Candidates to the European Court of Human Rights
Doc. 10048
26 January 2004
Opinion[1]
Committee on Equal Opportunities for Women and Men
Rapporteur: Mrs Mindora Cliveti, Romania, Socialist Group
I. Conclusions of the Committee:
1. The Committee on Equal Opportunities for Women and Men fully supports the draft recommendation and resolution presented by the Committee on Legal Affairs and Human Rights. In particular, the Committee explicitly backs the proposal that the Assembly should not consider lists of candidates which do not include at least one male and at least one female candidate. The Committee wishes, however, to propose six amendments to further strengthen the gender aspect of the texts to be adopted:
II. Proposed amendments to the draft recommendation and the draft resolution included in Doc 9963 tabled by the Committee on Legal Affairs and Human Rights
To the draft recommendation:
Amendment A
In paragraph 3, add after the words “the rule of law” the word:
“non-discrimination,”.
Amendment B
In paragraph 18, replace the second sentence with the following sentence:
“It is in the interest of fairness and of the Court’s effectiveness for the Committee of Ministers, the Assembly and the High Contracting Parties to address the issue of the gender imbalance on the Court by considering – and where necessary, improving – the procedures for the appointment of judges.”
Amendment C
In paragraph 21, Article 22, line 1, add the following:
“…containing at least one candidate of each sex. (otherwise unchanged)”.
To the draft resolution:
Amendment D
After sub-paragraph 4 iii., add the following new sub-paragraph:
“that the Sub-Committee should include at least 40% women parliamentarians, which is the parity threshold set by the Council of Europe as necessary to exclude possible gender bias in decision-making processes;”.
Amendment E
After sub-paragraph 4 iv., add the following new sub-paragraph:
“that one of the criteria used by the Sub-Committee should be that, in the case of equal merit, preference be given to a candidate of the under-represented sex on the Court;”.
Amendment F
In paragraph 7, delete the words “whether there is a case for”.
III. Explanatory memorandum by the Rapporteur, Mrs Cliveti
1. The gender imbalance on the European Court of Human Rights is striking[2]: there are only 11 female judges to 32 male judges, i.e. women make up only about a quarter of the Court’s composition. The female judges are from (in order of precedence): Belgium, Slovakia, Croatia, the Netherlands, the former Yugoslav Republic of Macedonia, Norway, Bulgaria, San Marino, Austria, Sweden and Armenia. The President, Vice-Presidents and Section Presidents of the Court are all men.
2. Women are traditionally under-represented (or even unrepresented) on international judicial bodies. This gender imbalance has been identified as a threat to the legitimacy and authority of these international judicial bodies. The European Court of Human Rights is no exception to this rule. On the contrary, with the entry into force on Protocol No. 12 on the general prohibition of discrimination, it has become doubly important for the Court to be gender balanced. In fact, the Court risks losing credibility if it is not seen to be fighting gender-based discrimination in its own ranks. The High Contracting Parties to the Convention should thus ensure that the Parliamentary Assembly of the Council of Europe, which has to elect the judges of the Court from a list submitted by the Parties, can strike this gender balance. It is thus imperative that any list of candidates include at least one candidate of each sex[3].
3. Since the creation of the new Court of Human Rights in 1998, 68 elections of judges[4] have taken place. 40 of the 68 High Contracting Parties in question submitted candidate lists composed exclusively of men (59%); 3 submitted lists composed exclusively of women (4%). 21 lists included one woman and two men (31%) and 4 lists included two women and one man (6%). In other words, 61 out of 68 lists had a majority of male candidates on their lists – nearly 90%[5]. As the gender-disaggregated statistics in Appendix I show, in nearly three-fifths of the elections for judges, the Parliamentary Assembly did not even have the choice of electing a female judge, as only all-male candidate lists were proposed.
4. As the Committee on Legal Affairs and Human Rights has rightly pointed out in its draft recommendation, it is not satisfactory merely to assert that the gender balance of the Court reflects the under-representation of women in the judiciary of the member states. In fact, this argument is entirely false, as being a member of the judiciary in a member state – let alone having held high judicial office - is not at all a prerequisite for being elected a judge on the European Court of Human Rights. Article 21 of the European Convention on Human Rights (ECHR) only stipulates that 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”. The Parliamentary Assembly has always stressed that candidates for the post of judge on the Court should, however, have significant experience in the human rights field. In the human rights field, especially the NGO sector, women are, however, quite well represented.
