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Resolution 2248 (2018)
Procedure for the election of judges to the European Court of Human Rights
1. The Parliamentary Assembly considers
that the election of the best qualified judges to the European Court
of Human Rights (“the Court”), based on clear criteria and following
a fair and objective procedure, is one of its most important tasks.
The quality of the selection procedure at national level and of
the election procedure before the Assembly has a direct impact on
the independence and impartiality of the judges, which in turn ensure
public confidence in the Court; and it conditions the judges’ democratic
legitimacy as the guardians of fundamental rights and freedoms in
Europe.
2. The Assembly recalls that Article 22 of the European Convention
on Human Rights (ETS No. 5, “the Convention”) lays down a co-decision
procedure for the election of judges: it is up to the High Contracting Parties,
assisted by the Advisory Panel of Experts (“Advisory Panel”), to
submit three candidates, each of whom must fulfil the eligibility
criteria laid down in Article 21; and it is for the Assembly, assisted
by its Committee on the Election of Judges to the European Court
of Human Rights (“Committee on the Election of Judges”) to elect
the most qualified of the three candidates.
3. The Assembly notes that considerable progress has been made
regarding national selection procedures. It welcomes, in particular,
the contribution of the Advisory Panel set up by the Committee of Ministers
in 2010 (Resolution CM/Res(2010)26) to assist the High Contracting
Parties in establishing shortlists of three qualified candidates.
In addition, the Committee of Ministers adopted the Guidelines on
the selection of candidates for the post of judge at the European
Court of Human Rights (CM(2012)40), which lay down a set of reasonable
procedural requirements and selection criteria.
4. The Assembly’s own procedures have also evolved considerably,
in particular through the establishment of a dedicated committee
on the election of judges, the extension of the duration of interviews,
and through the clarification of selection criteria and procedural
rules and requirements, regarding, in particular, gender balance and
language skills.
5. The European Court of Human Rights, in two Advisory Opinions
in 2008 and 2010, recognised the Assembly’s right to stipulate additional
requirements for the selection of judges, in particular those on
gender balance and language skills, in the interest of the proper
functioning of the Court. The Court also underlined in its 2008
Advisory Opinion that the Assembly must “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”.
6. The current framework for the election of judges is laid down
in a number of Assembly resolutions and recommendations, which were
adopted over a period of more than twenty years:
- Recommendation 1295 (1996) and Resolution 1082 (1996) on the procedure for examining candidatures for the election of judges to the European Court of Human Rights;
- Recommendation 1429 (1999) on national procedures for nominating candidates for election to the European Court of Human Rights;
- Resolution 1200 (1999) on the election of judges to the European Court of Human Rights;
- Recommendation 1649 (2004) and Resolution 1366 (2004) on candidates for the European Court of Human Rights;
- Resolution 1426 (2005) on candidates for the European Court of Human Rights;
- Resolution 1432 (2005) on the procedure for elections held by the Parliamentary Assembly other than those of its President and Vice-Presidents;
- Resolution 1627 (2008) on candidates for the European Court of Human Rights;
- Resolution 1646 (2009) on the nomination of candidates and election of judges to the European Court of Human Rights;
- Resolution 1764 (2010) on national procedures for the selection of candidates for the European Court of Human Rights;
- Resolution 1841 (2011) The amendment of various provisions of the Rules of Procedure of the Parliamentary Assembly – implementation of Resolution 1822 (2011) on the reform of the Parliamentary Assembly;
- Resolution 2002 (2014) on the evaluation of the implementation of the reform of the Parliamentary Assembly.
7. Possible further improvements of the procedure for the election
of judges to the Court have recently been discussed both at intergovernmental
level, under the auspices of the Committee of Ministers, and in
the Assembly’s Committee on the Election of Judges. These proposals
aim at strengthening co-operation between the Committee on the Election
of Judges and the Advisory Panel; at improving the functioning of
the Committee on the Election of Judges, including by increasing
the transparency of proceedings and by codifying substantive selection
criteria in more detail; and at streamlining the election procedure
in the Assembly in different ways.
8. In view of these proposals, but mindful also of the fact that
the election procedure, as it has evolved over time, has generally
resulted in the election of highly qualified and well-respected
judges, the Assembly considers that the following modifications
of the procedure for the election of judges should be made:
8.1. the Chairperson or a representative
of the Advisory Panel shall be invited by the Chairperson of the
Committee on the Election of Judges to explain the reasons for the
panel’s views on candidates, during the briefing sessions scheduled
before each set of interviews;
8.2. a list of candidates shall be rejected when:
8.2.1. not
all of the candidates fulfil all the conditions laid down by Article
21.1;
8.2.2. the national selection procedure did not fulfil minimum
requirements of fairness and transparency;
8.2.3. the Advisory Panel was not duly consulted;
8.3. the Committee on the Election of Judges shall decide on
a proposal to reject a list of candidates by a majority of the votes
cast;
8.4. members of the Committee on the Election of Judges from
the country whose list is under consideration shall not have the
right to vote in the committee, either on a possible rejection of
their country’s list or on the expression of preferences among candidates.
9. The Assembly invites:
9.1. the
Committee on Rules of Procedure, Immunities and Institutional Affairs
to consider those proposed changes in the election procedure before
the Assembly that would require amendments to the Rules of Procedure
and to submit any such proposals to the Assembly in due course;
and to consider ways and means to guarantee high attendance in the
Committee on the Election of Judges;
9.2. the Secretary General of the Assembly to publish, upon
completion of the above-mentioned revision process (paragraphs 8.1
and 8.2), a consolidated information document reflecting the election procedure
before the Committee on the Election of Judges and the Assembly.