Draft Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention

Parliamentary Assembly
Assembl�e parlementaire

Draft Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention

Doc. 10162
27 April 2004

Opinion^[1]
Committee on Equal Opportunities for Women and Men
Rapporteur: Mrs Cliveti, Romania, Socialist Group

I.          Conclusions of the Committee

1.         The Committee on Equal Opportunities for Women and Men fully supports the draft opinion presented by the Committee on Legal Affairs and Human Rights. In particular, the Committee explicitly backs the proposal in paragraph 14. iii. of the draft opinion that the Protocol should stipulate that lists of candidates for the post of judge at the Court contain at least one candidature from a person of each gender. The Committee wishes, however, to propose two amendments to further strengthen the gender aspect of the text to be adopted:

II.         Proposed amendments to the draft opinion included in Doc. 10147 tabled by the Committee on Legal Affairs and Human Rights

Amendment A

In the draft opinion, at the end of paragraph 11, add the following sentence:

“In addition, it may have the unintended effect of discriminating against female applicants to the Court, by, for example, putting a premium on financial disadvantages suffered.”

Amendment B

In the draft opinion, in paragraph 14 iv., replace the words “, and after having consulted the Parliamentary Assembly,” with the following words:

“containing at least one candidature from a person of each gender, and approved by the Parliamentary Assembly, “

III.        Explanatory memorandum by the Rapporteur, Mrs Cliveti

1.         Some colleagues in the Assembly seem to be asking themselves: why does the Committee on Equal Opportunities for Women and Men wish to give an opinion on draft Protocol no. 14? What has draft Protocol No. 14 got to do with gender equality? What can this Committee propose which has not already been proposed by the Committee on Legal Affairs and Human Rights?

2.         The fact is, Protocol No. 14 – though deceptively “technical” and solely concerned with judicial efficiency at first glance – touches on several issues of gender equality. The first relates to the gender balance (or rather, the current gender imbalance) on the Court. This is already a problem as concerns permanent judges, but it is further exacerbated by the plethora of practically all-male “ad hoc judges”. It will not improve with the introduction of “rapporteurs” – who are bound to be senior lawyers in the Registry and/or in national administrations, neither of which boast a particularly high rate of women. The second concerns the possible gender impact of such proposals as adding the additional admissibility criterion of “having suffered a significant disadvantage”. How will such a significant disadvantage be measured? In monetary terms? It is rarely women who suffer great financial losses and “disadvantages”; they are more likely to suffer discrimination and gender-based violence. How much is rape or genital mutilation “worth”? Will they constitute a “significant disadvantage” in the eyes of the Court?

3.         The Committee on Legal Affairs and Human Rights has done excellent work, for which it should be congratulated. Nevertheless, that Committee must concern itself with a wide range of legal issues and aspects when giving an opinion on draft Protocol No. 14, and cannot concentrate exclusively on the gender aspect. This is why the Committee on Equal Opportunities for Women and Men can make a valuable contribution to this debate. Gender equality is, unfortunately, not a particularly popular or fashionable concern in the circles which negotiated draft Protocol No. 14 – all the more reason to use this opportunity to remind member states that, for the Parliamentary Assembly, gender equality is a fundamental human right, and should be recognised as such when the European Convention on Human Rights is amended.

4.         As this Committee already pointed out in January 2004 in its opinion on candidates to the European Court of Human Rights[2], the gender imbalance on the European Court of Human Rights is striking. 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 President, Vice-Presidents and Section Presidents of the Court are all men.

5.         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. The High Contracting Parties to the Convention should 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 the necessary gender balance. It is thus imperative that any list of candidates include at least one candidate of each sex.

6.         This obligation should be enshrined in the Protocol No. 14 amending the control system of the Convention, as suggested by the Committee on Legal Affairs and Human Rights in paragraph 14 ii. of the draft opinion. In fact, the Committee is to be congratulated on having had the courage and the consistency to suggest that the Assembly ask the governments of the two high contracting parties (Malta and Slovakia) who presented all-male candidate lists for the election of the judges whose term of office expires on 31 October 2004 to present new lists. Nevertheless, the Assembly should not be put into the position of having to send back lists: the High Contracting Parties, many of whom have the principle of gender equality embedded in their Constitution, should not need to be prompted to respect such a basic human rights principle.

