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
The selection procedure
for candidates to the Strasbourg Court is important for two reasons:
firstly, they have a direct impact on the independence and impartiality
of the judges, which is required in order to ensure public confidence
in the independence of any judicial institution. Nomination procedures
must be and seen to be in conformity with international standards
guaranteeing judicial independence. Secondly, shortcomings in the
national selection and international nomination procedures can engender
the risk that judges are not properly qualified to carry out their
mandates, to the detriment of the legitimacy and authority of the
Strasbourg Court, and to “the application and development of human
rights law on the international and (ultimately) national level” .
In other words, “If good candidates are not put forward, or do not
come forward, the election procedure cannot lead to good results.” Regrettably,
as already noted in my introductory memorandum, procedural improvements
at the Assembly level have not been matched by improvements at the
national level. This has been confirmed by a number of (non) replies
to a questionnaire sent out on this subject in June 2007. National
selection procedures “often remain vague and opaque”. Hence the need for concrete proposals for
improvement.),
and the election procedure at the level of the Assembly (notably
as regards the revision of the curriculum
vitae pertaining to linguistic requirements (see motion
for a resolution ),
since the two procedures are linked. As noted by the Strasbourg
Court itself:“The Parliamentary Assembly is … right in stressing the importance of the composition of the lists of the candidates by governments. This exercise is the starting point of the process of election and, if it is not properly done, the scope of the Parliamentary Assembly to carry out effectively its elective duty is correspondingly reduced.”
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.”
whilst
that of eligibility for “high judicial office” is more operational.
Article 36 of the Rome Statuteof the International Criminal Court (ICC) appears
to set a more stringent standard in requiring that candidates must
possess qualifications for “highest judicial
offices in the State in question”. This may, in itself, amount to
an implicit minimum age requirement, depending on the criteria applicable
to candidates for the highest courts of the country concerned. For
instance, the Slovenian Constitutional
Court Act requires judges to possess Slovenian nationality,
have expertise in law and be at least
40 years of age. Other
national systems impose a certain number of years of prior relevant work
experience of the candidates. While in the Ukraine, judges must
possess no less than three years of legal work experience, Montenegro requires candidates to
possess at least 15 years of such experience. Instead of imposing
a minimum age for the post of judge, which may not in itself be
a firm indicator of judicial capacity, one solution – as put forward
by Mrs Palm during the hearing – may be to require 10-15 years of
relevant work experience, which will imply a certain age requirement. To
date, most candidates presented by national authorities are members
of the judiciary. As a result, the majority of the Strasbourg Court’s
judges have been members of the highest judicial bodies in their
national systems. Jurisconsults (academics, legal practitioners)
follow in second position. There is, however, a dominant view that
while a balance of professional backgrounds is of great value to
the diversity of the Court, the emphasis should nevertheless remain
on judicial experience on the bench, a position which was emphasised
by several of the experts during the hearing, who also found solid
judicial experience more relevant to the Court’s work than specific
experience in human rights law. So
when formulating a (confidential) recommendation to parliamentarians, via the Bureau, the Sub-Committee
on the Election of Judges to the Strasbourg Court considers the candidates not only
as individuals but also with an eye to a harmonious composition
of the Court, taking into account, for example, their professional
backgrounds and the gender balance. It is interesting to note, in this connection, that
in its recent Advisory Opinion, the Strasbourg Court affirmed the
Assembly’s practice of formulating additional criteria, noting that:“neither Article 22 nor the Convention system sets any explicit limits on the criteria which can be employed by the Parliamentary Assembly in choosing between the candidates put forward. … Such rules undoubtedly have a certain influence on the approach taken by Contracting Parties in establishing their lists of candidates (see, in particular, the reply by the Committee of Ministers to Parliamentary Assembly Recommendation 1649 (2004), paragraph 24 above)”.
The
Strasbourg Court has reaffirmed the ‘legitimacy’ of this long-standing practice,
stating in the above-mentioned Advisory Opinion that:“In performing this task, the Parliamentary Assembly is bound first and foremost by Article 21 § 1. As the body responsible for electing judges, it must also ensure in the final instance that each of the candidates on a given list fulfils all the conditions laid down by Article 21 § 1, in order for it to preserve the freedom of choice conferred on it by Article 22, which it must exercise in the interests of the proper functioning and the authority of the Court.”
