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Report | Doc. 11682 | 04 July 2008
Candidates for the European Court of Human Rights
Committee on Legal Affairs and Human Rights
Summary
Among the criteria for examining candidatures to the European Court of Human Rights, the Assembly has emphasised the need to have candidates of the required level to exercise the function of judge, in accordance with Article 21 of the European Convention on Human Rights, as well as the need for gender balance.
Under the current wording of Resolution 1366 (2004) on candidates for the European Court of Human Rights, as modified by Resolution 1426 (2005), the Assembly has no choice but to reject single-sex lists if that sex is overrepresented in the Court. Automatic rejection of such a list may, in exceptional circumstances, reduce the Assembly’s ability to choose between three candidates who satisfy all the other selection criteria.
The Assembly should therefore amend paragraph 3.ii of Resolution 1366 (2004) as modified by Resolution 1426 (2005).
A. Draft resolution
(open)1. The Parliamentary Assembly
has drawn up and adopted a procedure for examining candidatures
to the European Court of Human Rights, for which it has laid down
precise criteria.
2. The Assembly attaches great importance to gender balance in
the Court and has developed criteria in order to ensure that lists
contain candidates of the sex that is under-represented in the Court.
As stated by the Court in its opinion dated 12 February 2008, “the
criterion in question derives from a gender-equality policy which
reflects the importance of equality between the sexes in contemporary
society and the role played by the prohibition of discrimination
and by positive discrimination measures in attaining that objective.
The measures concerned in the present case certainly fall into the
latter category. Moreover, there is far-reaching consensus as to
the need to promote gender balance within the state and in the national
and international public service, including the judiciary”.
3. The current wording of paragraph 3.ii of Resolution 1366 (2004) on candidates for the European Court of Human Rights
as amended by Resolution
1426 (2005) rules out the consideration of lists of three candidates of
the same sex if that sex is over-represented in the Court, regardless
of the other criteria related to the qualifications of the candidates,
and of the quality of the national selection procedure followed.
4. The Assembly therefore decides to amend Resolution 1366 (2004), as modified by Resolution
1426 (2005), by adding a new paragraph 4 to read as follows:
“The Assembly decides to consider single-sex lists of candidates of the sex that is over-represented in the Court in exceptional circumstances where a Contracting Party has taken all the necessary and appropriate steps to ensure that the list contains a candidate of the under-represented sex, but has not been able to find a candidate of that sex who satisfies the requirements of Article 21, paragraph 1 of the European Convention on Human Rights.
Such exceptional circumstances must be duly so considered by a two-thirds majority of the members casting a vote and a majority of the members entitled to vote of both the sub-committee and the Committee on Legal Affairs and Human Rights. This position shall be ratified by the Assembly in the framework of the progress report of the Bureau of the Assembly.”
5. Since the Sub-Committee on the Election of Judges to the European
Court of Human Rights has become a standing sub-committee of the
Committee on Legal Affairs and Human Rights, the Assembly also resolves to
delete the words “ad hoc” in paragraph 1 of Resolution 1366 (2004), as modified by Resolution
1426 (2005).
B. Explanatory memorandum, by Mrs Marie-Louise Bemelmans-Videc
(open)1. Introduction
1. In January 2004, the Parliamentary
Assembly adopted Resolution
1366 (2004) and Recommendation 1649
(2004). In these texts, it confirmed the need to retain the
selection procedure it established in 1996. It also emphasised the
need to have candidates of the required level to exercise the function
of judge in accordance with Article 21 of the European Convention
on Human Rights (ECHR), as well as the need for gender balance.
2. In March 2005, Resolution
1366 (2004) was amended by Resolution
1426 (2005), under which single-sex lists of candidates may be considered
by the Assembly if the sex is under-represented in the Court (under 40%
of judges).
3. Under the current wording of the resolution, the Sub-Committee
on the Election of Judges to the European Court of Human Rights
has no choice but to recommend the rejection of single-sex lists
if that sex is over-represented.
4. On 5 October 2006, I and several other members presented a
motion for a resolution (Doc. 11067) to enable the existing rule to be waived in exceptional
circumstances. At its meeting on 6 October 2006, the Committee on
Legal Affairs and Human Rights endorsed this motion, in which we
proposed adding a clause to paragraph 3.ii of Resolution 1366 (2004) as amended by Resolution
1426 (2005). The committee also appointed me rapporteur in the event
of the matter being referred to it for report.
