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Procedure for elections held by the Parliamentary Assembly other than those of its President and Vice-Presidents

Doc. 10385
21 December 2004

Report
Committee on Rules of Procedure and Immunities
Rapporteur: Mr Rudolf Vis, United Kingdom, Socialist Group

For debate in the Standing Committee — see Rule 15 of the Rules of Procedure


Summary

Following an instruction from the Bureau of the Assembly, the Committee on Rules of Procedure and Immunities examined the procedure for the election of judges to the European Court of Human Rights. In so far as this type of election presents similarities to those of the Secretary General and Deputy Secretary General of the Council of Europe, the Secretary General of the Parliamentary Assembly and the Council of Europe Commissioner for Human Rights, the latter were also taken into account.

The draft resolution proposes that for all elections by the Assembly (other than those of its President and Vice-Presidents), in the event of a tie-vote between the candidates in the second ballot, successive ballots shall be held until one candidate obtains a relative majority.

Furthermore, an appendix to the draft resolution proposes modalities for the election procedure of judges to the European Court of Human Rights and the Council of Europe Commissioner for Human Rights.

I.          Draft resolution [Link to adopted text]

1.         The Bureau of the Parliamentary Assembly instructed the Committee on Rules of Procedure and Immunities on 6 November 2002, in conformity with Rule 65.2 of the Assembly’s Rules of Procedure, to examine the procedure for the election of judges to the European Court of Human Rights with a view to proposing changes to the Rules and Regulations.

2.         Consequently, the Assembly decides to add the following words at the end

a. of Rule 40 (b) of the Rules of Procedure:

"in the event of a tie-vote between candidates in the second ballot, successive ballots shall be held until one candidate obtains a relative majority”.

b. of Rule 47.4 of the Rules of Procedure:

“However, only members of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) and members of the ad hoc sub-committee on the election of judges to the European Court of Human Rights may attend meetings of their respective committees”.

3.         Furthermore, the Assembly approves the appended modalities for the election procedure of judges to the European Court of Human Rights and of the Council of Europe Commissioner for Human Rights.

4.         The Assembly decides that these changes shall enter into force as from their adoption by the Assembly.

MODALITIES FOR THE ELECTION PROCEDURE OF JUDGES TO THE EUROPEAN COURT OF HUMAN RIGHTS AND THE COUNCIL OF EUROPE COMMISSIONER FOR HUMAN RIGHTS

(Appendix to Resolution …. (2005))

1.         In principle, the list of candidates for the election of judges, once submitted to the Parliamentary Assembly, should not be modified. The Assembly shall only exceptionally accept partial or complete modification of the list on the initiative of the government concerned.

2.         The Assembly shall interrupt the procedure if one of the three candidates on a list for the post of judge or Commissioner for Human Rights withdraws before the first ballot. It shall ask the government concerned (in respect of judges) or the Committee of Ministers (in respect of the Commissioner) to complete the list of candidates.

3.         The Assembly confirms its practice of listing candidates for the post of judge in alphabetical order on the ballot paper. This shall also remain the practice in those cases where the government, disregarding the Assembly’s position as set out in Recommendations 1429 (1999) and 1649 (2004), has expressed a preference for one of the candidates. Any such expressions of governmental preference shall play no role in the deliberations of the ad hoc sub-committee on the election of judges to the European Court of Human Rights where only the criteria provided for in the European Convention on Human Rights and those established by the Assembly itself shall be relevant.

4.         Furthermore, the Assembly confirms that the candidates for the post of Council of Europe Commissioner for Human Rights shall be listed in alphabetical order on the ballot paper.

II.         Explanatory memorandum by Mr Rudolf Vis

A.         INTRODUCTION

1.         On 6 November 2002, the Bureau of the Parliamentary Assembly (PACE), in conformity with Rule 65.2. of PACE’s Rules of Procedure, instructed the Committee on Rules of Procedure and Immunities to examine the procedure for the election of judges to the European Court of Human Rights with a view to proposing changes to the Rules and regulations.

2.         The Assembly does not only elect judges and the Council of Europe Commissioner for Human Rights, but it also fills the three highest posts in the Secretariat by election, i.e. Secretary General and Deputy Secretary General of the Council of Europe and Secretary General of the PACE (for the details see appendix II of Doc. 9987). In so far as these types of election present similarities to that of judges, they will be taken into account for this report.