2.1.2. Gender
(see
also, in this context, paragraph 26, below).2.1.3. Language abilities
It would appear that committee
reports or draft judgments or decisions of Chambers are written
in only one of the two official languages; only exceptionally, within
Chambers (Sections), are texts available in both languages. That
said, documents are always circulated in both languages with respect
to cases dealt with by the Grand Chamber The Assembly has required
in the past, most recently in Recommendation
1649 (2004), that candidates must have “a sufficient knowledge of
at least one of the two official languages.” However,
the requirement that a judge have “sufficient” knowledge of one
language could mean, in practice, that his or her level of proficiency
may be below the standard that is necessary in order to be aware
of linguistic subtleties and nuances necessary for an understanding
of a complex case and which are clearly inherent in legal drafting
and arguments. This situation can be compared with the more stringent standard
enunciated in Article 36(3)(c) of the Rome
Statute, which stipulates that: “Every candidate for
election to the Court shall have an excellent
knowledge ofandbe fluent in at least one of the working languages
of the Court.” At the national level, for
instance, Slovenia has interpreted this Assembly requirement to
mean “active” knowledge of one of the two official languages. Going one step further,
the Polish selection procedure requires fluency in one of the official
languages of the Council of Europe and good knowledge of the other. Similarly, Bulgaria has proffered the requirement
that candidates should have “perfect knowledge” of one of the official
languages and the ability to work in the other. . Hence the suggestion that
the minimum requirement for the future should be that all candidates
shall possess an “active knowledge of one of the official languages
of the Council of Europe, and a passive knowledge of the other.” That said,
some flexibility may be justifiable at the beginning of the judicial
office, provided the judge undertakes to undergo necessary training within,
say, six months of taking up office, as the complete lack of proficiency
in one of the Court’s official languages can be accepted for a limited
time span, in only really exceptional circumstances (see in this
context paragraph 23, and points VIII and IX in the model curriculum vitae which incorporates
this proposal, attached to the draft resolution above).2.1.4. Experience in the field of human rights
Considering the role of
judges in guaranteeing the protection of human rights and in ensuring
the legitimacy and authority of the European Court’s mandate, the
Assembly still considers it useful for a judge of the Strasbourg
Court to possess some human rights experience. In their replies
to the questionnaire (see Appendix and document AS/Jur (2008) 52 for
details), many states indicated that consideration of a candidate’s
human rights experience forms part of their national selection procedure,
although – according to Interights –
in practice the candidates’ level of human rights experience is
frequently unsatisfactory. Whilst
human rights experience may be important, ability and experience
as a judge is even more relevant .
A good judge can work his or her way into the field of human rights
law fairly easily. This view appears to be shared by several of
the experts who took part in the above-mentioned hearing. 2.2. Fairness, transparency and consistency of selection procedures
the
large majority nevertheless indicated that their procedures ensure
fairness, transparency and consistency. Several states’ selection procedures
appear exemplary: Belgium makes a public call in the specialised
press and transmits the information by other means to all universities
and members of the legal profession, conducts interviews (including
an assessment of language abilities), and gives an important role
to an independent group of experts as well as academics with human
rights expertise. The Netherlands, in addition to making an open
call for candidatures in the specialised and general press, holding
interviews, and providing for an independent panel of experts, has
published a document describing the selection procedure in detail
(see document AS/Jur (2008) 52). Other national selection procedures
which appear to closely follow the Assembly’s requirements include Bosnia
and Herzegovina, Estonia and Latvia. I
have been made aware of concerns expressed by local NGOs as well
as media sources regarding specific shortcomings of the selection procedures
in certain member states. Only two member
states’ replies to the questionnaire, namely Andorra and Sweden,
admitted deficiencies in their national selection procedures.2.2.1. Existence of formal/established procedures
; 2) established procedures
without a formal legal basis ; and 3) established
procedures with a formal legal basis. Although
the formal basis of a national selection procedure does not in itself guarantee
its substantive fairness, it does help ensure a certain level of
consistency and transparency. Whilst firmly established procedures
without a formal basis can also ensure these objectives, Mr McBride
(Interights) rightly noted
during the hearing before the Committee that established procedures
with a clear legal basis are preferable to ad
hoc arrangements. Based on the replies received, the
majority of national selection procedures appear to fall into the
