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 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.”
“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)”.
“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
2.1.3. Language abilities
2.1.4. Experience in the field of human rights
2.2. Fairness, transparency and consistency of selection procedures
2.2.1. Existence of formal/established procedures
2.2.1.1. Open call for candidatures
2.2.1.2. Assessment by an independent body
2.2.2. Interviews, including language assessment
2.2.3. Consultation with civil society
3. Procedures before the Parliamentary Assembly: areas for improvement
3.1. The context
3.2. ii. Criteria for office
3.2.1. Language abilities
3.2.2. Gender
3.3. Other issues
3.3.1. Alphabetical order of candidates’ names
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
3.3.4. Miscellaneous
4. Conclusions
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