22 April 2005
Candidates for the European Court of Human Rights
Recommendation 1649 (2004)
Reply from the Committee of Ministers
adopted at the 924th meeting of the Ministers’ Deputies (20 April 2005)
1. The Committee of Ministers has carefully considered Parliamentary Assembly Recommendation 1649 (2004) on candidates for the European Court of Human Rights. It wholeheartedly endorses the Assembly’s position as expressed in paragraphs 1 to 9 of the Recommendation, underlining in particular the crucial importance of judicial independence and the role of the selection procedure in guaranteeing it.
2. With regard to the points made by the Assembly in paragraphs 10 and 11 of the Recommendation concerning the employment conditions and social cover of judges, the Assembly will have noted that the Committee of Ministers, on 15 December 2004, having examined these questions carefully, adopted Resolution Res(2004)50 which repeals and replaces Resolution (97) 9 and which entered into force on 1 January 2005.
3. With regard to the Assembly’s preference for a non-renewable term of nine years, (paragraphs 13 and 21 of the Recommendation), the Committee of Ministers notes that this has now been provided in Protocol No. 14 to the European Convention on Human Rights and seizes the occasion presented by this reply to reiterate its determination that the Protocol should be swiftly signed and ratified by all Parties so that its provisions may come into force as soon as possible. With regard to the preservation of the legitimate expectations of the judges in office, the Committee draws attention to the transitory arrangements adopted in order to ensure a smooth and equitable passage from the former arrangement to the new one.
4. The Committee agrees with the Assembly that the governments of Contracting Parties have the responsibility (paragraphs 14 and 15) to ensure that national procedures are engaged in a timely manner to replace judges reaching retirement age or in other situations where judges need to be replaced before the expiry of their term. Indeed, the Assembly’s position is duly reflected in paragraph 54 of the Explanatory Report to Protocol No. 14, where it is stressed that lists of candidates should as a rule be submitted at least six months before expiry of the term of office.
5. With regard to paragraph 17, concerning domestic procedures for the selection of candidates for election to the Court, the Committee of Ministers underlines that what the Assembly characterises as its “reluctance to comment” should more properly be interpreted as a clear acceptance of the basic principles but a reluctance to be excessively prescriptive concerning the precise means of their implementation so as to allow for differences of national systems and the exercise of sovereignty. It should be recalled that in its reply to Recommendation 1429 (1999), the Committee specified that national procedures should respond to criteria of fairness, transparency and consistency. Furthermore it has made a point, during its informal procedure in respect of the candidates submitted for the second partial renewal of the Court (February–March 2004) of inviting delegations to provide information about their national procedures.
6. It is in this spirit that the Committee of Ministers takes note of the six criteria in paragraph 19 of the Recommendation and invites the governments of Contracting Parties to make every attempt to meet them when preparing lists of candidates for election to the Court. However, it considers that criterion iii. (i.e. “that every list contains candidates of both sexes”) should be assessed against the background of paragraphs 7 to 9 below, and that criterion v. (“that the names of candidates are placed in alphabetical order”) should not be regarded as preventing an independent body involved in the national nomination process from offering its views as to the relative merits of the three listed candidates.
7. Having regard to the Assembly’s proposals for revision of the Convention (paragraph 21), the Assembly has already taken note of the fact that the Committee of Ministers chose not to implement the proposal to amend Article 22 of the Convention in order to provide that lists contain at least one candidate of each sex. The Committee of Ministers, recalling its constant position originally expressed as early as May 1997, wishes to make it clear that it fully shares the Assembly’s determination to secure a proper balance of the sexes in the composition of the Court and agrees therefore that lists of candidates should as a general rule contain at least one candidate of each sex.
8. The Committee nonetheless believes that circumstances may exceptionally arise in which, as a result of the correct application of the other five criteria, a Contracting Party may find itself obliged to submit a list containing candidates of only one sex in derogation from that rule, and that it would therefore be undesirable to give such a rule binding force under the Convention. In this context, the Committee draws attention to the danger that such an obligation could under certain circumstances give rise to difficulties in satisfying the requirements of Article 21 of the Convention.
9. The Committee of Ministers therefore invites the Assembly to consider the possibility of modifying its own rules in order to allow exceptional derogation from the rule where the authorities of the Contracting Party concerned present convincing arguments to the Committee of Ministers and the Assembly to the effect that, in order to respect the requirements concerning the individual qualifications of candidates, it could not do otherwise than to submit a single-sex list. The Committee stands ready to discuss this matter with the Assembly should the latter so wish.