3.         A first version of the present report (Doc. 9987) was submitted to the Standing Committee in Maastricht on 25.11.2003. However, the Standing Committee decided to refer the report back to committee (Rule 37.1.d.). Subsequently a new draft report was prepared and a preliminary draft resolution was adopted on 23 June 2004 (AS/Pro (2004)9). On 6 October 2004 the rapporteur proposed to the committee to reopen the discussions on the election procedure in the Assembly. By a vote the committee agreed and the present revised report was prepared accordingly.

B.         QUESTIONS RAISED IN CONNECTION WITH ELECTIONS

4.         In connection with elections held by the Parliamentary Assembly in 2002 several questions were raised:

i.         Is it possible and until when for Governments to withdraw a list of candidates for the post of judge to the European Court of Human Rights?

ii.         What happens if one of the three candidates on a list for the post of judge or Council of Europe Commissioner for Human rights withdraws before the first ballot?

iii.         What consideration should be given to the preference expressed by governments for candidates for the post of judge to the European Court of Human Rights?

iv.         Should (a) candidate(s) with the lowest score in the first ballot withdraw from the election?

v.          What happens in case of a tie among candidates during the second ballot of an election?

vi.         Should the restricted character of meetings of the ad hoc sub-committee on the election of judges to the European Court of Human Rights be mentioned in the Rules of Procedure?

5.         Most of these matters were dealt with in a legal opinion of the Secretary General of the Council of Europe (AS/Bur (2002) 77), submitted to the Bureau of the Assembly on 6 November 2002. This opinion had been requested following a problem during the election of a judge to the European Court of Human Rights in September 2002 (see paragraphs 13 and 14 below).

C.         WITHDRAWAL OF THE LIST OF CANDIDATES FOR THE POST OF JUDGE TO THE

EUROPEAN COURT OF HUMAN RIGHTS BY THE GOVERNMENT CONCERNED

6.         A list may be withdrawn (or completely modified) by the respective government either on its own initiative or following a recommendation of the Assembly. Such withdrawal already has occurred in the past, in particular before the candidates were interviewed by the Assembly’s competent ad hoc sub-committee and also after that interview, but before the first ballot. In another case a new list was submitted after the second ballot had resulted in a tie-vote and the election procedure had been interrupted.

7.         The committee considers that after its submission to the Assembly a list of candidates should only exceptionally be withdrawn on the initiative of the respective government (e.g. when the candidates no longer are ready to stand for the election).

D.         WITHDRAWAL OF CANDIDATES BEFORE THE FIRST BALLOT

8.         If one of the three candidates on a list for the post of judge or Commissioner for Human Rights withdraws before the first ballot, the Assembly should interrupt the procedure. It should ask the government concerned (in respect of judges) or the Committee of Ministers (in respect of the Commissioner) to complete the list of candidates.

E.         PREFERENCE FOR CANDIDATES EXPRESSED IN LISTS OF CANDIDATES FORWARDED TO THE PARLIAMENTARY ASSEMBLY

9.         The Parliamentary Assembly has long requested that states submitting lists of candidates for the post of judge to the European Court of Human Rights should present them in alphabetical order (Recommendations 1429 (1999) and 1649 (2004)) and avoid expressing any official preference for a particular candidate (Recommendation 1429 (1999)). In its reply to that recommendation (Doc. 8835), the Committee of Ministers considered that it was a matter for individual states to decide in the light of their domestic procedures for nominating candidates, whether they wish to express a preference or not. The Committee of Ministers also noted that neither itself (in its examination of states' lists), nor the Parliamentary Assembly in its selection procedure, were obliged to accept the expressed preference of a state for a particular candidate.

10.       It should be noted that the Committee of Ministers has, according to the legal text governing the election procedure for the three senior posts of the Council of Europe's Secretariat, the possibility of listing the names in order of preference. However, at least since the seventies it has no longer done so.

11.       The Committee on Rules of Procedure and Immunities proposes that the Assembly confirms its practice to list candidates for the post of judge in alphabetical order on the ballot paper. This should remain the practice also when a government - disregarding the Assembly’s position as set out in Recommendation 1429 (1999) - has expressed a preference for one of the candidates. Any such expressions of governmental preference will play no role in the deliberations of the ad hoc sub-committee on the election of judges to the European Court of Human Rights, where only the criteria provided for in the European Convention on Human Rights and those established by the Assembly itself will be relevant.

12.       When the Council of Europe Commissioner for Human Rights was elected on 21 September 1999 the candidates were listed in alphabetical order on the ballot papers. This practice should be confirmed for future elections (the next one taking place in 2005).