5. Having considered the matter, the Bureau of the Assembly asked
the Committee on Rules of Procedure and Immunities to provide it
with an opinion on this subject.
6. In its opinion of 25 January 2007, the Committee on Rules
of Procedure and Immunities indicated that “given that, in Resolution 1366 (2004) as modified, the Assembly clearly defined the procedure
for examining candidatures to the European Court of Human Rights
and the criteria which the lists of candidates must meet, the procedure
cannot be changed without an official amendment to the resolution.
The Assembly itself must therefore decide on any change to the procedure,
on the basis of a new report and a new draft resolution, which would
have to be submitted to it for adoption” (see Document AS/Pro (2007)
02 revised).
7. At its meeting on 26 January 2007, after having considered
the opinion of the Committee on Rules of Procedure and Immunities,
the Bureau decided to instruct the Committee on Legal Affairs and
Human Rights to prepare a report on the basis of the above-mentioned
motion for a resolution (Doc. 11067).
8. On the same day, the matter was referred to our committee
for report and to the Committee on Equal Opportunities for Women
and Men for opinion.
9. On 17 April 2007, a draft resolution presented by our committee
(Doc. 11208) aimed at amending para graph 3.ii of Resolution 1366 (2004), as amended by Resolution
1426 (2005), was rejected by the Plenary Assembly. 
10. On 17 July 2007, the Committee of Ministers requested the
European Court of Human Rights (“the Court”) to provide, in accordance
with Article 47 of the European Convention on Human Rights, an advisory opinion
in particular on the question of the refusal by the Assembly to
consider a list of candidates for the post of judge at the Strasbourg
Court solely on the basis of gender-related issues.
11. On 12 February 2008, the Court came to the conclusion that
“in not allowing any exceptions to the rule that the under-represented
sex must be represented, the current practice of the Parliamentary
Assembly is not compatible with the Convention: where a Contracting
Party has taken all the necessary and appropriate steps with a view
to ensuring that the list contains a candidate of the under-represented
sex, but without success, and especially where it has followed the
Assembly’s recommendations advocating an open and transparent procedure
involving a call for candidatures (see paragraph 22 above), the
Assembly may not reject the list in question on the sole ground
that no such candidate features on it” and that “exceptions to the
principle that lists must contain a candidate of the under-represented
sex should be defined as soon as possible”.
12. Subsequently, I and several other members presented a new
motion for a resolution (Doc. 11532) to enable the existing rule to be waived in exceptional
circumstances. On 18 April 2008 the Bureau referred this matter
to our committee for report and to the Committee on Equal Opportunities
for Women and Men for opinion. On 2 June 2008, the committee appointed
me rapporteur.
2. Amending Resolution 1366 (2004) to take account of exceptional circumstances
13. In its reply to Recommendation 1649 (2004), the Committee of Ministers indicated that “circumstances may exceptionally arise in which, as
a result of the correct application of the other five criteria [enumerated
in paragraph 19 of the recommendation], a Contracting Party may
find itself obliged to submit a list containing candidates of only
one sex in derogation from that rule … 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” (Doc. 10506, emphasis added).
14. The Committee of Ministers therefore invited 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” (again, emphasis
added).
15. The Assembly as a whole – and its Sub-Committee on the Election
of Judges to the European Court of Human Rights in particular –
attach great importance to gender balance in the Court and have
developed criteria in order to ensure that lists contain candidates
of the sex that is under-represented in the Court. Over the years,
this consistent position has proved to be successful and the number
of women judges in the Court has significantly increased.
16. The rapporteur welcomes the Court’s support of this policy.
Indeed, the Court considers that the attempt of the Assembly “to
achieve a certain balance between the sexes or between different
branches of the legal profession on a particular list or within
the Court” is “legitimate”.
17. The Court underlines that “the criterion in question derives
from a gender-equality policy which reflects the importance of equality
between the sexes in contemporary society and the role played by
the prohibition of discrimination and by positive discrimination
measures in attaining that objective. The measures concerned in the
present case certainly fall into the latter category. Moreover,
there is far-reaching consensus as to the need to promote gender
balance within the state and in the national and international public
service, including the judiciary.”
18. These are precisely the reasons behind the requirement of
inclusion of candidates of each sex (except when the candidates
belong to the sex which is under-represented in the Court) as foreseen
by the Parliamentary Assembly in Article 3.ii of Resolution 1366 (2004), as modified by Resolution
1426 (2005).
