-Vac (alternate: Mr Miljenko Dorić), Mr György Frunda, Mr Jean-Charles Gardetto, Mr Jószef Gedei, Mrs Svetlana Goryacheva, Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin Hakl, Mr Andres Herkel, Mr Serhiy Holovaty (alternate: Mr Serhii Kivalov), Mr Michel Hunault, Mrs Fatme Ilyaz, Mr Kastriot Islami, Mr Želiko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques, Mr Karol Karski, Mr András Kelemen, Mrs Kateřina Konečná, Mr Eduard Kukan (alternate: Mr József Berényi), Mr Oleksandr Lavrynovych, Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger (alternate: Mr Jürgen Herrmann), Mr Humfrey Malins (alternate: Mr Christopher Chope), Mr Andrija Mandic, Mr Alberto Martins, Mr Dick Marty, Mrs Ermira Mehmeti, Mrs Assunta Meloni, Mr Morten Messerschmidt, Mr Philippe Monfils, Mr Alejandro Muñoz Alonso (alternate: Mr Arcadio Díaz Tejera), Mr Felix Müri, Mr Philippe Nachbar, Mr Fritz Neugebauer, Mr Tomislav Nikolić, Mr Valery Parfenov, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr John Prescott, Mr Valeriy Pysarenko, Mrs Marie-Line Reynaud, Mr François Rochebloine, Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Christoph Strässer, Mrs Chiora Taktakishvili, Lord John Tomlinson, Mr Mihai Tudose, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Vasile Ioan Dănuţ Ungureanu, Mr Øyvind Vaksdal, Mr Giuseppe Valentino (alternate: Mr Giuseppe Saro), Mr Hugo Vandenberghe, Mr Egidijus Vareikis, Mr Luigi Vitali, Mr Klaas de Vries, Mr Dimitry Vyatkin, Mrs Renate Wohlwend, Mr Jordi Xuclà i Costa, Mr Krysztof Zaremba, Mr Łukasz Zbonikowski
N.B.: The names of the members who took part in the meeting are printed in bold
Secretariat of the committee: Mr Drzemczewski, Mr Schirmer, Mrs Maffucci-Hugel, Ms Heurtin