second category, including two (Belgium and the Netherlands) which
can be perceived as exemplary. Regrettably, it is not readily apparent
from the majority of the replies what is understood by “established”. Ad hoc procedures are more problematic
since they are reactive, often hastily drawn up, and risk subjugating
concerns of fairness, transparency, and most definitely, consistency.2.2.1.1. Open call for candidatures
The majority of
states’ replies assert that their national selection procedures
entail an open call for candidatures. That said, Hungary does not
organise an open call for candidatures, but instead relies on general
press reporting to inform the public about the vacancy, possible
candidates, and later on, specific details about candidates chosen
by the Prime Minister. Similarly, Liechtenstein motivates its absence
of a call for candidatures, inter alia, by
the fact that a parliamentary inquiry into the selection process
results in the media picking up the issue and transmitting it to the
general public. This coverage presumably takes place only after
the candidatures have been received and well into the selection
process, so that the subsequent media coverage is merely an information
tool for the general public, not an indirect open call for qualified
candidatures. Other countries not conducting an open call for candidatures
include Andorra, France, Italy, Lithuania and Spain. Of
those countries which do not conduct an open call for candidatures,
Germany, for instance, has indicated in its reply that the relevant
ministries (Justice, Foreign Office, Chancellor’s Office) approach
potential candidates and solicit views from experts and relevant
actors in the field of politics and justice, before agreeing on
a final short-list, which is subsequently sent to the German Assembly
delegation for comments and possible objections, before a final
decision is made by the Cabinet (see document AS/Jur (2008) 52).
Similarly, Sweden’s selection procedure is based on a closed call
for candidatures, which, among other shortcomings (i.e. lack of
independent appointments board, etc.), has become the subject of
an inquiry by a constitutional body.2.2.1.2. Assessment by an independent body
Michael O’Boyle,
Deputy Registrar of the Strasbourg Court, notes that it is time
to take a fresh look at Assembly recommendations. He raises the
possibility of involving an independent body both at national and at international level. Interights equally
prescribes a fundamental role to an independent body throughout
the selection procedure at national level and argues that states
should be bound by the deliberations of such a body. Of the replies received, only
eleven states have indicated that their national selection procedures involve,
at some level of the process, (a panel of) independent experts. Even these replies appear diverse or
unclear in their understanding of the meaning of ‘independent’,
and what the extent of their deliberative role is. The majority
of the procedures appear to involve (more or less) independent bodies
at the pre-selection stage, with the final decision being taken
by a minister or a governmental body (Ministry of Justice, Ministry
of Foreign Affairs, Council of Ministers, or other).2.2.2. Interviews, including language assessment
In a country where
one of the two official languages is spoken, this should not make the
evaluation of candidates’ knowledge of the other working language
of the Court redundant. The United Kingdom is therefore right in
assessing the candidates’ proficiency in French. Given the importance
of language abilities, as emphasised by the movers of one of the
motions underpinning this report and by the experts at the hearing,
interviews should always include a language assessment. If this
is done thoroughly at the national level, the Sub-Committee on the
Election of Judges will be able to focus its own interview on other substantive
criteria, such as judicial capacities, etc. That said, the Assembly’s
Sub-Committee (see below, Section III), when interviewing candidates,
should still ensure for itself that the person concerned has the required
linguistic competence.2.2.3. Consultation with civil society
Whereas
some states’ national selection procedures directly invite or are
free to invite civil society to submit candidatures (Austria and
Azerbaijan), or allow for the possibility to consult civil society
(Bosnia and Herzegovina, Estonia, Germany, Hungary), other states
(Belgium, Bulgaria, Moldova, the Netherlands, Serbia) appear to
bestow a more important role on civil society members as forming
part of an advisory body, mandated to pre-select suitable candidates
for final decision by the respective government. Even in cases where
NGOs are consulted, “the opaque nature of procedure means that the
impact of such consultations is unclear.” 3. Procedures before the Parliamentary Assembly: areas for improvement
3.1. The context
In order to carry out its mandate
in the most effective manner, the Assembly set up, already back in
1997, a Sub-Committee of the Committee on Legal Affairs and Human
Rights specifically for the election of judges. The
Appendix to Resolution
1432 (2005) stipulates that once the lists are submitted to the
Assembly, they shall not be modified, but for exceptional circumstances
(§ 1). Where one of the three candidates on a list withdraws before
the first ballot, the Assembly shall interrupt the procedure and
ask the government concerned to complete the list of candidates