19. However, in view of the difficulties which may be encountered
in examining a list one aspect of which leaves no procedural choice
but to recommend its rejection, whereas that aspect might exceptionally
be justified taking account of compliance with the other criteria
for the selection of judges laid down by the Assembly, consideration
should be given to providing for an exception to the rule.
20. If taken to the extreme, complying with one of the criteria
laid down by the Assembly in its procedure for the selection of
judges may have the contrary effect of preventing compliance with
the other selection criteria.
21. In this connection, attention should be drawn to paragraph
49 of the explanatory report on Protocol No. 14 to the European
Convention on Human Rights, according to which “it was decided not
to amend the first paragraph of Article 22 to prescribe that the
lists of three candidates nominated by the High Contracting Parties should
contain candidates of both sexes, since that might have interfered
with the primary consideration to be given to the merits of potential
candidates. However, Parties should do everything possible to ensure
that their lists contain both male and female candidates”.
22. Furthermore, in its opinion to the Committee of Ministers
on 12 February 2008, the Court indicated that “in not allowing any
exceptions to the rule that the under-represented sex must be represented,
the current practice of the Parliamentary Assembly is not compatible
with the Convention: where a Contracting Party has taken all the
necessary and appropriate steps with a view to ensuring that the
list contains a candidate of the under-represented sex, but without
success, and especially where it has followed the Assembly’s recommendations
advocating an open and transparent procedure involving a call for
candidatures (see paragraph 22 above), the Assembly may not reject
the list in question on the sole ground that no such candidate features
on it” and that “exceptions to the principle that lists must contain
a candidate of the under-represented sex should be defined as soon
as possible”.
23. When a state has done everything possible to include members
of the under-represented sex in the list of candidates – but without
success because of the requirement to satisfy the other criteria
– and is able to prove this with objective and reasonable explanations,
the Assembly should reserve the right, under strictly defined conditions
and in truly exceptional circumstances, to accept the list.
24. The state concerned will have to prove it has taken all the
necessary and appropriate steps to ensure that the list contains
a candidate of the under-represented sex, but has not been able
to find a candidate of that sex who satisfies the requirements of
Article 21, paragraph 1, of the ECHR.
25. The rapporteur expects the criteria defined by the Assembly
– a number of which have been recognised as such by the Court –
to be fulfilled by the candidates. These criteria might also be
enhanced by the Assembly in the future.
–
to be fulfilled by the candidates. These criteria might also be
enhanced by the Assembly in the future. 26. There is a clear hierarchy among the various criteria for
office. The Court recognises that the Assembly has a certain latitude
in taking into account additional criteria, yet it is obvious that
the requirements of Article 21, paragraph 1, remain the sine qua non. The
Court rightly notes that even though “the Contracting Parties have,
admittedly, accepted the principle of nominating candidates of the
under-represented sex at the Court”, the obligation is “one of means,
not of outcome”.
yet it is obvious that
the requirements of Article 21, paragraph 1, remain the sine qua non. The
Court rightly notes that even though “the Contracting Parties have,
admittedly, accepted the principle of nominating candidates of the
under-represented sex at the Court”, the obligation is “one of means,
not of outcome”. 27. Automatic rejection of such lists would mean reducing the
Assembly’s ability to choose between three candidates who satisfy
the other selection criteria. Each of the candidates on the list
must satisfy the conditions under Article 21, paragraph 1, so as
to ensure that the Assembly has a real choice. Any automatic requirement
to include a female or a male candidate on a list, even if none
of the potential female or male candidates satisfied the relevant
criterion, would have the effect of reducing the Assembly’s choice
and would be contrary to the spirit of the rules requiring gender
balance on the list.
Any automatic requirement
to include a female or a male candidate on a list, even if none
of the potential female or male candidates satisfied the relevant
criterion, would have the effect of reducing the Assembly’s choice
and would be contrary to the spirit of the rules requiring gender
balance on the list.28. In exceptional circumstances justifying corresponding action,
the decision by the sub-committee to accept a list of the kind in
question should be approved by a two-thirds majority of the members
casting a vote and a majority of the members entitled to vote of
both the subcommittee and the Committee on Legal Affairs and Human
Rights. This position shall be ratified by the Assembly in the framework
of the progress report of the Bureau of the Assembly (after approval
by the Bureau). Furthermore, in such exceptional circumstances, the
Sub-Committee on the Election of Judges to the European Court of
Human Rights could envisage inviting the Chairperson of the Committee
on Equal Opportunities for Women and Men or his/her representative
to take part as an observer (with no right to vote) in a possible
exchange of views with the chairperson of the Assembly national
delegation concerned.
