Doc. 10783
11 January 2006

Procedure for decisions by committees relating to candidates eligible for election by the Assembly

Letter from Mr Gross, Chairman of the Committee on Rules of Procedure and Immunities to the President of the Parliamentary Assembly

19 December 2005

Dear President,

On 3 October 2005, the Bureau decided to ask the Chairperson of the Committee on Rules of Procedure and Immunities to examine the procedure concerning the secret ballots, in committees, for decisions regarding persons, and to inform the Bureau accordingly.

Consequently I have prepared a memorandum on this issue, which is enclosed. Because of the complex procedural questions involved, I considered it useful to submit the memorandum first to the Committee on Rules of Procedure and Immunities.

At its meeting on 12 December 2005 the Committee approved my memorandum which concludes that currently two interpretations are possible when a sub-committee or a committee take a decision concerning the ranking of candidates for an election. They may then either vote by secret ballot or by show of hands.

Furthermore the Committee on Rules of Procedure and Immunities agreed that a modification of the Rules of Procedure could be useful in order to clarify the procedure in committees and sub-committees.

The Committee would be pleased to elaborate a report on such a modification should the Bureau wish to refer the matter to the Committee under Rule 65.2.

Yours sincerely

Signed:

Andreas Gross

* * *

Enclosure

Mr Ren� van der Linden
President of the Parliamentary Assembly
Council of Europe
F-67000 Strasbourg

APPENDIX

AS/Pro (2005) 24
8 December 2005
ardoc24_2005

COMMITTEE ON RULES OF PROCEDURE AND IMMUNITIES

Procedure for decisions by committees relating to candidates
eligible for election by the Assembly

Memorandum
prepared by Mr Andreas Gross, Switzerland, SOC

Summary

1.       On 3 October the Bureau asked the Chairman of the Committee on Rules of Procedure and Immunities to examine the procedure concerning secret ballots in committees for decisions relating to persons and to inform the Bureau accordingly.

2.       The Bureau and two sub-committees of the Committee of Legal Affairs and Human Rights examine regularly candidatures for various posts at the Council of Europe (e.g. judges to the European Court of Human Rights, Commissioner for Human Rights) and rank these candidates. However there is no explicit provision which says which procedure has to be followed in case there is no consensus and if a vote has to be taken.

3.       The Chairman of the Committee on Rules of Procedure and Immunities considers that two interpretations are possible of the existing Rules.

4.       Under historic considerations it could be argued that Rule 46.2 of the Assembly’s Rules of Procedure (“A Committee shall vote by show of hands”) does not apply to elections of persons and, by analogy, to the ranking of candidates. Therefore, Rule 39.10 would be relevant. By interpreting this provision extensively, it would also cover expressing a preference for candidates. Thus, a secret ballot would have to take place.

5.       On the other hand one could argue that the expression of a preference for a candidate may not be assimilated to an election or an appointment. Therefore the vote could, according to Rule 46.2 be taken by show of hands.

6.       To end this situation, it would be useful, if

a.       the Committee on Rules of Procedure and Immunities expressed itself in favour
       of one of these interpretation
b.       the procedure in sub-committees (and perhaps also in ad hoc sub-committees)
       was further clarified.

Full text

A.       Introduction

1.       On 3 October 2005 the Bureau of the Assembly decided to ask the Chairperson of the Committee on Rules of Procedure and Immunities to examine the procedure concerning secret ballots in committees for decisions related to persons and to inform the Bureau accordingly.

2.       This matter relates directly to the procedure which was followed for the election of the Council of Europe Commissioner for Human Rights and in particular to the proceedings in the sub-committee on Human Rights on 15 September 2005. That sub-committee had heard the three candidates for the post and placed them in order of preference. The decision had been voted by show of hands.

B.       General provisions regarding voting in committees and sub-committees

3.       Under Rule 48.1. of the Rules of Procedure “Except as otherwise provided in this rule, procedure in sub-committees shall follow that in committee”. There are no special provisions in this Rule governing voting in sub-committees.

4.       In conformity with Rule 46.1., except as otherwise provided, procedure in committee shall follow that in the Assembly. Rule 46.2. stipulates that voting in committee shall be by a majority of the votes cast. A committee shall vote by show of hands. Except on procedural matters, a vote shall be by roll-call if so requested by at least two members. It is also to be noted that according to Rule 45.5. elections of the committee chairperson and vice-chairpersons shall be held by secret ballot. Committees also apply this provision to the election of rapporteurs if there is no consensus.

5. Rule 39.10. stipulates that in the case of appointments, voting shall take place by secret ballot.

C.       Application of these principles to the procedure in the sub-committee on Human Rights concerning the Commissioner for Human Rights

a.       General

6.       In the present case, the sub-committee did not proceed to an election but, by a vote, expressed a preference for the candidates. The procedure for this is not explicitly dealt with in the Assembly’s Rules, neither at Assembly nor at committee level.

b.       Precedents

7.       There are certain precedents. When the Bureau establishes the list of the candidates for the post of member of the European Committee for the Prevention of Torture, it generally ranks them, sometimes differently from the order in which the candidatures were presented by national delegations to the President of the Assembly. Before 1998 this procedure was also used for the members of the European Commission of Human Rights.

8.       The Committee of Ministers may, when proposing candidates for the posts of Secretary General and Deputy Secretary General of the Council of Europe, express a preference. This has happened in the past. A subsidiary body of the Committee of Ministers examines the candidatures for the post of judge at the European Court of Human Rights before the Committee forwards a list of three candidates to the Assembly.

9.       At least for the last twenty years no cases could be found where one of these bodies has voted when expressing a preference for candidates.

10.       It may also be noted that the books “Procedure and practice” (dating from 1990) and “committee procedure” (published in the 1950s) are silent on what to do in committee for elections other than those of the chairperson, vice-chairpersons and rapporteurs, or more specifically, for expressing a preference on candidates.

c.       Evaluation

11.       With respect to the ranking of persons who are candidates for elections to be held by the Assembly, a grey zone exists concerning votes to be taken. In the view of the chairperson of the Committee on Rules of Procedure and Immunities two interpretations are possible.

12.       On one hand, it could be argued that when the first Rules of Procedure of the Assembly were drafted, there were no other elections or examinations of candidatures at committee level than those of the committee chairperson and vice-chairpersons and possibly rapporteurs where voting is by secret ballot. This would have as a consequence that the second sentence of rule 46.2, “a committee shall vote by show of hands”, could not be applied to decisions related to persons. However, Rule 46.1. would still be relevant, which refers to the procedure in the Assembly. With respect to appointments by the Assembly, Rule 39.10 is relevant. By interpreting the provision extensively, it should also cover votes expressing a preference for candidates. Thus, a secret ballot would have to take place.

13. On the other hand, one could argue that the expression of a preference for a candidate may not be assimilated to an election or an appointment. This would, via Rule 48.1., make Rule 46.2 applicable. Therefore votes in the sub-committee could be taken by show of hands.

D.       Final remark

14. It could be useful if the Committee on Rules of Procedure and Immunities expressed itself in favour of one of these interpretations and if procedure in sub-committees (perhaps also ad hoc sub-committees) was further clarified in the Assembly’s Rules. This would give appropriate guidance to the respective chairpersons in a case such as the one examined here.