(§ 2). According to the Appendix, the Assembly strictly adheres
to the practice of listing candidates in alphabetical order on the
ballot paper, and stipulates that any expressions of governmental
preference shall play no role in the deliberations of the Sub-Committee
on the Election of Judges (§ 3). In my view, the Sub-Committee should
be encouraged to take the national preference into account to the extent
that it is satisfied that the national selection procedure is fair,
transparent and not tainted by political considerations, in accordance
with the above criteria (see § 28 below).3.2. ii. Criteria for office
3.2.1. Language abilities
A thorough national selection
procedure (including an interview testing active language skills)
would assist the Sub-Committee on the Election of Judges in its
own nomination of candidates. Whilst good knowledge of one of the
Court’s official languages and a reasonable passive knowledge (i.e. sufficient
to understand the nuances of complex legal texts) of the other is
of primary importance, knowledge of other European languages frequently
used in the correspondence with the Court by applicants from different countries
(such as Russian or German) should also be taken into account in
assessing a candidate’s language abilities; conversely, for judges
whose native tongue is one of the official languages, the level
of proficiency required for the other may well be pitched higher
than for judges for whom both official languages are foreign. This
is what the rapporteur proposes in the model curriculum
vitae (see III.ii.a above). Preferably, judges should
be fully operational (with good knowledge of one official language
of the Court and at least a reasonable passive knowledge of the
other) from the beginning of their judicial term.3.2.2. Gender
3.3. Other issues
3.3.1. Alphabetical order of candidates’ names
Lists are nevertheless frequently
submitted in order of preference. To sum up, member
states should be able, when submitting their lists of candidates
to the Assembly, to indicate their preference and describe the national
selection procedure followed; provided the Sub-Committee is satisfied
that this procedure is fair and transparent, it should be able to
take the national preference into account when formulating its recommendations.3.3.2. Age owf judges
“The terms of office of judges shall expire when they reach the age of 70.”
3.3.3. Ad hoc judges
The
need for appointing ad hoc judges
arises, for instance, where the sitting judge in a particular case
against the country in respect of which he/she has been elected
was a former Government Agent involved in preparing the case in
question, or a former senior national judge who participated in
the decision rejecting the applicant’s final internal appeal. This
may create a conflict of interest. As matters stand currently, ad hoc judges are nominated directly
by member states pursuant to Article 27 of the ECHR, without any
involvement of the Assembly, thus giving rise to legitimacy and
independence issues. While
the use of ad hoc judges has
to date not been frequent, a possible reduction in the number of
judges in the future could lead to an increased use of ad hoc judges. By
contrast, in the eleven-member African Court on Human and Peoples’
Rights (ACHPR), such a possibility does not appear to exist . This
may be attributable to the fact that the founding texts of the African
Court, like the Rome Statute of the ICC, and unlike the ECHR and
ACHR, do not promote “national representativity” in individual cases. In
fact, Article 22 of the Protocol to the ACHPR even explicitly foresees the
exclusion of any judge from a case “if the judge is a national of
any State which is a party to a case submitted to the Court”. under
the terms of this Article, the list is required to contain two or
more persons. In my introductory memorandum I had suggested that,
in the interim, a possible solution may be to draw up reserve lists, containing
names of candidates who have been interviewed by the Sub-Committee
on the Election of Judges, considered well-qualified for the post
of judge at the Strasbourg Court, though not elected. Another fall-back solution which ought
to be resorted to more often, is for a state not to insist on the
appointment of an ad hoc 'national'
judge, as the Rules of Court permit. The obvious advantage
of this solution is two-fold: the sitting judge has been elected
by the Assembly, and not appointed by a state, and he or she is
fully operational at once. But the drawback might be the lack of
a detailed knowledge of the country's legal system.3.3.4. Miscellaneous
In
returning to 'home base', former judges are likely to enrich the
legal profession's knowledge of Strasbourg case-law with their uniquely
acquired European experience. The UK Human
Rights Act of 1998 provides a good example of how this
can be attained. Section 18 (2) stipulates that the holder of a
judicial office may take up the post of judge at the European Court of
Human Rights without having to relinquish definitively his or her
office in the UK. 4. Conclusions
(with primary importance
attached to those of Article 21 § 1 ECHR ), the Assembly should yet again
emphasise the need for states to conduct open calls for candidatures
and to ensure that all candidates short-listed possess an active knowledge
of one and a passive knowledge of the other official language of
the Council of Europe.APPENDIXAppendix – 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