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

Doc. 10461

1 March 2005

Candidates for the European Court of Human Rights

Opinion¹

Committee on Equal Opportunities for Women and Men

Rapporteur: Mrs Vera Oskina, Russia, European Democrat Group

I.       Conclusions of the Committee

1. The Committee on Equal Opportunities for Women and Men welcomes the initiative of the Committee on Legal Affairs and Human Rights to take affirmative action in order to reach more of a gender balance in the European Court of Human Rights. The Committee thus fully supports the draft resolution presented.

II.        Proposed amendment to the draft resolution contained in Doc. 10454 tabled by the Committee on Legal Affairs and Human Rights.

2. In paragraph 3, replace “43” with “44”.

III.       Explanatory memorandum by the Rapporteur, Mrs Oskina

3. The gender imbalance on the European Court of Human Rights remains striking²: there are only 11 female judges to 33 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, Croatia, “the former Yugoslav Republic of Macedonia”, Bulgaria, San Marino, Austria, Sweden, Armenia, Bosnia and Herzegovina and Germany. The President, Vice-Presidents and Section Presidents of the Court are all men.

4. As Mrs Cliveti already pointed out in her opinion on the same subject one year ago, women are traditionally under-represented (or even unrepresented) on international judicial bodies. This gender imbalance has been identified as a threat to their legitimacy and authority. This is the reason why 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 this gender balance. Accordingly, in January 2004, the Parliamentary Assembly decided only to examine lists of candidates which include at least one candidate of each sex³.

5. Since the creation of the new Court of Human Rights in 1998 until the adoption of Resolution 1366 (2004), 68 elections of judges⁴ took 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 the appendix 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.

6. Since the adoption of Resolution 1366 (2004), 22 elections of judges have taken place, and 26 lists have been submitted by the High Contracting Parties. The composition of the candidate lists submitted has changed significantly: only 2 High Contracting Parties (Slovakia and Malta) submitted lists composed exclusively of men (8%), and these lists were not considered by the Assembly in accordance with the provisions of Resolution 1366 (2004). In fact, while Slovakia duly submitted a new list (and a Slovakian judge was thus elected in October 2004), Malta has yet to do so. This is extremely problematic, seeing as the term of office of the Maltese judge, Mr Bonello, expired on 31 October 2004. One list submitted (Latvia) was composed exclusively of women (4%) – the Assembly has decided not to consider this list until the desirability of affirmative action is clarified by the Assembly during the March 2005 Standing Committee meeting.

7. Most lists submitted by the High Contracting Parties included one woman and two men (84%) and 1 list (4%) included two women and one man. This means that the great majority of lists submitted still had a majority of male candidates (92%), as the gender-disaggregated statistics in Appendix I show. However, since April 2004, the Parliamentary Assembly has had the choice of electing a female judge every time it proceeded to an election. Five female judges were elected during this period⁶ (23%), so that the gender balance (or rather imbalance) has stayed the same on the Court during the last year.

8. Sadly, in April 2004, the Sub-Committee on the Election of Judges had the impression that “in a few cases, a woman was put on the list only to fulfil the gender criteria”⁷. This is surprising, as there is no lack of qualified female candidates. One wonders whether, in these cases, the cause may not be an opaque, not to say unfair, selection procedure for candidates on the national level, with the High Contracting Parties abusing the gender criteria in order to maximise the chances for their preferred (male) candidate.

9. You may remember that the Court also employs “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. As Mrs Cliveti pointed out in her opinion in January last year, the gender balance of the Court was even more perturbed by the 59 ad hoc judges who have ruled on certain cases since 1998, only seven of whom women⁸. In 2004, 11 “ad hoc judges” were appointed in cases pending before the Court, 3 of whom are women (27%)⁹.

10. In view of the persisting gender imbalance on the Court, aggravated as it is by the “ad hoc judges”, the question can be legitimately raised whether affirmative action should not be envisaged by the Parliamentary Assembly. As a minimum: should lists submitted by the High Contracting Parties which contain only female candidates be rejected in the same way as those containing only male candidates? The Committee on Legal Affairs and Human Rights proposes that the provisions of Resolution 1366 (2004) be revised in order to allow such lists to be considered, to ensure that the procedure set up by the Assembly itself is not contrary to its purpose of achieving a more balanced representation of both sexes on the Court.

11. I agree wholeheartedly with this suggestion, which I consider to be only the first step in a row of possible steps promoting more of a gender balance on the European Court of Human Rights. The Assembly should continue to monitor the composition of candidate lists submitted by the High Contracting Parties, the number of male and female judges it elects to the Court, as well as the number of male and female “ad hoc judges” working for the Court. Should the gender imbalance not show any sign of redressing itself in the years to come, the Assembly will have to consider introducing more affirmative action, such as obliging High Contracting Parties to submit lists containing at least two candidates of the under-represented sex on the Court.

IV. Appendix:        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
January 2005	Serbia and Montenegro	1	2	Male candidate	Male
October 2004	Slovakia	1	2	Male candidate	Male
June 2004	Luxembourg Portugal	1 1	2 2	Male candidate Male candidate	Male Male
April 2004	Belgium Croatia Czech Republic Estonia Finland France Germany Greece Iceland Ireland Liechtenstein Lithuania Malta Netherlands Norway Poland Portugal Russia Slovakia Sweden United Kingdom	1 2 1 1 1 1 1 1 1 1 1 1 0 1 1 1 0 1 1 1 1	2 1 2 2 2 2 2 2 2 2 2 2 3 2 2 2 3 2 2 2 2	Female candidate Female candidate Male candidate Female candidate Male candidate Male candidate Female candidate Male candidate Male candidate Male candidate Male candidate Female candidate No recommendation Male candidate Male candidate Male candidate No recommendation Male candidate No recommendation Female candidate Male candidate	Female Female Male Male Male Male Female Male Male Male Male Female No election Male Male Male No election Male No election Female Male
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 Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Ireland Italy Latvia Lithuania Luxembourg Malta Moldova Netherlands Norway Poland Romania Slovak Republic 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

Reporting committee: Committee on Legal Affairs and Human Rights.

Committee seized for opinion: Committee on Equal Opportunities for Women and Men

Reference to Committee: Doc 10377, reference N° 3039 of 24 January 2005

Opinion unanimously adopted by the Committee on 28 February 2005

Secretaries of the Committee: Mrs Kleinsorge, Mrs Affholder, Ms Devaux

¹ See Assembly Doc. 10454 tabled by the Committee on Legal Affairs and Human Rights.

² Although less so than on other international judicial bodies.

³ See paragraph 3 ii. of Resolution 1366 (2004) on candidates to the European Court of Human Rights. The Assembly already recognised in 1996 that a balanced representation of the sexes on the European Court of Human Rights was an important goal (see Order 519 (1996) on the procedure for examining candidatures for the election of judges to the European Court of Human Rights), and insisted on the inclusion of women on the candidate lists (see Recommendation 1429 (1999) on national procedures for nominating candidates for election to the European Court of Human Rights).

⁴ These 68 elections concerned the initial elections to the new Court in 1998, and subsequently the partial renewal of the Court.

⁵ You will find gender-disaggregated statistics and a diagram showing the composition of candidate lists in Appendix I to this opinion.

⁶ The Sub-Committee on the Election of Judges recommended the election of a sixth female judge (in respect of Estonia), one of the few recommendations the Assembly did not follow.

⁷ AS/Jur.CdH (2004) 4, p. 2.

⁸ Information provided by the Registry of the Court of Human Rights on 22 January 2004.

⁹ Information provided by the Registry of the Court of Human Rights on 9 February 2005.