3. Need for a technical amendment of Resolution 1366 (2004)
29. The Sub-Committee on the Election
of Judges to the European Court of Human Rights was an ad hoc sub-committee
until October 2007. It is now a permanent subcommittee (see footnote
to Rule 48.6 in the Rules of Procedure of the Assembly, Strasbourg
2008, p. 72, and Document AS/Jur/Cdh (2008) 05).
30. It therefore appears necessary to amend Resolu tion 1366 (2004),
as modified by Resolution
1426 (2005), accordingly.
4. Proposal
31. The Assembly should therefore
amend Resolution 1366
(2004) as modified by Resolution
1426 (2005) by:
i. deleting the words “ad hoc” in paragraph 1;
ii. adding a new paragraph 4 to read as follows:
“The Assembly decides to consider single-sex lists of candidates of the sex that is over-represented in the Court in exceptional circumstances where a Contracting Party has taken all the necessary and appropriate steps to ensure that the list contains a candidate of the under-represented sex, but has not been able to find a candidate of that sex who satisfies the requirements of Article 21, paragraph 1, of the European Convention on Human Rights.
Such exceptional circumstances must be duly so considered by a two-thirds majority of the members casting a vote and a majority of the members entitled to vote of both the sub-committee and the Committee on Legal Affairs and Human Rights. This position shall be ratified by the Assembly in the framework of the progress report of the Bureau of the Assembly.”
Reporting committee: Committee on Legal Affairs and Human Rights.
Reference to committee: Doc. 11532 and Reference No. 3434 of 18 April 2008.
Draft resolution unanimously adopted by the committee on 24 June 2008.
Members of the committee: Mrs Herta Däubler-Gmelin (Chairperson), Mr Christos Pourgourides, Mr Pietro Marcenaro, Mrs Nino Nakashidzé (Vice-Chairpersons), Mr Miguel Arias, Mr José Luis Arnaut, Mrs Meritxell Batet, Mrs Marie-Louise Bemelmans-Videc, Mrs Anna Benaki, Mr Erol Aslan Cebeci, Mrs Ingrida Circene, Mrs Alma Čolo, Mr Joe Costello, Mrs Lydie Err, Mr Valeriy Fedorov, Mrs Mirjana Ferić-Vac, Mr Aniello Formisano, Mr György Frunda, Mr Jean-Charles Gardetto, Mr József Gedei, Mrs Svetlana Goryacheva, Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin Hakl, Mr Andres Herkel, Mr Serhiy Holovaty, Mr Michel Hunault, Mr Rafael Huseynov, Mrs Fatme Ilyaz, Mr Kastriot Islami, Mr Željko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques, Mr Karol Karski, Mr András Kelemen, Mrs Kateřina Konečná, Mr Eduard Kukan, Mr Oleksandr Lavrynovych (alternate: Mr Ivan Popescu), Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger, Mr Humfrey Malins, Mr Andrija Mandić, Mr Alberto Martins, Mr Dick Marty, Mrs Assunta Meloni, Mr Morten Messerschmidt, Mrs Ilinka Mitreva, Mr Philippe Monfils, Mr Felix Müri, Mr Philippe Nachbar, Mr Fritz Neugebauer, Mr Tomislav Nikolić, Mr Anastassios Papaligouras, Mr Ángel Pérez Martínez, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr John Prescott, Mr Jeffrey Pullicino Orlando, Mr Valeriy Pysarenko, Mrs Marie-Line Reynaud, Mr François Rochebloine, Mr Francesco Saverio Romano, Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Christoph Strässer, Lord John Tomlinson, Mr Mihai Tudose, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Vasile Ioan Dănuţ Ungureanu, Mr Øyvind Vaksdal, Mr Hugo Vandenberghe, Mr Egidijus Vareikis, Mr Klaas de Vries, Mr Dimitry Vyatkin, Mrs Renate Wohlwend, Mr Marco Zacchera, Mr Krzysztof Zaremba, Mr Łukasz Zbonikowski.
NB: The names of the members present at the meeting are printed in bold.
See 31st Sitting, 30 September 2008 (adoption of the draft resolution, as amended); and Resolution 1627.