5. It can thus be concluded that what the gender imbalance of the Court reflects is the under-representation of women on the candidate lists submitted to the Assembly by the High Contracting Parties – i.e. a lack of political will on behalf of the majority of governments of member States (nearly 60%) to strike a gender balance on the candidate lists they present. As so often in the field of equal opportunities for women and men, this is not due to the lack of qualified female candidates. Rather, in many cases, the cause seems to be an opaque, not to say unfair, selection procedure for candidates on the national level.
6. Another cause might be the fact that the demand of the Assembly that candidate lists include candidates of both sexes is not expressly stipulated in the European Convention on Human Rights (ECHR). A new Protocol to the ECHR is currently under preparation, so this is a unique opportunity for the Assembly to encourage the Committee of Ministers to include the rule that any list of candidates must contain at least one candidate of each sex in Article 22 of the ECHR (see Amendment C to the draft recommendation).
7. Unfortunately, the Parliamentary Assembly itself has not managed to redress the gender imbalance on the Court by electing more female judges from those lists (41%) which offered at least the theoretical possibility (i.e. featured at least one female candidate). Of the 21 lists of candidates composed of one female and two male candidates, in 15 cases (71%) the Sub-Committee on the Election of Judges of the Committee on Legal Affairs and Human Rights recommended the election of a male candidate[6] – only in 6 cases (29%) did the Sub-Committee recommend the female candidate. It even recommended a male candidate in one case when the High Contracting Party had submitted a list composed of one male and two female candidates.
8. A certain gender bias of the Sub-Committee on the Election of Judges can thus, unfortunately, not be excluded. It is well-known that a certain “parity threshold” has to be reached in a decision-making body before women can effectively impact on the decision-making process. Traditionally, this threshold is set at 30%, but the Committee of Ministers of the Council of Europe set it at 40% in its recent Recommendation on balanced participation of women and men in political and public decision-making (Recommendation (2003) 3). In the Sub-Committee on the Election of Judges, the percentage of women members has varied from 13% to 38%, with an average of 22,5%. The threshold of 30% women parliamentarians has seldom been reached, yet alone 40% (see Appendix II). This is why I am proposing an amendment to rectify the under-representation of women on the Sub-Committee (Amendment D to the draft resolution), even if the actual recommendations made so far by the Sub-Committee do not necessarily show gender bias.
9. In addition, it is not entirely clear whether the Sub-Committee on the Election of Judges uses the criteria that, in the case of equal merit, preference should be given to a candidate of the under-represented sex on the Court. I think it would be in the interests of fairness and transparency that this criteria be used by the Sub-Committee in future, and I am thus proposing an amendment to this effect (Amendment E to the draft resolution).
10. In reading the excellent report of Mr McNamara, I have made the discovery that the Court has started to employ “ad hoc judges” nominated by governments in cases when the sitting judge has been temporarily indisposed or has been associated as a Member of the Committee of Ministers, as an advocate or agent before the Court or a member of the civil service of his or her nominating government in a case under consideration. I am very concerned by this development, which seems to me to put the validity of the Court’s judgements in these cases at risk. I cannot see how the impartiality and independence of these ad hoc judges (not foreseen in the ECHR, and appointed by the High Contracting Parties) can be guaranteed without their being subjected to the normal procedure and being elected by the Assembly. In addition, the gender balance of the Court is even more perturbed by the 59 ad hoc judges who have ruled on certain cases since 1998, only seven of whom women[7].
11. In conclusion, I would like to underline once more my full support for the draft recommendation and resolution presented by the Committee on Legal Affairs and Human Rights. In particular, I would like to explicitly back the proposal that the Assembly should not consider lists of candidates which do not include at least one male and at least one female candidate. I hope that the Assembly will accept the six amendments proposed to further strengthen the gender aspect of the recommendation and resolution to be adopted.