7.         In fact, the explanatory report to the draft Protocol drawn up by the CDDH adds insult to injury: not only has no provision concerning gender balance on candidate lists been inserted in the draft Protocol, but the CDDH even justifies this omission with the assertion that this “might have interfered with the primary consideration to be given to the merits of potential candidates”. As Mr McNamara has rightly pointed out in his explanatory memorandum, this line of reasoning is completely unacceptable, as it premises that in certain cases there would be no qualified women candidates. No Council of Europe member state can claim not to have a single woman in its country which would be qualified for the post of judge to the European Convention on Human Rights. In fact, in many cases, the opposite is probably true – it is a well-known fact that women, even in the legal profession, are often better-qualified than men, but are not nominated for high judicial posts because they cannot (or choose not) to take advantage of the “old boys’ network”. This theory is supported by the fact that those countries which the Sub-Committee on the election of judges to the European Court of Human Rights considers to be the ones which have taken most account of the Assembly’s recommendations relating to openness and transparency in drawing up the list of candidates, all nominated at least one woman.

8.         As the selection procedures for “ad hoc” judges are even more opaque than those of permanent judges, it is not surprising that the ratio of male/female judges is even worse among the “ad hoc” judges – of the 59 ad hoc judges who have ruled on certain cases since 1998, only seven are women[3]. The lack of democratic legitimacy of these “ad hoc” judges is striking, to the point where the validity of the Court’s judgements in these cases could be at risk. I thus agree with the idea contained in paragraph 14. iv. of the draft opinion drawn up by the Committee on Legal Affairs and Human Rights, which seeks to ensure that the Assembly is consulted on this matter. However, being consulted does not guarantee that the recommendations resulting from this consultation are actually implemented – as the story of the drafting of Protocol No. 14 itself goes to show.

9.         Article 22 of the ECHR clearly states that “the judges shall be elected by the Parliamentary Assembly”. This right of election is not one that the Assembly should suffer to be retrograded to one of mere “consultation”, even when it concerns person who “only act” as judges of the Court. I would therefore like to propose an amendment to ensure that all persons who act as judges on the Court are elected by the Assembly – it is then up to the Assembly to decide whether it wishes to proceed to a full-scale election or to settle for the “negative procedure” suggested by the Committee on Legal Affairs and Human Rights.

10.        Another problem which I can, unfortunately, only touch upon in the framework of this brief opinion, is the potential for discrimination against female applicants to the European Court of Human Rights. The ECHR itself is gender-neutral; all human beings are endowed with the same, inalienable human rights. Nevertheless, some persons will have more possibilities to ensure that their rights are respected than others, and to obtain redress when they are violated. Financial means may play a part in this equation (when it comes to paying, for example, for legal representation). Women have, on average, much less financial means at their disposal than men. This “second-class-citizens” syndrome which women often face should not be made worse by, for example, restricting access to the European Court of Human Rights further by adding the criterion of “significant disadvantage” – which is far too flexibly worded, as I already pointed out above, and may have an unintended negative impact on female applicants to the Court. I would thus like to propose an amendment to the draft opinion to ensure that nothing in draft Protocol No. 14 can have a negative impact on female applicants.

11.        In conclusion, I would like to underline once more my full support for the draft opinion presented by the Committee on Legal Affairs and Human Rights. I hope that the Assembly will accept the two amendments proposed to further strengthen the gender aspect of the text to be adopted, and I urge the Committee of Ministers to take the Assembly’s recommendations on board.

Reporting committee: Committee on Legal Affairs and Human Rights

Committee seized for opinion : Committee on equal opportunities for women and men

Reference to Committee: Request for an opinion by the Committee of Ministers, reference N� 2953

of 26 April 2004

Draft opinion unanimously adopted by the Committee on 27 April 2004

Secretaries of the Committee: Mrs Kleinsorge, Mrs Entzminger

[1] See Doc. 10147 tabled by the Committee on Legal Affairs and Human Rights.

[2] See Doc. 10048 tabled by the Committee on Equal Opportunities for Women and Men.

[3] Information provided by the Registry of the Court of Human Rights on 22 January 2004.