F.         THE EVENT OF A TIE IN A SECOND BALLOT AND THE SITUATION OF CANDIDATES WITH THE LOWEST SCORE IN THE FIRST BALLOT

a.         Tied vote in a second ballot

13.       Before September 2002 a tie in a second ballot in the Assembly was an unprecedented situation (see in this connection p.5 of Doc. 9987).

14.       On 26 September 2002, the President of the Parliamentary Assembly announced the results of the second ballot in the election of a judge to the European Court of Human Rights in respect of Spain.  He said that two of the candidates had each obtained 73 votes and the third candidate 2 votes and added: "This brings us to the situation that none of the candidates has been elected. That is because the rules request a majority. The Bureau will deal with the situation because it is not foreseen in the rules. We will discuss the question in the Bureau tomorrow" (see AS (2002) CR 31).

15.       This situation prompted the Bureau first to request a legal opinion form the Secretary General of the Council of Europe (see paragraph 5 above) and secondly, to instruct the Committee on Rules of Procedure and Immunities to propose changes to the Rules and regulations governing this matter.

16.       It is recalled that following the problem raised by the afore-mentioned election the Spanish Government presented a new list of candidates and one of them was elected during the first ballot on 29 January 2003.

b.                  Candidates with the lowest score in the first ballot

17.       Currently there are no Assembly regulations or decisions from Assembly organs which foresee the possible withdrawal of candidates with the lowest score in the first ballot, when a further ballot becomes necessary.

18.       During the elections of 39 judges for the new permanent European Court of Human Rights in 1998 a second ballot took place in only one instance (judge in respect of Belgium). None of the three candidates withdrew. In April 2004 eighteen judges to the Court were elected in a single ballot (see AS (2004) PV 13).On 24 June 2004 a second ballot took place for the election of judges in respect of Luxembourg and Portugal with in both cases three candidates (AS (2004) PV 23).

19.       The practice with respect to elections of the Secretary General and Deputy Secretary General of the Council of Europe and Secretary General of the Parliamentary Assembly is as follows: during four elections of the Secretary General of the Council of Europe (15 January 1964, 8 May 1974, 8 May 1979 and 23 June 1999) there were three candidates and a second ballot was necessary. In all these cases the candidate with the lowest number of votes obtained in the first ballot withdrew his/her candidature.

20.       In the elections of the Deputy Secretary General of the Council of Europe on 3 and 4 May 1988 five candidates participated in the first ballot and three in the second ballot.

21.       Until now, no second ballot was necessary for the election of the Secretary General of the Parliamentary Assembly. When the Council of Europe Commissioner for Human Rights was elected for the first time on 21 September 1999, only one ballot took place, although there were three candidates.

c.         Proposals for solutions

22.       At several meetings the Committee on Rules of Procedure and Immunities discussed 

(i)         The holding of further ballots

23.       The afore-mentioned (see paragraph 5) legal opinion by the Secretary General of the Council of Europe had concluded that in the case of a tie a third (and if necessary further) ballot(s) should be held until a candidate obtains the relative majority.

24.       This would require that the following words be added at the end of Rule 40 (b) of the Assembly's Rules of Procedure, which governs elections in the Assembly:

"In the event of a tie vote between the candidates in the second ballot, successive ballots shall be held until one candidate obtains a relative majority. "

(ii)        Organising elections in a single ballot: the Single Transferable Vote (STV) and the Alternative Vote (AV)

25.       The STV allows to settle an election with several candidates in a single ballot. It is used in the United Kingdom for national and European parliamentary elections to vote for candidates in designated electoral areas with several representatives (normally at least three) to be elected. A sub-variant of the STV, the so-called Alternative Vote (AV), is used for electoral areas with a single representative. Detailed information on STV and AV is to be found in the brochure “Electoral arrangements of the National Assembly for Wales: issues and questions for consultation”, prepared by the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (March 2003).

26.       The principles of AV as adapted for the purposes of the election of judges to the European Court of Human Rights (and of the Commissioner for Human Rights) are:

27.       The consequences for the Assembly’s Rules of Procedure of the possible introduction of AV were described in paragraphs 38 to 40 of Document AS/Pro (2004)9.

(iii)       Proposed new conclusions in the matter

aa.        Tied votes in the second ballot

28.       Both on 30 September 2003 and on 23 June 2004 the Committee on Rules of Procedure and Immunities voted in favour of introducing AV for the election of judges to the European Court of Human Rights and the Commissioner for Human Rights.