Appendix I: Gender-disaggregated statistics of elections to the European Court of Human Rights
|
Part-session |
Country |
No. of female candidates on list |
No. of male candidates on list |
Recommendation of Assembly Sub-Committee |
Gender of judge elected |
|
April 2003 |
Armenia Azerbaijan Sweden |
1 1 3 |
2 2 0 |
Male candidate Male candidate Female candidate |
Female Male Female |
|
January 2003 |
Spain (new list) |
0 |
3 |
Male candidate |
Male |
|
September 2002 |
Spain |
1 |
2 |
Male candidate |
No judge elected (tied vote) |
|
June 2002 |
Poland |
0 |
3 |
Male candidate |
Male |
|
January 2002
|
Georgia |
0 |
3 |
Male candidate |
Male |
|
June 2001
|
Moldova Romania Ukraine |
1 1 0 |
2 2 3 |
Male candidate Male candidate Male candidate |
Male Male Male |
|
April 2001
|
Albania Andorra Austria Bulgaria Cyprus Denmark Hungary Italy Latvia Luxembourg San Marino Slovenia Spain Switzerland “the former Yugoslav Republic of Macedonia” Turkey Ukraine |
0 0 3 3 0 1 0 0 1 1 1 0 0 0 2 0 0 |
3 3 0 0 3 2 3 3 2 2 2 3 3 3 1 3 3 |
Male candidate Male candidate Female candidate Female candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Female candidate Male candidate Male candidate Male candidate Female candidate Male candidate Male candidate |
Male Male Female Female Male Male Male Male Male Male
Female Male Male Male Female Male Male |
|
September 1999 |
Russia |
0 |
3 |
Male candidate |
Male |
|
June 1999 |
Georgia |
0 |
3 |
Male candidate |
Male |
|
April 1998
|
Bulgaria Croatia Liechtenstein Portugal San Marino Slovenia Ukraine United Kingdom |
2 1 0 0 0 1 0 0 |
1 2 3 3 3 2 3 3 |
Female candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate |
Female Male Male Male Male Male Male Male |
|
January 1998 |
Albania Andorra Austria Belgium Cyprus CzechRepublic Denmark Estonia Finland France Germany Greece Hungary Iceland Ireland Italy Latvia Lithuania Luxembourg Malta Moldova Netherlands Norway Poland Romania SlovakRepublic Spain Sweden Switzerland “the former Yugoslav Republic of Macedonia” Turkey |
2 0 0 1 0 0 1 1 1 0 1 0 0 0 0 0 1 0 0 0 0 1 1 0 0 2 0 1 0 1 0
|
1 3 3 2 3 3 2 2 2 3 2 3 3 3 3 3 2 3 3 3 3 2 2 3 3 1 3 2 3 2 3
|
Male candidate Male candidate No recommendation Female candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Male candidate Female candidate Female candidate Male candidate Male candidate Female candidate Male candidate Female candidate No recommendation Female candidate Male candidate
|
Male Male Male Female Male Male Male Male Male Male Male Male Male Male Male Male Male Male Male Male Male Female Female Male Male Female Male Female Male Female Male
|
Appendix II: Composition of the Sub-Committee on the Election of Judges
|
Part-session |
No. of Country lists Considered |
No. of women MPs present |
No. of male MPs present |
Percentage of women present |
Gender of candidates recommended |
|
April 2003 |
3 lists |
5 women |
8 men |
38% |
2 male candidates 1 female candidate |
|
January 2003 |
1 (new list) |
1 woman |
4 men |
20% |
1 male candidate |
|
September 2002 |
1 list |
1 woman |
6 men |
14% |
1 male candidate |
|
June 2002 |
1 list |
3 women |
10 men |
23% |
1 male candidate |
|
January 2002 |
1 list |
3 women |
8 men |
27% |
1 male candidate |
|
June 2001 |
3 list |
3 women |
8 men |
27% |
3 male candidates |
|
April 2001 |
17 lists |
3 women |
13 men |
23% |
13 male candidates 4 female candidates |
|
September 1999 |
1 list |
1 woman |
5 men |
17% |
1 male candidate |
|
June 1999 |
1 list |
3 women |
6 men |
33% |
1 male candidate |
|
April 1998 |
8 lists |
2 women |
10 men |
17% |
7 male candidates 1 female candidate |
|
January 1998 |
31 lists |
2 women |
13/11 men |
13%/18% |
23 male candidates 6 female candidates 2 no recommendation |