29.       The committee noted in particular that in addition to settling an election by the Assembly with several candidates in a single ballot, the AV would eliminate the problem of the varying participation of Assembly members, when ballots were held during two different parliamentary sittings.

30.       However, a number of concerns were expressed during several committee meetings in connection with the possible introduction of AV:

31.       In these circumstances the committee should like to propose that the Assembly vote in favour of holding further ballots in the Assembly in case of a tie in the second ballot and of completing the Assembly’s Rules of Procedure accordingly (see paragraph 24 above).

bb. Candidates with the lowest score in the first ballot, if a further ballot becomes necessary

32.       The committee considers that it would be sufficient to recall the possibility for such candidates with the lowest score to withdraw from a further ballot.

G.        PROCEDURE IN THE AD HOC SUB-COMMITTEE ON THE ELECTION OF JUDGES TO THE EUROPEAN COURT OF HUMAN RIGHTS

33.       Rule 47.4. of the Assembly's Rules of Procedure specifies “Members of the Assembly may attend meetings of Committees of which they are not members but without the right to speak or vote”.  According to Rule 48.1. this principle also applies to sub-committees.

34.       The ad hoc sub-committee on the election of judges to the European Court of Human Rights (of the Assembly’s Committee on Legal Affairs and Human Rights) is due to its composition, its sensitive mandate and working methods, requiring a high degree of confidentiality, a sui generis body of the Assembly. It is in a situation comparable to the Monitoring Committee of the Assembly.

35.       The sub-committee's practice is not to authorise the participation in its meetings of Assembly representatives and substitutes who are not members of it. This is also the case for the Monitoring Committee. A footnote to Rule 47.4. of the Assembly's Rules of Procedure explicitly excludes the application of this provision to the Monitoring Committee. The ad hoc sub-committee, however, is not mentioned in that footnote.

36.       For the purpose of transparency and clarity the Committee on Rules of Procedure and Immunities proposes that the following sentence be added at the end of Rule 47.4.:

“However, only members of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) and members of the ad hoc sub-committee on the election of judges to the European Court of Human Rights, may attend meetings of their respective committees”.

H.         FINAL REMARKS

37.       The Assembly is invited to adopt the draft resolution contained in this report and the appended modalities for the election procedure.

38.       The proposed new provisions should enter into force as from their adoption by the Assembly.


Committee responsible for the report: Committee on Rules of Procedure and Immunities

Reference to committee: Bureau decision of 6 November 2002 (Rule 65.2. of the Assembly's Rules of Procedure); decision by the Standing Committee of 25.11.2003 to refer the report back to committee (Rule 37.1.d)

Draft resolution unanimously adopted on 10 December 2004

Members of the committee: Mr Serhiy Holovaty, (Chairperson), Mr GöranMagnusson, Mr Andrea Manzella, Mrs Ganka Samoilovska-Cvetanova, (Vice-Chairpersons), Mr Zekeriya Akçam, Mr Sándor Albert, Mr Gulumhuseyn Alibeyli, Mr Jozef Bernik, Mr Peter Bottomley, Mr Ioannis Bougas, Mrs Anne Brasseur, Mr Manlio Collavini, Mrs Helene D'Amato, Mrs Krystyna Doktorowicz, Mr Miljenko Doric, Mr Vangjel Dule, Mr Herbert Frankenhauser, Mrs Lene Garsdal, Mr Tihomir Gligoric, Mrs Arlette Grosskost, Mr Harald Himmer, Mr Gerd Höfer, Mr Armand Jung, Mr Erik Jurgens, Mr František Kroupa, Mr Markku Laukkanen, Mr Theo Maissen, Mr Per Erik Monsen (alternate: Mr Martin Engeset), Mrs Nóra Nagy, Mr Ionel Olteanu, Mr Alexey Ostrovsky, Mr Julio PadillaCarballada, Mr Ivan Pavlov, Mr Paulo Pereira Coelho, Mrs Sólveig Pétursdóttir, Mr Christos Pourgourides, Mrs Valentina Radulovic Šcepanovic, Mr Armen Rustamyan, Mr Yuri Sharandin, Mr Gintaras Šileikis, Mr Victor Stepaniuc, Mr Karim van Overmeire, Mr Rudolf Vis, Mr G.V. Wright.

NB: The names of those members present at the meeting are printed in bold.

Secretary of the committee: Mr Mario Heinrich.